Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

ARIS MESSINIS/AFP/GETTY IMAGES
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Tearing down the "caliphate": on the frontline against Islamic State in Mosul

Truck bombs and drone warfare in the fight to take back Iraq’s second city from Islamic State.

The battle to retake west Mosul began, for me, rattling around in an armoured Humvee with two Abaases. “I’m Abaas One. He’s Abaas Two,” the driver, Abaas Almsebawy, said in English with a broad smile, pointing to the gunner on top.

“I have killed two Da’esh,” Abaas Two said, using an Arabic acronym for the so-called Islamic State (IS). “Well, one for sure. The other one crawled away but he was bleeding badly. I was told he died.”

Abaas One was jealous of his gunner’s luck. He was shot twice by IS in the city of Ramadi, in central Iraq; he still had a bullet lodged in his back. “The doctor said it is my gift from Da’esh,” he told me and laughed.

Over the sound of gunfire and mortars, the two Abaases called out to each other, giving directions, spotting targets. The cry of “Abaaaaas!” was constantly in the air. One from Babylon, the other from Baghdad, they stretched out on a felt blanket inside the armoured vehicle during lulls in the fighting and fell asleep, oblivious to its discomforts and the IS mortars landing outside.

They had been involved in the fighting in the east of the city, which it had taken 100 days to recapture, in hard, street-by-street clashes and through an onslaught of IS car and truck bombs. Yet the battle to retake the west, which began on Sunday 19 February and is being led by Iraq’s Emergency Response Division (ERD) and counterterrorism forces, has proved different – and faster.

Abaas One, the driver, was exhilarated. As Iraqi army helicopters flew overhead and the air force strafed villages with machine-gun fire and rockets, he rolled on, part of an armoured assault on a front that stretched for miles. His Humvee was built for this kind of terrain, moving at speed across the desert towards villages, the airport and eventually the city of Mosul.

Something else was different about this battle, too. These men were not technically soldiers: they were policemen. Abaas One went into battle in a hooded top and a leather jacket. Stuck outside manning his gun, Abaas Two, like a fighter from another age, wore a greatcoat, small, circular spectacles and a woolly hat. One lean and broad-shouldered, the other bulky and round-faced, they were a contrast but a good fit.

The Abaases were part of Iraq’s elite ERD, which has led the charge into the west of the city, just as the country’s heralded “Golden Division”, the counterterrorism unit, had pushed into the east. The ERD, part of the ministry of interior, is the less experienced junior brother of the battle-hardened Golden Division but it was determined that west Mosul would be its prize. It made swift progress and, as it took back village after village from IS, troops posed for selfies with enemy corpses on the roadside.

The closer to Mosul you were, the more charred bodies you would see, lying along the route. Two in a ditch, killed by a mortar, and two on the road, the motorcycle they were travelling on cut in half by an air strike.

In command of the 1st Brigade was Colonel Falah al-Wabdan. In Ramadi in 2015, he and his men had been cut off and surrounded by IS forces and had escaped only when more troops came to their rescue.

As he stood on the ruins of a former palace that had belonged to one of Saddam Hussein’s brothers, he had a view of all of Mosul. “I will be very glad when I see my forces move forward,” he said. “Also [when I see that] my soldiers are all safe. And I will be even happier when we have killed IS. These people [IS] are like a disease in the body, and we are now removing it, day after day.”

From there, the Iraqi forces took the town of Abu Saif, and then, in a six-hour battle, what was left of Mosul’s airport. Its runways were in ruins and its terminal buildings reduced to rubble. Yet that was the last open ground before they reached the city. By the end of the week, Colonel Falah’s forces had breached the IS defences. Now they were heading into the dense and narrow streets of the city’s old town. Meanwhile, the elite Golden Division was the secondary force, having earlier been bogged down in heavy fighting.

The competition between the two rival divisions had helped to accelerate the advance. The ERD, however, had a secret weapon. “We need to ask your men to hold off, sir. We have helicopters in the air,” the US special forces officer told an Iraqi lieutenant colonel on the rooftop as the assault on Abu Saif was in full force.

The Iraqi mortar team in the orchard and olive grove below held fire. Then the mighty thud of coalition air strikes could be heard and, just two miles away, a huge, grey cloud rose above the town.

 

***

It is Iraqis who are doing most of the fighting and the dying in the battle against IS, but since the Pentagon relaxed its rules of engagement late last year more Americans are at or near the front lines. They are calling in air strikes and laying down fire from their MRAP (“mine-resistant ambush-protected”) vehicles. They are not in uniform but, despite being a covert force, they are conspicuous and still wear the Stars and Stripes on their helmets. When journalists, especially cameramen, approach, they turn their backs.

In and around Mosul, it is more common now to get stuck in a traffic jam of US vehicles: either artillery or route-clearance teams. The Pentagon will soon respond to President Donald Trump’s call for a new plan – an intensification of US efforts against IS – but on the ground around this city, the Americans are already much more engaged in the fight against the militants.

British special forces were also in the area, in small numbers. Unlike their American counterparts, they went unseen.

Also seemingly absent in the early part of the offensive were civilians. It was three days before I met one: a shepherd, Ali Sultan Ali, who told me that he had only stayed behind because he could not get his flock to safety, as a nearby bridge had been destroyed.

As his sheep grazed, Ali explained: “They continued to attack this area, and now we are three days sitting in our homes, unable to go out because of attack and mortars . . . All the people, they have left this area one after another. They went to the east of the city of Mosul and they rented houses there because there are too many attacks here.”

Almost 60,000 people have fled west Mosul. In this area, with its population of three-quarters of a million, the battle has the potential to become a humanitarian crisis. Camps for internally displaced people still have capacity, but they are filling up.

IS, with anywhere between 500 and a few thousand fighters inside Mosul, is again using the local population as cover. But coalition air strikes may be taking a heavy toll on civilians, too. Officially, the US-led force claims that 21 civilians have died as a result of its bombs since November, but an independent monitoring group, Airwars, suggests that as many as 370 have been killed by Western aircraft since the start of March.

After the airport was recaptured, the columns of desperate people heading south began to thicken. The children among them usually held a white flag – perhaps a clever distraction thought up by terrified parents for their long walk to safety. Near the airport, I met a man who was too distraught to give his name. He told me that his brother’s family – six people – had been killed in an air strike. With his eyes red from crying and a blanket over his shoulders, he stood by the roadside, pleading. “For God’s sake,” he said. “We need you to help us. We need a shovel to get the dead bodies out of the building, because there are still two bodies under that building.”

But the battle was reaching a new pitch around him, so he left for a camp to look for his brother, the only remaining member of his family, he told me.

When the ERD finally made it inside the city, the first thing I noticed was the fresh laundry hanging in the yard of a family house. Then I heard a huge explosion as an IS truck bomb slammed into one of the Iraqi Abrams tanks.

The tank trundled on regardless and, by nightfall, the ERD had a tiny foothold inside the city: the al-Josak neighbourhood.

 

***

 

Islamic State is steadily losing Mosul and in Iraq, at least, the end of the so-called caliphate is in sight. In Abu Saif, state forces found the corpses of foreign fighters and, hiding, an IS operative who was still alive.

“He’s Russian,” one officer told me, but the man might have been from one of the central Asian republics. There were dead Syrians on the battlefield, too, men from Deir az-Zour; and for the tens of thousands of foreign fighters who joined IS, Syria will likely be a last refuge.

There may be another reason for the faster pace of the assault in west Mosul. The Iraqi forces, having fought IS in Ramadi, Fallujah and east Mosul, are getting better at dealing with the militant group’s tactics.

Truck bombs took a huge toll on their men in eastern Mosul. It is hard to describe the force unleashed when one of these detonates near you. In an early assault on one village, IS sent out four truck bombs and one of them exploded a few hundred metres from where I was standing. The shock wave ripped around the building and shards of engine went flying over our heads. My mouth was full of dirt. The debris was scattered for what seemed like miles around – yet no one died.

The suicide attack driver may have been taken out by an Iraqi soldier firing a rocket-propelled grenade (RPG). Whenever they advance now, men stand ready with RPGs, specifically to tackle the threat of car bombs. And they are becoming better at “hasty defence”. An armoured bulldozer is always in the lead. When a new street is taken, defensive berms made of mud or rubble are built to halt any speeding car bombs.

The IS fighters are crafty. Iraqi forces took me to a house on a captured street. Its yard was covered and the front wall was gone. Parked in the front room was what looked like an ambulance. Hidden from surveillance aircraft, this was another truck bomb.

“It’s still live. I wouldn’t go any further,” a major warned me. Even the bomb disposal team said that it was too dangerous to touch. It was later destroyed from a very safe distance.

Although the group violently suppresses modernity, IS fighters are innovators. They have no air force but they can get their hands on drones, which are commercially available, and they have “weaponised” them. If the battle for east Mosul was the attack of the car bombs, the battle for the west began as a drone war.

For the men on the ground, IS drones are enormously disconcerting. During a gun battle in west Mosul, I stopped to speak to some troops taking cover behind a wall. As I asked a final question, the captain I was talking to cupped his ear and leaned forward because of a sudden eruption of gunfire. Then, just to my right, I felt a shock wave of a detonation that seemed to come from nowhere.

A member of the BBC team was hit, receiving a small blast injury to the arm. When we got back to the Humvee, the driver explained that there had been a drone above us. The gunfire was from Iraqi troops trying to bring it down. The detonation had not come from nowhere; it had come from directly overhead. As we drove out of there, I noticed that the gunner had closed the hatch. We were protected inside, but he was outside manning his weapon, looking for more drones.

“They drop MK19 40mm grenades from the drones to stop the movements forward. All the time, they will use four to five drones to attack one location,” Captain Ali Razak Nama of the federal police explained. “As you know, we can’t always see these drones with our eyes, but if we do see them we can attack the drones with our rifles. [But] when we go into the battle, we are not looking at the skies. We are looking ahead of us for car bombs, suicide attackers, IEDs or snipers.”

A unit of the Golden Division was hit 70 times in a single day by wave upon wave of IS drones. The operator managed to drop a grenade inside a Humvee from above; all four men inside, members of a bomb disposal unit, were killed. Dozens more were injured that day.

The sound of a drone, even one of their own, is enough to make the Iraqi forces hit the dirt and scramble under a vehicle. They are difficult to bring down. I once watched as snipers and heavy machine-gunners opened fire on some drones; they managed to strike one but still it flew on.

The IS fighters control them from motorcycles in an attempt to prevent the operators being tracked and killed. They switch frequencies in the hope that they will not be jammed. Yet as a coalition commander told me: “The enemy aren’t going to win by dropping grenades from the sky. So it is certainly not a game-changer.” Iraqi and coalition forces now appear to be having success in countering the threat. Just how, they will not say, but in recent days there has been a “very significant” drop in their use.

 

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Mosul has been the biggest battle for Iraqi forces against Islamic State, but commander after commander said that others had been tougher. In Ramadi and in Fallujah, IS had a better grip. In Mosul, the local people have been quicker to turn away from the militants.

In the eastern part of the city, the bazaars are busy again and children have returned to school. Girls are receiving education for the first time in nearly three years, since IS captured the city. The so-called caliphate was declared on 29 June 2014 and, four days later the new “caliph” and IS leader, Abu Bakr al-Baghdadi, made his first and only filmed appearance, delivering a sermon at the city’s al-Nuri Mosque. Iraqi forces are now in sight of the mosque, with its Ottoman-era leaning minaret.

Mosul is Iraq’s second-largest city and has a cosmopolitan heritage, but Islamists had influence here for many years before IS arrived. As one Mosulawi told me, after neglect by the Iraqi capital, “There is discontent with Baghdad, not support for Isis.”

Al-Baghdadi is believed to have fled the city already. According to US and Iraqi commanders, he is hiding out in the desert. Shia militiamen and Iraqi army forces are attempting to seal off escape routes to the west, into Syria. Yet senior commanders accept that in a city Mosul’s size, it will be impossible to close all escape routes. Capturing al-Baghdadi is not a priority, they say.

There is also an acknowledgement that neither his death nor the loss of Mosul will be the end of Islamic State. But in Iraq, at least, it will destroy the caliphate.

Quentin Sommerville is the BBC’s Middle East correspondent

This article first appeared in the 16 March 2017 issue of the New Statesman, Brexit and the break-up of Britain