Australia's Collective Shame: The Brereton Report on War Crimes in Afghanistan
Kelly Phan
“When you’re back at the unit, people would make jokes about the size of the rug that they’ve swept everything under, and that one day it’ll all come out and people are going to be thrown in jail for murder or anything else that they’ve done.”
- Braden Chapman, former SAS operative in Afghanistan, 2012.
In 2016, the Inspector-General of the Australian Defence Force (ADF) launched the Afghanistan Inquiry (The Inquiry) to investigate allegations of breaches of the Laws of Armed Conflict by the Special Operations Task Group and their superiors in Afghanistan from 2005 to 2016. Videos and witness reports detailing these alleged war crimes, including the killing of unarmed civilians, killing of prisoners of war and planting guns and radios on civilians, have been shocking and damning.
In the public version of the final report of the Inquiry, it concluded that the rumours of war crimes were substantiated in 23 incidents:
“Because of the nature of this Inquiry, which is not a criminal trial, it cannot and does not find guilt in any individual case. In conformity with legal principle, the practices of commissions of inquiry, and the Inquiry Directions, its findings in any individual case are limited to whether there is ‘credible information’ of breaches of Law of Armed Conflict (‘war crimes’). However... the answer to the question ‘is there substance to rumours of war crimes by elements of the Special Operations Task Group’ must sadly be ‘yes, there is’.”
With the release of the final report of the Inspector-General of the ADF Afghanistan Inquiry, commonly known as the Brereton Report, Australia must now deal with its collective shame - the alleged commission of war crimes by Australian soldiers.
What are the laws of armed conflict?
The laws of armed conflict, generally known as international humanitarian law or the Geneva Conventions, are laws that prohibit certain conduct during armed conflicts. There are four Geneva Conventions and the Additional Protocols, each protecting different groups of people. Individual criminal responsibility for these acts is found in the Rome Statute of the International Criminal Court (Rome Statute), which was incorporated by Australia into Division 268 of the Commonwealth Criminal Code Act 1995 (Criminal Code). Under these provisions, individuals such as ADF officers can be held criminally liable for the commission of war crimes.
The war in Afghanistan is a non-international armed conflict (NIAC), meaning that the Inquiry has been largely concerned with liability under section 268.70 (War crime - murder) and section 268.72 (War crime - cruel treatment) of the Criminal Code. This is despite the fact that other Western countries, such as Australia, have been involved in the war in Afghanistan through several NATO-led military operations. Nonetheless, the war is primarily a conflict between the Afghan government and insurgents, foreign fighters and Taliban supporters.
It is noted that the period under consideration by the Inquiry (2005 - 2014) concerned Operation SLIPPER, which has its legal basis in an invitation by the Afghan government and several UN Security Council resolutions (in particular Resolution 1386). Therefore, Common Article 3 of the Geneva Conventions (concerned with obligations towards non-combatants in NIAC) is the most relevant provision for the Inquiry, which applies as a matter of customary international law and treaty obligation. Under the Criminal Code, the Inquiry has largely contemplated liability under Subdivisions F and G.
It is unlikely that ADF officers will be extradited to a trial at the International Criminal Court (ICC) if prosecutions begin domestically under the Criminal Code. This is because the ICC operates upon a principle of complementarity, meaning that it lacks jurisdiction unless Australia ‘is unwilling or unable genuinely to carry out the investigation or prosecution’ (Article 17 Rome Statute). Moreover, the NIAC offences under the Criminal Code may be prosecuted domestically under the extra-territorial jurisdiction captured in section 268.117 (defined in section 15.4).
What has the Inquiry report found?
In the 23 incidents of the commission of war crimes, the report detailed that 39 individuals were killed, an additional 2 were cruelly treated and a total of 25 current or former ADF personnel were perpetrators as principals or accessories. In all cases, the victims were clearly non-combatants and protected under the Geneva Conventions.
There were several incidents of ‘throwdowns’ - where foreign weapons or equipment such as pistols, small hand-held radios, weapon magazines and grenades were placed on victims for the purpose of ‘site exploitation photography’. In essence, members of the ADF were attempting to portray victims as legitimate targets or combatants to conceal deliberate unlawful killings. There were also practices of ‘blooding’, where junior soldiers were required by their patrol commanders to shoot a prisoner to achieve their ‘first kill’. ‘Throwdowns’ would be placed and a cover story created for operational reporting, and soldiers were subject to a ‘code of silence’.
A small number of patrol commanders and their protegees (corporals or sergeants) have been found to be responsible. The Inquiry has not conclusively reported on the motivations of these individuals, but has listed several possible intentions: (1) ‘clearing’ the battlefield of people believed to be ‘insurgents’ in disregard of the Laws of Armed Conflict; (2) ‘blooding’ new members of the patrol and troop; and (3) out-scoring other patrols in the number of enemy killed in action achieved.
Although direct criminal responsibility has not been found at the higher levels of the ADF, the Brereton report has not absolved them of responsibility. It calls for Special Operations Task Group troop, squadron and task group Commanders to bear moral command responsibility and accountability for the actions of corporals and sergeants. It pinpoints indirect contributions of senior-level officers by accepting deviations from professional standards, sanitising or embellishing reports and failing to challenge accounts given from lower-level officers.
However, these factors have not resulted in alleged liability for senior-level officers under the doctrine of command responsibility (see section 268.115 Criminal Code). Under this legal doctrine of liability, senior-level officials can be responsible for war crimes if they have a sufficient degree of command and control over their subordinates. However, the facts suggest that superior officers were not in a position, organisationally or geographically, to influence the Special Operations Task Group. Moreover, they had responded appropriately when allegations arose, with investigations only being frustrated through ‘outright deceit by those who knew the truth’. Thus, the report concluded that: ‘there was little opportunity for the Commanding Officer of any Special Operations Task Group rotation to create a Special Operations Task Group culture’.
The consequences
Major General Justice Brereton, who led the Inquiry, has described the acts of ADF officers in Afghanistan as ‘disgraceful and a profound betrayal’ of the ADF. Since the release of the Inquiry’s report, the chief of the ADF, General Angus Campbell, has accepted all 143 recommendations outlined in the Inquiry. This includes referrals to a new office of the special investigator to consider criminal prosecutions, changes in the ADF’s organisational structure and an apology to the people of Afghanistan.
The involvement of Australia in war crimes is another blow in Australia’s international image, which has already been marked by acknowledgement of genocide and crimes against humanity during the Stolen Generations by UN Special Rapporteur Tauli-Corpuz and breaches of international refugee and human rights law in Australia’s asylum seeker detention policies by UN Special Rapporteur Crépeau.
The Brereton report also has serious ramifications for Australia’s Western allies, as it sets a precedent for Western countries to finally be held accountable for their own conduct in armed conflicts. Already, advocates are calling for British and American defence forces to be investigated for war crimes in Afghanistan. Australia’s support for international organisations and instruments designed to end impunity such as the International Criminal Court has also been weakening, with diplomats joining U.S. and U.K. scepticism for its efficiency and efficacy.
Over the next few years, Australians will witness prosecutions that mark dark moments in Australian history. This will be the first time that the war crime provisions of the Criminal Code will be utilised in Australian courts, serving as a stark reminder to all of what the Geneva Conventions and the Rome Statute were designed to prevent.
Kelly Phan is a fifth year Law/Arts student at Monash University. She is broadly interested in international criminal law and justice and has completed an internship with the Coalition for the International Criminal Court. She is also the Marketing and Communications Director for Young Diplomats Society.
