A landmark investigation into the conduct of Australian soldiers in the Afghanistan war has found “credible” evidence of “criminal or unlawful misconduct” and breaches of the Law of Armed Conflict -otherwise known as war crimes- by Australian soldiers.
Over the last four years, the Inspector-General of the Australian Defence Force has been investigating persistent allegations claiming that whilst carrying out special forces’ operations in Afghanistan, Australian soldiers murdered innocent civilians.
The inquiry just released its final report, conducted by Paul Brereton, New South Wales Justice and Major General in Australia’s Army Reserve.
What war crimes were committed?
A ‘War Crime’, as outlined in section 268 of the Commonwealth Code, includes offences such as wilful killing, torture, inhumane treatment, attacking civilians, causing suffering, and bodily mutilation. Punishment for war crimes range from 17 years of incarceration to life imprisonment.
Justice Brereton outlined he has gathered sufficient intelligence to declare 19 Australian soldiers engaged in the illegal killings of 39 people and cruel treatment of another two. The soldiers alleged to have committed these crimes are elite, highly trained, professional operators drawn from the Special Air Service (SAS) and commando units.
The report claimed that a total of 25 current and former ADF personnel were involved, including individuals who played an accessory role to the unlawful incidents. There were personnel amongst the 25 who were found to have been involved on either single or multiple occasions.
The report found that deaths of innocent civilians were either covered up or rationalised by soldiers who claimed running by the dead person was a ‘tactical manoeuvre’ to reach a ‘firing position’. An anonymous source from the report quotes the extent of misconduct reached a “point where the end justified the means”.
The report also contains staggering revelations from an earlier inquiry conducted in 2016 by Dr Samantha Crompvoets, a military sociologist, who found that SAS soldiers “slit the throats of two 14-year-old boys they thought might be Taliban sympathisers”. The rest of the troop were made to “clean up the mess” which involved bagging the young bodies and discarding them in a nearby river.
Furthermore, there is an allegation from 2012 covered in the report that is so gruesome it has been fully redacted. It is described as “possibly the most disgraceful episode in Australia’s military history”.
Whilst in Afghanistan, junior ranked officers were recorded to have undertaken an initiation whereby they were allegedly coerced into shooting a prisoner to achieve their “first kill”. This is a shameful and appalling practice known as “blooding”, said Chief Defence Major General Angus Campbell.
Justice Brereton coins it a “self-centred warrior culture”
Whilst the primary focus of the landmark report was on the alleged criminal incidents, its third and final part uncovers more systemic issues that may have contributed to an environment allowing for this conduct to take place.
It investigated the possibility that the cultural normalisation of deviance from professional standards within the Special Operations Command played a role in the extent of the war crimes/ development of apathetic sentiment within the SAS setc. This included “intentional inaccuracy in operational reporting related to possible crimes, a culture of silence within the Special Operations Command, the deliberate undermining, isolation and removal from Special Operations Command units of individuals who tried to address this rumoured conduct and culture, and a systemic failure, including of commanders and legal officers at multiple levels within Special Operations Command, to report or investigate the stores as required by Defence policies.”
All of these actions, the Defence Chief believes, were fuelled by a misplaced focus on “prestige, status and power”. The twisted culture was eagerly embraced and encouraged by experienced, charismatic and powerful non-commissioned officers as well as their protégés, whose orders undoubtedly marred Australia’s military excellence and honour with “ego, entitlement and exceptionalism”.
With this in mind, it is easier to understand why such atrocities cannot be blamed on “a few lone psychopaths”, as that would ignore the host of cultural issues which have been allowed to fester in SAS units.
A lack of moral leadership, the toxic influence of elitist patrol commanders and a capture system incentivises, encourages and rewards immoral behaviour. The report uncovered that such an unethical culture was what contributed to an awful reality where some SAS teams became “kill squads”- fuelled by a lethal competitiveness that saw them tally their victims on “kill boards”.
Accountability for the alleged war criminals?
Most important to note, is that the Brereton inquiry was designed to only look into circling rumours of misconduct amongst special forces soldiers, and not to gather evidence to begin a criminal trial. In alternative words, Brereton’s probe was a “fact-finding exercise”, an administrative inquiry, not a criminal one.
And so, for those concerned about the accountability of individuals allegedly named war criminals in the report, it would have been unreasonable of Brereton to recommend or suggest that these individuals face criminal charges.
Moreover, even if Justice Brereton did hint that these soldiers should face charges, it is not within his power to make the final call, and the process of pursuing sanctions for the alleged criminals will not be inadvertent. It could even take up to ten years for final sanctions to be laid out.
That being said, our PM Scott Morrison, has not been hesitant to announce the appointment of a special investigator to prosecute allegations of war crimes detailed in the IGADF report. However, Morrison has warned that the process of investigating and prosecuting allegations of serious and potentially unlawful misconduct will require us to “deal with honest and brutal truths where expectations and standards may not have been met”.
Not as simple as asking the silent to come forward
Undoubtedly, Brereton’s investigation encountered significant hurdles in eliciting honest disclosure from the close-knit Special Forces community, where allegiance to one’s comrades, superiors and unit are deemed paramount and where breaches of secrecy are considered an abomination.
Additionally, the way in which the IGADF inquiry was conducted ensured whatever came out of it was forbidden from use in any further disciplinary action within the ADF or in legal proceedings. It also safeguarded any individuals who came forward to provide evidence from criminal and civil liability.
This setup was of vital importance as it allowed those carrying out the inquiry to truly reach the bottom of any allegations and point in the direction of where subsequent or additional investigations should take place.
And finally, the standard of proof to which Brereton needed to adhere to was far lower than what would be required for a criminal trial. The Justice’s inquiry investigated whether it was “more likely than not” a war crime and did not need to evidence “beyond reasonable doubt” in relation to the veracity of the rumours.
An imperfect military
These serious allegations of war crimes may undoubtedly come as a shock to many Australians who regard the ADF as a meritorious, laudable figurehead. Indeed, whether these rumours have any legs to stand on is still to be ascertained, but the heart of Australia’s military reputation appears to be now somewhat cracked.
Nevertheless, its reputation is not completely obliterated and thus, efforts made to repair the damage must be thorough, and most importantly, transparent.
As Australians, we should never forget that our military can be as prone to err as any other organisation or group in society. Simply because a minority of individuals appear reprehensible, we should not allow that to taint the merit-worthy actions of other Australian soldiers who acted in a way that reflected the virtues and values of Australia’s Defence Force.