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The Afghanistan Inquiry made 191 findings. The report concluded that there was credible information of unlawful conduct by Australian special forces in Afghanistan. The inquiry found 23 incidents in which one or more non-combatants or persons hors-de-combat (39 persons in total) were unlawfully killed by or at the direction of members of Australian special forces in circumstances which, if accepted by a jury, would amount to the war crime of murder. It also found that there was credible information regarding two further incidents in which a non-combatant or a person hors-de-combat was mistreated in circumstances which, if accepted, would constitute the war crime of cruel treatment.

The report also highlighted serious failures within the Australian special forces, which it suggests contributed to the failure to prevent, detect, and respond to the misconduct. Internal reports of operations were often embellished and sometimes completely fabricated. A further issue, the report found, was that complaints made by locals in Afghanistan were generally discounted by the Australian Defence Force.

The report makes 143 recommendations setting out actions that authorities should take in response to the misconduct committed by Australian forces in Afghanistan. The report recommends that 36 matters (involving 19 potential perpetrators and 23 incidents) should be referred for criminal investigation and prosecution. It also recommends that the Australian government pay compensation to survivors and families of victims now, rather than waiting for the establishment of criminal liability. The report makes several recommendations on administrative action and institutional reform to address systemic, organisation and cultural failings within the Australian Defence Force. It recommends e.g. that awards and honours of units and individuals within the special forces responsible for the misconduct should be reviewed and revoked, and that special forces should receive adequate education and training on the causes of war crimes and the Law of Armed Conflict.

The Office of the Special Investigator (OSI) is an investigative body established in January 2021. OSI is mandated to investigate the potential criminal matters raised in the Brereton report and any new allegations of criminal offences by members of the Australian Defence Force in Afghanistan from 2005 to 2016. In November 2022, OSI confirmed that it is currently investigating all 36 matters recommended for investigation by the Brereton report, along with some additional incidents. OSI has indicated that it may pass the first complete brief of evidence to the Commonwealth Director of Public Prosecutions in the first half of 2023.

Yes. As a signatory to the Geneva Conventions 1949 and their Additional Protocols, Australia has an international legal obligation to investigate and prosecute allegations of war crimes by the Australian forces in Afghanistan. Both treaty and customary laws of armed conflict require States to conduct independent, effective, prompt, and impartial investigations into possible war crimes by their nationals or armed forces and, where appropriate, prosecute the perpetrators.

The rights of victims in criminal proceedings is an area of increased focus, both in Australia and in international criminal law practice. There is a growing awareness that disregard of victims during the criminal justice process can potentially lead to secondary victimisation and prolong the harm suffered. Domestic and international practice shows that victims’ experience of the criminal justice process can be improved without impairing the rights of the accused which are at the heart of the criminal justice system.

In Australia, the Commonwealth Director of Public Prosecution’s Victims of Crime Policy provides some guidance for prosecutors on best practice when dealing with victims of crime/s. However, the guidance is discretionary and does not guarantee legally enforceable “rights” to victims. This policy states that, on request, victims should be kept informed of the progress of the prosecution “in a timely manner” and should be advised about the various stages of the prosecution and their role as a witness.  The Prosecution Policy of the Commonwealth requires that the views of victims be considered when deciding issues relating to the public interest, such as commencing or discontinuing any prosecutions. This policy also stipulates that victims should be treated with courtesy, compassion, cultural sensitivity and respect for their dignity and entitlements.

In terms of participation in the criminal proceedings, the role of victims is largely limited to giving evidence if called as a witness. In cases where an accused pleads guilty or is found guilty after trial, a victim has a right to make a victim impact statement to be considered by the court in determining the sentence.

International human rights instruments emphasise the importance of ensuring that criminal processes are responsive to the needs of victims, including by informing victims about their role as well as about the scope, timing and progress of proceedings.

ACIJ is working to ensure that the rights and interests of Afghan victims are considered in the course of potential criminal proceedings regarding Australian war crimes in Afghanistan. ACIJ emphasizes that:

• Any future legal proceedings concerning war crimes in Afghanistan will be of interest to many people in Afghanistan and in the Afghan diaspora in Australia and further afield in the context of the broader process of reckoning with the conflict period. Updates on the progress of investigations and prosecutions should be made available in English, Dari and Pashto. Where investigations result in trials, where possible, court proceedings should be live-streamed to allow interested parties to observe.  Summaries of relevant trials and judgments should be made available to make the proceedings more accessible to victim communities.
• Victims and their families should be kept informed of their rights to participate in proceedings.
• Witness Assistance Services should be available to victims of international crimes including war crimes. The need for witnesses to be given a clear understanding of what their participation will entail is particularly important in cases involving international crimes, where victims and witnesses are more likely to be unfamiliar with the legal processes of the system they are engaging in.
• Considerable efforts have been undertaken to inform Australian witnesses and ADF veterans of their entitlements to counselling and support services in the context of the Afghanistan Inquiry. This should also be extended to Afghan witnesses and victims.

Victims also have a right to reparations, which is further discussed below.

See also: ACIJ submission to the Senate Foreign Affairs, Defence and Trade References Committee as part of the Committee’s Inquiry into Australia’s engagement in Afghanistan

No.

In July 2021, the Department of Defence set a deadline of “end-2021” for the Australian Government to release its compensation plan. However, the then-Government missed this deadline. The new Government has yet to release any information about its plans for compensation and other forms of redress.

Compensation is not the only kind of redress that is important to victims. Survivors, victims and their relatives in Uruzgan have indicated that they are also interested in truth and acknowledgment. They also want to be consulted on the form of reparation provided.

International law provides victims of human rights violations the right to adequate, effective, and prompt reparations. This includes compensation, rehabilitation, restitution, satisfaction, and guarantees of non-repetition. Rehabilitation includes medical and psychological care as well as legal and social services. Restitution focuses on restoring the victim to the original situation before the violation occurred, such as restoration of the damaged property. Satisfaction includes a wide range of measures, such as truth-telling, public apology, acknowledgement and acceptance of responsibility, judicial and administrative sanctions, and commemorations and tributes to the victims. Guarantees of non-repetition focus on preventative measures such as providing education and training to members of the military and security forces on the rules of war.

See also:
ACIJ and civil society groups from Afghanistan call for full and effective reparation

Expert Opinion by Professor Carla Ferstman on Australia’s obligations to provide reparation to Afghan victims