Caution is needed, but war crime investigation delays are of concern

When Defence Minister Richard Marles announced on Thursday that distinguished service medals had been stripped from commanding officers who held senior roles during the war in Afghanistan, the first issue on many people’s minds was timing.

Opposition Leader Peter Dutton took to radio to declare that his successor in the ministry had “abrogated responsibility … by letting this cloud hang for so long”. Dutton’s silence on whether he supported the move itself was telling, given that as defence minister he had countermanded the decision of armed forces chief Angus Campbell to strip unit honours from roughly 3000 soldiers who served in Afghanistan, as well as postponing the disbandment ceremony for 2 Squadron of the SAS Regiment.

Defence Minister Richard Marles this week stripped officers of medals.Credit: Alex Ellinghausen

For others, including independent MP and former soldier Jacqui Lambie, that the announcement coincided with the tabling of the final report from the royal commission into veteran suicide was particularly insensitive. Martin Hamilton-Smith, the current head of the Australian SAS Association, has also made the connection to veteran suicide, and when it first emerged that medals might be stripped he insisted that such measures should only follow a completed judicial process, arguing we might all be “jumping at shadows” and that it may ultimately be found that no laws were broken.

The question of these officers – up to nine men, according to government sources – has been on Marles’ desk since May of last year, shortly before Federal Court Justice Anthony Besanko separately found in a defamation case that decorated SAS member Ben Roberts-Smith had been proven a war criminal by this masthead’s reporting. Neil James, the executive director of the Australia Defence Association, hoped then that the Roberts-Smith decision would “help clear the air in the public debate”. “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 added.

The Age has steadfastly argued that the future credibility and strength of our armed forces depends on a clear-eyed reckoning with their conduct in Afghanistan, and that the ultimate venue for this should indeed be a court of law. The challenges of recruitment and of veterans’ mental health that Martin Hamilton-Smith identified are precisely what make this reckoning so urgent. It is lamentable that so much time has elapsed between the incidents alleged and the prosecutions that should follow from them.

In the interim, there have been troubling signs that lessons are not being learnt. The fact that Roberts-Smith not only retains his honours but has been given new ones and was still welcomed at a recent regimental event suggests that talk of cultural change is just that.

When Samantha Crompvoets, whose 2015 study into culture and trust within the forces brought many of the war crimes allegations to light, called for medals to be rescinded, she told us that “it takes a lot of time for culture to change”. But there is another crucial element: will. In the middle of 2022, Major-General Paul Brereton told a Sydney audience that “a law which is not enforced soon becomes a dead letter”. He also flagged “the risk that national chauvinism might trump justice according to the international law of armed conflict”. Roberts-Smith’s father, himself a general and a judge, sat in the front row.

At that time, the Australian Federal Police had been investigating war crimes cases for four years. Since then, their investigation into Roberts-Smith has collapsed due to potentially being compromised by the receipt of information from Brereton’s inquiry, which had coercive powers and so is not admissible in court. The Office of the Special Investigator, which has been at pains to avoid this mistake, is reportedly looking into around 40 cases.

We certainly want the Office of the Special Investigator to proceed carefully. But if a future minister moves to strip medals, having a court’s verdict to rely upon would surely help.

Responding to the Marles announcement in parliament, Opposition defence spokesman Andrew Hastie said that “our soldiers must tell the truth, and those in leadership must seek it out”. On the same day in Melbourne, a select audience at the Land Forces expo heard army chief Lieutenant-General Simon Stuart cite “the long shadow of Afghanistan” as he noted “that we must do more to reflect on the sufficiency of our professional standards”.

Among the truths that the Australian public have yet to confront is a 2012 incident that Brereton describes in his 2020 report as “possibly the most disgraceful episode in Australia’s military history”. The only way that the soldiers we send abroad to defend this country and its values can emerge from the long shadow of Afghanistan is if that still unknown episode, and all those like it, are brought into the full light of our judicial system. Every day that justice is delayed increases the chances that it will be denied, and that we will shirk our duty to those brave soldiers whose consciences told them they must uphold the laws of war and the rules of engagement.

If you are a current or former ADF member or a relative and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.