Australian soldiers unlawfully killed Afghan civilians and covered it up – Criminal Law

Released publicly on 19 November 2020, the redacted version of
the Inspector-General of the Australian Defence Force
Afghanistan Inquiry report – or the ‘Brereton
report’ – is a 465 page document covering the findings of a
four year investigation into Australian SAS operations in
Afghanistan.

Carried out by NSW Supreme Court Justice Paul Brereton,
the investigation was sparked by long-term rumours of war
crimes and the subsequent findings of a 2016 inquiry into their
validity by Defence Department consultant Dr Samantha
Crompvoets.

The Brereton report’s unclassified introduction and
executive summary sets out the main findings of the investigation
without compromising any “potential criminal proceedings”
by outlining any of the gory details.

But without going into the alleged war crimes, the prelude to
the main report is disturbing in itself, as it substantiates the
long-term rumours of illegal actions perpetrated by the Special
Operations Task Group (SOTG) over 2005 to 2016, while it was
deployed to the Central Asian nation.

The executive summary also seems to be at great pains to assure
the reader that while there was a culture of SOTG troops flagrantly
breaching the Law of Armed Conflict, any understanding that
criminal behaviour was taking place never went beyond the level of
patrol commander.

The laws of armed conflict prohibit the murder or cruel
treatment of civilians and hors-de-combat: combatants no longer
fighting due to wounding, surrender or capture. And to transgress
this prohibition is to commit a war crime.

The Brereton inquiry examined 28 incidents involving the alleged
breaches of the Law of Armed Conflict, which were found to be
unsubstantiated.

However, it investigated a further 23 incidents, which were
found to hold credible evidence of war crimes being perpetrated by
Australian troops.

These credible incidents involved the alleged murder of 39
civilians or hors-de-combat and the cruel treatment of two more. It
was found none of the decisions to kill these people were made in
the “heat of battle”.  And the majority of those
killed involved captured troops or “persons under
control”.

A total of 25 current or former Australian Defence Force
personnel were found to have participated in these alleged war
crimes, some as the principal actors, while others were
accessories. And a few of these troops have been implicated in more
than one incident.

Credible information was also found regarding SOTG troops
carrying “throwdowns”, which are foreign weapons and
equipment – pistols, radios, grenades – that can be placed upon the
body of a “deliberate unlawful killing” to give the
impression they were armed as they were murdered.

The inquiry further determined that patrol commanders had
required junior soldiers to shoot an unarmed prisoner in order to
get them into killing mode. This is a practice known as
“blooding”. And it would take place after local nationals
had been secured as prisoners of war.

“The patrol commander would take a person under control and
the junior member, who would then be directed to kill the person
under control,” the report reads, adding that throwdowns would
then be placed on the body and a cover story created. “This
was reinforced with a code of silence.”

The report recommends that 36 matters be sent to the Australian
Federal Police for investigation, which may then be passed on to
the Commonwealth Director of Prosecutions to be prosecuted in civilian
criminal courts.

The 36 matters relate to the 23 credible incidents and involve
19 Australian individuals.

The report states that it would have been easy to find
“poor command and leadership” as the primary blame for
these incidents.

However, Brereton found that “the criminal behaviour of a
few was commenced, committed, continued and concealed at the patrol
commander level, that is, at corporal or sergeant level”.

No evidence was uncovered to indicate that there was any
knowledge or reckless indifference to the war crimes up the chain
of command, going all the way to Australian Defence
headquarters.

And while it’s “easy now” to identify steps that
could have been taken to curb such behaviour, evidently no one
would have expected that elite soldiers were partaking in illegal
acts. So, suspicion wouldn’t be a first reaction to any
rumours, rather the natural initial response would be
disbelief.

Yet, despite troop commanders not being well positioned to know
what patrol commanders were keeping disclosed, the inquiry found
that by 2012 and 2013, troops commanders, and perhaps even squadron
commanders, had a “suspicion if not knowledge” of the use
of throwdowns in the field.

The document then goes on to maintain that these commanders were
only aware that throwdowns were being utilised on the ground to
conceal incidents of when enemy troops had been killed during
lawful engagement and were subsequently found to be unarmed.

So, these commanders who were privy to throwdown use, or at
least rumours of it, are taken to have only been aware of the
“dishonest and discreditable” use of the throwdowns
during lawful engagement, not that the illegal items were being
used to cover up war crimes.

According to the Brereton report, SOTG commanders higher up the
chain must bear “moral command responsibility and
accountability” for what happened under their control. Part of
this responsibility also falls upon the Special Air Service (SAS)
Regiment for embracing “warrior culture”.

However, this responsibility and accountability doesn’t fall
upon those at higher headquarters, as they didn’t have
sufficient control organisationally or geographically to influence
SOTG operations on the ground.

It was also found that the Australian Defence Force should bear
some responsibility as it was deploying troops from a small pool of
special forces personnel repeatedly over a protracted period.

“Ministers were briefed that the task was manageable,”
the report reads. “The responsibility lies in the Australian
Defence Force, not with the government of the day.”

In concluding the executive summary, the report makes the point
that the Australian Defence Force was correct in calling the
inquiry, as once allegations begin to emerge, they can become
corrosive if not dealt with. And the ADF has “taken ownership
of its own problem”.

It’s yet to be seen whether once the criminal trials get
underway and more information comes to the surface whether the
absolution the report provides to those higher up remains or if
there are indications that some understanding of what was
transpiring on the ground was known up the chain.

But what is certain is that the release of the Brereton report
marks the beginning of an outpouring of revelations, not the end
point.

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