We can’t look the other way when our military fails, writes Senator Linda Reynolds

Ben Robert-Smith arrives at Supreme Court for his defamation trial against Nine over reports of alleged war crimes. Picture: NCA NewsWire / Jeremy Piper

With the delivery of the Ben Roberts-Smith civil defamation case judgment, it is my hope that Australians are now ready to have an honest conversation about the Brereton Inquiry report into Special Forces misconduct in Afghanistan.

Not as a witch-hunt, but to understand how and why these alleged war crimes occurred and how they could go unchecked for so long. To this end, our military and political leaders must now explain what they believed happened. Why? As the Australian Defence Force chief said when the Brereton report was made public, so they can “set things right”.

As Defence Minister, I dealt with hundreds of sensitive and significant national issues requiring tough decisions to be made, many public, some not. Early in my tenure I started receiving briefs on the progress of the longstanding Brereton Inquiry into rumours of special forces misconduct in Afghanistan. This was a report that would be released publicly and became the most ethically challenging matter I dealt with as a Minister, and it still greatly troubles me.

At the time, I thought I was mentally prepared to read the full report, but the long list of credible allegations of brutal war crimes still made me physically ill. This was not the army I had served in for nearly three decades and I know it did not represent the service of hundreds of thousands of past and current personnel. As a former senior officer working in army headquarters, I also understood the damage it would have on the moral authority of the Australian Army both domestically and overseas. I simply could not understand how the chain of command had allowed this to occur.

Since then, I have often reflected on how our special forces task groups had become so “special” they were able to commit alleged war crimes and for so long. The Brereton Report provides valuable insights on how a culture of exceptionalism had been allowed to develop across multiple rotations of Australian Special Operations Task Groups.

The hardest phone call I ever made as a Minister was to Afghanistan’s ambassador to Australia, to say the Brereton Report would contain credible allegations of systematic war crimes committed against his citizens by Australian special forces. The very people, who for nearly 20 years, the ADF had been fighting, and dying, to protect. What I shared with him were not fog-of-war incidents in the heat of battle, they were credible allegations of war crimes, of murder, and of sophisticated cover-ups. The ambassador was calm and dignified, which made the call even harder.

Linda Reynolds arrives for a media conference in Parliament House.

Successive Australian governments had over-tasked our Special Forces in Afghanistan long after other army units could and should have been deployed. By all accounts they were very willing to keep deploying. They did so with the clear understanding they would abide by the laws of war, no matter how many deployments they did.

The overwhelming majority served with great distinction and honour, in circumstances few of us could even imagine. But over time, it is clear the behaviours of some deviated and even became normalised. This was a clear failure of command and leadership. For many years there were persistent rumours within Defence of misconduct by our Special Forces in Afghanistan, which ultimately, due to the great moral courage of Special Forces insiders, resulted in the Brereton Inquiry and report. This was in the face of significant organisational resistance, including a warped Special Forces code of silence, enforced by threats and intimidation.

As a nation we must not look the other way when the behaviour of our military falls so far short of what is moral and legal. Admiration for the military service of the majority must never blind us to the very real dark side of human behaviour in war.

The truth is that we train our service men and women how to kill. Therefore, we must be vigilant to ensure their actions are moral and lawful on operations and in war and adhere to the Laws of Armed Conflict and the Rules of Engagement. All deployed personnel are well trained in both.

As shocking as the findings of the Brereton report were, almost as shattering to me was the ferocious response of some of my parliamentary colleagues and commentators, both to the report and to my response to it.

The responses were varied and, in hindsight, to be expected. I should not have been as surprised as I was by these responses to such a serious issue, one that went to the heart of our national identity.

Some were very angry at those of us who had acknowledged the report’s findings – as if acknowledgment was itself a betrayal of all who serve with distinction. Others conflated criminal culpability with ethics, military law and leadership accountability, believing that the report response should be left to Australian criminal courts. I also heard repeatedly that ‘S*** happens’ in war and that the rules of war should not be applied to our own military.

I had the advantage of more time to draw on my service experience and the time to consult lawyers and ethicists to prepare a government response. A response that dealt with both the issues of criminal culpability and the cultural and leadership failures.

After this consideration, I recommended to the Prime Minister and to cabinet that two separate entities be established. The first was the Office of Special Investigator to independently conduct criminal investigations into the allegations of war crimes. The second was an Implementation Oversight Panel to independently review Defence’s implementation of report recommendations and to provide transparency to the Australian people through the Minister and the parliament.

Australian soldiers stand at an observation post on Townshend Island while a United States Marine Corps Bell AH-1Z Cobra hovers nearby.

With the benefit of hindsight, as political and military leaders we jumped too quickly to solutions and action, without first giving the nation time to process this shocking Report’s findings and implications. It is my hope that as a nation, we are now ready to face up to the reality of what some of our Special Forces did.

While this occurs, we must remain vigilant to ensure we do not cause further damage to the individuals identified in the Report and their families, and both the criminal justice and military justice systems be allowed to take their course. We must also remember that the next generation of special services personnel should not burdened by the actions of some of their predecessors. Equally, we must ensure they serve our nation on operations morally and legally.

As a nation we owe a great debt of gratitude to the special forces personnel who did speak out, they exercised great moral courage to ensure the truth was told. We must also be grateful for the work of Justice Brereton and his team and to the investigative journalists who never gave up.

A functional and healthy democracy requires us to deal with both the good and the bad in human nature. If Australians want to live in a fair and just society, we can’t turn a blind eye to the crimes committed by our own, even in war. For if we do, we lose moral authority and become no better than those we fight against. It is time for us as a nation to come to terms with what happened in Afghanistan, so we can “set things right.”

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“These findings allege the most serious breaches of military conduct and professional values. The unlawful killing of civilians and prisoners is never acceptable. It’s my duty and that of my fellow Chiefs to set things right. Accountability rests with those who allegedly broke the law and with the chain-of-command responsible for the systemic failures, which enabled alleged breaches to occur and go undetected. To deal with what happened we need to understand how it could have happened. It starts with culture …. not correcting this culture as it developed was a failure of unit and higher command.”

- Defence Force chief General Angus Campbell at the release of the public version of the Brereton Report, November 2021.

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Senator Linda Reynolds served as Defence Minister from 2019 to 2021.