War crimes investigation stymied by embassy closure

The withdrawal of Australian troops from Afghanistan and the planned closure of the embassy in Kabul will complicate the task of investigators gathering evidence to prosecute soldiers alleged to have committed war crimes.

After a four-year-long investigation into allegations that members of Australian special forces committed war crimes in Afghanistan, 25 soldiers stand accused of murdering 39 unarmed Afghan civilians or prisoners and cruelly treating two others.

The inquiry led by New South Wales Supreme Court judge Paul Brereton, a major general in the Army Reserve, found credible information about 23 incidents in which non-combatants or prisoners were unlawfully killed by or at the direction of Australian soldiers in circumstances which, if accepted by a jury, would constitute the war crime of murder.

Some of these incidents involved a single victim and some multiple victims.

If the crimes alleged to have occurred in Afghanistan were carried out in Australia, the perpetrators would be numbered among the nation’s worst serial killers.

Teams of Australian investigators are gathering evidence in Australia and in Afghanistan with a view to laying formal charges.

If they are unable to assemble sufficient evidence for prosecutions to be mounted, the bleak saga could take another twist.

So far, Australia has done more than any of its coalition allies in Afghanistan to uncover what was done by some of its troops there and to take steps to ensure that such crimes are not repeated on future operations.

When a nation is unwilling or unable to prosecute its own troops for alleged war crimes, the International Criminal Court is entitled to step in and carry out its own investigation.

That may well happen if Australia’s investigations fall apart.

Having the resources of Australia’s embassy in Kabul has been crucial to investigators’ work in finding witnesses and formally taking evidence of a quality that can be admitted in court.

But key elements of the vital evidence given to the Brereton inquiry by Australian soldiers appalled by what a minority of their colleagues had done will still be available to prosecutors. Some of those military witnesses have broken ranks despite dire threats.

If the war crimes allegations are not thoroughly pursued by investigators, those who will be let down in appalling fashion by their nation will include the soldiers who found the courage to speak up.

Sociologist Samantha Crompvoets was working on a separate project for Defence when she was told by Australian soldiers that some among them had carried out atrocities. She passed that information on to her superiors including the head of Special Operations Command, Major General Jeff Sengelman, who had already raised concerns about the behaviour of some special forces soldiers.

While they both deserve great credit for exposing alleged crimes, Crompvoets has now come under attack for developing her ideas in a book she was asked to write by an Australian university on what drove soldiers to commit war crimes.

That academic work is one of many being written by a range of authors about the alleged Afghanistan murders.

By writing this low-cost and low-profit book, Crompvoets has been accused of profiting from government-funded research. She’s not done that. She has analysed a mass of existing information to help Australians make some sense of how soldiers sent to protect innocent Afghans allegedly killed unarmed prisoners. Those killings, yet to be proven in court, are said to have occurred, not in the ‘heat of battle’ or as a result of ‘the fog of war’ but in cold blood after the shooting had stopped.

Along with the soldiers who’ve shown the courage to speak up, Crompvoets, Sengelman and the then army chief Angus Campbell who ordered the investigation by the inspector-general of the Australian Defence Force are among the small number of heroes in this appalling episode.

They should not be the targets.

Justice Brereton’s report said the 25 Australians had been identified as alleged perpetrators, either as principals or accessories, some of them on a single occasion and a few on multiple occasions.

Brereton’s report said that overwhelmingly, the special forces soldiers performed skilfully, effectively and courageously. Because of their role, they formed a disproportionately high percentage of ADF members killed or wounded in action in Afghanistan, and there is a long tail of consequential mental health issues which continue to emerge.

Some sections of the report were profoundly chilling. The inquiry found credible information that some patrol commanders ‘blooded’ junior soldiers by ordering them to achieve their first kill by shooting a prisoner.

This would happen after a target compound had been secured, and local people were ‘under control’. ‘Typically, the patrol commander would take a person under control and the junior member, who would then be directed to kill the person under control’, the report said.

That was combined with a practice adopted by some soldiers of carrying ‘throwdowns’—easily concealable weapons or equipment such as pistols, small handheld radios, weapon magazines and grenades—which would be placed with the body when the person killed was found to be unarmed.

Subordinates complied for a number of reasons. To a junior SAS trooper, the patrol commander is a ‘demigod’, who can make or break their career. The trooper is trained to obey and to implement their commander’s intent. ‘To such a trooper, who has invested a great deal in gaining entry into the SASR, the prospect of being characterised as a ‘lemon’ and not doing what was expected of them was a terrible one, which could jeopardise everything for which they had worked.’

Further, the report said, these men were in a foreign environment, far from the influence of the norms of ordinary Australian society, where the incident could be compartmentalised as something that happened outside the wire to stay outside the wire.

‘In that context, some individuals who would have believed themselves incapable of such behaviour were influenced to commit egregious crimes. It is clear to the Inquiry that at least some of them have regretted it, and have been struggling with the concomitant moral injury, ever since.’