ADF faces legal battle over alleged ‘war crimes’ medals

Medals awarded to Australian Special Forces commanders during alleged Afghanistan war crimes are set for a legal battle.

Australian defence force veterans are preparing for a legal battle over medals. Picture: Department of Defence

Australian Defence Force veterans are preparing to mount a legal challenge to the ADF chief’s moves to remove their medals on the basis of procedural fairness.

The move comes as it can be revealed it will be Defence Minister Richard Marles to make the final decision for the stripping of distinguished service decorations for the ADF Special Forces commanders.

ADF chief General Angus Campbell last month issued notices to serving and former commanders to show why they shouldn’t be stripped of distinguished service medals and honours on the basis of the Brereton inquiry into alleged war crimes between 2005 and 2016.

While the officers were not implicated in war crimes directly, Gen Campbell’s decision is to make those in charge accountable for actions subordinates may or may not have done.

Defence Minister Richard Marles and CDF General Angus Campbell are currently in the United States for high level talks with counterparts including US Navy Admiral Linda Fagan. Picture: Defence Imagery

Veterans have now sought legal advice on the potential medals stripping for actions that have not yet been proved in a court or even made it as far as a single criminal charge or arrest.

“The Brereton inquiry made clear it only had ‘credible information’ that warranted further investigation and while we support that investigation process, there has not and may never be a finding that leads to any charges,” one veteran, who asked not be identified, said.

He said legal advice was sought on the basis of a denial of procedural fairness as defined in a 2015 High Court judgment related to a Tamil refugee, Immigration and Border Protection Minister v WZARH.

“The whole thing is a bloody nonsense, manifestly unfair, arbitrary and before any minimum standard of evidence has been achieved,” the former SF veteran added.

General Campbell on November 19, 2020 delivering the findings from the ADF Inspector-General’s Afghanistan Inquiry. Picture: Mick Tsikas

Defence has its own legal advice that states commanders have “moral and legal” accountability for subordinates “on their watch regardless of their personal knowledge, contribution or fault”.

“The CDF is considering the command accountability of current and former serving ADF members who held command positions, at a range of ranks, during the periods for which the Inspector-General found multiple incidents of alleged unlawful conduct,” a Defence spokeswoman told News Corp Australia.

“Persons who held command positions, irrespective of rank, are being considered in a consistent manner. These considerations apply to a small group only and any impacted personnel have a right of reply. The CDF is committed to an evidence based implementation of the IGADF Afghanistan Inquiry recommendations and the Afghanistan Inquiry Reform Plan.”

Australian Army Special Operations Task Group SAS soldiers land in a US Army Black Hawk helicopter at Tarin Kowt in Afghanistan. Picture: Department of Defence

It is not known how many officers have been affected but it could be up to two dozen from troop squadron commander to task group level.

Defence has been in contact with the Governor-General’s office which would formally cancel the medals but it seems only on the advice of the defence minister.

“In all matters relating to the awarding or cancellation of distinguished service decorations the Governor-General acts on the recommendation of the Minister for Defence, or in the case of the Meritorious Unit Citation, either the Minister for Defence or Chief of the Defence Force,” a spokesman said yesterday.

Mr Marles has told parliament the Brereton report revelations were a national shame and while the report recommendations would be followed “to its fullest”, the recommendation and Gen Campbell move to strip the Meritorious Unit Citation from 3000 deployed troops that had already been blocked by the previous Morrison government, would not be changed.

Originally published as ADF faces legal battle over alleged ‘war crimes’ medals