20 October 2021

On 13 October 2021 ACIJ made a submission to the Senate Foreign Affairs, Defence and Trade References Committee as part of the Committee’s Inquiry into Australia’s engagement in Afghanistan.

The Inquiry was established in September 2021 to examine various aspects of Australia’s twenty-year military, diplomatic and development engagement in Afghanistan.

The focus of ACIJ’s submission to the Committee is on the legal obligations arising from Australia’s engagement in Afghanistan, particularly with regard to Australia’s ongoing investigations into allegations of war crimes by members of the Australian Defence Force between 2005 and 2016.

ACIJ’s submission, which can be read in full here, makes the following recommendations:

  1. Criminal investigations should examine the extent to which legal responsibility for war crimes extends up the chain of command.
  2. Along with responsibility for the unlawful killings of prisoners, criminal investigations should examine other categories of unlawful killings as well as potential cases of cruel treatment.
  3. The Office of the Special Investigator (OSI), the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP) should make the necessary preparations to ensure Afghan witnesses and victims can participate adequately in proceedings.
  4. OSI, AFP and CDPP staff with responsibility for dealing with Afghan victims and witnesses should have the requisite expertise in working with interpreters as well as cultural awareness and a trauma-informed approach.
  5. CDPP’s Witness Assistance Service should be extended to include victims of international crimes, including war crimes.
  6. The Department of Defence Afghanistan Inquiry Reform Plan must address Australia’s obligations to comply with the laws of armed conflict.
  7. The issue of compensation for Afghan victims should be resolved as a matter of urgency and the Australian Government should consult survivors on other forms of redress.
  8. Transparency should be a guiding principle in Australia’s response to the findings of the Brereton Report.
  9. The fully unredacted Brereton Report should be released at the conclusion of any relevant legal proceedings.
  10. The Australian Government should establish a permanent independent unit to investigate international crimes
  11. The Australian Government should guarantee an additional humanitarian intake of at least 20,000 people from Afghanistan and should ensure that Afghan human rights defenders are adequately protected.
  12. Australia’s process of reckoning with its twenty-year engagement in Afghanistan should include Afghan perspectives.

Image credit: LS Paul Berry/Australian War Memorial

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