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War-crime allegations are confronting but they may lead to welcome reforms

A failure of leadership: 55 allegations of 'very serious wrongdoing' expose a systemic breakdown in the ADF

By Leo D'Angelo Fisher

Allegations of war crimes by Australian soldiers in Afghanistan, the subject of long-running official investigations, have caused much unease in the community. Australians have genuine regard and respect for their defence forces and such allegations are confronting.

In 2016, Major-General Justice Paul Brereton was appointed to head an inquiry by the Inspector-General of the Australian Defence Force (ADF) into possible war crimes committed by Special Air Service Regiment (SASR) soldiers in Afghanistan.

The release of Justice Brereton’s report is believed to be imminent. Adverse findings could to lead to criminal prosecutions.

Australians have long cherished the image of the courageous larrikin Anzac, whether forged on the fatal shores of Gallipoli, the horrors of the Western Front or the unforgiving terrain of the Kokoda Track.

Australians are also proud of the reputation of their fighting forces as being among the best in the world. And Australians believe implicitly that Australian soldiers are not only renowned for their gallantry but also their integrity, honour and decency in war – so much so that the 1902 court martial and execution by firing squad of Australians Harry ‘Breaker’ Morant and fellow lieutenant Peter Hancock by British military authorities, for war crimes committed during the Second Anglo-Boer War, causes deep resentment to this day. (Lt George Witton was also sentenced to death but his sentence was commuted to life imprisonment. Witton was released from English prison in 1904 and returned to Australia. His book, Scapegoats of the Empire, the only first-hand account of the infamous trial, was published in 1907. He died in 1942 aged 68.)

The Inspector-General’s annual report released earlier this year revealed that the inquiry is investigating 55 incidents of “very serious wrongdoing” by Australian special forces, including the unlawful killing of civilians and prisoners and the “cruel treatment” of non-combatants. Justice Brereton’s inquiry has interviewed 338 witnesses.

The landmark investigation is also considering "cultural, psychological, operational and organisational factors" surrounding the alleged incidents. These considerations are critical; not because they provide grounds for mitigation but because we need to understand the environment in which Australian soldiers are being asked – commanded – to put their lives on the line.

Taking responsibility for systemic breakdown

The very fact that the inquiry is investigating 55 allegations of high-end wrongdoing is evidence enough that something is seriously amiss in the SASR if not more broadly in the ADF. Responsibility needs to be taken for this apparent systemic breakdown and it implicates the leadership of the ADF, government and on-the-ground command, as well as the relevance and effectiveness of military policies and practices that may simply be out of touch with the realities of 21st century warfare and defence structures.

These are not issues to be solved by the Brereton inquiry, but hopefully, as well as establish the veracity of the 55 allegations, it will also create the impetus for real change in the ADF.

The inquiry includes alleged war crimes revealed by the ABC’s Four Corners program earlier this year. The report aired new allegations that unarmed civilians were unlawfully killed by Australian special forces in Afghanistan.

Four Corners investigated a series of killings, including the alleged unlawful killing of Afghan men in the village of Sola during a raid by 2 Squadron SASR in 2012. The operation resulted in two men – a father and son – being killed. A few days before the raid on Sola, a rogue Afghan soldier had killed three Australian troops; 2 Squadron was on a mission to find him.

A subsequent ADF investigation of the action concluded that both men were lawfully killed: it found that the son was shot after reaching for an Australian soldier's weapon, and the father was shot after allegedly being seen talking on a radio. Those findings could potentially be overturned by the Inspector-General’s inquiry.

Former SASR patrol signaller Braden Chapman told the ABC he had witnessed Australian patrols “murder” Afghan civilians in three separate incidents.

The incidents alleged by Chapman, witnessed while on patrol with 3 Squadron in 2012, include an Afghan villager who, on seeing approaching Australian troops, removed a phone from his pocket and threw it away, whereupon he stopped and raised his hands in apparent surrender. An Australian soldier then allegedly shot and killed the man.

Convictions would be the first since Breaker Morant

Another incident, now notorious thanks to the footage captured on a helmet camera and replayed on the Four Corners report Killing Field, shows the shooting of a young Afghan man cowering on the ground in a wheat field, seen clutching a set of prayer beads and plainly fearing for his life as “Soldier C” pointed his assault rifle at him. The young man was shot three times by the Australian. Soldier C told ADF investigators – following complaints by village elders – that he killed the Afghan civilian because he had been seen with a radio. Soldier C also claimed that he shot the man from a distance of 15 to 20 metres in self-defence. ADF investigators concluded that the Afghan man was lawfully killed because he posed a direct threat. However, the footage aired on the ABC clearly showed that the SAS soldier was standing over the man as he lay on the ground. Soldier C was suspended from duty following the airing of the footage.

In 2017, the ABC aired the Afghan Files report, which revealed details of classified military documents leaked by former ADF lawyer David McBride. The report, which led to the Australian Federal Police raiding the ABC’s Sydney offices in 2019, included the killing of unarmed civilians, some of whom were children.

If convictions should arise from the investigations it will be the first time since the court martial of Morant, Hancock and Witton in 1902 that Australian soldiers have been convicted of war crimes.

Despite the passage of more than a century there are remarkable parallels between the Boer War and the Afghanistan conflict: the Boers were itinerant farmers, excelled at guerrilla warfare which confounded conventional military tactics, most were members of civilian militias and had neither uniforms nor insignia to set them apart from the general population, and distinguishing friend from foe among the Boer civilians was fraught with danger. It was an environment that blurred and challenged traditional rules of engagement and military strategy. Attitudes among Australian soldiers fell into two camps: fight the Boers on their terms, or abide by well-established codes of conduct, honour and morality. In the case of Morant, Hancock and Witton, as in the case of Australians being investigated by Justice Brereton, it was as a result of the dissent of comrades that charges were brought. Then and now, they believed that while the mechanics of war may change, the essence of right and wrong does not.

The investigations into alleged war crimes by Australians in Afghanistan might even produce a latter day Breaker Morant: former SASR Corporal Ben Roberts-Smith, recipient of the Victoria Cross and Medal for Gallantry for his actions in Afghanistan in 2006 and 2010.

Mr Roberts-Smith is the subject of investigations by the Australian Federal Police and the Brereton inquiry over his alleged role in the deaths of unarmed detainees in Afghanistan between 2006 and 2012; those allegations are also the subject of defamation proceedings brought by Mr Roberts-Smith against The Age, the Sydney Morning Herald and The Canberra Times which published the allegations in 2018. As the defamation action suggests, Mr Roberts-Smith utterly rejects the allegations.

Brendan Nelson’s foolish contribution

The controversy surrounding Ben Roberts-Smith, and the reporting of those allegations, prompted an extraordinary intervention by then Australian War Memorial director and former defence minister Dr Brendan Nelson. Defending Mr Roberts-Smith as “one of the greatest Australians” and noting that “war is a messy business”, Dr Nelson told 2GB: “[A]s far as I’m concerned, unless there have been the most egregious breaches of laws of armed conflict, we should leave it all alone."

This was plainly a foolish proposition. Our heroes deserve our respect, but it is absurd to argue, particularly from a position of unblinking patriotism without possession of the facts, that heroes are beyond scrutiny. Dr Nelson’s comments drew scathing condemnation from prominent historians.

University of NSW military historian Professor Peter Stanley told The Age / Sydney Morning Herald: "As a nation, our commitment to honesty and accountability should impel us to acknowledge our defenders' actions in war – whatever they may be – and to decide on consequences with compassion for both victims and perpetrators."

Australian National University historian Professor Frank Bongiorno also questioned Dr Nelson's “leave it alone” attitude: "The idea there are no-go areas or areas that belong to the sacred, that journalists, historians and other academics shouldn't encroach on is dangerous for a democracy."

Broadcaster and panellist on Network 10’s The Project, Steve Price, has also been outspoken on the Roberts-Smith allegations: "Why the hell are we investigating soldier heroes who we train to kill, who we then send off to war? Why are we just not letting them do what they are supposed to do?"

‘What they are supposed to do’ is of course precisely the issue.

International law expert at Melbourne Law School, Dr Carrie McDougall, observes that Australia’s military is subject to both Australian domestic law and Australia's obligations under international humanitarian law.

Dr McDougall told The Age: “Even wars have laws. These laws were drafted in contemplation of the bloodiest battles imaginable. They offer essential protections to civilians and provide parameters as to what is, and is not, acceptable on the battlefield. The Australian Defence Force's respect for the laws of armed conflict has always been central to Australia's proud military tradition.”

Nobody should doubt the anguish, even resentment, which Mr Roberts-Smith must feel in having his service to his country questioned so openly. These are understandable human reactions. But such is the price of justice, democracy and reputation.

Yes, that is all too easy for a commentator to assert from the comfort of his armchair, but that does not make it any less true.

Leo D'Angelo Fisher is a Melbourne-based journalist and commentator. Connect with him on Twitter: @DAngeloFisher

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