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A thread on the report into Australian war crimes in Afghanistan. First, the full statement of the Chief of the Australian Defence Force (quoted below) is available here: https://afghanistaninquiry.defence.gov.au/sites/default/files/2020-11/CDF-Statement-19-Nov-20-Check-against-Delivery.pdf 1/n
Second, the redacted public report of the Brereton inquiry along with numerous other documents is here: https://afghanistaninquiry.defence.gov.au/resources 2/n
Key points: (1) "Justice Brereton considered in detail 57 allegations ... He found there to be credible information to substantiate 23 incidents of alleged unlawful killings of 39 people, perpetrated by 25 Australian Special Forces soldiers, predominantly from the [SAS]" 3/n
(2) "Those alleged to have been unlawfully killed were all people under control, in lay-terms prisoners, farmers and other civilians."
(3) "None of the alleged unlawful killings were ... in the ‘heat of battle’." 4/n
(3) "None of the alleged unlawful killings were ... in the ‘heat of battle’." 4/n
(4) "None were alleged to have occurred in circumstances in which the intent of the perpetrator was unclear, confused or mistaken. And every person spoken to by the Inquiry thoroughly understood the Law of Armed Conflict and the Rules of Engagement under which they operated." 5/n
(5) "This Inquiry found no evidence there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of Troop, Squadron and Task Group Commanders, or higher commanders." 6/n
(6) "Individuals alleged of unlawful, criminal conduct will be referred to the Office of the Special Investigator. Individuals alleged to be negligent in the performance of their duty will be managed through administrative and disciplinary processes." 7/n
(7) There will be some form of compensation to bereaved Afghan families.
What does this add up to? First, this was a fact finding inquiry conducted with no right of silence, which appears to have applied "credible information" as its standard for making findings. 8/n
What does this add up to? First, this was a fact finding inquiry conducted with no right of silence, which appears to have applied "credible information" as its standard for making findings. 8/n
Second, little is yet known about the Office of the Special Investigator is known, other than that it will draw on Australian Federal Police and other personnel to work up briefs for prosecution. It will not be limited by Brereton's findings or recommendations. 9/n
The ADF Chief acknowledged there are more recent lines of inquiry Brereton could not explore in full. The suggestion that no-one ranking higher than lieutenant should face criminal charges will be met in some quarters with dismay. 10/n
The suggestion there is no basis for criminal superior responsibility under s. 268.115 Cth Criminal Code only works in my mind if the highly autonomous small-group nature of the SAS units in question meant they could *completely* conceal any knowledge from a commander ... 11/n
... such that they lacked even awareness of a substantial risk that should have prompted further inquiries. As a civilian, that seems difficult to believe - but the report was by an independent judge and based on over 300 interviews. 12/n
Criminal prosecutions will be long and complex and in some cases may face substantial obstacles. However, early indications are that proof of intent is not one. Command responsibility should be examined further but such cases will be tough, entirely fact-dependent and 13/n
... s. 268.115 Cth Crim Code is untested in Australian courts and how to apply it at the International Criminal Court has proven difficult. E.g. on my reading of the Bemba AC judgment there is no clear majority on how to apply the causation requirement. 14/n
NB it has not been made express whether such trials will proceed in ordinary State/Territory courts or before a Defence Force Service Tribunal, though I read all indications as pointing towards the former.
For a good piece on how trials may play out see: https://www.abc.net.au/news/2020-11-13/igadf-war-crimes-inquiry-afghanistan-explainer/12322334?utm_source=abc_news_web&utm_medium=content_shared&utm_content=twitter&utm_campaign=abc_news_web
For a good piece on how trials may play out see: https://www.abc.net.au/news/2020-11-13/igadf-war-crimes-inquiry-afghanistan-explainer/12322334?utm_source=abc_news_web&utm_medium=content_shared&utm_content=twitter&utm_campaign=abc_news_web
Clarification: the recommendation is that any crimes will be prosecuted in civilian courts (p. 40, para. 74).
