Thursday, December 17, 2020

19 Australian soldiers may face prosecution for war crimes in Afghanistan

Former Australian Federal Court Judge Mark Weinberg, who served on the Supreme Court of Victoria and the Federal Court of Australia, is appointed special investigator to prosecute alleged war crimes committed by soldiers from the Perth-based Australian Special Air Service in Afghanistan.

A voluminous report by the Inspector-General of the Australian Defence Force was released last month and described 23 incidents in which one or more non-combatants - or individuals who had been captured or injured - were unlawfully killed by Australian soldiers, or at least at their direction. Most of the alleged murders took place in 2012 and 2013 but some date back to 2006.

The report is based on more than 400 interviews with soldiers and officers from SAS and Commandos, Afghan villagers, special forces interpreters and support staff.

The four-year inquiry by NSW Court of Appeal Justice Paul Brereton found there was credible evidence of Australian special forces soldiers allegedly killing as many as 39 people during operations in Afghanistan. Nineteen current or former soldiers are undergoing criminal investigation, possible prosecution and the loss of their medals.

Justice Brereton was appointed by the Inspector-General of Defence in 2016 to investigate pervasive rumours of war crimes in Afghanistan between 2003 and 2016.

Australian Chief of the Defence Force General Angus Campbell expressed his reaction to the actions of Australian soldiers as "disgraceful and a profound betrayal of the Australian Defence Force’s professional standards and expectations."

The public summary of the inquiry was released Thursday morning. Eyewitness evidence given under oath found that Australian soldiers summarily executed non-combatants and prisoners.

The Australian Government finds the actions of the Special Air Service Regiment's second squadron so reprehensible that it will be struck from the Army's order of battle, reformed and renamed to create a "permanent record" of the wrongdoing.

Justice Brereton singled out the patrol commanders of the Special Operations Task Group for particular attention. These senior soldiers lead teams of four to five men and are said to have been responsible for the worst alleged war crimes. He also pointed to more senior commanders who, he said, should bear a "moral command responsibility" for a culture that allowed the alleged crimes to take place.

The inquiry found "the criminal behaviour of a few was commenced, committed, continued and concealed at the patrol commander level, that is, at corporal or sergeant level," with none of the incidents made under pressure in the "heat of battle." The report also noted that soldiers allegedly lied about suspicious incidents committed during combat operation reports, including those in which Afghans were allegedly unlawfully executed with “evidence” planted on the victims, and junior soldiers required by their patrol commanders to shoot a prisoner to achieve their first kill, a practice known as "blooding."

Interestingly, the ongoing criminal investigation and prosecution of the first war crimes in recent Australian history, expected to last for several years, was passed to the Australian Federal Police and the Commonwealth Director of Public Prosecutions and not the Royal Australian Corps of Military Police and the Judge Advocate General.

The Inspector-General of the Australian Defence Force believes that accountability and punishment for the most serious war crimes should be left to a jury in a criminal trial.

Similar to Canada

Canada faced a similar situation in March 1993 when it deployed the Canadian Airborne Regiment to Somalia on a humanitarian mission. On March 4, a small group of Canadian soldiers baited a trap of food and water near a perimeter fence to catch people sneaking into the Canadian compound. Two Somalis went through the fence for the food and fled. The Canadians shot both in the back, killing Somali Achmed Aruush.

Then, on 16 March, 16-year-old Shidane Arone was caught breaking into the compound and was taken prisoner, bound and blindfolded. He was beaten and tortured for hours: punched, kicked, the soles of his feet burned with a cigarillo and his shins struck with a metal bar. Arone pleaded for the soldiers to stop, crying, “Canada, Canada, Canada.” His abusers photographed his torment and he died by the morning. Other soldiers who did not take part in the beatings could hear Arone’s screams and pleas for mercy but did nothing to intervene.

One Canadian soldier was sentenced to five years for manslaughter and another suffered brain damage from a failed suicide attempt. There were additional courts martial for lesser related infractions and a major inquiry established whose recommendations sparked long-lasting and significant changes to the governance and administration of the Canadian military.

Ultimately, the Chief of the Defence Staff General Jean Boyle resigned, and the Canadian Airborne Regiment was disbanded.

Australian prosecution different from Canada’s

Like Canada, the Australian Judge Advocate General reports directly to the Defence Minister, leaving the military justice systems of both nations open to potential allegations of political interference in their respective militaries. Either by luck or design, Australia has sent this matter to criminal investigation and prosecution rather than court martial.


  1. Let's be clear: I do not believe that any charges have yet been laid against any ADF personnel in relation to the allegations discussed in the recent IGADF report. Perhaps the most accurate characterization that should be used is that "Up to 19 ADF personnel could, potentially, face prosecution".

    It is not inconceivable that one of the reasons that military authorities transferred this matter to civil prosecutors is because there is a not-insignificant possibility that any prosecution will be difficult to the point of impractical. Consequently, if a decision is made not to prosecute several (or all) of those suspected of criminal activity, there will not be an appearance (or allegations of an appearance) that a military prosecutor is making a decision for reasons other than 'reasonable prospect of conviction'.

    I hasten to add that this is the inverse of what many would characterize as the 'nexus' jurisdictional principle (which has been rejected by both the HCA and the SCC). Allegations of crimes committed while military personnel are deployed is one of the fundamental reasons why military justice systems exist. This is not a circumstance in which a military prosecutor is attempting to prosecute a 'domestic' crime.

  2. Point taken about "alleged" offences and correction made. However, and I again stress that I am not a lawyer but merely a very engaged private individual, I note that the Australian criminal justice system is involved and the military disciplinary system is not. This brings me to the conclusion that that Australian criminal justice system can assume jurisdiction over military personnel who are suspected of committing offences offshore. Canada does not which, in my unprofessional opinion, is a failure of Canadian governance. Canada could tweak the National Defence Act much as it did in 1997 when it criminalized the actions of Canadian "sex tourists" who travel to foreign countries with lax child-protection laws to have sex with children.


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