Inside Story

Brereton’s unfinished business

With the war crimes unit getting to work, will Afghan victims be compensated and whistleblowers protected?

Hamish McDonald 14 April 2021 2748 words

Already a lost cause? Australian special forces in northern Kandahar province in May 2013. Raymond Vance/Department of Defence/AAP Image


Although the dawn services and the marches will be back on 25 April after last year’s Covid-mandated shutdowns, a cloud will hang over the Anzac Day commemorations. Since crowds last gathered, the military has been tainted by Australian Defence Force inspector-general Paul Brereton’s findings about the behaviour of special forces in Afghanistan. Veterans of that conflict have also just learnt that Joe Biden will withdraw America’s remaining 3500 troops by September, having decided a political solution was the best approach. Many analysts see this as prelude to the Taliban taking power again.

The Taliban are already moving openly around the fringes of Kabul and in the countryside of Uruzgan province, where the Australian taskforce operated up to 2013. The veterans, along with many others, will no doubt be asking whether Australia’s longest military campaign, which saw forty-one soldiers killed and hundreds injured physically and mentally, was doomed from the beginning.

Brereton’s report is an opportunity to extract honour out of this sorry failure. Even in the redacted form released on 19 November, it offers a devastating inventory of killings and mistreatment of civilians and captives by Australia’s special forces, mostly from the Special Air Service Regiment, or SAS. It finds plausible evidence of thirty-nine unlawful killings by twenty-five soldiers, and recommends war crimes investigations of nineteen of them.

Six weeks after Anzac Day, a federal court will start hearing the defamation case brought against Nine Entertainment by the highest-profile of the former SAS troopers, Ben Roberts-Smith, over allegations he participated in war crimes in Afghanistan. Those stories have been given new life by Sunday’s fresh revelations on Nine’s 60 Minutes.

The Morrison government moved quickly to implement Brereton’s recommendation for war crimes trials by setting up a new Office of the Special Investigator within the home affairs department. Led by Victorian judge Mark Weinberg, its director-general is former attorney-general’s department secretary Chris Moraitis, with one-time Queensland Police deputy commissioner Ross Barnett as director of investigations. Weinberg was the sole dissenting judge on the Victorian appeals panel that upheld the conviction of Cardinal George Pell (later quashed unanimously by the High Court); his appointment suggests the government wanted someone unlikely to let emotion override reasonable doubt.

Brereton didn’t expect quick results, and nor did anyone else. The new office is still assembling the team of investigators who will go through the evidence collected by Brereton and separate Australian Defence Force inquiries and winnow out what is admissible, what is protected by promises of immunity, and what needs to be re-sworn.

If this process involves taking fresh statements from Afghan witnesses, an article by Kabul-based journalist Andrew Quilty in the current Monthly suggests it will be fraught. As Quilty found in Uruzgan in January, most potential witnesses live under Taliban control, some even joining the Taliban in reaction to the killing of relatives. Many claim Brereton missed numerous other cases.

In the Roberts-Smith defamation case, Justice Anthony Besanko has ruled that four Afghans who claim to have witnessed unlawful killings will be allowed to testify by video link — a process Justice Weinberg might also employ. Even so, it will take years for cases to be forwarded to the director of public prosecutions and for trials to be held.

Brereton also made recommendations that needn’t wait anywhere near as long, and here the Morrison government, the defence department and the ADF are showing little sign of progress. Among these is the question of compensation for Afghan civilians harmed by Australian actions.

“In cases where it has found that there is credible information that an identified or identifiable Afghan national has been unlawfully killed, Australia should now compensate the family of that person,” Brereton argued. “Doing so will contribute to the maintenance of goodwill between the nations, and do something to restore Australia’s standing, both with the villagers concerned, and at the national level. But quite aside from that, it is simply the morally right thing to do.” This process need not wait on convictions, he added.

Prime minister Scott Morrison’s initial response, last November, wasn’t encouraging: “That is not a matter that’s currently being considered by the government at this stage.” This appears to remain the government’s position.

Perhaps work is proceeding behind the scenes? When I put this question to the defence department I was told that it is still developing “a comprehensive implementation plan” for Brereton’s recommendations. “This includes working with relevant agencies to provide advice to government on issues such as compensation,” said the department. “Final decisions related to compensation (including relevant processes and procedures) will be a matter for the Australian government.”

One possible complication involves the interaction of compensation payments and war crimes trials. Could compensation payments, which assume specific killings and injuries were unlawful, undermine the presumption of innocence for soldiers charged over the incidents? Clive Williams, an ANU security expert and former intelligence official, says this is a real risk. He points to the precedent created by the International Criminal Court, which ordered a convicted person to pay compensation to victims after being convicted.

Ben Saul, professor of international law at Sydney University, doesn’t share that view. Recognising Australia’s responsibility by paying compensation “does not prejudge the criminal liability of individuals,” he tells me. He sees an analogy with Australian state government schemes that make payments to victims of crime “regardless of whether an offender has even been identified, let alone criminally convicted; the former does not prejudge the latter in any way.”

But defence lawyers in any war crimes trials will undoubtedly question whether alleged victims of Australian actions are in fact civilians. “It’s common for local villagers to support Taliban insurgents in some way — whether they want to or not,” says Williams. “This could involve spotting for them to let them know when to detonate an IED [improvised explosive device], for example, while seemingly engaged in innocent farming activity.” They wouldn’t qualify as armed insurgents, he says, but it “does make them party to an attack on our soldiers. This has led in the past to items being planted on spotters by frustrated International Security Assistance Force soldiers to justify shooting them.”

The money itself isn’t the issue: the compensation is unlikely to break the Australian treasury. From 2009, while operating in Uruzgan, the military ran a scheme that made “expeditious non-liability payments” for property damage, injury or death resulting from military actions by deployed forces. The 2836 payments made before the troops’ withdrawal in 2013 totalled $206,937.

An existing compensation scheme heavily funded by international donors but run by the Afghan government is supposed to pay about US$1300 for every civilian killed in action by Afghan, American or other forces, and US$650 per wounded civilian, says Williams. In reality, he adds, the victims’ families seldom receive any money. “Afghanistan is such a corrupt society that any money paid by Australia for victims’ families is likely to be considerably diluted, with corrupt middlemen, distant relatives and the local hierarchy all taking their cut.”

A better option, he says, might be to determine what the victims’ village needs — a well, electricity, access road, mosque or school — and find a way of providing it. “Another option might involve funding a scholarship for a victim’s younger family member. It should be noted that the Afghan government has limited control below the district level, which would probably mean having the Taliban manage the payment process, which could also present difficulties.”

But Williams doubts compensation will change Afghan attitudes towards Australia. “As far as most Afghans are concerned, we are just lackeys of the Americans. I agree that paying compensation is the moral thing to do, but it’s going to be very difficult to deliver a satisfactory monetary outcome for the alleged victims’ families.”

Among Brereton’s other challenging recommendations is his call for soldiers who helped his inquiry to be spared any penalty. Those who witnessed and then disclosed summary executions, but didn’t participate themselves, should be promoted, he recommended. Those who admitted participation on the understanding that it wouldn’t be used against them should not receive “adverse administrative action.” This “will be an important signal,” Brereton wrote, “that they have not been disadvantaged for having ultimately assisted to uncover misconduct, even though implicating themselves.”

It’s not clear whether the armed forces are following that recommendation. On 24 March, army chief Lieutenant-General Rick Burr told the Senate’s defence and foreign affairs committee that seventeen defence personnel had so far faced “administrative action” on the basis of Brereton’s findings, with eight sacked. Some officers were among those facing dismissal, he said, though he refused to go into detail on privacy grounds.

Questioning by senators did not clarify whether the seventeen included whistleblowers. Some newspaper reports have said that soldiers potentially facing war crimes charges have been allowed to take a medical discharge, allowing them to retain certain veteran benefits.

When I asked the defence department about whistleblowers, I was told that the army had “initiated administrative action for termination of service against a number of individuals where failure to comply with Australian Defence Force expectations and values was identified.”

Need for change: the chief of the Australian Defence Force, General Angus Campbell, after delivering the Brereton inquiry’s findings in Canberra on 10 November 2020. Mick Tsikas/AAP Image

The department and the ADF are also looking at other Brereton recommendations about the culture of the military, command responsibility, and internal reforms. Not surprisingly, the most fraught issue has been the question of ultimate responsibility for war crimes. Brereton attributed blame to a clique of non-commissioned officers in charge of operational patrols, in the SAS’s case with their junior officers out of sight in overwatch positions. A cult-like “warrior” image put these NCOs beyond challenge, with complaints by Afghan civilians tending to be dismissed as Taliban-inspired.

Brereton’s finding that the abuses escaped the attention of lieutenants, captains and their superiors is something many find hard to believe. Indeed, army legal officer Major David McBride heard many soldiers expressing concern about unlawful killings and tried to convey them up the chain of command. Frustrated by Defence and Foreign Affairs stone-walling, he gave the information to the ABC. For that, he is now awaiting trial on several serious charges.

The inquiry into command responsibility is being overseen by a generation of senior officers who served with the Australian task force in Uruzgan, in the SAS or in other positions connected to Afghanistan. The current defence force chief, General Angus Campbell, was commander of Australian forces in the Middle East and Afghanistan for part of the period, though based in the Gulf. Andrew Hastie, who became assistant defence minister in December, was an SAS troop commander in Afghanistan in 2013.

In the Senate hearing last month, Greens senator Jordon Steele-John bluntly told Campbell he should resign. “I think you’ve joined a distinguished list,” Campbell replied. At the same hearing, independent senator Jacqui Lambie, an army corporal in earlier life, seemed to suggest soldiers had been misled into cooperating with the inquiry by ANU sociologist Samantha Crompvoets, whose preliminary findings led to the commissioning of Brereton.

Lambie’s comments fit with the view that NCOs were left to do the dirty work while officers kept their reputations. One of Campbell’s first actions in response to the Brereton report was to remove the unit citation — shown in a bronze bar worn on the uniform — from some 2000 special forces soldiers who served in Afghanistan. After a campaign by the Sydney tabloid Daily Telegraph, radio shock jock Alan Jones and SAS veterans arguing that this was collective punishment, Scott Morrison overruled Campbell and restored the citation.

Campbell was awarded the Distinguished Service Cross for his command in the Middle East and Afghanistan in 2011, when some of the alleged crimes happened. Of the eighteen commanders of the task force in Uruzgan, twelve got the DSC, or a bar to it, for their service there. So far, all have retained these honours.

But two of the eighteen, Brigadier Ian Langford and Lieutenant Colonel Jon Hawkins, tried to hand back their medals after Brereton’s report was released. Campbell told the Senate committee he had urged them not to act “emotionally” but wait for “a sensible reform plan to be developed, and give opportunity for me and others to be more systematic in the approach we take.”

This is part of a broader study of cultural change and organisational reform taking place internally, supervised by an “independent oversight panel” made up of former inspector-general of intelligence and security Vivienne Thom, former attorney-general’s department secretary Robert Cornall and University of Tasmania vice-chancellor Rufus Black. No detail has been released about the scope and timetable for this study, or who will be invited to contribute.

One small bombshell was dropped on 13 April when the Australian reported that a colonel working on these reforms had himself been photographed, as an SAS major, taking part in a puerile drinking session in the unauthorised bar known as The Fat Lady’s Arms inside the Tarin Kowt base. In their Senate committee testimony, generals Campbell and Burr indicated any soldier involved in this breach of discipline should be sacked.

Not only are there many problems within the forces to review, but their causes also run deep. Military historian Peter Stanley, a former Australian War Memorial staffer, believes they can be traced back to the creation of a standing regular army, replacing Australia’s citizen military force, after the second world war. “One consequence of that profound change,” he says, “has been — it is now sadly all too clear — the creation of an army which is unduly insular and distant from broader Australian society.”

Before then, part-time soldiers lived in every community; now they are mostly regulars based in places like Townsville and Darwin, away from where most Australians live. “That has had several lamentable consequences,” says Stanley. “First, it’s made soldiers separate from the nation, and it’s allowed an insular military culture to develop. Even worse, the decision to create an exclusive SAS and to allow it to develop in isolation not just from Australian civil society but also from the regular army has now been shown to be disastrous.” The undue reliance on special forces, he says, has proved a folly.

“Second, it’s now clear that while Australian society as a whole has become more liberal, tolerant, inclusive and generally ‘softer’ over several decades, the culture of the ADF, and especially the SAS, appears to have become increasingly at variance,” says Stanley. “While several chiefs have addressed this — notably David Morrison in his celebrated and justified video address — and the ADF has embraced diversity, the SAS culture both in Australia and on operations has remained so doggedly entrenched and insular as to be unquestionable — until now.”

Stanley wonders whether the Breaker Morant legend also conditioned many Australians. “Largely as a result of the 1981 film there was a change towards regarding Morant as either a victim of imperial injustice or at least a man traumatised in war whose crimes were understandable.” Although the movement to secure him a pardon failed, Stanley wonders whether sympathy for Morant means that many people regard crimes like those documented by Brereton as a natural part of war. “They aren’t, of course — war crimes are a product of both the specific conditions of a war but also the society that goes to war and sends its citizens to war.”

Stanley says that “armies embody values,” and that the reaction to the Brereton report made it clear that “many Australians consider that members of our army have transgressed values we hold… It can never be acceptable for Australian soldiers to deliberately kill civilians, and that seems to be an essential starting point for considering the implications of the Brereton report.”

Australia’s armed forces need to go through the “painful” cultural reform that armies in countries like Germany and South Africa needed to undertake. “I’m greatly heartened by the way senior officers, and especially Angus Campbell, have spoken about the need for change,” says Stanley. “Though how far up the chain of command and how far back restitution needs to be imposed is a moot point. But they seem to understand that the culture Australian soldiers have operated within needs to be challenged.” •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.