What responsibility does ADF’s top brass have for war crimes in Afghanistan?

Dec 10, 2020

As much as clothes, language has fashions.  This month’s in-vogue expression is “walking back” – a metaphor for resiling from a position previously taken. And in these changing times, there is a lot of walking back about.

General/Justice Paul Brereton’s inquiry into war crimes in Afghanistan took four and a half years to produce a report. I was impressed by Chief of the Defence Force, General Angus Campbell’s initial stance when the report was released. Since then, there has been significant walking back, apparently due to pressure from our ever flexible political leaders. (Unlike ethics, popular opinion is constantly evolving, so a popular Prime Minister needs constantly to hold aloft a moistened index finger to gauge which way the wind is blowing – a style of leadership called leading from the back).

My previous article about Australian war crimes in Afghanistan opined that there was a great deal of bad conduct to be take responsibility for.  That article focused on the responsibility of our political leaders over the duration of Australia’s involvement in the conflict (2001-2014).  What responsibility does the top brass of the ADF have?

Brereton discusses responsibility within the Defence Force for the war crimes. Under the heading “Individual, command and collective responsibility” he says “commanders at troop, squadron and Special Operations Task Group level must bear some responsibility for the events that happened ‘on their watch’, the criminal behaviour of a few was commenced, committed, continued and concealed at the patrol commander level, that is, at corporal or sergeant level.”

However as to the responsibility of those higher still up the chain of command, Brereton says:

“The Inquiry has found no evidence that there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of commanders at troop/platoon, squadron/company or Task Group Headquarters level, let alone at higher levels … or Australian Defence Headquarters. Nor is the Inquiry of the view that there was any failure at any of those levels to take reasonable and practical steps that would have prevented or detected the commission of war crimes.”

Brereton nods to the wisdom of hindsight, but says:

“It needs to be borne in mind that few would have imagined some of our elite soldiers would engage in the conduct that has been described.”

“Secondly, the detailed superintendence and control of subordinates is inconsistent with the theory of mission command espoused by the Australian Army, whereby subordinates are empowered and entrusted to implement, in their own way, their superior commander’s intent. That is all the more so in a Special Forces context where high levels of responsibility and independence are entrusted at relatively low levels, in particular to patrol commanders.”

He also refers to other cultural factors that contributed to knowledge of atrocities not flowing upwards, including by sanitising or embellishing reporting and by not challenging or interrogating accounts given by those on the ground; and to misconceived loyalty to their Regiment, or their mates.

Brereton says that commanders at:

“Australian Defence Force Headquarters appear to have responded appropriately and diligently when relevant information and allegations came to their attention, and to have made persistent and genuine endeavours to find the facts through quick assessments, following up with further queries, and inquiry officer inquiries. Their attempts were often frustrated by outright deceit by those who knew the truth, and, not infrequently, misguided resistance to inquiries and investigations by their superiors.

“The Australian Defence Force had in place a system of operational reporting and investigatory mechanisms including quick assessments, Australian Defence Force Investigative Service investigations, and inquiry officer inquiries, designed to provide command oversight and respond to allegations of unlawful conduct. However, these systems failed to detect breaches of Law of Armed Conflict that were identified during the course of the Inquiry. The failure of oversight mechanisms was contributed to by an accumulation of factors.

“First, commanders trusted their subordinates … Secondly, commanders were protective of their subordinates … Thirdly, there was a presumption, not founded in evidence, to discount local national complaints as insurgent propaganda or motivated by a desire for compensation.  … Fourthly, the liberal interpretation of when a ‘squirter’ (a local national observed to run from a compound of interest) could be taken to be ‘directly participating in hostilities’, coupled with an understanding of how to describe an engagement to satisfy reporting expectations, combined to contribute to the creation of a sense of impunity among operators.

“Fifthly, consciously or unconsciously, quick assessment officers generally approached their task as being to collect evidence to refute a complaint, rather than to present a fair and balanced assessment of the evidence. …  Sixthly, inquiry officers did not have the requisite index of suspicion, and lacked some of the forensic skills and experience to conduct a complex inquiry into what were, essentially, allegations of murder. … Seventhly, as a result, operational reporting, and the outcomes of quick assessments and inquiry officer inquiries, were accorded a level of confidence by higher command, which they did not in fact deserve.”

If those are the causes of the failure of the leaders of the ADF to identify much earlier that there were serious problems with war crimes being committed by their forces in Afghanistan, why won’t the failures recur?

Most of these factors are common to all sorts of big organisations. It is the obligation of their leaders to ensure that proper culture is all pervasive and that problems are detected and righted.  In good organisations, the buck stops at the top. If the rumours did reach the upper echelons of the Defence Force, why were they only addressed many years later, when the leaders of the time were handsomely retired?  If the rumours did not rise upwards, it points to a serious organisational failure.

Certainly, the Defence Force is a very particular type of organisation. Supposedly it is highly disciplined with command coming from the top.  (By contrast, Brereton says that under “the theory of mission command espoused by the Australian Army … subordinates are empowered and entrusted to implement, in their own way, their superior commander’s intent.”)  Nearly uniquely among Australian organisations, the ADF’s social licence includes the use of lethal force in the name of us all. A key condition of that licence is that the Defence Force leadership keeps an eagle eye. As an institution, it is simply not an adequate response for the Defence Force to say “we didn’t know”.

There needs to be an investigation of who knew what when. We need to learn from what has gone so seriously wrong.

The chiefs of the Defence Force over the period of the reported war crimes (2009-2013) were Angus Houston and David Hurley; while Ken Gillespie and David Morrison were the heads of Army. Hurley is Australia’s Governor-General.  His appointment was announced shortly before the last federal election.  Houston has held various senior public positions since his retirement from Defence in 2011.

China’s recent social media post was cruel. But our Defence Forces exposed us to its humiliating depiction.

Reverting to the “walk backs”:  I predict that, contrary to the initial announcement, regimental honours and the like will be retained.  No unit or regiment will be disbanded.  The process, which has already taken so many years – the worst allegations go back seven and eight years – will take as long again.  Few people will go trial and none will be convicted. Already the decision seems to have been taken that people who would be guilty as accessories to murder for making murders look like combat deaths – an offence carrying the same penalty as murder itself – will not be tried for murder.  At worst, they will simply be dismissed from the Army.

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