War crimes in Afghanistan: where will justice fall?

One year out from the 20th anniversary of the start of the Australian occupation of Afghanistan, a report is about to explode like a cluster bomb, showering shrapnel of guilt, denial, blame and even deep sorrow.

For more than four years Mr Justice Paul Brereton of the NSW Appeals Court, who is also a Major-General in the Australian Reserve, has been examining 55 allegations of war crimes committed by Australian Special Forces in Afghanistan. There is little misdemeanour stuff in these allegations. We are talking about serious breaches of the Fourth Geneva Convention and the rules of engagement that were in place at the relevant time. In other words, unlawful assaults and killings of unarmed Afghani non-combatants.

The report, a bag of brown snakes in anyone’s language, is finished and has been with government for some time now. Our crippled system of official accountability is about to be stress tested once again.

Revelations of shocking individual instances of battlefield misconduct cannot be amalgamated into a complete story of moral breakdown and a complete explanation of what happened in Uruzgan Province. Yes, the system failed on the battleground. As well, the system failed away from the battlefield. Moral responsibility is found on every step up the military chain of command and on every level of the government hierarchy. That is the theory, isn’t it?

Yes, it is, but will it be the practice also? The weakest links in the military and political chains of command are the “bad apples” or, as Major-General Adam Findlay, the former Special Forces Commander, calls them, the “trigger-pullers”. The soldiers who have been told they will face serious criminal charges will soon be visible to us. Not so the “string-pullers”. That is where our attention should be focused if we are to understand the failure of moral leadership in Afghanistan.

We know from the leaked Crompvoets Report that Major-General Jeff Sengelman bravely commissioned when he was the special forces commander that cracks ran through the moral leadership of the field commanders. These cracks did not mysteriously disappear at the level of lieutenant.

The “cracks” passed through the Special Operations Commanders (SOCAUST) in the war period; Major-General Peter Gilmore (2001-2002), Major-General Duncan Lewis (2002-2004), Major-General Mike Hindmarsh (2004-2008), Major-General Tim McOwan (2008-2011), and Brigadier Daniel McDaniel (2011-2013). These men were in the senior levels of the chain of command. All have had distinguished military careers and have been recognised for their services to the country. I am certainly not suggesting they condoned the battlefield misconduct.

But as they would all acknowledge; they were crucial elements in the chain of command. Should these leaders have known what their troops were up to? I presume the answer is “yes”. Did they know? There can only be two answer: yes or no. In either case, we are entitled to a full accounting of what they did or did not do.

Obviously, the system of accountability does not work this way. There is no requirement for public servants (in this case, military public servants) to report directly to the people. Step by step, accountability travels upwards from junior to senior positions, arriving ultimately at the people’s proxy; the parliament. It is a messy, convoluted system.

Overlording the special forces commanders were four Chiefs of Defence Force (CDF) during the time of the Afghanistan occupation; Admiral Chris Barrie (1998-2002), General Peter Cosgrove (2002-2005), Air Chief Marshall Angus Houston (2005-2011) and General David Hurley (2011-2014). We ask the same questions.

The cracks in leadership are still going up. Now they appear in the political structure. The six relevant defence ministers were: Peter Reith (January 2001-November 2001), Robert Hill (November 2001-January 2006), Brendan Nelson (January 2006-December 2007), Joel Fitzgibbon (December 2007-June 2009), John Faulkner (June 2009-June 2013) and Stephen Smith (June 2-13 December 2014). Do they not also share a collective accountability for what happened in Uruzgan? Were the defence ministers briefed on the alleged war crimes committed in Afghanistan? Did they act? What did they do?

The cracks keep going up the political structure, but are now hair-like and difficult to discern. We have almost reached the top level of accountability. The prime ministers during the war period were: John Howard (1996-2007), Kevin Rudd (2017-2010), Julia Gillard (2010-2013) and Kevin Rudd (2013). Again, what did they know; what did they do?

On 21 October, 2002, one year into the invasion, Donald Rumsfield, the ethically blighted US defence secretary, asked President Bush if he wanted to meet with Army Lieutenant-General Dan McNeill. Bush had no idea who that was. Rumsfeld: “He is the general in charge of Afghanistan.” Bush: “Well, I don’t need to meet with him.” Did our wartime prime ministers act this way? Did they also see it as a general’s war?

Complicit as many military leaders were in crafting the reckless adventure in Afghanistan and complicit as many key political figures were in waving through the occupation plans, it is almost impossible to hold any of them to account. It clearly is a rotten system. Power, prestige, patronage, precedence, friendship, obligations, certainty of mission, blame shifting and more put leaders in impregnable “castles”, with the drawbridge up and the moat full of menace. Indeed, which of these leaders still in political and military service can say that Afghanistan put a speed bump in front of their ascending careers?

The Brereton Inquiry was an exceptional investigation for an exceptional moment in Australia’s military history. The concern is that the focus will be on the low-hanging fruit, the rogue shooters and random assaulters. We will be promised root and branch reform. But in the end, it will just be leaf and twig changes if the political and military leadership are not held to account.

William De Maria’s new book, Australia’s War of Shame. Afghanistan 2001-2013, is due out in 2021.

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William De Maria’s next book, Australia’s War of Shame. Afghanistan 2001-2013, is due out in 2021, the 20th anniversary of the occupation of Afghanistan year.

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