An explosive report released on 19 November alleging war crimes committed by Australian Special Forces has captured the attention of the wider Australian community. Since then the public has been pressuring the Federal Government to thoroughly investigate the allegations and to pursue criminal prosecution. Evidence submitted to the inquiry detailed allegations of competition killing, “blooding” which involves the execution of prisoners as a form of hazing of junior soldiers, and planting weapons on corpses to deliberately cover up the murder of civilians. The report has recommended that 19 Special Forces personnel be investigated for possible war crimes. 

Although the report has been welcomed by human rights groups, lawyers are concerned that the report’s findings may not be sufficient to overcome the evidence hurdle of a criminal prosecution. While other experts urge investigators to allow victims to play an active role in the investigation, and ultimately the prosecution of those involved. 

THE AFGHANISTAN INQUIRY REPORT

The inquiry was sparked by the findings of military sociologist Dr Samantha Crompvoets, who uncovered allegations of war crimes when examining the “culture” in the Special Forces. One such allegation detailed the murder of two 14 year old Afghan boys by Special Forces officers after forming an assumption that they were Taliban sympathisers. In 2016, Crompvoets delivered a report detailing allegations of serious misconduct within the Special Forces, with the Brereton inquiry being set up soon after. 

The four year review lead by Major General Justice Paul Brereton investigated the conduct of Australian Special Forces in Afghanistan between 2005 and 2016. The investigation involved the review of 20,000 documents, 25,000 images and the interviewing of 423 witnesses. The report itself is heavily redacted so as not to adversely affect any possible criminal prosecution. However, some detail is provided as to witness testimonies. 

CRIMINAL INVESTIGATION 

The chief of the Australian Defence Force General Angus Campbell has publicly apologised to the Afghan people for the conduct of the Special Forces in Afghanistan, and has promised to refer individuals to the Office of the Special Investigator to consider criminal prosecution. The announcement of the creation of the Office of the Special Investigator came shortly before the release of the report, intended to build briefs of evidence and make referrals to the Commonwealth Director of Public Prosecutions for criminal prosecution of individuals. If any members are charged with a criminal offence, it will be the first time that Australian soldiers have faced prosecution for war crimes in a civilian court.

Under International Humanitarian Law the murder and cruel treatment of non-combatants and persons who are no longer involved in fighting (due to wounding or being captured) are classified as war crimes. These binding international law obligations have been implemented in Australian criminal law in the Commonwealth Criminal Code Act 1995 and applied to the Australian Defence Force whilst fighting in the war in Afghanistan.

In his report, Brereton focuses on the criminality of lower-ranking sergeants and corporals - often involved in covering up the crimes committed - and appears to absolve senior command of having knowledge of their commission. Brereton suggests that immunity should be offered to patrol members to assist in the investigation and prosecution, and focus should be on those members who commanded the killings. In detailing the 23 incidents that resulted in the death of 39 Afghan civilians, he specified that they did not occur during battle, and the victims were either non-combatant or were no longer combatant. In all cases, Brereton finds that it would have been “plain that the person killed was a non-combatant.”

When determining whether to refer a matter for criminal investigation, Brereton details the threshold test being whether there was a “realistic prospect” of an investigation leading to the charge of an individual with a criminal offence, and the likelihood of securing a conviction. However lawyers are sceptical as to the success of prosecution under Australian criminal law. What is noted is that the disclosures made by witnesses to the inquiry cannot be admitted as evidence to a criminal trial as such disclosures were made under the promise of immunity. Therefore such witnesses may exercise their right to silence once questioned by the Special Investigator, hindering the prospect of prosecution. Further, given the threshold for a criminal trial is much higher than that used in the inquiry (”beyond reasonable doubt”), the evidence found may not be sufficient to secure convictions. 

The release of the report has also reignited discussions around other nation States whose militaries have served in Afghanistan to take responsibility over their own soldiers conduct. Human Rights Watch Australian Director, Elaine Pearson, says that despite allegations being made against the United States and the United Kingdom, there has been a failure to hold perpetrators to account. Similar allegations made against British special forces resulted in the establishment of Operation Northmoor in 2014, however after six years of investigation no soldiers were charged. Following the release of the Brereton report, the Afghanistan Independent Human Rights Commission has called for the US and UK to take action and investigate the allegations of misconduct by their own Special Forces. Pearson reiterates the importance of Australian authorities holding the perpetrators accountable, and to ensure that Australia does not follow in the footsteps of the UK and US.

HUMAN RIGHTS GROUPS CALL FOR VICTIM INVOLVEMENT IN INVESTIGATION 

In his findings, Brereton also made recommendations for the families of the victims to receive compensation. However, activists are calling for the inclusion of victims in the investigation, with some suggesting that the Australian government should offer the families a pathway to resettlement as form of reparation. The head of the Afghan Independent Human Rights Commission Shaharzad Akbar has called for an independent body to be established for the protection of victims’ rights in ensuring the provision of compensation and other forms of redress, as well as facilitating victim involvement in the investigation and prosecution processes. The organisation is calling for redress to go beyond mere compensation, to include “restorative justice and rehabilitation to the victims’ families.”

In order to retain Australia’s credibility in the international forum it is integral that the alleged war crimes are thoroughly investigated, and prosecuted where appropriate. By establishing the Office of the Special Investigator, the Australian government has shown it is taking the allegations seriously and it must continue to ensure the investigation and prosecution process remain open and transparent.  

Alysha is an Australian criminal defence lawyer, advocating on behalf of disadvantaged adults and children in accessing justice. She is undertaking a Masters of Public and International Law at the University of Melbourne, with interests in refugee law, criminal justice and children in international law.

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