An inquiry has found credible evidence of murder and wilful cover-up of war crimes in Afghanistan by Australian special forces personnel, with legal experts stating the coming implications and the need for due process in justice in facing the aftermath.
The landmark inquiry found that 25 current or former Australian Defence Force personnel were involved in the serious crimes, either carrying out the offences or at least being “accessories” to the incidents along with recommending 19 soldiers be investigated by police for the “murder” of 39 prisoners and civilians, and the cruel treatment of two others.
General Angus Campbell, chief of the Defence Force, said the investigation found evidence that members of the Australian special forces had killed prisoners, farmers or other civilians, and offered his unreserved apologies to the people of Afghanistan for any wrongdoing.
“These findings allege the most serious breaches of military conduct and professional values,” he said, adding: “The unlawful killing of civilians and prisoners is never acceptable.”
ANU College of Law Professor Donald Rothwell said the report will have a big impact on the reputation of the ADF, especially the Special Operations Task Group, both nationally and internationally, that will take many years to address and repair.
“Australia has a particular obligation under international law to prosecute Australians suspected of having committed war crimes,” Professor Rothwell said.
“The spotlight will now be placed upon Australia and how it responds to Major General Paul Brereton’s report.
“There is a significant task ahead of the Australian Federal Police and the Office of the Special Investigator to conduct a comprehensive criminal investigation into the allegations of war crimes that have been raised.”
Professor Rothwell said this process will take time and will raise a number of legal and procedural challenges.
“If formal war crimes trials do take place this will be the first time such prosecutions will have been held in Australian since the early 1990s,” he said.
Law Council president Pauline Wright said that the government has an obligation to deal with the allegations in a timely way; however, “the investigation process must be thorough and fair – not only for the victims of the alleged crimes but also for the people being investigated. This investigation team will need to be adequately resourced to achieve this.”
“Whether any of the soldiers referred for investigation have committed war crimes has not been determined, and they are entitled to the presumption of innocence,” she said.
“The question of their guilt or innocence can only be determined by a court.”
Ms Wright said the Law Council supported the report’s conclusion that payment of compensation does not need to be contingent on establishing criminal liability.
“Compensating a person for harm suffered should not depend on a finding of guilt to the criminal standard,” Ms Wright said.
“The Law Council notes that the Report of the Inquiry, which is not a criminal trial, cannot and does not find guilt in any individual case, and the findings are limited to whether there is ‘credible information’ of breaches of the Laws of Armed Conflict.”
Associate Professor Patrick Emerton, Monash Faculty of Law and Eleos Justice fellow stated that it will be important for Australia to face the inquiry’s aftermath in due process of the law.
“Australia has an extensive framework of war crimes offences, set out in Division 268 of the Commonwealth Criminal Code. Those offences incorporate international standards for the conduct of warfare into Australian domestic law,” he said.
“It is important for the integrity, and indeed the moral credibility, of Australia’s armed forces that alleged war crimes by Australian military personnel be properly investigated and, where the evidence warrants it, charged and prosecuted.”
The report recommended a total of 36 incidents be referred to the Australian Federal Police (AFP) for criminal investigation.
Even before these matters end up in court, the Inspector-General of the Australian Defence Force (IGADF) believes the federal government should pay compensation to the families of victims in Afghanistan.
One of the Special Air Service sub-units involved will be disbanded by the Chief of Army. A new unit, with a new name and command structure will be formed later.
A new investigative agency is also being formed to build criminal cases against Australian special forces suspected of committing war crimes in Afghanistan.