Senior members of the Australian Defence Force (ADF) have been drip feeding us through the media with information about the alleged war crimes committed by the Australian Special Air Service (SAS) and other Special Forces in Afghanistan between 2005 and 2016.
The information has its source in rumours and allegations that were circulating in the Special Forces community by about 2006 and in the media by 2009. In 2015, the former Commander of Special Forces Major General Jeff Sengelman commissioned a Canberra sociologist to make a study of the rumours.
Following the findings of that study, the Inspector-General (IG) of the ADF appointed in December 2016 NSW Justice Mr Paul Brereton QC to conduct an official inquiry into the rumours in December 2016. The IGADF is appointed by the Minister for Defence and like the Brereton inquiry is independent of the ADF chain of command. The inquiry is an administrative process, not a criminal investigation, which is intended to determine whether or not misconduct has occurred. Mr Brereton has the wide powers of a Royal Commission.
No terms of reference have been published for the inquiry. However, Karen Elphick’s ‘Quick Guide’ to it on the Parliamentary website shows that Mr Brereton has the authority to determine its scope provided that it goes ‘to ascertain whether there was any substance to rumours of unlawful conduct by the Special Operations Task Group (SOTG) during deployments in Afghanistan.’
The IGADF Annual Report 2018–2019 is the primary source of much of the recent public ADF and media commentary on the alleged war crimes. By the end of June 2019, the Report showed the inquiry was examining 55 separate incidents or issues covering a range of alleged breaches of the Law of Armed Conflict (LOAC). The alleged breaches predominantly involved ‘unlawful killings of persons who were non-combatants or were no longer combatants, but also cruel treatment of such persons.’ Also, under examination were incidents relevant to the organisational, operational and cultural environment, which may have enabled the alleged LOAC breaches.
For many months now, the media has been warning us periodically and most recently on 3-4 October that the inquiry’s ‘explosive report’ will probably only be open in part to the public when it is handed to the IG ‘in a few weeks.’ Meanwhile, the ADF media commentary associated with the warnings shows its generals both deferring to and getting ahead of the hotly anticipated report on the inquiry.
The Chief of Defence Lieutenant General Richard Burr is quoted in the Sydney Morning Herald (SMH) and Age (3-4 October): ‘We will act on the findings when they are presented to the Chief of the Defence Force.’ ‘I do not yet know the character and scale of these actions. They may be significant.’
Yet the ADF’s long-standing, detailed knowledge of what happened in Afghanistan means that, as they make such public statements, the generals are also positioning themselves in advance of the inquiry’s report to deal with political fallout from it. On 29 June, out-going Special Forces Commander Major General Adam Finlay was obviously not thinking about ‘alleged’ crimes when he told the SMH he attributed them to ‘poor moral leadership.’
Following that diagnosis, the ADF used a 7 August ABC News feed to indicate executive action. We learnt there and elsewhere that, in a departure from tradition, the then in-coming commander of Special Forces was being appointed from outside the Special Forces so that he could push a new broom. Already pushing it, was Major General Paul Kenney, who affirmed in the news feed that he would be undertaking a program of ‘cultural reform’ in his command.
Writing in the SMH and Age (3-4 October), Chris Masters has again indicated the two sides of the ADF’s response to the allegations of war crimes in Afghanistan. This is in relation to some amazing allegations of a ‘rogue SAS squad’, a murder and torture squad, no less, to which his article refers, and to which we will return. The article then describes General Burr’s response to the allegations. This is ‘extremely serious and deeply troubling’, he is quoted as writing in an email on the occasion of his recent appointment as Chief of Army to all officers, soldiers and employees. It’s not ‘who we aspire to be.’
We might reasonably assume that such media coverage of the email lends strong credibility to the shocking allegations in advance of the inquiry’s report and well in advance of any convictions that may eventually follow charges laid as a result of evidence provided by the report. In this context, the Chief’s quickness to defend the integrity of the inquiry is all the more remarkable. Most pointedly, General Burr felt the need to emphasise in his email that the inquiry ‘is independent from … the ADF chain of command to ensure its integrity.’
Surely, the power, independence from the ADF, integrity and competence of the inquiry are assured. So, why that emphasis? The answer appears to be that, as Chris Masters also explained in his article, ‘senior defence officials have said in private briefings that they are concerned some of the soldiers accused of war crimes will attempt to denigrate the inquiry by claiming it is not independent.’
But is that the exact worry either? Would it not be more accurate to say those officials are concerned that soldiers defending themselves against reasonable charges of war crimes arising from the inquiry will reasonably return fire on the ADF command and government? Is it not also likely that the officials are worried about why it was not until 2016 that the Brereton inquiry was opened to investigate allegations going back to 2005?
As indicated, we are not only talking about 55 alleged breaches of the LOAC. Another great and disturbing question defence officials apparently have to worry about is how a ‘rogue SAS squad’ was permitted to form in the Australian Army?
Since no IGADF Annual Report for 2019-2020 yet appears on the website, the source of this allegation, which the Masters article raises, is unclear to me. In any case, the allegation, which no less a figure than General Burr takes seriously, is that the rogue squad ‘murdered multiple bound or defenceless Afghan detainees.’ It also allegedly tortured them. We are told for good measure that the crimes of the squad have been alleged on the basis of ‘confessions’ by its members.
While such black media coverage concentrates our minds on the squad, we lose sight of larger matters. Regardless of individual culpability of soldiers in the Special Forces, such a squad could not possibly have taken shape, if the oversight of proper training and cultural regimes and, crucially, strong command and control procedures were in place. This was especially given the deployment of relatively small numbers of troops.
Some defendants may claim they were ordered to do what they did. More complexly, the potential for ungovernable behaviour is so considerable in war that grey areas often surround killing in it (see my 28 August 2018 blog). Depending on the relationship between the 55 alleged breaches of the LOAC and those of the ‘rogue SAS squad’, plus the timing and circumstances of the alleged breaches the defendants might make various other plausible claims. They might plausibly say they were acting under provocation, on the tacit understanding of commanders, or, even, that the operational procedures that should have been in place and adapted to a foreign culture to minimise deadly chaos were non-existent or dysfunctional. Discipline, clear rules of engagement and repeated, positive reinforcement of them are some of the earmarks of an efficient fighting force.
No doubt both the law and Brereton inquiry can separate individual culpability for criminal behaviour from systemic failure. Yet the fact that the alleged crimes were not only so egregious and widespread but were committed by soldiers of the Australian Army on active service inevitably raises wider political, moral, strategic, and cultural as well as criminal issues (see my 13 August 2020 blog).
We don’t know the extent, if any, to which the inquiry has related its consideration of specific breaches of the LOAC in Afghanistan to questions about those wider issues. There is, in any case, no doubt about the meaning of the ADF media feeds over many months: the government and ADF are involved in a political process in advance of the now apparently imminent presentation of the inquiry’s findings. Senior defence officials and generals are concerned to pre-empt the counter criticisms they reasonably expect from soldiers accused of war crimes and others from the community.
It is understandable that generals appointed to new commands will want to distance themselves from what they more or less know happened in the tainted past. We must also affirm with them the need for moral clarity, punishment for proven offenders according to the law and cultural reform. As they position themselves on the moral high ground by jumping the judicial gun and stressing what happened in the media, however, let us not be blind to some of the possible consequences.
One may indeed wonder if the defendants of any charges arising from the inquiry will get a fair trial after so much official PR spin in the media has blackened their prospective names. There is also the danger that, by isolating the very low-level alleged murderers and torturers and intensifying public interest in them, we will forget that moral leadership and strategic accountability begins not in the Special Forces that did the fighting, but in the highest levels of political decision making and military command.
Greg Lockhart is a Vietnam veteran and historian.