The reckoning over Afghanistan war crimes is only just beginning

While the Ben Roberts-Smith defamation trial is now over, the mission to achieve justice over alleged war crimes committed by Australian service members in Afghanistan is still in its infancy.

The Age, The Sydney Morning Herald and The Canberra Times won a landmark defamation case on Thursday brought by Roberts-Smith after the court found they had proven he was a war criminal, murderer and bully.

Neil James, the executive director of the Australia Defence Association, says the damning defamation judgment against Roberts-Smith would “help clear the air in the public debate” about war crimes in Afghanistan.

“A lot of people have been in denial, promoting the nonsense that because no one has been convicted we can’t say whether war crimes occurred,” James said.

The wheels of justice and public debate have ground on, well beyond the confines of the Federal Court at Sydney’s Queens Square, where the defamation action was fought.

Two years after The Age and the Herald published their first stories questioning Roberts-Smith’s decorated record of military service, former judge Paul Brereton issued his damning report on the conduct of Australian soldiers in Afghanistan between 2005 and 2016. The findings of that report did not name any soldiers.

Separately again, just this week, Australian Defence Force Chief Angus Campbell has had to defend himself in parliament against calls to return his Distinguished Service Cross as he also seeks to strip medals from some more junior commanders.

A week earlier, the Office of the Special Investigator, which is responsible for probing and helping prosecute alleged war crimes in Afghanistan, said it was looking into about 40 matters.

Unlike Roberts-Smith’s defamation suit, which was a civil matter, any cases brought by the Office of the Special Investigator will be criminal trials and use a different standard of evidence. If found guilty of war crimes, former soldiers could face life in prison.

Special forces soldiers in Afghanistan.Credit: ADF

‘Very uncomfortable days’

Brereton’s November 2020 report made clear the alleged wrongdoing by Australian troops in the barren mountains of Afghanistan extended beyond any single soldier. It found “credible” evidence of allegations that 25 Australian soldiers had murdered 39 Afghan civilians, and pointed to a disturbing “warrior culture” that had developed within elements of the elite Special Air Service Regiment.

The alleged wrongdoing detailed in the report included the killing of civilians to “blood” junior soldiers and planting weapons on corpses to create the misleading impression they had been combatants.

The inquiry also alleged “possibly the most disgraceful episode in Australia’s military history” was committed in 2012 during the conflict. Details of the incident were kept from the public.

Brereton described the allegations as “disgraceful and a profound betrayal” of the Australian military, stressing that none of the killings could be attributed to the “fog of war”. Campbell, the Defence Force Chief, apologised “sincerely and unreservedly” for any wrongdoing, while then-prime minister Scott Morrison called his Afghan counterpart to apologise.

A week before the Brereton report was released, Morrison announced he was creating the Office of the Special Investigator, a dedicated agency to examine allegations of Australian war crimes in Afghanistan. The office is led by Chris Moraitis, who previously ran the Attorney-General’s Department.

Its work had been entirely out of the public view until the Australian Federal Police arrested and charged former special services soldier Oliver Schulz with one war crime count. The offence carries a maximum penalty of life imprisonment.

This was not only the first prosecution flowing from the Brereton inquiry, but also the first war crime murder charge ever laid against a serving or former Defence Force member under Australian law. Prosecutors allege that Schulz, 41, murdered an Afghan man while deployed to Afghanistan with the ADF in an incident unrelated to Roberts-Smith.

Speaking at the Lowy Institute in April, Campbell said he was bracing for more prosecutions as the special investigator continued its work.

“You won’t see me trying to gloss over these things, but I think there could be some very, very uncomfortable days coming forward,” Campbell said.

Moraitis told Senate estimates hearings this week that the office’s number of active investigations was “fluid and under constant review”.

“I expect it will continue to trend downwards over time, as we focus our efforts on alleged war crimes of particular gravity and which meet the high evidentiary threshold for a criminal justice process,” he said.

The office revealed in its most recent annual report that its staff numbers had more than doubled from 52 to 125 over the past 12 months, suggesting its activities will only continue to increase in the coming years.

Cutting into ribbons

One of the most contentious issues arising from the Brereton inquiry was whether Defence Force personnel who served in Afghanistan should retain their military medals and other honours.

In his report, Brereton argued that various medals for conspicuous or distinguished service cannot “in good conscience be retained” by individuals bearing a moral responsibility for command and other failures. The Defence Force should conduct a review of such honours, he recommended.

Campbell responded by moving to strip about 3000 special forces troops of their meritorious unit citations. He was overruled by then-defence minister Peter Dutton, who said only those convicted of war crimes should lose their honours.

“We shouldn’t be punishing the 99 per cent for the sins of 1 per cent,” Dutton said at the time.

After Labor’s 2022 election victory, new Defence Minister Richard Marles tweaked the policy. Campbell would now be allowed to issue show-cause notices to “a small number of people” who held command positions at troop squadron and task group levels during particular rotations.

In November, Campbell wrote to several officers, giving them 28 days to prove their service in the Afghanistan war was “distinguished”.

Several veterans groups were outraged by the move, saying commanders were being scapegoated for the failures of those above and below them in the military hierarchy. The NSW veterans affairs minister warned some could end up self-harming or dying by suicide if they felt humiliated by Defence leadership.

In recent weeks, Campbell has written to a small number of officers telling them he has completed his review into their honours and referred the termination of their decorations to Marles. The RSL has said that at least seven officers have received letters from Campbell.

Senator Jacqui Lambie and the Special Air Service Association have called for Campbell to consider handing back his Distinguished Service Cross given he oversaw Australian troops in the Middle East while some Afghan war crimes were allegedly committed.

“Where is your command accountability?” Lambie asked Campbell at Senate hearings this week, saying he had “hung out to dry” those beneath him.

Campbell said he understood how people could believe he has an apparent conflict of interest given he reviewed his own performance commanding troops in the Middle East and whether he should retain his Distinguished Service Cross.

“I did consider whether I might refer myself to some of my predecessors,” Campbell said. “But quite frankly, with the level of emotion and unintentional and also intentional disinformation about this issue, I quite frankly didn’t want to give them that pain.”

Ultimately, the decision about whether to rescind any military honours will be up to Marles and then the governor-general.

How high should blame go?

One of Brereton’s most controversial findings was that it was at the patrol commander level that any “criminal behaviour was conceived, committed, continued, and concealed, and overwhelmingly at that level that responsibility resides”. Troop, squadron and task group commanders were found to bear only moral responsibility for any wrongdoing that occurred under their watch.

Those in higher positions in the Defence hierarchy and the government were found not to have responsibility and accountability for any wrongdoing because they did not have a sufficient degree of command and control over the relevant troops.

Several experts, including former Defence Force chief Chris Barrie, questioned this finding at the time, saying it was national commanders’ responsibility to ensure that troops were behaving appropriately.

Lawyer and former military prosecutor Glenn Kolomeitz published a 110,000-word thesis this year arguing that the “exculpation of the higher chain of command in the Brereton Inquiry evidences a manifestly flawed interpretation of command responsibility”.

Kolomeitz argued in his thesis that the omission could lead the prosecutor of the International Criminal Court to open an investigation at The Hague into the responsibility of higher commanders for crimes identified in the report.

Then there is the question of whether Australia will pay compensation to the Afghan family members of alleged victims of war crimes.

The Brereton report recommended immediate compensation should be paid to surviving family members without waiting for the establishment of criminal liability. This was, the report said, simply the “morally right thing to do”.

The Department of Defence set a late 2021 deadline to establish a compensation scheme, but this date passed, and the issue remains unresolved.

The Albanese government has vowed to implement a compensation scheme but has yet to release any details of how it will work.

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