‘Unconscionable’: UN experts slam delay in compensating alleged Afghan war crime victims

Top United Nations human rights experts have blasted the federal government for moving too slowly to pay compensation to the relatives of victims of alleged war crimes committed by Australian troops in Afghanistan, including the family of a man who died after allegedly being kicked off a cliff by decorated soldier Ben Roberts-Smith.

Declaring it unconscionable that it had taken so long for the government to establish a financial compensation scheme, the human rights experts also called on the Australian War Memorial in Canberra to stop celebrating Roberts-Smith as a war hero after a Federal Court judge found in a defamation case last year Roberts-Smith had committed war crimes.

Ben Roberts-Smith in front of Michael Zavros’ portrait of him at the Australian War Memorial in 2014.Credit: Jay Cronan

The experts – including University of Sydney professor Ben Saul, the UN special rapporteur on human rights and counter-terrorism, and Richard Bennett, the special rapporteur on human rights in Afghanistan – singled out three Afghan families as especially worthy of financial compensation for alleged wrongdoing by Australian troops.

These include the family of Ali Jan, an Afghan man who was allegedly killed by a subordinate at Roberts-Smith’s direction after the Victoria Cross winner kicked him off a small cliff.

The families of Haji Nazar Gul and Yaro Mama Faqir – Afghan civilians who were found dead after being detained by Australian troops – also deserved swift compensation, the experts said.

The Brereton report into alleged war crimes committed by Australian troops, handed down in 2020, recommended a financial compensation scheme for victims’ families be established.

“The inquiry established that compensation is owed to the victims and their families of these violations and as such, it is unacceptable that compensation has still not been paid almost four years since the Australian government agreed to pay, and 12 years since some murders occurred,” the experts said in their report, delivered to Australia’s ambassador to the UN in Geneva.

“It is unconscionable that families of deceased victims such as Mr Nazar Gul, Mr Yaro Mama Faqir and Mr Ali Jan, all murdered in 2012, have been left destitute in the harsh living conditions of rural Afghanistan for over a decade.”

Last month, the Department of Defence quietly announced regulations to establish a compensation scheme, which will result in a new Afghanistan Inquiry Compensation Advocate assessing a claim if Defence Force chief David Johnston refers it to them based on a series of criteria.

While commending the government for establishing a scheme, the experts said: “The scheme fails to provide an enforceable right to compensation, there are no clear and human rights-consistent criteria as to the grounds and amount of compensation, due process and judicial safeguards are inadequate, and there is no requirement to provide information to or consult with the victims.”

The experts said victims’ families had not received any direct official apology, and they were not aware of any steps taken to publicly commemorate the deceased victims of Australian war crimes.

“To the contrary, we note that the official Australian War Memorial continues to publicly commemorate as a war ‘hero’ one of the murderers of Ali Jan, the Corporal Roberts-Smith, who the Federal Court of Australia also found complicit in three other war crimes of murder in Afghanistan,” they said.

“The display very briefly acknowledges the findings of the Federal Court, but not the life-changing plight and suffering of the victims.”

A Defence Department spokesperson said Defence Minister Richard Marles had "agreed to a pathway forward to establish a compensation scheme, and it is this scheme that was established under regulation, as agreed by the Governor General, last month".

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