With his four-year investigation of alleged crimes by Australian special forces in Afghanistan now complete, Justice Paul Brereton has handed his findings to the Chief of the Australian Defence Force, Angus Campbell, and Defence Minister Linda Reynolds. The judge is believed to have recommended criminal prosecutions, military sanctions and other responses to around 10 incidents involving between 15 and 20 people. Thursday's announcement of a special war crimes prosecutor appears to confirm that sufficient evidence exists for cases to go to trial.
Media outlets began publishing allegations of serious misconduct in Afghanistan more than a decade ago. In 2015, special operations commander Jeff Sengelman responded to rumours and internal accounts of misconduct by commissioning Canberra-based sociologist Samantha Crompvoets to report on "special operations command culture interactions". On the basis of her work, Sengelman concluded that "a culture of impunity" may have "normalised allegedly disturbing behaviour" (in the words of the Sydney Morning Herald) and identified serious "governance and behavioural lapses".
Sengelman forwarded the findings to the Chief of the Army, Angus Campbell, in early 2016, and Campbell asked the inspector-general of the Australian Defence Force to ascertain whether the allegations had any substance. Sometime after that, the inspector-general appointed Justice Brereton to inquire into the matter.
Given that this all looks somewhat like the ADF investigating itself - and doing it in great (if understandable) secrecy - it is reasonable to ask how independent this inquiry really is. The answer: very independent. Justice Brereton, appointed as an assistant inspector-general, is not bound by the rules that apply to other inquiries by the inspector-general. Operating as part of a system that sits outside the normal chain of command, he is not only free to investigate as he sees fit, but is also required to do so.
His findings are disturbing, to say the least. He identified 55 potential breaches of the laws of armed conflict by Australia's Special Operations Task Group between 2005 and 2016. As the inspector-general noted, the inquiry focused not on decisions made during the "heat of battle" but on the treatment of individuals who were clearly non-combatants or were no longer combatants.
We can take some comfort from the fact that this appalling behaviour has come to light as a result of appropriate action both at the front line and at the highest level of command. Fellow members of the Special Operations Task Group brought the incidents to light, the commander of special operations commissioned the Crompvoets report and reported its findings to the Chief of the Army, and the Chief of the Army referred these to the inspector-general, who appointed Justice Brereton to investigate.
It is important to note that the Brereton inquiry is an administrative process rather than a criminal investigation. It will be for the newly created Office of the Special Investigator to decide how and when to deal with the recommended criminal prosecutions. No doubt the Defence Department and the military hierarchy will need to determine why the issue came to Sengelman's notice via rumours and media reports rather than travelling up the chain of command. What leadership failures occurred at those intermediate levels?
There are suggestions that some front-line soldiers became almost untouchable because of the "old hand" status they had acquired from repeated deployments. Perhaps too many deployments is itself part of the problem. Perhaps, also, decades of concealing special operations members from public view may have been misconstrued by some insiders as an indication that they were immune to scrutiny. We know that Justice Brereton's inquiry examined the organisational, operational and cultural environment that may have enabled the alleged breaches, and it will be surprising if he does not have a lot to say about them.
What will probably get less attention, because it will be beyond the scope of the inquiry, is the light that these dreadful incidents, and others revealed in the ABC's 2017 series The Afghan Files, sheds on the nightmare that military conflict of this kind visits on the civilian population we are supposedly trying to help. No matter how diligently invading forces concentrate on individuals assessed as high-value targets, innocent civilians will inevitably be killed during conflicts of this kind.
Senior army figures reportedly estimate that Australian personnel killed more than 5000 individuals during the Afghanistan deployment. Most were suspected Taliban fighters, but numerous of them were innocent civilians. The UN Assistance Mission in Afghanistan says that 1282 civilians, including 340 children, were killed during the fighting in Afghanistan in the first half of 2020. While anti-government elements were responsible for more than half of those deaths, pro-government forces killed more children, mainly the result of airstrikes and indirect fire during ground engagements.
Another factor that should be explicitly weighed up when we contemplate participating in foreign military conflicts is the damage to our own military personnel. It is not good enough to go along with US-initiated military action simply to show that we are "a good ally", and nor should we hang around year after year, long after the endeavour has become a lost cause. Apart from the continuing impact on the civilian population, how can morale and a sense of purpose hold up in the absence of a plausible strategy for winning? Does killing supposed adversaries become an end in itself?
The place to consider and debate these costs before committing to military action, and take account of the costs of tying up our Defence Force far from our shores, is Federal Parliament. It is to be hoped that we won't make any future commitments to military action - apart from emergency decisions for the direct defence of Australia - without a parliamentary resolution emerging from a fully informed debate.
- Paul Barratt is president of Australians for War Powers Reform, an adjunct professor at the University of New England and a former Defence Department secretary. This article also appears on Inside Story.