'Regrettable’: VC hero reacts to war crimes report
Australian soldiers face potential criminal charges and having their medals stripped after a damning report into the actions of some Special Forces operatives in Afghanistan.
Prime Minister Scott Morrison on Thursday announced a Special Investigator would be appointed to prepare briefs of evidence against Special Forces soldiers who may have committed war crimes while serving in Afghanistan from 2005-2016. Those found to have committed crimes will be referred to the Commonwealth Director of Public Prosecutions for potential prosecution.
The move follows a four-year investigation by the Inspector-General of the Australian Defence Force which identified 55 incidents of potential breaches of the Laws of Armed Conflict, including unlawful killings and cruel treatment of non-combatants.
Mr Morrison said some "very serious issues'' had been raised regarding the conduct of some Special Forces soldiers, and that Australia needed to confront some "honest and brutal truths.''
"This will be difficult and hard news for Australians, I can assure you, to hear,'' he said.
"It is going to be very difficult for our serving community and our veterans' community.
"It is going to be difficult for all of us but what we are seeking to do as a Government, I think what we have to do as a country, is to absorb this in a way that enables us to uphold the integrity of our justice system and uphold the integrity of our Defence Forces.''
A senior lawyer or retired judge will be appointed to lead the Office of Special Investigator, which will be arms length from the Australian Defence Force and funded by the Department of Home Affairs.
It will operate under the auspices of the Australian Federal Police, under Australian law, and will use police and other experts as investigators. One name floated in Canberra to potentially head the office is former NSW senior police officer and international war crimes investigator Nick Kaldas.
The Government also announced the establishment of a three-member Oversight Panel to ensure the ADF leadership acted sufficiently in response to recommendations contained in the IGADF report.
The report was handed to Chief of the Defence Force General Angus Campbell last week and a redacted version will be made public in coming days.
Defence Minister Linda Reynolds said the report had identified "extremely serious matters''.
"This started four years ago with a range of rumours and allegations that were circulating within Defence … which is why the now CDF referred this through to the IGADF,'' she said, adding that "39,000 Australians have served in Afghanistan since 2001 and 26,000 of those in uniform.''
Senator Reynolds said that "with a few exceptions'' the majority of those who served had done so with great distinction.
She left open the possibility of stripping medals from any decorated soldiers if they were found to have committed war crimes, saying in response to questions about the loss of medals: "In relation to any of the findings and recommendations in the Inspector-General's report, the CDF is considering all of those options. There will be many options and many recommendations for his action and it would be my expectation that the CDF would consider each and every one of those recommendations, which may well include what you just said.''
The Oversight Panel will report quarterly to Senator Reynolds and be led by Dr Vivienne Thom, a former Inspector-General of Intelligence and Security. The other two members are Robert Cornall, a former Secretary of the Attorney-General's Department, and Professor Rufus Black, an ethicist and Vice Chancellor of the University of Tasmania.
The only person publicly named as being under investigation by the Inspector-General, Australia's most decorated living soldier Ben Roberts-Smith, issued a statement last night.
"I welcome the announcement today by the Prime Minister and the Minister for Defence which has for the first time accurately clarified that it was no part of the IGADF's remit to make any findings of fact in relation to rumours concerning special forces soldiers,'' he said.
"It is heartening to hear these matters, which have been the subject of rumours for years, will now be examined by a Special Investigators office with expertise and experience to consider evidence not just rumours and make decisions based on evidence rather than unsubstantiated rumours.''
Mr Roberts-Smith, now a senior executive with Kerry Stokes' Seven West Media, said it was "regrettable'' the inquiry had taken "such an extraordinarily long time to be finalised.''
"While I appreciate the complexity of the task ahead for the Special Investigator, I am hopeful that this next phase will be completed as expeditiously as possible so that all the current and former special forces soldiers who have been deeply impacted by the inquiry process can move on with their lives.''
Mr Morrison did not rule out disbanding the SAS but it's thought that is unlikely, given the historical nature of the issues and the fact the ADF leadership called the inquiry to examine its culture and leadership.
The PM said dealing with the issues under Australian law would mitigate the potential for our troops to end up in an international criminal court.
HOW DID INVESTIGATION START?
It started early in 2016, when rumours began circulating among members of Australia's secretive and close-knit Special Forces units. There was unease about the behaviour of some of their fellow operatives. Not everyone was comfortable with some of the things that had happened in Afghanistan. These rumours reached the ears of the then-Chief of Army, Lieutenant-General Angus Campbell. They also percolated into the public arena through a book published by journalist Chris Masters, who had been embedded in Afghanistan, entitled No Front Line.
Australia had joined the war on terror in late 2001, when Operation Slipper was formed, and the Special Forces had been deployed there on high rotation until 2013. Australia's deployment changed to an advisory role in 2015.
Campbell, a highly-educated soldier who had also served in a senior national security role in the Department of Prime Minister and Cabinet in the John Howard era in 2005, knew the Special Forces intimately. He had served in troop and squadron command appointments within the Special Air Service Regiment (SASR) and in 2001 was appointed the Commanding Officer of the 2nd Battalion, the Royal Australian Regiment (2RAR).
The rumours were disturbing. They included concerns about the killings of some Afghanis who were either civilians, or not posing a threat at the time they were killed. They included that some operatives were bullies, and were out of control. That a small group had gone rogue.
News Corp has been told some soldiers felt pressured by other, stronger personalities within their ranks to conform to certain behaviours.
Campbell took his concerns to the then-head of the Australian Defence Force, Air Chief Marshal Mark Binskin. Binskin called in the Inspector-General of the Australian Defence Force in May that year. Army reservist Major-General Paul Brereton, a judge in the NSW Court of Appeal, was appointed to lead the inquiry.
Four years later, on November 6, Campbell, now promoted to a General and the head of the Australian Defence Force, took receipt of the "voluminous'' inquiry. Next week he will detail much of what it contains.
The inquiry placed heavy pressure on Brereton. One soldier was investigated by police for making threats against his family. The staunch loyalty which existed between Special Forces operatives made it difficult for them to reveal potentially incriminating information about the men they viewed as brothers. Some were forcibly compelled to give information about their colleagues.
In February, the Inspector-General James Gaynor used his annual report, tabled in the federal parliament, to make a stunning intervention in the process.
Instead of giving a simple update on staffing levels as he had in previous years, he went public with a series of revelations.
This included that investigators were examining 55 alleged incidents, which were "predominantly unlawful killings of persons who were non-combatants or were no longer combatants, but also 'cruel treatment' of such persons.
He also revealed investigators had spoken to 338 witnesses, and made clear this included current and former Special Forces operatives who had decided to speak out about what they knew.
Explaining the lengthy investigative process, Gaynor said: "It has also taken some years for members of the Special Forces community - both those who continue to serve and former members - to develop sufficient confidence in the Inquiry and the genuineness of Defence senior leadership's desire to find out if the rumours are true, to be prepared to make disclosures to the Inquiry.
"Gaining the confidence and trust of some of these witnesses, whose ADF careers have been spent in an environment in which secrecy is treated as fundamental, has required considerable effort and time. As this has been progressively achieved, more witnesses have been prepared to make disclosures, and new evidence has continued to emerge, some resulting in new lines of inquiry, and some reinforcing or corroborating existing lines of inquiry.''
In other words, investigators had convinced some operatives to inform on each other. This had been rumoured, but the confirmation went off like a proverbial bomb.
Mr Gaynor also made clear the inquiry had more than just individuals in its sights, saying it was examining the "organisational, operational and cultural environment'' which may have enabled any breaches of the Laws of Armed Conflict.
And finally, for those who were attempting to paint the actions of the soldiers as the inevitable consequences of the chaotic fog of war, Mr Gaynor wrote: "The Inquiry is not focused on decisions made during the 'heat of battle'. Rather, its focus is the treatment of persons who were clearly non-combatants or who were no longer combatants.''
Allegations against some Special Forces operatives have spilled out into the media in recent years, with damning body-camera vision making its way into the public domain.
The Australian Federal Police has confirmed it is investigating two soldiers in relation to the deaths of two Afghanis.
One of them, known only as Soldier C, was referred after the ABC showed vision of an apparently unarmed Afghani man being shot dead in a field by an Australian soldier.
The second soldier is former Special Forces operative, Australia's most decorated living soldier Ben Roberts-Smith. Mr Roberts-Smith has strongly denied any wrongdoing. He has not been charged. He is suing the Nine media group for defamation over its extensive reporting of his time in Afghanistan.
Afghanistan was a deadly war for Australia. Forty-one Australian soldiers were killed, a third of them members of the SAS or commandos.
WHAT HAPPENS NEXT?
A senior lawyer or retired judge will be appointed as a Special Investigator to take over any potential criminal matters identified by the Inspector-General of the Australian Defence Force.
The Office of the Special Investigator will look at each matter to see if a brief of evidence could be compiled against individuals for potential prosecutions.
Any briefs of evidence will be handed to the Commonwealth Director of Public Prosecutions, who will decide whether to bring charges.
At the same time, a three-person Oversight Panel will be set up to monitor the progress of the Australian Defence Force in fixing any systemic problems identified in the IGADF report.
The panel, essentially an independent watchdog, will report every three months to Defence Minister Linda Reynolds, with advice on whether ADF leadership is making sufficient progress in improving areas such as supervision and culture.
It can also make its own recommendations for improvements in ways and areas not previously raised by IGADF or by Defence.
The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036
Open Arms provides 24-hour free and confidential counselling and support for current and former ADF members and their families 1800 011 046, or through SafeZone on 1800 142 072.
Originally published as 'Regrettable': VC hero reacts to war crimes report