Australian war crimes in Afghanistan: The Brereton Report

On Thursday 19 November Australia faced a reckoning with its recent past in Afghanistan.* Australian political culture approaches our armed forces with a great degree of deference and respect. Three of our last four Governors General have been, for example, senior military leaders. The Australian Defence Force support operations in respect of the January 2020 bushfires and the COVID19 pandemic have drawn widespread and deserved praise. There has, however, been significant and growing disquiet regarding reports of war crimes committed in Afghanistan by our special forces. On 19 November General Angus Campbell, Chief of the Australian Defence Force, released the summary of the final report of a long-running inquiry into those accusations. (Press conference transcript here; redacted report here.) That report had been commissioned by the Inspector-General of the Australian Defence Force, an independent office outside the military chain of command.

The press conference was a very sober affair. Much of the report will remain redacted pending criminal proceedings. The key finding being that the report identifies 23 incidents involving 39 killings by 25 Australian personnel which appear to be cases of clearly unlawful killings which will be referred for prosecution. Critically, the report apparently finds none of these killings occurred in heat of battle, none occurred “in circumstances in which the intent of the perpetrator was unclear, confused or mistaken”, and all persons involved understood the relevant law of armed conflict and the rules of engagement. General Campbell acknowledged that this has damaged “our moral authority as military force” but emphasised “many thousands of Australians … served in Afghanistan and did the right thing, professionally and with honour; including many of our Special Forces personnel”.

Nonetheless, the redacted report includes the grim summary that, in respect of one chapter:

“what is described in this Chapter is possibly the most disgraceful episode in Australia’s military history, and the commanders at troop, squadron and task group level bear moral command responsibility for what happened under their command, regardless of personal fault.”

The details of that episode(s) remain redacted pending prosecutions. A concern for some time has been that any prosecutions may involve pinning all blame on a limited number of frontline Special Air Service Regiment ‘operators’ without any accountability for commanding officers who either knew or should have known what was happening. Will this be what comes to pass? In the Q&A at the end of the Press Conference General Campbell noted that the SAS second squadron will be permanently stricken from the Army Order of Battle. This means that squadron will be disbanded and its number never used again, leaving a permanent institutional reminder. The move could be seen to imply that all or most wrongdoing was confined to that unit, but apparently that is not the case. However, the report apparently finds (in the words of General Campbell):

“no evidence there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of Troop, Squadron and Task Group Commanders, or higher commanders.”

As one journalist put it in the Press conference, it is a difficult finding to swallow that no one from the rank of Lieutenant to Lieutenant General had any direct knowledge of what was going on. (A point returned to below.) There is certainly a question here for Australia as a society as well regarding “how we hold up our special forces as heroes, yet send them on relentless deployments lacking an achievable objective”.

But let’s step back a moment. How did Australia come to this point – and what comes next?

What is the Brereton Report?

In 2016 the Inspector-General of the Australian Defence Force appointed Paul Brereton, a Justice of the NSW Court of Appeal and a Major General in the Australian Army Reserves, to inquire into rumours of breaches of the law of armed conflict by members of Australian special forces operating in Afghanistan. That inquiry was a fact-finding process, not a criminal trial or investigation. It is understood to have examined 55 incidents, including the executions of unarmed civilians or prisoners, interviewed over 300 witnesses and Justice Brereton also travelled to Afghanistan with investigators to gather evidence.

The Brereton inquiry had, however, precursors. First, there was the internal report by a sociologist, Dr Samantha Crompvoets, who was originally commissioned to prepare a report on organisational culture and poor relations between the Australian SAS and Commandoes. Her status as an outsider, perhaps, made whistleblowers more likely to come forward. Her frank report – and the willingness of General Campbell to follow through – is credited with leading to the four-year Brereton inquiry. The Australian national broadcaster, the ABC, also ran a series of stories “The Afghan Files” detailing allegations of Australian special forces killing unarmed civilians and aired damning footage of the execution of an unarmed, prostrate Afghan man holding nothing but prayer beads. This reporting was said to have “shocked the military establishment”. For their trouble, ABC journalists were investigated by the Australian Federal Police for the offence of “unauthorised disclosure” of classified material under Australian secrecy laws (see the Parliamentary report here). Australia has very limited protections for journalists in such cases under s. 122.5(6) of the Commonwealth Criminal Code which provides no immunity from prosecution. Rather it provides a limited positive defence under which a journalist can attempt to prove, once prosecuted, that they reasonably believed their conduct to be in the public interest.

In any event, it should be noted that none of this would be publicly known had military whistleblowers not been prepared to come forward. (Some of whom still face prosecution for that whistleblowing.) Their reports, and those of US service personnel, are of a sub-group or groups within Australian special forces who operated outside the law of armed conflict with impunity. (US allegations include the execution by Australian SAS soldiers of a bound prisoner because a US helicopter could take only six, not seven, passengers.) It should also be noted that a group of serving and retired Special Air Service Regiment “operators” have spoken in favour of the prosecution of criminal conduct, albeit noting their begrudging acceptance of “continually shifting goal posts and decisions made by governments in the absence of a defined campaign outcome in Afghanistan”.

What happens next? From fact finding to prosecutions

The Brereton Report was a fact-finding exercise which has reported on those incidents where it found “credible information” that an offence occurred. Further, as an administrative inquiry under the Defence Act 1903, witnesses did not enjoy a right to silence but did give evidence under limited conditions of immunity (essentially preventing a witnesses’ compelled testimony being used against them in a criminal trial but permitting its use against others). So the Report was never intended to, and could not, simply assemble case files and briefs for either Defence Service Tribunals or the Australian Federal Police. The Report recommends (para 74):

“that any criminal investigation and prosecution of a war crime should be undertaken by the Australian Federal Police and the Commonwealth Director of Public Prosecutions, with a view to prosecution in the civilian criminal courts, in trial by jury, rather than as a Service offence in a Service Tribunal.”

Notably, while Australian war crimes law is set out in Division 268 of the Commonwealth Criminal Code such crimes can also be prosecuted before Defence Service Tribunals under s. 61 of the Defence Force Discipline Act 1982 (which allows the prosecution of Commonwealth offences anywhere in the world, as if they had been committed in the federal territory of Jervis Bay).

The Australian Federal Police have already carried out one unsuccessful prosecution of alleged war crimes in Afghanistan. A 2009 prosecution failed in respect of two soldiers in respect of the death of several children killed when two grenades were tossed into a room from which a Taliban fighter was shooting. The case failed because direct intent could not be made out, and negligent manslaughter proved too difficult to establish under combat conditions. However, the facts of the cases referred here appear to be more clear cut.

An investigatory and prosecutorial mechanism has been announced, the Office of the Special Investigator. The Special Investigator will, according to the Prime Minister, “be either a senior counsel or retired judge with extensive criminal law experience”. The task of the Office will be to “investigate allegations, gather evidence and where appropriate, refer briefs to the Commonwealth Director of Public Prosecutions … for consideration”. The Office will be housed in the Department of Home Affairs and, it appears, staffed by personnel drawn from the Australian Federal Police and elsewhere.

In any event, such prosecutions are likely to be long and complex, and slow coming.

What of superior responsibility?

A lingering question hanging over what comes next must be: can it really be the case that no officer will face a criminal trial? General Campbell’s press conference conceded the moral responsibility of those in command and foreshadowed disciplinary and administrative consequences for some (including but not limited to the stripping of military honours). However, the view appears to have been taken in the report that the evidence does not rise to the level of supporting the necessary legal findings beyond reasonable doubt. Part of the conclusion appears to be that SAS units operated in small groups with considerable autonomy in the field, in the words of, highly dispersed “with limited supervision and minimal support, for extended periods … [i]n some of the most demanding mountain terrain on the planet” (quoting David Killcullen). Under such conditions, real power lies with sergeants and not commissioned officers. Simply: such units, if a toxic culture takes hold, are uniquely well placed to conceal information about what occurred on a mission from the commissioned ranks.

However, a subtle but important legal distinction may also play a significant role. Most of Australia’s war crimes provisions track very closely the language of the International Criminal Court’s Rome Statute. The command responsibility provisions, as Mel O’Brien has drawn to my attention, do not.

The core of military command responsibility under the International Criminal Court Rome Statute is that such a commander “shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control … as a result of his or her failure to exercise control properly over such forces, where: [t]hat military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” (Art 28(a)(i)).

The mode of liability as rendered in the Commonwealth Criminal Code provides (s. 286.115(2)(a)): “A military commander … is criminally responsible for offences under this Division committed by forces under his or her effective command and control … as a result of his or her failure to exercise control properly over those forces, where: the military commander … either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences”.

The consequence as a matter of Australian law is that one would be attempting to prove beyond reasonable doubt (likely on the evidence of convicted war criminals) that officers had awareness of a substantial risk that war crimes had been, or were about to be, committed. As Jeremy Gans has observed, this will be a “hard road” for an Australian prosecutor. (Still, as some veterans have already pointed out, there are hard questions to be asked of ostensibly ignorant commanding officers who drank with SAS troops at their “secret” bar which was allowed to operate on a dry base.) Whether the Australian standard of command responsibility is different from what would be required in an ICC prosecution remains to be explored (particularly after the hash made of command responsibility by the slew of contradictory individual judgements both at first instance and on appeal in Bemba at the ICC), as does whether that difference makes any practical difference in Australian-ICC relations.

It bears noting that while the ICC OTP has now been authorised to open an investigation in Afghanistan, its stated focus thus far is alleged offences committed on Afghan territory (in whole or part) by Taliban forces and CIA employees. Indeed, the evidence thus far of any indirect ICC impact on the Australian investigation is slight (other than one person under investigation, ironically perhaps, threatening to “report” a trooper under his command to the ICC).

Conclusion

This Report was necessary. However, it begins rather than concludes Australia’s reckoning with a dark chapter in its history. While that chapter may perhaps have been written by a few, many have questions to answer including it would seem legal officers who, directly or indirectly, provided cover for some of this conduct.  

* I write here in a purely personal academic capacity and note that no government official had sight of this post prior to publication. I also note for the avoidance of doubt that I am an employee only of the University of New South Wales and am not, in any capacity, an employee of or spokesperson for any Australian government department.