Unlawful killings among 55 incidents being investigated in ADF inquiry
25 Feb 2020|

The judicial inquiry into claims that members of the Australian Defence Force committed war crimes in Afghanistan is now examining 55 separate incidents, most of which involve the alleged killing of unarmed civilians and prisoners.

The inquiry is also examining allegations of ‘cruel treatment’ of prisoners.

The inquiry was set up in May 2016 by the Inspector-General of the ADF, James Gaynor, at the request of the chief of the army to examine rumours and allegations that members of the Special Operations Task Group committed war crimes during deployments in Afghanistan between 2005 and 2016.

The inquiry is also considering the possibility that aspects of the organisational, operational and cultural environment enabled breaches of the law of armed conflict to occur.

It is clear from the information contained in the carefully worded IGADF annual report, tabled in parliament today, that that tangle of rumours has given way to significant amounts of firm evidence gathered in Australia and abroad from 338 witnesses.

In 2016, the then special forces commander, Major General Jeff Sengelman, is understood to have been concerned enough about the persistent allegations to have raised them with Lieutenant General Angus Campbell, who was then chief of the army. General Campbell, now chief of the ADF, is also a former special forces commander.

They commissioned a sociologist, Samantha Crompvoets, to interview soldiers from the special forces and other ADF units and members of agencies who worked with them to assess whether there were serious cultural issues in the units.

Crompvoets’s report confirmed that there appeared to be serious problems with the behaviour of some members of the Special Operations Task Group in Afghanistan that may have extended to unsanctioned and illegal violence.

Journalists had also been made aware of claims which emerged separately from former special forces members that Australians had killed unarmed civilians.

The ‘operational security’ cloak contributed to an unintended consequence of making it possible for individuals involved in questionable behaviour to keep it under wraps. Those who did object to actions they considered potentially illegal or immoral could find themselves ostracised or driven out of the unit for betraying their brothers.

This was an environment where the warrior’s experience in battle could mean more within the unit than the formal rank of more senior people outside it.

Campbell and Sengelman called in the IGADF, and New South Wales Supreme Court judge Paul Brereton, an army reserve officer, was appointed to head an inquiry with an initial brief to separate fact from fiction and to ascertain whether there was truth in the allegations.

In September 2017, Brereton made a public call for anyone with relevant information to come forward. An increasing number of former and serving soldiers responded.

The annual report stresses that the inquiry is not focused on decisions made in the ‘heat of battle’.

‘Rather, its focus is the treatment of persons who were clearly non-combatants or who were no longer combatants.’

The annual report says the inquiry is now approaching the final stages of evidence-taking concurrently with the drafting of sections of the inquiry report.

It says the inquiry’s task has been very difficult, not only because of the serious subject matter. ‘Most other inquiries commence following specific allegations where not only the incidents and events themselves but also potential witnesses are known or can be easily identified.

‘The starting point for the IGADF Afghanistan inquiry—vague rumours of special forces soldiers’ very serious wrongdoing over a period of more than 10 years—was much less well defined’, the annual report says.

‘The inquiry team had to find out what rumours there were, and then try to track each rumour through multiple witnesses and documentary records back to its source.’

The annual report also notes the difficulty of carrying out such an inquiry in the environment of deep operational secrecy that cloaks the activities of special forces units. ‘It has also taken some years for members of the special forces community—both those who continue to serve and former members—to develop sufficient confidence in the inquiry and the genuineness of Defence senior leadership’s desire to find out if the rumours are true, to be prepared to make disclosure to the inquiry.’

Gaining the confidence and trust of some of these witnesses, whose ADF careers have been spent in an environment in which secrecy is treated as fundamental, has required considerable effort and time, the annual report says.

As that had been progressively achieved, more witnesses had been prepared to disclose information and new evidence had continued to emerge. Some of that evidence resulted in new lines of inquiry and other material reinforced or corroborated existing lines of inquiry.

Even now, some witnesses were only just becoming willing to make disclosures.

‘Once evidence gathering is complete, given the seriousness of the allegations, there will necessarily have to be a rigorous procedural fairness process.’

Once the inquiry is complete, the IGADF will give its report to Campbell.

The report will be substantial and will include a summary and analysis of the evidence relevant to each significant line of inquiry and a conclusion as to whether there was evidence of a breach of the laws of armed conflict or other misconduct.

Where there is evidence of misconduct, the report will include ‘appropriate and nuanced’ recommendations, having regard to the evidence and its strength, for consideration by the chief of the ADF as to what action should be taken to address that misconduct.

The report will also include a review of the structural, operational, command and cultural environment in which these acts may have occurred and which may have enabled them, and recommend measures to addresses them to minimise any risk of recurrence.

The report is intended to provide closure for Special Operations Command by exposing past misconduct ‘where appropriate to do so’, enabling it to be considered separate from but informing the present and future development of the command.

It is also intended to ‘provide closure for the many serving and former soldiers who have lived with concerns about the subject matter of these rumours for many years’.

If there’s a reassuring aspect of what has allegedly happened, it’s that the atrocity allegations were exposed in large part by other members of the units horrified by what a small minority were getting away with. In some cases, witnesses within the ADF suffered serious mental health consequences that drove them to leave the ADF or to redeploy within it.