The US military warned war crimes allegations could prevent co-operation with Australian special forces

The US military warned allegations of war crimes from Afghanistan could affect its co-operation with Australia’s SAS and Special Operations Command.

Video footage of a trooper allegedly shooting an Afghan man in a wheat field in Uruzgan Province, southern Afghanistan in 2012.

The US warned Australia’s Chief of Defence Force that allegations of war crimes by Australian ­soldiers in Afghanistan could ­prevent the US military working with Australia’s elite special forces units.

In explosive evidence to Senate estimates on Wednesday, General Angus Campbell said he received a letter from the US defence attache in Canberra warning that the Brereton war crimes report could trigger a US law banning co-operation with military units ­implicated in gross human rights violations.

General Campbell said the March 2021 letter – about four months after the Brereton report was released – led to “a precautionary period” during which co-operation arrangements were reassessed.

He said the concerns raised “centred on the question of whether a unit is regarded as in some way being tainted by this question of allegations of unlawful conduct”.

“There was an interest in understanding what Australia was doing with regard to the Brereton report …” General Campbell said.

He said he could not recall what remediation was required, but the prospect of an end to co-operation was “not triggered”.

General Campbell said the matter was resolved by March 2022, and he confirmed Australia’s Special Operations Command and the Special Air Service Regiment were currently able to undertake joint training and ­exercises with their US ­counterparts.

America’s “Leahy Law” prohibits the US government from co-operating with foreign security forces where there is “credible information implicating that unit in the commission of gross violations of human rights”.

“I received a letter from the defence attache of the United States Armed Forces based in Canberra to me, indicating that the release of the Brereton report and its findings may initiate Leahy Law considerations,” General Campbell told the committee, following questions from independent senator Jacqui Lambie.

He said he knew of one individual whose “posted position was adjusted” in response to the issue being raised.

General Campbell said he kept the defence minister at the time, Peter Dutton, “routinely advised” on the matter “through to the ­conclusion of the issue”, but did not inform the current holder of the portfolio, Richard Marles.

Pressed by Greens senator David Shoebridge on what action he took, General Campbell said: “A lot of serious and important matters come across my desk, and I’m only going to say it once more, senator, politely – I do not know the dates, I’ll have to take it on ­notice, thank you.”

Chief of the Defence Force General Angus Campbell. Picture: NCA NewsWire / Gary Ramage

Mr Marles’s spokeswoman said the minister had been unaware of the matter. She said he was briefed on matters relating to his portfolio as they arise and as was “appropriate”.

Australian National University international law expert Don Rothwell said Leahy Law offered exemptions allowing the US government to engage with relevant forces if “effective steps” were taken “to bring the responsible members of the security forces unit to justice”.

Professor Rothwell pointed to the actions of the former Morrison government in establishing the Office of the Special Investigator to deal with the war crimes ­allegations.

“My interpretation of the exemptions are such that Australia, and both the US State Department and the US Department of Defence, could legitimately say: ‘To our knowledge, Australia is taking the necessary corrective steps or the necessary remedial actions’,” Professor Rothwell said.

The November 2021 Brereton report found “credible information” that Australian soldiers killed 39 Afghan civilians and prisoners during the war.

It’s understood the Office of the Special Investigator is close to initiating further prosecutions against former special forces soldiers over the war-crimes allegations, after former SAS operator Oliver Jordan Schulz was charged with murder in March.

In a separate process, a ruling is scheduled for Thursday on the defamation case brought by Australia’s most decorated soldier, Ben Roberts-Smith, against Nine newspapers, over reports accusing him of war crimes.

Also in Senate estimates hearings on Wednesday, ­ Defence officials were accused of being secretive over Australia’s support for Ukraine, after they refused to reveal how many of the nation’s promised 90 Bushmaster vehicles had arrived in the war-torn country.

As the government prepares a fresh package of support for Ukraine, Defence officials would only say that “over half” of the Bushmasters had arrived at their destination.

Opposition foreign affairs spokesman Simon Birmingham contrasted their refusal to provide further details with the approach of the UK, which provides extensive reports over the delivery of its support.

An Australian Special Operations Task Group soldier observes the valley during the Shah Wali Kot Offensive.

Senior officers pushed back at the prospect that Australia could provide Hawkei tactical four-wheel drives to Ukraine, saying the vehicles could not be properly sustained once handed over.

The Australian understands the vehicle’s manufacturer, Thales Australia, says the sustainment issue could be “rapidly addressed” if the Hawkeis were handed over.

Defence Department secretary Greg Moriarty also came under fire during the Senate estimates session over his role in the selection of BAE’s Hunter-class frigate – a decision the auditor-general revealed had been made without a value for money assessment. “That is extraordinary,” Senator Shoebridge said. “Your department has committed the people of Australia to a $45bn program, and you didn't even assess the competing tenders for value for money.

“That’s not a little problem. That’s a huge glaring fail from Defence, isn’t it?”

Mr Moriarty said it was the government’s decision to select the BAE ship, not Defence’s, and maintained it did have access to value-for-money information.

He could not account for the loss of key meeting minutes from the committee when the decision was discussed.