The Justice Game

by Geoffrey Robertson

  The evidence quickly destroyed the official claim that anyone was ‘under pressure in a fast-moving battle’. There had been no battle, and no confusion at all, said army officers who had been on the ground, until the maverick hit. Then came the air controllers – Pearce and McSkimming and Evans – the men the Pentagon insinuated were really to blame. I had instructions to find out the truth so I cross-examined them critically, but their accounts gelled and had support from notes they made at the time. These men had demonstrably followed CAS procedures for all flights to this particular target: for some reason, the A-10 pilots alone had completely ignored the instructions. If McSkimming had not asked what they were up to – and then where they were up to it – they might have gone on shooting missiles at the British column, as if knocking down a row of coconuts at a fair. It was impossible to ignore the evidence of the senior British Air Liaison Officer in the Gulf, who confirmed that the pilots had ‘flouted CAS procedures’ and had acted ‘neither adequately nor correctly’. They seemed to have treated the verbal description of the target given to them by Benji as clearance to fire on a totally different target. He said that by no stretching of the rules of aerial combat could this be countenanced. ‘The A-10s had no authority to select their own target, except at a grid reference.’

  The evidence was pointing to gross negligence. It was vital for the pilots to make some sort of appearance, if only by radio, to answer for their conduct. The coroner, initially reluctant to offend the Americans, had changed his mind, and criticism of their non-appearance had erupted in the media. All we heard from the pilots came second-hand, from another British officer who had been stationed in the USAF command centre. He had there made the fatal request for another mission to follow up Benji and his F-16s. The US controllers said they had two A-10s which had been stooging around for two and a half hours without success, so this officer wrote down the grid references of the target and listened while a US controller read them to the pilots. (So they had grid references twice – once from the American command, and then later from McSkimming.) The officer described hearing the lead pilot’s voice. ‘This was a pilot who wanted something to happen quickly. It was a voice that was not relaxed. It was irritable. They wanted to get on with things.’

  The important thing was that they had acknowledged, tersely, the correct grid reference and they had an INS which would take them precisely to that target – a few Iraqi tanks in their ditches. How did they end up twenty kilometres away, shooting up a column of fifty British armoured vehicles? The next witness, an air liaison officer, volunteered an explanation: ‘Maybe they thought kill zone conditions were still operating.’ The ‘kill zone conditions’ had operated in the early weeks of Desert Storm, when pilots were permitted to select and destroy their own targets in Iraqi areas hundreds of miles from allied troops. The ‘kill zone’ rules had been suspended once the invasion of Iraq began. I put to him: ‘They had been briefed that there were friendly forces no more than ten kilometres away. It would be staggeringly negligent to use “kill zone” procedure in an area where there are friendly forces?’ That question hung in the heavy air: this witness was the airman who had ordered up the transport for the dead and the wounded. He just looked at the jury with a face haunted by the memory, and slowly nodded his head.

  At the end of his evidence at Oxford it was midday in Washington. Malcolm Rifkind was shortly to lunch with his opposite number, Dick Cheney. He had a letter from the parents which his office had promised the press he would discuss with the US Defence Secretary. The MOD had presumably briefed him on the day’s damning evidence: as a QC, Rifkind should have known the importance to justice in this country of having the Pentagon arrange for one of the A-10 pilots to answer questions. I have no idea what happened: Cheney snorted afterwards that there was no way he was going to make the pilots available for a ‘media circus’ (this from an American) while Rifkind was reported as saying ‘The Americans are handling the affair sensitively’.

  It should be recorded that the MOD knew the identity of these pilots, and in breach of the coroner’s rules it withheld the names from the inquest. This was at the request of the Pentagon, which feared it would subject them to ‘unwarranted public scrutiny’. (Since they had killed nine men, some public scrutiny might have been warranted.) It would also deter ‘uninhibited testimony’ about other deadly mishaps – an admission, in effect, that the pilots would be in danger of incriminating themselves if they testified. It is interesting to note the Pentagon’s volte face shortly after the inquest, when it identified and court-martialled pilots of an AWACS plane whose negligence led to the shooting down of two helicopters over Northern Iraq and the loss of twenty-six lives. The principal difference was that the lives lost were those of American officers, not British squaddies.

  The evidence concluded on a Wednesday afternoon. The inquest was adjourned for several days, and the coroner called the Pentagon with a last request that a pilot be made available by video or radio link. The request was declined in an arrogant response which falsely stated that their ‘additional evidence would be of no relevance to your inquest’. The sadness and stupidity of the Pentagon’s approach was that the families were as forgiving a group as I have ever met. I have no doubt that had an A-10 pilot turned up to apologise for making an appalling mistake, they would actually have embraced him. These pilots did not even have to attend in person or identifiably: they could have given evidence by video or radio from their base to the coroner’s court, remaining unnamed and unseen. There could be only one reason why they and their commanders declined even this minimum option.

  On the last day, we asked the coroner to leave open to the jury the possibility of returning a verdict of ‘unlawful killing’ – not murder, but manslaughter by gross negligence. The CAS rules for aerial warfare were as well known as the Highway Code – do not attack without using target coordination and ‘if in doubt, don’t shoot’:

  The A-10 pilots, told friendly forces were in the target vicinity as close as ten kilometres, launched a lethal attack without heeding, let alone checking, the target coordinates given them. The pilots must have known that they were contravening a fundamental rule by making a CAS attack without target coordinates and must as a consequence have known of the risk involved to friendly forces, but nevertheless attacked without checking with the British controller, who was but a flick of the radio switch away. It follows that a verdict of ‘unlawful killing’ must be left to the jury. To withdraw it would be a boon to every hit-and-run motorist, who might be led to think that by staying away from an inquest he could obtain a verdict of ‘accidental death’.

  The coroner – and for this the families were grateful – allowed the jury to listen to my submission before summing up. His directions favoured ‘accident’ or an open verdict, but at least left ‘unlawful killing’ as a possibility, if the jury were satisfied ‘beyond reasonable doubt’ (he stressed) ‘that the pilots acted in a way that would have created an obvious and serious risk to friendly forces, and either they gave no thought to the possibility of that risk or if they did, chose to ignore it’.

  Spending all the adjournments with the parents, in a smoke-filled back room, I had sensed how the case for unlawful killing, at first unanswered and then unanswerable, had become a psychological necessity: they needed that verdict in order to bury with dignity the memory of their sons. Relatives of murder victims have a similar psychological need to attend the trial, despite the gruesomeness of the evidence, in order that they may cease mourning once a defendant is convicted and jailed. Where there has been no trial the inquest must offer a substitute, becoming a place of catharsis where the dead may be put to rest with the dignity that comes from a determined search for the truth. The families needed to purge their bitterness after the deaths of their sons had been trivialised by being wrongfully excused by the ‘fog of war’.

  The jury did not let them down: it delivered the verdict of ‘unlawful killing’: aerial manslaughter, by gross negligence. It was a tr
ue verdict, and the parents’ battle to obtain it was heroic because it was fought against two governments determined that it should not come out.

  The families hugged one another, their tears the most joyful they had shed since the knocks on their doors by army messengers in the early morning of 27 February 1991, fifteen months before. They heard the coroner say he was satisfied that they had not been ‘properly or sympathetically informed’ of the facts surrounding the deaths and he promised to pass on their recommendation that no joint military action should again be taken with the Americans unless they first agreed to cooperate with inquests held in Britain. The families had one final formality which they had thought to do whatever the verdict: they presented a red rose to each juror.

  Counsel must not get tangled up in their clients’ emotions – that is for solicitors, for campaigners and for support groups. But privately I was elated by this verdict because I knew how much it would mean to the families. I had held no brief for the American pilots: had I done so, with clients who condescended to come to Oxford, I might have thought differently and so might the jury. So, certainly, would the families. They wanted only the truth, and had it been offered by the pilots, in person and apologetically, that would have been the end of their quest. There was much talk about whether civil actions and financial compensation and even criminal prosecutions should follow from the inquest verdict, but the families did not want anything further. They had made their point, and if not the Pentagon made it for them, by the statement it issued immediately after the verdict: ‘It is obvious that a terrible accident occurred in the fog of war on the battlefield.’

  The American military publicly pretended not to understand, but the inquest verdict sent a message which shocked the political and military establishments of both nations, because it contravened their certainty that these things happen in the fog of war. It rejected the fatalism of Sir Peter de la Billière, British commander of ‘Desert Storm’, in his condolence letter to the parents: ‘Careful arrangements were made to prevent just this sort of tragedy, but I am afraid the risk is always present in the confusion of war.’ General Sir Peter Inge, the Commander-in-Chief of the British Army of the Rhine, wrote to them in the same vein: ‘sadly such mistakes are bound to happen’. But they are not. The fog of war does not excuse negligence: it lessens the standard of liability, but never removes it completely. The question always depends on what standard of care is appropriate in the circumstances. An army surgeon operating under bombardment in a makeshift hospital is not expected to display the calm professional judgment required of a consultant undertaking the same operation at Guy’s, but he must not act with gross negligence. A general with the lives of men in his hands, and a pilot with the lives of men at his fingertips, must not use that power recklessly. There are rules for driving in fog, and there are rules for driving in the fog of war. It was the achievement of the ‘friendly fire’ parents to vindicate the simple idea that the rules for the conduct of war, devised to prevent accidents, should not be recklessly disobeyed – otherwise, mistakes are bound to occur.

  In the Observer, Michael Ignatieff wrote of this inquest perceptively:

  The fog of war argument is a form of the highest cynicism. It says it doesn’t really matter how someone dies once they are dead. It says the truth is never to be found on a battlefield. It says justice is for lawyers, not for soldiers. Small wonder the women believed they were pitting the logic of their grief against the logic of an officer class which, in ceaselessly repeating that accidents will happen, was saying in effect that their sons were no more than cannon fodder.

  Even in war, the legal rules which nail human responsibility to a standard of care should never be forgotten. To invoke them may be unseemly, raining the tears of parents on the victory parades of generals. That was how it seemed at the beginning of the inquest, but by the end few who had heard the evidence could disagree with the verdict. The ‘fog of war’ argument had lifted in the court, and the verdict may have done something to dissolve it forever.

  Chapter 15

  UK Ltd: The Matrix Churchill Trial

  Truth is a difficult concept.

  Ian McDonald, MOD

  Half the picture can be true.

  Sir Robin Butler, Cabinet Secretary

  I quite simply misled myself on what I thought the situation was.

  Eric Beston, DTI

  Something I was not aware had happened turned out not to have happened.

  John Major, Prime Minister

  Paul Henderson, the managing director of Matrix Churchill, a manufacturing company in Coventry, had been committed for trial with two of his executives, on charges of being knowingly concerned in the exportation to Iraq of machine tools programmed to make bombs and rockets, with intent to evade the legal prohibition on such exports. Their destination, over the three years before Iraq invaded Kuwait in August 1990, was the Nassr armaments factory outside Baghdad on the road to old Babylon’s ‘Hanging Gardens’. The offences carried a maximum sentence of seven years’ imprisonment and after reading the thousands of pages of prosecution evidence, I thought it likely that Mr Henderson would receive three to five years inside.

  Usually, I manage to suspend disbelief until meeting the defendant, but something about these papers carried conviction. Government policy prohibited the export of machine tools ‘specially designed’ to make weapons, but the Department of Trade and Industry (DTI) said it had been fooled by the company’s licence application which described them as destined ‘for general engineering purposes’. Henderson knew this was not the full truth, since they were going to munitions factories to make munitions. It was alleged he had given the incriminating order which customs officers had found written in a Matrix Churchill file: ‘Nothing military to be stated’. The DTI Minister, Alan Clark, had apparently been fooled as well, at a meeting with Henderson in January 1988. In a witness statement about that meeting, he said: ‘The advice I gave to the machine tool manufacturers was based upon the assumption that the exports were intended for civil application.’ So R v Henderson seemed an open and shut case, and an important one. Customs described it as a ‘flagship case’ and I could only envy their counsel, Alan Moses QC, bringing to justice a businessman clever enough to deceive ministers and DTI officials while flying back and forth to Baghdad to superintend the installation of his machine tools in the arms factories. There was extremely prejudicial evidence that bombs made by Matrix Churchill had been found on battlefields where British soldiers had fallen: once the jury heard that it would be the end of any chance of acquittal. I did not think I would like Mr Paul Henderson. He seemed, from these voluminous prosecution papers, to be the very model of a modern merchant of death.

  Two assumptions made me presume Paul’s guilt. The first was that although customs occasionally became confused (like everybody else) about pornography, I credited them with the ability to know an unlawful export when they saw it. More importantly, I did not actually believe that the British government lied. Not like that, straight out, to Parliament and the public, and over a period of years. On 29 October 1985, the Foreign Secretary, Sir Geoffrey Howe, had promulgated ‘guidelines’ which seemed pellucidly clear. Britain would not supply, either to Iraq or Iran, defence-related equipment which would ‘significantly enhance the capability of either side’. After the Iran/Iraq war fizzled to an uneasy truce in August 1988, Parliament was still routinely assured that the Howe guidelines remained in force. Yet British machine tools – worth hundreds of millions of pounds – had over this period been exported to establish an indigenous rocket- and bomb-making industry in Iraq. On any view, this was a very significant enhancement of Iraq’s military capability, and it was going to be difficult to mount a defence which pivoted upon the proposition that the British government had connived at such a massive breach of rules they had regularly promised Parliament they were strenuously enforcing.

  But Paul Henderson claimed that HMG must have known what he was up to, for the simple reason that he had
told them. He had been working for MI6, spying on the arms factories he visited in Iraq and revealing the information at debriefing sessions with his MI6 controller, a man who had used the pseudonym ‘John Balsom’. He was not the first client to have instructed me of a connection with MI6 – several have believed the intelligence services to be sending lasers into their brain, and have wanted to obtain an injunction against them. But he produced the only trail that MI6 had left, to back up his story: records of the security guards at the Matrix Churchill gate, showing that a ‘Mr Balsom from the DTI’ had regularly come to visit him. Clutching this thin reed, I suspended disbelief. There was one other reason: the whole-hearted devotion of Kevin Robinson, a respected Sheffield solicitor, to the innocence of Paul Henderson. ‘He’s not what you might expect from reading the prosecution papers,’ explained Kevin, anxious to arrange an early meeting. ‘I think you’ll like him.’

  I did like Paul Henderson, from the start, for much the same reasons as it later emerged that MI6 liked him. He was open about all he had done, and humble to the point of dismissiveness about his bravery in Iraq. He had made the moral accommodation necessary to keep one thousand Coventry workers in skilled work, based on an intimate knowledge of the machine tools in question. He had been apprenticed to work these lathes and grinders and milling devices from the age of sixteen, and he spoke almost with affection of how he would harness their power to cut raw metal and turn it into screws and flanges and axles and engine blocks. The machine tool, he would say with real passion, was the building block of industry. The Matrix Churchill machines which went to Iraq were standard, off-the-shelf models which could be used to make anything – bombs today and buses tomorrow. They were not ‘dual-use’ so much as of infinitely variable use, although many of them went in the first instance to munitions factories. Like other Iraq-watchers, he believed that after the 1988 truce with Iran much of this dual-use technology would be transferred to civilian production, and he highlighted this prospect in his correspondence with officials. But whenever pushed – as he was by the Financial Times as early as September 1989 – he frankly conceded their military use in the past and their potential for military use in the future.