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Australian war crimes in Afghanistan: Questions and Answers

Ahlone ports, Yangon Myanmar

Uruzgan Province. Photo: Deshakalyan Chowdury /AFP via Getty Images

Over many years, evidence has emerged indicating that people in Afghanistan were subjected to unlawful killings and abuse by members of the Australian special forces during the war in Afghanistan between 2005 and 2016.

This Q&A gives an overview of what has happened to date, how the Australian government has responded, and what steps still need to be taken.

Overview

What evidence has come to light about war crimes by Australian special forces in Afghanistan?

Since 2006, evidence from various sources has come to light indicating that members of the Australian special forces committed war crimes in Afghanistan. This includes evidence from eyewitnesses and families of victims from Afghanistan, investigations by the Afghanistan Independent Human Rights Commission (AIHRC), reports by journalists and whistle-blower testimonies.

Over the years, local elders and families of victims made several complaints to the Government of the Islamic Republic of Afghanistan, AIHRC, and the International Committee of the Red Cross, which were communicated to the Australian Defence Force (ADF). The ADF generally discounted local complaints as Taliban propaganda or motivated by compensation. However, AIHRC investigations confirmed the unlawful killing of unarmed civilians by Australian forces. Testimonies from whistle-blowers and several reports from various news outlets also brought to light allegations of war crimes by Australian forces.

A four-year inquiry led by the Inspector-General of the Australian Defence Force Afghanistan Inquiry published its report in 2020. The inquiry found credible information of unlawful killings and cruel treatment of detainees by members of the Australian special forces.

See also: Parliament of Australia Research Paper, Reports, allegations and inquiries into serious misconduct by Australian troops in Afghanistan 2005–2013

The Afghanistan Inquiry Report / the Brereton Report

What is the Brereton Report?

On 19 November 2020, the Australian Defence Force released a public version of the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (commonly known as the Brereton report). The report contains the findings and recommendations of the Afghanistan Inquiry, led by Justice Paul Brereton, into allegations of war crimes committed by Australian special forces in Afghanistan in the period between 2005 and 2016. The inquiry was not a criminal investigation. Rather, it was an administrative fact-finding exercise, undertaken under the auspices of the Australian Defence Force. The purpose of the inquiry was to ascertain whether the allegations of criminal conduct by Australian forces in Afghanistan had any substance and to inform options for further action.

What did the Brereton Report find?

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 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 misconducts. 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.

What recommendations did the Brereton Report make?

The report makes 143 recommendations setting out actions that authorities should take in response to the misconduct committed by Australian forces in Afghanistan, including that:

  • 36 matters (involving 19 individuals and 23 incidents) should be referred for criminal investigation and prosecution,
  • Australia should compensate Afghan victims and their families now, rather than waiting for the establishment of criminal liability,
  • awards and honours of units and individuals within the special forces that were responsible for the misconduct should be reviewed and revoked, and
  • special forces should receive adequate education and training on the laws of war and causes of war crimes.

Victims, survivors and their families

How has Australia responded to the needs and justice demands of victims to date?

In November 2020, General Angus Campbell (Chief of the Australian Defence Force) offered an apology to the people of Afghanistan for “any wrongdoing by Australian soldiers”.

On 4 January 2021, the Australian Government established the Office of the Special Investigator (OSI) to investigate – with the Australian Federal Police – allegations of criminal conduct committed by members of the Australian Defence Force in Afghanistan between 2005 and 2016.

The Afghanistan Inquiry and the establishment of OSI are positive steps towards meeting victims’ entitlement to accountability, truth, and acknowledgement.

Australia has however failed to provide prompt and effective reparation to victims, as explored in more detail below.

See also:
Chief of Defence Force apology – Dari Translation
Chief of Defence Force apology – Pashtu translation

Criminal investigations and prosecutions

Will there be war crimes trials?

The Australian Federal Police and the Office of the Special Investigator are investigating possible breaches of the Laws o​f Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016. They can then refer cases to the Commonwealth Director of Public Prosecutions (CDPP) for prosecution. The CDPP will make determinations in relation to criminal prosecution. On 23 March 2021, a CDPP official stated that they are “actively undertaking preparations and planning for the likely referral of war crimes”.

What is the Office of the Special Investigator?

The Office of the Special Investigator (OSI) is an investigative body established in November 2020 to examine and assess the findings of the Brereton report. The OSI is mandated to investigate the potential criminal matters raised in the report and any new allegations of criminal offences by members of the Australian Defence Force in Afghanistan from 2005 to 2016.

Does Australia have obligations under international law to investigate and prosecute allegations of war crimes by the Australian forces in Afghanistan?
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.
If cases are brought to trial, what rights will/should victims have in the proceedings?

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 the dignity of victims in the course of criminal 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:

  • Investigators, prosecutors and other personnel working with Afghan victims and witnesses should have the requisite expertise in working with interpreters where necessary as well as cultural awareness and a trauma-informed approach to work with victims and witnesses.
  • 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 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 is to be welcomed but should also be extended to Afghan witnesses and victims.
  • 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 should be made in English, Dari and Pashtu as to the progress of investigations and prosecutions. Where possible, proceedings should be live-streamed to allow interested parties to observe. Materials relating to the proceedings should be archived for historical reference.

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

What will happen if Australia fails to prosecute and ensure accountability for the alleged crimes?

If there is sufficient evidence to prosecute one or more members of the Australian special forces for war crimes, Australia would be in breach of its international legal obligations if it fails to ensure prosecution and accountability. If Australia is unable or unwilling to genuinely investigate and prosecute, the Office of the Prosecutor of the International Criminal Court could investigate and prosecute these cases.

Compensation and other forms of redress

What recommendations did the Brereton Report make on compensation?
The Brereton report recommended that Australia should compensate families of victims swiftly, without waiting for the establishment of criminal liability. The report emphasized that prompt compensation is important to restore Australia’s reputation and “simply the morally right thing to do”.

ACIJ notes that compensation should not be limited to those cases identified in the Brereton Report. Not all cases were included in the Brereton Report and others have come to light since the report was published.

Has Australia made compensation payments to victims?

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 Government missed this deadline and has so far failed to publish any plans to facilitate compensation.

What other types of redress are important?
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

We are grateful for OAK Foundation’s support for and funding of our Afghanistan program.

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