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Former minister confident Defence chiefs were unaware of Afghanistan atrocities

Posted By on May 19, 2023 @ 15:31

Australia’s detailed investigation into allegations that members of its special forces committed war crimes in Afghanistan demonstrated the nation’s commitment to the rule of law, says former defence minister Stephen Smith.

In a video interview as part of ASPI’s ‘Lessons in leadership series, Smith tells former ASPI executive director Peter Jennings that countries were mostly dragged into such inquiries by international bodies—but, in a very terrible tale, ‘we got there ourselves’.

Now high commissioner to the United Kingdom, Smith served as foreign minister from 2007 to 2010 and defence minister from 2010 to 2013.

In the interview, Jennings points out that the worst of these atrocities is alleged to have occurred during a time when Smith was minister and he asks what, in terms of managing the Australian Defence Force, needed to be done to prevent that happening again.

Smith says rumours of unlawful killings only emerged two or three years after Australia left Afghanistan. He says he was always confident that no one in authority in Canberra, none of the Defence chiefs or the service chiefs, was aware of what was alleged to have happened. ‘Knowing the quality of the people as I do, they would have told ministers. So I was confident that no minister had information or materials which came across his desk which would alert you to doing something.’

In 2016, the then chief of army, Lieutenant General Angus Campbell, asked the inspector-general of the ADF to investigate the atrocity claims. During a lengthy inquiry, assistant ADF inspector-general Paul Brereton found credible information that members of the special forces committed war crimes during their operations in Afghanistan between 2005 and 2016.

Brereton, a judge of the NSW Supreme Court and a major general in the army reserve, said in his report that the actions of some soldiers were ‘disgraceful and a profound betrayal of the ADF’s professional standards and expectations’.

The report said credible information existed of 23 incidents in which one or more non-combatants were unlawfully killed by or at the direction of Australian special forces ‘which may constitute the war crime of murder’. There was also credible information of a further two incidents where a non-combatant was mistreated in a way that may constitute the war crime of cruel treatment.

During these alleged incidents, the report said, 39 individuals were killed and a further two were treated cruelly. In total, 25 current or former ADF personnel were identified as alleged perpetrators, either as principals or accessories.

These acts were not ‘incidents of disputable decisions made under pressure in the heat of battle,’ the report said.

Smith recalls that when rumours of atrocities emerged, the then commander of Australia’s special operations forces, Major General Jeff Sengleman, determined that they must be investigated.

‘The current chief of the defence force supported that as chief of army, and we end up with the Brereton report which not only contains allegations, but in Brereton’s view, contains credible evidence of nearly 40 unlawful killings,’ Smith says.

‘I strongly support what the service chiefs have done in terms of response and strongly support the government establishment of an independent prosecutorial authority to have these tested in the criminal standard, beyond reasonable doubt.

‘These are terrible and shocking instances and when you look back, Brereton himself makes the point not only were these not sent up the line, they were deliberately designed to not be sent up the line.’

Smith says that raised the need to examine the culture of the Special Air Service Regiment and the commandos.

To ensure transparency, Smith says he set about providing much more detailed reports to parliament and the public, including a parliamentary debate. ‘I was giving reports effectively on a quarterly basis, to try to assure the public that there was a rationale to what we were doing.’

He says he was also very conscious that when Dutch forces left Afghanistan and handed over responsibility for security in Uruzgan Province to the ADF, Australia became the nation responsible for the welfare of detainees. He worked assiduously with Defence, the Department of Foreign Affairs and Trade and the Attorney-General’s Department to ensure that the systems put in place protected Australia’s international standing. ‘Australia has always been a country where the quality of our military contributions has been admired in terms of their effectiveness, but also a country that abides by the rule of law, the law of armed conflict and humanitarian law,’ he says.

Smith recalls the cultural reviews and changes he brought to Defence. ‘This was not done without a fight,’ he says. His concerns about some attitudes in Defence crystallised when a young woman at the Australian Defence Force Academy was sexually humiliated. She’d had consensual sex with another cadet, but that colleague then put video online for the whole world to see.

Within days the young woman was charged with disciplinary breaches in entirely unrelated matters. ‘That’s called blaming the victim,’ Smith says.

He insisted on a whole range of reviews on issues including the treatment of women, use of alcohol and how people should conduct themselves. ‘That was very strongly supported by the chief, the vice chief and the service chiefs and that was a program that worked very well.’

Smith says the young woman from ADFA had been humiliated in a de facto sexual assault and the episode brought to the fore thousands of complaints from other people who’d been treated in the same way, so he had to find a process where they could be managed.

Len Roberts-Smith, a former judge of the Supreme Court of Western Australia, and a senior army reservist headed a team that came up with a process of ‘restorative justice’.

‘Anyone who had a complaint, and we set a modest monetary amount for financial compensation, could go before a senior military official, tell his or her story, and then have a response. And that system of restorative justice worked fantastically well.’

Smith describes comments made to him by people who’d been bullied or brutalised, sexually assaulted, assaulted or humiliated in Defence, recently or decades ago. Typical was, ‘This happened to me. All I ever wanted was for someone to hear my story and not turn a blind eye.’

Smith says the restorative justice process requiring senior officials and military officers from the chief down to hear a person’s story had a profound effect upon senior uniformed officers.

‘And the penny dropped—there has been bad culture, terrible things have occurred, and we now have to stop that and change. That restorative justice process was deeply significant.’

Smith says another crucial step was adopting a US model which enables someone who’d been assaulted or sexually assaulted to complain to someone outside their chain of command. That responded to a longstanding concern that allegations were often against a supervising officer or someone in the chain of command.

‘If those events which occurred back in my time were to occur today, there would be monumental outrage,’ says Smith. ‘I did not take a backward step, I’m proud that I didn’t. It was the right thing to do, but I don’t need to tell anyone I was also on the right side of history. Because if those events had occurred today and the service chiefs had not moved voluntarily to do it, they would have been scarified in public like many other people have been.

‘I’m very proud of that.’

(Next week Stephen Smith speaks on his transition from foreign affairs to defence, the US alliance, fixing submarines, how to pay for what the ADF needs, and relations with the region, especially China.)

ASPI’s ‘Lessons in leadership’ series is produced with the support of Lockheed Martin Australia.

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