Will secrecy trump justice for murdered Afghans?

Apr 21, 2021

Thousands of Australian men and women fought in Afghanistan and Iraq without being in breach of any of the rules of warfare, but one can imagine that whatever pride they have in their personal and military accomplishment is muted by their knowledge that a small minority face credible charges of murdering civilians and other war crimes.

This week’s announcement that the last few troops in Afghanistan will withdraw with the Americans in September may bring an end to Australia’s longest war, but the stains on Australia’s military reputation and the strains on many of those who participated may well last another 50 years.

It may not be merely a matter of an outcome to war crimes investigations. These have scarcely begun, if at all, and, most likely will not lead to charges for years. By then almost everyone charged will have some right to argue for charges to be dropped on the basis of the length of time (15 or more years) since the events under scrutiny, and the impact of delay on the memories of witnesses, including Afghan civilians and, perhaps, combatants brought to Australia to testify, for or against accused soldiers.

With the promise of generous funding for the defence of accused soldiers coming from the personal resources of billionaire chairman of the Australian War Memorial, Kerry Stokes, one can expect that some of the delays will be tactical.

Despite the material gathered by the investigation conducted by Justice Brereton, the new investigation must start from scratch, finding and re-interviewing witnesses, and preparing indictments capable of satisfying very picky, and not very accountable, officers of the Commonwealth directorate of public prosecutions that conviction is likely and prosecution is in the public interest. If a prosecution does not eventuate, it is unlikely that the DPP will explain why.

The longer the investigation is drawn out, the less likely anyone guilty of a war crime will ever face the music

In Canberra courts during recent times, the DPP has shown enormous zeal for the prosecutions of Bernard Collaery, and some former intelligence officers who have disclosed information showing disgraceful conduct by Australian ministers and intelligence officials, as well as war crimes in Afghanistan.

Certainly, there is very little material to suggest how either the DPP, or the Attorney-General, have weighed the public interest in open justice, or, indeed, in holding ministers and officials accountable to the law. For many Australians, the accused men are heroes, not villains. That proceedings are in closed courts, with judges seemingly acquiescent to suppression of the evidence and arguments, suggests that efforts to explain the unfair treatment will not only be unconvincing but will affect the general reputation of the judiciary.

Brereton was able to dig deep because he had some power to require military witnesses to give evidence, if not against themselves. He also went to great lengths to use only evidence that he believed could be adduced in Australian courts without compromising the national security interest. At that point, particularly with most of those accused still inside the military system, it was possible to trace a path that did not compromise Australia’s military communications, sources of intelligence, or means available to commanders, were they inclined to be suspicious of what they were told. (The evidence suggests they were rarely, if ever suspicious, and, if only from loyalty to the men, accepted everything they were told, dismissing any evidence to the contrary as inventions made up so as to get money.)

I suggested some months ago that one of these systems involved the use of drones high above “battlefields” that provided independent evidence of the movement of individual soldiers, as well as suspected enemy combatants and Afghan villagers. Those interested in what such drones could show members of the public might remember how Julian Assange, of Wikileaks, published drone images of western journalists and Iraqi civilians being vapourised during an incident that the US military still refuses to discuss – other than by demanding the head of Assange. My understanding is that Australian drone images could resolve many questions of fact, as well as bolstering the (often confusing, but sometimes very damning) picture presented by body cameras on soldiers.

In his report, Brereton did not refer to this secondary, but classified, evidence of events he was investigating. Nor did he mention communications from base to the scene of action, between soldiers, or other information gleaned by the Australian Secret Intelligence Service, which was playing a very active role in briefing and debriefing SAS expeditions.

Last Sunday journalists from the Nine Network made further allegations against Ben Roberts-Smith VC, who is suing Nine (and The Canberra Times) over suggestions that he was being investigated for war crimes. Roberts-Smith vehemently denies the allegations, and the defamation trial is not so far away. It was said on Sunday that Roberts-Smith had withheld material from the Brereton investigations and from discovery in the defamation case (hiding some tapes and photos in a lunch box under his lawn), and had intimidated witnesses. Among the materials he was said to possess were five high-altitude drone tapes of particular engagements. Strictly, the fact that such tapes exist is supposed to be highly confidential – the sort of confidentiality that could bring any whistle-blower before secret closed courts for summary punishment.

Suppose that such tapes existed and that Roberts-Smith, or some other person involved in later war crimes charges, wanted to use such tapes to establish his innocence. Could this be done? In open court? Or even with extraordinary security in a closed court, assuming that accused soldiers would readily agree that murder charges could be tried outside the public eye?

It is to be noted first that the tenor of some of the submissions being made by counsel for the Attorney-General has been that a right to a fair trial does not necessarily trump the demands of national security and that in some cases an accused person would simply not be able to refer to material, in open or closed court, that he thought was exculpatory. That ought to shock the conscience of the ordinary Australian but is a measure of the complete overreach of the modern national security state.

When the soldiers were on active service, one might have expected that they would help shield and protect such secrets, especially given that many were designed for their use. But many of those accused are angry and truculent, feeling betrayed not only by the defence establishment but also by people they thought were their friends. The government may not be able to count on their discretion, whether (accountably) in court, or outside it. Indeed some may threaten to blurt out secrets, or to demand the public use of very secret information they claim will exonerate them simply so as to encourage the prosecution to drop matters.

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