Redacted reports, letters to The Hague: secretive investigations coinciding with BRS’ defamation lawsuit
With all eyes on Roberts-Smith’s defamation case, it’s easy to forget a team of war crime investigators are picking through allegations against the SAS and writing letters to The Hague with criminal prosecutions in mind.
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The coming verdict in Ben Roberts-Smith’s defamation trial is unlikely to silence war crime allegations against the SAS – instead it is potentially the first of many public reckonings with Australia’s war in Afghanistan.
Now-Prime Minister Anthony Albanese said Australia “must act on the Brereton Report findings and never hide from the truth of our past” as the Morrison Government established a new investigative body and an oversight panel.
Major General Paul Brereton, head of the IGADF, concluded there was credible information that 39 Afghans were murdered by Australian special forces in 23 incidents after interviewing many SAS soldiers.
“None of these alleged crimes was committed during the heat of battle. The alleged victims were non-combatants or no longer combatants,” the damning report concluded in November 2020.
The Office of the Special Investigator (OSI) works with Australian Federal Police investigators to pick through the evidence that went before Brereton and likely much more.
The Brereton report, with pages after page entirely blacked out, offers no insight into exactly which incidents and soldiers the OSI has in its sights.
As the report made headlines across the world, Nine was quietly finalising its truth defence against Mr Roberts-Smith’s lawsuit.
The decision essentially transformed the civil case into a proxy war crime trial but, unlike the IGADF, it would take place largely in public.
For many of the 99 days of evidence that followed the doors to the court were shut in order to protect the closely guarded identities of the SAS witnesses.
A videolink, instead, beamed out images of the multimillion-dollar legal teams, Justice Anthony Besanko or the silver coat of arms on the courtroom wall as soldiers audibly described prisoners shot dead in dusty compounds.
They told the court Afghans were killed as part of exhibition executions or macabre bonding rituals known as “blooding”.
Others denied the claims, saying medal envy over Mr Roberts-Smith’s Victoria Cross had birthed a jealous conspiracy in the broken squadron.
But the closed-circuit of the case broke in May when one witness, who had testified for Mr Roberts-Smith, was arrested by the AFP hours before he was to leave the country.
The witness was returning to his room in the Pitt Street Marriott hotel, after drinking with Mr Roberts-Smith, when the AFP confronted him with a warrant for his phone, a bail court would hear.
The former SAS soldier, whose name and even pseudonym are suppressed, allegedly resisted police after they stopped him trying to leave the hotel, police claim.
He spent the night in custody and is not charged with any war crime offences.
The soldier’s arrest was a very rare reminder that investigators outside the court were paying close attention to the civil lawsuit.
The progress of the criminal and institutional shifts appears to have been deliberately obscured from the public as focus remains on the trial.
It was reported, earlier this year, that successive Coalition Defence Ministers had been given six reports detailing how the ADF was undergoing cultural change in the wake of Brereton.
The ministers, most recently Peter Dutton, had reportedly chosen not to release the updates publicly.
Meanwhile the OSI revealed in February this year that they had written to the International Criminal Court in The Hague.
The ICC prosecutes war crimes only when a nation has shown it is unable or unwilling to handle such cases on its own.
The OSI’s Director General, in a June 2021 letter, assured prosecutors at the ICC that the OSI would exist as long as it needed to fulfil its functions.
“The establishment and work of the OSI demonstrates Australia’s resolve to thoroughly and independently investigate and, where appropriate, prosecute the allegations of criminal offences in Afghanistan from 2005 to 2016 by members of the ADF” the letter reads.
The same day the OSI wrote to The Hague Mr Roberts-Smith was facing cross examination by Nine’s barrister – denying an allegation he kicked a Person Under Confinement off a cliff in a war crime murder.
“That’s the piece of terrain off which you kicked a PUC, isn’t it?” Nine’s barrister asked.
“No, it’s not,” Mr Roberts-Smith shot back.
Mr Roberts-Smith launched legal action against Nine newspapers in mid-2018 saying they falsely claimed he was involved in war crime murders in Afghanistan while serving with the Special Air Service.
He has never been charged with war crimes or any other wrongdoing.
By the time Mr Roberts-Smith filed his lawsuit, he was one of many SAS soldiers who had given evidence before a secretive inquiry run by the Inspector General of the Australian Defence Force.
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