Australia's (not just the ADF's) focus must be on preventing future war crimes by ADF personnel. Not debating if war crimes in Afghanistan actually occurred. The reforms require structural and cultural change in some Special Forces units. Including the dismissal of personnel still in-denial about the severity of the problem after the Brereton Inquiry has reported in such detail. Some reforms cannot await the completion of any criminal and disciplinary proceedings. Emotive, partisan and other subjective calls for Ministers to intervene and veto command decisions instituting reform also risk proper civil-control-of-the-military as established by the Constitution, the Defence Act and tested Westminster-system conventions.
Introduction
To our national detriment, much public discussion on war crimes alleged to have been committed by Australian soldiers in Afghanistan has focused on secondary, peripheral or irrelevant issues.
Some of this is due to public confusion resulting from factually inaccurate media coverage.
Straw-man arguments have also been peddled by those with other agendas. Including a wish by some to obscure the key fact that premeditated and systemic war crimes were committed and are inexcusable.
Key issue now
Alleged perpetrators remain entitled to the presumption of innocence and a fair trial in a civil court before a jury of their peers. And they will get it.
But whether anyone will eventually be criminally convicted, or not, also remains a separate practical and moral issue to the broad fact such shocking crimes did happen, and major decisions need to be made about it.
And that Australia, not just the ADF, needs to ensure they never happen again.
What Brereton actually said and what it means
Justice Brereton’s independent, four-year, administrative-law inquiry has explored the extent of the war crimes, why they occurred and what reforms are now necessary.
Conclusions and recommendations cover four categories of subsequent action. Each has twin objectives but in differing proportions.
First are the referrals for criminal investigations by the AFP (and now also a Special Investigator).
These predominantly involve a focus on legal and moral accountability individually, but also have collective deterrent value for the future.
Second are actions under administrative law, such as discharges and resignations from the ADF, and the voluntary surrender or revocation of honours and awards.
These involve a mix of individual accountability and collective culture-change measures to deter and prevent future war crimes.
Third are disciplinary-law actions against individuals under the Defence Force Discipline Act 1982 involving both accountability and deterrence.
With the more serious charges, say for duty failure or negligence, involving trial by court martial.
Fourth, there are structural and cultural reforms instituted under the statutory command authority, and civil-control-of-the-military accountability, held by the Chief of Defence Force under the Defence Act 1903. These involve both objectives but lean more to deterring and preventing future war crimes.
Many people, however, appear to wrongly assume that only the criminal law actions are being undertaken.
Hence the unfounded belief that Brereton only drew conclusions, and recommended action, involving lower-ranked personnel.
Such misapprehensions are being exploited in various political quarters and among media controversialists.
Encouraged by those pushing unrelated bandwagons, or promoting diversions from, or apologia for, war crimes perpetrators.
Risks caused by a loss of focus
As few critics seem to have read the Brereton Report, or grasped its actual legal, military professionalism, and national and international accountability contexts, four risks have arisen.
First, is a loss of focus that this is a serious national problem, both practically and morally, and not just a matter for the defence force, the law or the government.
Second, many seem to forget that compelling Brereton judgements and recommendations deal with measures necessary before criminal and disciplinary actions can be completed.
That is particularly true of those concerning the prevention of systemic war crimes in future.
Third, as Brereton notes, those still in-denial regarding the war crimes do not belong in our defence force.
Consequently, immediate and deep organisational and cultural change is required to reinforce or reintroduce military professionalism in the units concerned.
Including active and symbolic steps to cure the sick unit cultures that enabled and concealed premeditated and systemic murder of prisoners.
These are not matters that can be reasonably judged to have legitimately resulted from heat-of-battle incidents or battlefield accidents.
And where subsequent concealment has involved campaigns to intimidate and discredit digger whistleblowers, and peddle straw-man excuses in public generally.
Finally, passions need to cool so objectivity can be applied to national discussion of the ADF reforms needed.
Including refutation of those pursuing high-profile, obscure or irrelevant scapegoats.
Respecting civil-control-of-the-military processes
The current Chief of Defence Force, when the new Chief of Army, was the commander who requested the (statutorily independent) Inspector-General of the ADF institute an inquiry into suspected war crimes.
There has been no “high-level cover-up”.
The reason the Inquiry took so long is due to the size and complexity of the actual problem, and its consequent numerous lines of investigation.
The current Minister for Defence has rightly backed the CDF and not interfered with his professional duties and command prerogatives as set out in the Defence Act.
Doing so, as some have demanded, would be deeply improper.
The Minister has also not hesitated to consider and explain the war crimes and their consequences accurately. Rather than retreat into euphemism.
Or afford credence to apologia, perceived partisan advantage, or criticism stemming from personal ambition or intra-party factionalism.
Those responsible for defence and foreign policy issues in the alternative government party have also rightly backed the CDF.
Grandstanding has been mostly confined to the fringes on both sides of politics and the community generally.
Facts and objectivity, not ill-informed calls or passion
Finally, and despite media inaccuracy enflaming passions, several issues still need to be resolved when cooler heads can prevail.
As Brereton notes, various medals for conspicuous or distinguished service cannot “in good conscience be retained” by individuals bearing a moral responsibility for command and other failures.
Where his hint that they should be surrendered voluntarily is ignored, some revocations will be necessary.
A Meritorious Unit Citation, however, is neither an individual award nor a medal.
Its a badge worn, on the opposite breast to a medal, to signify acclaim a unit won collectively.
Revoking such a citation if the collective actions concerned are subsequently found to be unmeritorious, or worse, is not wholly a legal, protocol or personal matter.
It also involves signifying Australia’s moral responsibility, the integrity of national repentance and our will to prevent future war crimes.
As in any teamwork-based organisation, when all share the acclaim of such a badge, all share some responsibility when its award is no longer justified.
Especially in circumstances such as systemic war crimes and their concealment.
Perhaps the citation could be reissued to the subunits of uninvolved (permanent) parent units.
Especially as it probably should not have been awarded to a temporary formation—the Special Operations Task Group then operating in Afghanistan—in the first place.
Neil James is executive director of the Australia Defence Association.
A shorter version of this article was published in ASPI's The Strategist
Friday 18 December 2020
A previous article on this issue (published in The Strategist on 22 October 2019) may be found here.
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