Thousands of Australian men and women fought in Afghanistan and Iraq without being in breach of any of the rules of warfare. But one can imagine that whatever pride they have in their personal and military accomplishment is muted by their knowledge that a small minority face credible charges of murdering civilians and other war crimes.
This week's announcement that the last few troops in Afghanistan will withdraw with the Americans in September may bring an end to Australia's longest war, but the stains on Australia's military reputation, and the strains on many of those who participated may well last another 50 years.
It may not be merely a matter of an outcome to war crimes investigations. These have scarcely begun, if at all, and, most likely will not lead to charges for years, and outcomes for years after that. By then almost everyone charged will have some right to argue for charges to be dropped on the basis of the length of time (15 or more years) since the events under scrutiny, and the impact of delay on the memories of witnesses, including Afghan civilians and, perhaps, combatants brought to Australia to testify, for or against accused soldiers.
With the promise of generous funding for the defence of accused soldiers coming from the personal resources of the chairman of the Australian War Memorial, Kerry Stokes, one can expect that some of the delay will be tactical, and will make many members of the public think that the allegations go back into ancient history, have seemed to become interminable, and might be better quietly dropped. The longer the investigation is drawn out - and it will be long - the less likely that anyone guilty of a war crime will ever face the music.
The investigative team is to be led by former secretary of the Attorney-General's Department Chris Moraitis. Despite the material gathered by the investigation conducted by Justice Brereton, the new investigation must start from scratch, finding and re-interviewing witnesses, and preparing indictments capable of satisfying very picky, and not very accountable, officers of the Commonwealth directorate of public prosecutions that conviction is likely and prosecution in the public interest. If a prosecution does not eventuate, it is unlikely that the DPP will explain why.
The longer the investigation is drawn out - and it will be long - the less likely that anyone guilty of a war crime will ever face the music.
In Canberra courts in recent times, the DPP has shown enormous zeal for the prosecutions of Bernard Collaery, and some former intelligence officers who have disclosed information showing disgraceful conduct by Australian ministers and intelligence officials, as well as war crimes in Afghanistan. The prosecutions were approved by the former attorney-general, Christian Porter. Thanks in part to the intervention of counsel for the attorney-general seeking, mostly, to have almost all evidence suppressed and the court entirely closed on national security grounds, it is difficult to guess at the ardour being manifested by the prosecution as opposed to the intervenor - although they are supposed to be quite separate. Certainly, there is very little material about to suggest how either the DPP, or the attorney-general, have weighed the public interest in open justice, or, indeed, the public interest in holding ministers and officials accountable to the law. For many Australians the accused men are heroes, not villains. That proceedings are in closed courts, with judges seemingly acquiescent to suppression of the evidence and arguments, suggests that efforts to explain the unfair treatment will not only be unconvincing but will affect the general reputation of the judiciary.
With the war crimes prosecutions, if Mr Moraitis and his team can stand them up, are similar problems, but perhaps more complex ones. Brereton was able to dig deep because he had some power to require military witnesses to give evidence, if not against themselves. He also went to great lengths to use only evidence that he believed could be adduced in Australian courts without compromising the national security interest. At that point, particularly with most of those accused still inside the military system, it was possible to trace a path that did not compromise Australia's military communications, sources of intelligence, or means available to commanders, were they inclined to be suspicious of what they were told.(The evidence suggests they were rarely, if ever suspicious, and, if only from loyalty to the men, accepted everything they were told, dismissing any evidence to the contrary as inventions made up so as to get money.)
I suggested some months ago that one of these systems involved the use of drones high above "battlefields" that provided independent evidence of the movement of individual soldiers, as well as suspected enemy combatants and Afghan villagers. Those interested in what such drones could show members of the public might remember how Julian Assange, of Wikileaks, published drone images of western journalists and Iraqi civilians being vapourised during an incident that the US military still refuses to discuss - other than by demanding the head of Assange. My understanding is that Australian drone images are of a resolution that could resolve many questions of fact, as well as bolstering the (often confusing, but sometimes very damning) picture presented by body cameras on soldiers.
Brereton did not refer in his report to this secondary, but classified, evidence of events he was investigating. Nor did he mention communications from base to the scene of action, between soldiers, or other information gleaned by the Australian Secret Intelligence Service, which was playing a very active role in briefing, and debriefing, SAS expeditions.
Last Sunday journalists from the Nine Network made further allegations against Ben Roberts-Smith VC, who is suing Nine (and The Canberra Times) over suggestions he was being investigated for war crimes. Roberts-Smith vehemently denies the allegations, and the defamation trial is not so far away. It was said on Sunday that Roberts-Smith had withheld material from the Brereton investigations and from discovery in the defamation case (hiding some tapes and photos in a lunch box under his lawn), and had intimidated witnesses. Again, these allegations are strenuously denied by Roberts-Smith.
Among the materials he was said to possess were five high-altitude drone tapes of particular engagements. Strictly, the fact that such tapes exist is supposed to be highly secret - the sort of secret that could bring any whistleblower before secret closed courts for summary punishment.
I do not want to traverse matters in contest in the defamation case. But suppose that such tapes existed, and that Roberts-Smith, or some other person involved in later war crimes charges, wanted to use such tapes to establish his innocence. Could this be done? In open court? Or even with extraordinary security in a closed court, assuming that accused soldiers would readily agree that murder charges could be tried outside the public eye?
It is to be noted first that the tenor of some of the submissions being made by counsel for the attorney-general has been that a right to a fair trial does not necessarily trump the demands of national security, and that in some cases an accused person would simply not be able to refer to material, in open or closed court, that he thought was exculpatory. That ought to shock the conscience of the ordinary Australian but is a measure of the complete overreach of the modern national security state.
When the soldiers were on active service, one might have expected that they would help shield and protect such secrets, especially given that many were designed for their use. But many of those accused are angry and truculent, feeling betrayed not only by the defence establishment but also by people they thought were their friends. The government may not be able to count on their discretion, whether (accountably) in court, or outside it. Indeed some may threaten to blurt out secrets, or to demand the public use of very secret information they claim will exonerate them simply so as to encourage the prosecution to drop matters.
But that presents another problem. One can take it that Moraitis knows virtually all there is to know about Australia's national security interest, and that he has been, in the past, intimately involved in the juggling that has gone on about prosecuting in national security leaks cases.
He might even have observed that some involved at the political end of the process have been as concerned about political embarrassment as about protection of genuinely vital secrets. Is it to be part of Moraitis's job to exclude probative evidence as much as to find evidence that can be used? Would that involve a conflict of duty? Could Australia, in effect, be blackmailed into putting justice for murdered Afghan civilians into second place? One could hardly say, in the record so far, that there would be anything novel about this.
A foolish war and the wounds it left on our honour
The aftermath of the Brereton inquiry into war crimes committed by SAS soldiers involves much more than continuing efforts to prosecute. It also involves findings about the degree of culpability of officers at all levels above the non-commissioned soldiers accused, as well as the whole culture of the SAS, perhaps of the whole army. That some of those at the top of Australia's military establishment, including General Angus Campbell, the Chief of the Defence Force, were at various times in command positions in the SAS, or closely involved in the Australia deployment has made some of the questions even more embarrassing.
By the time of the Brereton report, most of the patrols on which atrocities occurred involved only five or six men, usually led by a sergeant or corporal. Junior officers did not go and relied on reports given them by patrol leaders. Some patrol leaders, indeed, were said to have prevented communications from base to scene of operations so that superiors at base could not second guess their actions.
But Brereton suggested that there were many signs of things being seriously wrong. Among these were formal complaints of unlawful killings. Many of which came from Afghan human rights figures. Other complaints came to the Department of Foreign Affairs and Trade, which, apparently, could scarcely be bothered to pass them on to Defence, let alone record them for Canberra purposes. SAS officers showed their "loyalty to their men" by dismissing Afghan complaints out of hand, suggesting that complaints were made up so as to get compensation. Investigations were minimal. Officers who asked questions were effectively punished by their superiors and openly dissed by those below them. A junior officer, in particular, would know that his next promotion would depend on a warm endorsement by a patrol leader - sometimes a corporal.
Thus officers at all levels could pretend that they had no idea of the killing of civilians and other abuses. The perpetrators were secretive and close-knit. They did not gossip, least of all to officers, at least on base. They did a bit more at their Perth headquarters, which is where rumours which could no longer be ignored began to circulate.
It has seemed to me, as it did to Brereton, that claimed ignorance was a cop out. Officers, at all levels, had duties of ordinary management over their men, and had to know them, and their temperament, closely. No superior in a bank or an airline would be allowed to escape censure for failing to know what staff were doing. In any event, the SAS was an elite military environment, as well as a 24-hour-a-day operation. SAS soldiers might be expected to have unusual arrangements for supervision and initiative on duty - a measure of the danger and the nature of the missions they did. But the very sensitivity of their missions required an unusual understanding by superiors of where they were and what they were doing.
It was once of the essence of SAS activities involving, sometimes, the bringing on of sudden explosive violence well inside enemy lines that they rehearsed and practised operations, and afterwards conducted searching inquests for any mistakes, or for any lessons which could make an operation work better. This seemed to go by the wayside in Afghanistan, with reports to officers made deliberately perfunctory, so as to avoid questions and scrutiny, and with officers deliberately making reports further up the chain bland and uninteresting, in part to conceal the writer's own ignorance, lack of curiosity or incapacity to satisfy curiosity. How strange that the most senior officers were so easily satisfied.
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If we now know that many SAS patrols were being monitored by high altitude drones, well capable of demonstrating discrepancies in what was reported, and, occasionally, murder, assaults of civilians, the planting of evidence to suggest that civilians were combatants and so on, it seems a remarkable thing that no one ever used them to check up on the men in the field. If they were not in fact used for such purposes, why were they in place? And if they were in practice superfluous to the mission, why all of the palaver about their very existence being top secret?
Morrison government ministers, including the then minister for defence, Linda Reynolds, were mysteriously absent when the Brereton report was released, leaving General Campbell to face most of the music. He gave every appearance of acting decisively, including foreshadowing a major attack on the culture which had developed in the SAS, and stripping some units of citations. It soon became apparent that the government itself had very little appetite for a tough response, least of all after it was got at by returned soldiers not themselves accused of anything. Campbell was, in effect, told to leave some responses for later government consideration, and generally to play things fairly low key. Nothing much happened after the report, and since then the government has become becalmed by issues of respect for women and protection against assault, particularly in the workplace, plus the sidelining, and eventual replacement of Reynolds as she became enmeshed in controversy over her handling of an alleged rape in her office. Whether Peter Dutton will demand action, or whether, instead, he decides to embark on some new crusade which further relegates matters into the too-hard basket is yet to be seen. Campbell has not helped the reform cause much by his having chosen, as a person to lead cultural change, a middle ranking officer soon shown to have been a participant in SAS high jinks of the sort he was supposed to stamp out.
Pray there is no victory parade. We leave, as we left Gallipoli, well beaten.
Meanwhile Morrison has been looking for some public relations triumph to offset his run of disasters in recent months. When President Biden announced the end of an American military presence in Afghanistan (and the abandonment of promises of protection from the Taliban), Morrison had little choice but to follow suit. Announcing it, he tried hard to separate the overall engagement - which had been, he said, about "freedom" - presumably for Afghans - from the war crimes inquiry, which was, he said, a matter for another day. He shed tears for a fallen soldier, and tried hard to salvage some dignity and sense of achievement from an enterprise doomed from the start by an Australian political leadership which did not set clear objectives or have much share in deciding what was going on. Pray that someone stamps on any Morrison impulse for a victory parade. Australians leave, as they left Gallipoli, well beaten.
No doubt most Australians fought bravely and honourably in fights that were usually at less than platoon level. One salutes their sacrifice, their courage and mateship. They did what they were told, and are to be honoured, not judged, for their service. But they gained no ground, won no support among tribalised and often fickle local Afghan populations, and depart, knowing, as they did when they left Vietnam, that their battlegrounds were to fall immediately to the enemy.
Nothing much to commemorate or boast about, at the war memorial in particular, and certainly nothing justifying a high-cost low-rent military toy and medal theme park now being planned against the wishes of soldiers and most of the community. Afghanistan was a military, moral, social and economic disaster, having nothing whatever to do with freedom. It certainly has not secured it, and our involvement increased, not reduced, our exposure to Islamist terrorism. The $500 million indulgence to Kerry Stokes is but a down payment on the long-term cost to the nation, one which is the more terrible given the want of anything that could be called glory, or success and the shadow of war crimes trials. A vast toll of casualties, particularly men and women with post-traumatic stress syndrome, incredible suicide rates, give far better witness to the futility of war, and the long-term costs of our foolish, poorly led, military adventurism.
A fit subject for contemplation come Anzac Day.
- Jack Waterford is a former editor of The Canberra Times and a regular columnist. firstname.lastname@example.org