The remarkable witness statement of Johnny Mercer

How a government minister tried and failed to get to the bottom of serious war crimes allegations

March 21, 2024
Image: PA Images / Alamy Stock Photo
Image: PA Images / Alamy Stock Photo

An extraordinary witness statement has been published. You can read it here. Indeed, before you read this post any further, click into the witness statement and read it. The statement tells one of the most remarkable stories. It reads like a treatment for a film; its screen rights should be optioned without delay.

As with many good stories, it has an unlikely protagonist. And here the protagonist is the government minister and former soldier Johnny Mercer.

You may have heard of him. In particular, you may have come across his sheer disdain for certain lawyers and for what he sees as vexatious litigation against those who have served in the armed forces.  

And in this respect, he has been quite effective. Two acts of parliament—the Overseas Operations (Service Personnel and Veterans) Act 2021 and Northern Ireland Troubles (Legacy and Reconciliation) Act 2023—exist in good part because of his drive and determination. Both statutes make it more difficult for former service personnel to face legal accountability. 

But, as the witness statement describes, the hero of the story goes through quite the character arc, from sceptic to believer. He goes from not believing that British soldiers were capable of war crimes to becoming convinced some very bad things happened and that there is an official silence—if not cover-up—in place about these bad things.

This transition starts, the statement tells us, with conversations with those he has served with. He is told to be careful as, in fact, there were things that happened in Afghanistan which could constitute war crimes. Mercer takes this information seriously.

The information was about the deliberate killing by UK special forces of detained Afghans. There is actually no dispute that this happened. There are numerous documented examples of squads of special forces detaining groups of Afghans and some of those detainees then being killed. This is not a situation where there is doubt as to whether the person had been detained or not. Nobody claims there is doubt. The person is detained, and then killed.

What is disputed is the circumstances of these killings. According to special forces, in each case, somehow and in some way, one of the detained individuals suddenly produces an AK-47 or a hand grenade and so has to be shot. This justification is typed out repeatedly in formal accounts of the incidents, almost word-for-word.

The problem with this recurring explanation, of course, is that—according to those with relevant military experience—it is implausible if not impossible. Or even if it happened in one exceptional situation, it was unlikely to have happened identically again and again, so as to explain why in each operation an Afghan ends up dead even after detention. 

And Mercer is certainly not convinced. Here he draws on his own direct experience of three tours of combat in Afghanistan. He starts asking questions of officials. He feels as if he is politically exposed: promoting legislation to make it more difficult to prosecute former service personnel on one hand and there having been potential war crimes on another.

He is shown a document by a spook, in dramatic for-your-eyes-only circumstances. Mercer is not even allowed to keep a copy. And it is a remarkable document, which (for reasons we will come onto) is now in the public domain.

It is a typed memorandum, dated 5th April 2011, sent to the director of special forces. The author tells of “information of a nature which makes me seriously concerned for the reputation of UKSF [UK special forces].” He says he has been told that “there is in effect an unofficial policy… to kill wherever possible fighting aged males on target, regardless of the immediate threat they pose to our troops. In some instances this has involved the deliberate killing [of] individuals after they have been restrained… and the subsequent fabrication of evidence to suggest a lawful killing in self-defence.”

This is huge. The author of this memorandum is not some lefty ambulance-chasing claimant lawyer but a commander of special forces in the field. The memorandum is even entitled, in evasive bureaucratic acronyms, “Allegations of EJK by [UKSF]”: allegations of extra-judicial killing by UK special forces. 

The existence of this memorandum is not disputed. And, as such, it means that at the time—in April 2011—the allegations were being taken seriously enough for a senior officer to put them in writing, and to expressly urge “most strongly that thorough investigation is warranted.” 

Mercer tells us he was not then shown any other documents. But he is increasingly uneasy. He has by now also been told by a member of special forces that they were expected to carry a non-Nato weapon to place next to the bodies of unarmed Afghans to make it look as though they were armed.

The witness statement tells us how Mercer pieced various things together to shake his beliefs and to fuel his increasing concern. But, like the unlikely protagonist in many other stories, he is getting nowhere and is being obstructed and brushed off.

He demands to see more evidence. He wants to see the full motion videos of the detention operations. Such evidence has been telling in Australia for showing that Australian special forces allegedly killed unarmed Afghans. But he is told that no video footage is available. He does not believe this to be true.   

And then came the news reports. The allegations and the lack of any satisfactory explanation for what happened are set out by Panorama and the Sunday Times. The news reports also indicate, the witness statement tells us, that key documents were not shown to Mercer. He has been kept in the dark.  

The impression one gets both from the witness statement and the oral evidence Mercer has now given is that he believes he was used—“gamed” is his word—by the Ministry of Defence. His passion for protecting veterans from what he calls “lawfare” was exploited by more senior ministers and officials in getting legal protection onto the statute books, but the full picture was kept from him. This impression is probably accurate, and it explains the anger that is plain in his evidence.

Mercer, a junior minister, then decides to write a letter to his own secretary of state, Ben Wallace. This letter, from August 2020, is now also in the public domain—and, like the witness statement, it should be read in full.

The content of this letter is also huge. For example, in the letter Mercer explains that he read out statements to the House of Commons which others in the Ministry of Defence must have known to be false. As Mercer said in oral evidence, “I was very cross that I had been allowed to make a statement in the House of Commons in January that year that was clearly incorrect when faced with the evidence that existed within my own departmentand for me that was a kind of red line being crossed, in terms of, you know, ‘we're not on the same side here.’”

But other than this letter, it appears that Mercer did little to take the matter further. He then leaves the government for a while. When he is asked about this by journalists he refers them to the government. He refuses to make any public comment. He is even approached by those who made the allegations. He tells them that he had done what he can but the responsibility rests with the Ministry of Defence and the secretary of state.

The story of how Mercer came to take the allegations seriously, about what he was told and shown and what he was not told and not shown, and of how he worked out that there was a problem here, is compelling. It is a tale skilfully told. This is a witness statement for the ages.

But, if one looks carefully, it is also a story where the protagonist does not protagonise. Like Indiana Jones in Raiders of the Lost Ark, the hero of the story has no real impact on what is happening. The detail of the allegations raised by in the media takes Mercer by surprise, but he does not support an inquiry, and he does not resign. Other than writing a letter, there is little trace of what he did with his deepening serious concerns.

The Independent Inquiry Relating to Afghanistan that has now been set up, and for which his witness statement and the documents referred to above have been provided, came about not because of what Mercer learned but because the government feared what would come out in judicial reviews brought by lawyers for the families of the killed Afghans. The very sort of judicial reviews which Mercer has spent his career opposing. 

As soon as that litigation got to an advanced stage, the cases were stayed and this statutory inquiry was established instead, with a senior judge with full powers to demand evidence.   

Left to Mercer, it is hard to see how we would know anything more about what happened. The 2011 memorandum he was shown would be safely still in the hands of the spook who showed it him. The letter of concern to the secretary of state would have remained private. The sterling story of how a minister was obstructed when they asked hard questions would be left untold.

Mercer deserves great credit for setting out what happened when he came to have doubts. That the explanations he received for these killings of detainees simply do not add up could not have been put in a more persuasive form than his witness statement. But ultimately his doubts led nowhere other than him telling journalists and veterans to look to the Ministry of Defence for answers—the same department that, according to him, would not even give answers to one of its own ministers.

There is now the serious prospect of answers because of the current inquiry. The impression given by reading the transcripts and the evidence published online on its superb site is of an inquiry taking its task seriously and unflinchingly. Of course, the final report may still be a whitewash, but we are being shown key documents and have access to important evidence that also allows us to form our own view.

In Australia, the Brereton report has detailed how their special forces were involved in the unlawful killing of unarmed detainees in Afghanistan and how that was covered up. It looks as if we will have a similar report here. And once we have that report then the lasting value of Mercer’s witness statement will be to tell us what we would never have known, had it been left to the Ministry of Defence and Mercer themselves.