Absent justice: Australia’s Afghanistan war crimes investigations thin out

Government, International relations, Politics

Absent justice: Australia’s Afghanistan war crimes investigations thin out

Dec 4, 2024

Soldier with machine gun with national flag of Afghanistan.

Small to middle-sized states often crow at undertaking what are vulgarly described as “world firsts”. Australia is certainly one of them, with governments and news outlets keen to announce on a weekly basis that something never previously done has been initiated, implemented, or discovered. A closer inspection shows such declarations to be premature.

The Australian government’s response to the commission of alleged atrocities by Australian Special Forces in Afghanistan is a case in point. While it did establish the Independent Afghanistan Inquiry which led to the Brereton Report, one noting the unlawful killing of 39 people by special force personnel between 2005 and 2016, not to mention creating an unpardonably late compensation scheme for victims and family members affected by the incidents outlined in the report, the broader picture is conventionally sketchy and limiting.

Take the Brereton Report itself, which already showed how command responsibility and broader accountability would be cropped and edited to permit generals and politicians off the hook, leaving the killing foot soldiers to shoulder all matter and manner of guilt. The Report, to that end, reads like a snippet of state criminality, rather than a whole picture of its decision makers. It uses terms such as “culture” repeatedly, thereby localising and isolating culpability.

The seemingly tardy activity from the Office of the Special Investigator, created to share joint responsibility with the Australian Federal Police, did little to dispel the feeling that a quagmire had developed. Then came a joint statement between the OSI and the Australian Federal Police in March last year announcing that Australian Special Air Service trooper Oliver Jordan Schulz had been charged with one count of committing a war crime, specifically murder under the Criminal Code Act 1995 (Cth). Schulz was alleged to have murdered an Afghan man, Dad Mohammad, in May 2012 in central Uruzgan province as he lay in a wheat field, posing no threat. The process remains ongoing.

In September, the Australian Defence Minister Richard Marles saw profit in the keep it modest, keep it small approach, stripping “relevant commanders” of medals obtained during the period covered by the Brereton Report, a move that has had the effect of angering all parties. It showed him to be wretchedly weak in seeking broader accountability of the military, while also dismissive of the wishes of any victims of the families concerned.

The already skimpy prosecution effort has been further thinned by the OSI’s November disclosure to witnesses involved in two separate war crimes investigations that neither will proceed to the prosecution phase. One of the cases involves a former SAS Regiment sergeant suspected of summarily executing an injured Afghan man, Haji Sardar Khan, during an operation in southern Afghanistan in March 2012.

Sardar had been in the care of former SAS medic and soldier Dusty Miller, who professed to being “absolutely gutted” by the decision. “Over the last few years, I have spent endless hours with the OSI pouring over maps and giving them information about what happened. I don’t doubt the OSI’s integrity and thoroughness, but justice delayed is justice denied and no charges is no justice at all.” Miller’s own perceived failings in protecting Sardar from death led him to contact the slain man’s children in Afghanistan in 2020. “I wanted to tell them that I was sorry for what happened to their father and that I should have done more.”

The second case involves an alleged execution by an SAS soldier in what has been grotesquely described within the regiment’s ranks as the “village idiot” killing. Miller had also been one of two witnesses to this crime, in which an unarmed, disabled man had been shot while attempting to limp away from the soldiers.

The dropping of these two cases prompted Rawan Arraf of the Australian Centre for International Justice to urge the provision by the OSI of “comprehensive reasons to the public and furnish those reasons to the courageous individuals (and families) within the special forces who spoke up (some giving their lives in that pursuit) and Afghan victims and their communities affected by these allegations.”

The overall record on Australia’s response to the war crimes saga is becoming a performative, procedural pretence. It is an effort that remains cruelly limiting, bogged down in procedure and logistics. This is not helped by the absence of an Australian diplomatic presence in Kabul and the problems of gathering vital evidence and testimony in a country now controlled by the Taliban.

Victims and their families also remain at the mercy of the Department of Defence’s good will regarding compensation, which is not treated as an enforceable right. The scheme also lacks due process and judicial safeguards, not to mention any criteria consistent with human rights.

The best that has been done in terms of bringing the issue of war crimes in Afghanistan before an Australian court has been, rather accidentally, through the civil law process. It took the hubristic effort by SAS hero of the establishment Ben Roberts-Smith to sue three papers, along with a number of journalists, for defamation. Roberts-Smith challenged the veracity of claims, amongst others, that he had murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring other members of the regiment under his command to shoot him.

This folly driven enterprise, comprising 110 days of legal submissions and evidence, failed to convince Federal Court Justice Anthony Besanko in his 2023 decision. The defendants managed to avail themselves of the substantial truth defence regarding several imputations made under the Defamation Act 2005 of New South Wales. The defence of contextual truth was also successful in defeating various claims. Ben-Roberts has appealed the ruling.

With more than a sense of disgraceful irony, the only person to be convicted for the commission of Australian war crimes in Afghanistan is the man who did so much to expose them and inform discussion on the subject. Former military lawyer David McBride, the victim of anachronistic legal authorities ignorant of the fallibility of superior orders exposed at Nuremberg, and a fangless whistleblowing regime, remains in prison.