War crimes investigation must reach a resolution

The spectacular fall from grace of Victoria Cross recipient Ben Roberts-Smith has confirmed again the high risks involved in taking defamation action. In a damning judgment, Justice Anthony Besanko was satisfied by evidence that accusations Mr Roberts-Smith had committed murders of civilians while serving as an SAS soldier were true. By taking defamation action, Mr Roberts-Smith has compounded the damage inflicted to his personal reputation by media reports he challenged. There is vindication for the Nine group that published the allegations. But there also exists a totally unacceptable situation where Mr Roberts-Smith effectively has been found guilty of war crimes without having been charged and tried for those crimes. The standard of proof required for a defamation case is different to that required in a criminal prosecution. The finding is a devastating blow to Mr Roberts-Smith personally and to the reputation of the Australian Defence Force. It also serves to amplify the criticism that must be made of the tardy progress that has characterised investigations into the war crimes allegations by the proper authorities.

Since the Brereton report into alleged war crimes was released in 2020, only one man has been charged; briefs against two others are in preparation for the DPP. Twenty-one other soldiers have been left under investigation and in limbo while a pall hangs over Australia’s elite SAS regiment. The extent of damage caused by allegations is evident in confirmation the US military expressed concern about co-operating with the ADF because of concerns about possible war crimes. General Angus Campbell told Senate estimates on Wednesday he received a letter from the US defence attache in Canberra warning the Brereton report could trigger a US law banning co-operation with military units ­implicated in gross human rights violations. The report found “credible information” Australian soldiers killed 39 Afghan civilians and prisoners in the war.

But progress on investigations has been slow amid a culture that appears more concerned with making sure senior officers are not held to account. Defence has avoided an inquiry into the accountability of senior commanders for war crimes ­despite the findings of an independent panel, which said Defence failed to face up to its “corporate responsibility” for the murders of Afghan civilians and prisoners identified in the Brereton report. An Afghanistan ­Inquiry Oversight Panel recommended to the Morrison government in March 2021 that a “top-down” inquiry be held into Defence’s “corporate responsibility” for the crimes. But Defence leaders failed to take the advice, commissioning instead a “lessons learned” paper, criticised by the panel for its failure to address the “strong criticisms and sense of unfairness” over the lack of command ­accountability for the crimes in Afghanistan.

Judging the actions of soldiers in a theatre of war from a distance is complicated on multiple levels and many Australians will question the psychological impacts of the repeated SAS deployments to Afghanistan.

Soldiers under a cloud deserve to have the issue resolved as a matter of urgency. As editorialised in August 2020, if members of our elite special forces committed war crimes or atrocities in Afghanistan, they deserve to face the full weight of the criminal justice system. Since investigations began in May 2016, many reputations have been tarnished and the cohesion of our most capable military units ruptured by claims and counterclaims of serious criminal misconduct. Our view then, that justice delayed is justice denied, is still true today. The defamation trial verdict will inevitably colour public perceptions around the whole issue of war crimes in Afghanistan. Those involved deserve a proper opportunity for the facts to be aired. We still maintain that, where appropriate, charges should be brought and trials held. There is no place in the armed forces of liberal democracies for war criminals. Nor should the top brass be allowed to shirk its responsibility for having oversight of what happens in the stressful environment of a theatre of war.