Australian war crimes inquiry should be followed by prosecutions

By agency reporter
November 20, 2020

The findings of a four-year inquiry into alleged war crimes by Australian forces in Afghanistan highlight the need for prompt, independent criminal investigations leading to appropriate prosecutions, says Human Rights Watch. The Australian government should provide adequate and swift compensation to the Afghan victims of abuses and their families.

On 19 November 2020, the Australian Defence Force released the findings of the inquiry headed by Justice Paul Brereton. The investigation found credible information of 23 incidents of unlawful killing of 39 people “by or at the direction of members of the Special Operations Task Group in circumstances which, if accepted by a jury, would be the war crime of murder. None of these are incidents of disputable decisions made under pressure in the heat of battle, found the inquiry.”

The report also found credible allegations that junior soldiers were required by their patrol commanders to shoot a prisoner to achieve the soldier’s first kill, in a practice that was known as 'blooding'. Credible allegations into the practice of 'throwdowns' were also established, in which soldiers placed weapons, handheld radios, weapon magazines, or grenades with the body of an 'enemy killed in action' to portray the person killed as a legitimate target.

“The Australian government was right to promptly release the Brereton report, and the shocking news that the special forces unlawfully killed 39 people will horrify both Australians and Afghans,” said Elaine Pearson, Australia director at Human Rights Watch. “The Morrison government needs to ensure the Special Investigator’s Office has the resources it needs to act quickly to ensure justice. As time drags on, the prospect of justice for Afghan victims becomes more and more remote.”

On 12 November, the Morrison government pre-emptively announced the creation of an Office of the Special Investigator to examine potential criminal matters raised by the Brereton report. The government said the office will be staffed with experienced investigators from the Australian Federal Police, state police experts, and legal counsel, who will gather evidence and refer briefs to the commonwealth director of public prosecutions for consideration.

The government should ensure that the special investigator’s office is independent from both the military and political actors, and that it investigates all those in the chain of command implicated in these abuses, Human Rights Watch said.

The inquiry notes that, “the criminal behaviour described in this report was conceived, committed, continued, and concealed at patrol commander level, and it is overwhelmingly at that level that responsibility resides.” But civilian officials and military commanders can be held criminally liable as a matter of command responsibility if they knew or should have known about violations committed by forces under their control and failed to prevent them or punish those directly responsible.

Similar allegations in the United Kingdom about British special forces implicated in unlawful killings in Afghanistan resulted in the creation of 'Operation Northmoor' in 2014, which ran for six years and was closed in 2020 without charging any servicemen. This investigation was not independent of government and was open to political interference, says Human Rights Watch.

Successive British governments repeatedly obstructed the process, most blatantly by effectively shutting down Operation Northmoor and the UK’s Iraq Historic Allegations Team (IHAT), which was established in 2010. The UK government introduced legislation in parliament this year which would make it nearly impossible to prosecute soldiers for alleged crimes committed outside the United Kingdom more than five years ago.

“Canberra needs to learn lessons from the UK’s failed efforts to prosecute soldiers implicated in war crimes in Iraq and ensure that no government minister has the power to interfere, direct, or prevent investigations and prosecutions,” Pearson said. “The Office of the Special Prosecutor needs to be able to investigate and prosecute Australian military personnel regardless of rank.”

The government has not yet clarified what powers the Office of the Special Investigator will have to get its work done, and the special investigator has not yet been appointed. The government should ensure that the office has clear legal authority to obtain evidence and summon people for questioning and arrest. The office should also be protected against interference in its operations and obstruction of justice, as with other criminal investigations.

Investigating historic crimes in another country is a difficult, complex, and costly exercise. The special investigator’s office should have adequate resources and staff, including relevant experts, analysts, and translators to ensure that investigations are handled effectively and efficiently. Ministers should ensure the office has the necessary resources, expertise, and time to fully carry out its work.

The creation of a separate independent oversight panel to oversee the Department of Defence response to the Brereton inquiry is critical to ensuring that the Australian Defence Force undertakes the necessary steps to address systemic problems and implement the deep cultural, organisational and leadership changes across the armed forces, to ensure that such abuses do not happen again.

For many Afghan survivors and others harmed by these abuses, the consequences have been devastating. Families who happened to live in districts that had a Taliban presence lost their children, their family’s breadwinner, their homes. Those who sought justice for these crimes were turned away or threatened. The special investigator’s office should ensure that proper protection measures are in place to minimise any risks for potential witnesses to crimes.

The Australian soldiers who came forward to speak out about these incidents challenged a culture of secrecy and silence that has surrounded the Australian Defence Force for many years, Human Rights Watch said. The accounts they provided to the inquiry and media were the first step towards accountability.

The former military lawyer and whistleblower David McBride, who was deployed to Afghanistan with the special operations task group, was charged with a number of offences in 2017 after he spoke to reporters about the alleged abuses, and his trial is ongoing. He is the only person who was charged, and the charges are unrelated to his conduct in Afghanistan.

“David McBride is a brave whistleblower who drew attention to hideous abuses after his superiors failed to respond to his concerns”, Pearson said. “His whistleblowing has been vindicated by this report and his continued prosecution is a chilling warning to others who may wish to come forward.”

* Read the Brereton report here

* Human Rights Watch https://www.hrw.org/

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