- (c) members of Person 29's patrol, who had commenced SSE duties, including Persons 35, 38, 40, 41 and 42; and
- (d) a group of Afghan women, who were agitated and indicating the presence of something in the vicinity of the tunnel.
- (2) The tunnel was discovered by a member of Person 29's patrol, most likely Person 35;
- (3) When the tunnel was discovered, a group of operators quickly moved to the tunnel entrance, pointed their weapons down the entrance, began calling out and called for an interpreter;
- (4) The interpreter soon joined and began calling out; and
- (5) Two Afghan men came out of the tunnel and were placed under control.
534 The respondents submit that the most powerful indication of whether men came out of the tunnel is found in a consideration of the competing accounts of the deaths of EKIA56 and EKIA57. I turn to consider those accounts. It is worth noting that such an approach emphasises a point I made earlier (at [224]), that is, that findings are made having regard to (where relevant) the whole sequence of events of which they form a part.
The Respondents' Case as to the Execution of EKIA56
535 The respondents' approach in their submissions was to analyse the competing cases of the parties in relation to the incidents which led to the deaths of EKIA56 and EKIA57. The analysis involved the following steps. First, the respondents analysed their witnesses' account of the death of EKIA56. The respondents submit that the location of the body of EKIA56 provides the surest guide to the resolution of the conflict between the respective cases of the parties. The respondents' case is that the body of EKIA56 was located inside the tunnel courtyard. On the applicant's case, the body was located outside the compound. The respondents submit that it will follow, almost inevitably, from a finding about the location of the body, that the corresponding party's case in relation to the circumstances of EKIA56's death should be accepted. Similarly, once a party's case concerning the circumstances of EKIA56's death is accepted, it will follow almost inevitably that the party's case in relation to the death of EKIA57 should be accepted. The respondents submit that because there is a considerable amount of evidence, both testimonial and documentary, capable of shedding light on the question of the location of the body of EKIA56, that death provides a useful prism through which to commence the analysis.
