The importance of the Brereton report on our alleged war crimes in Afghanistan

On 20 November, the Chief of the Defence Force (CDF) General Angus Campbell finally presented the public with the redacted version of NSW Justice Major General Paul Brereton’s report into our alleged war crimes in Afghanistan.

As if there had been no political direction of the war, General Campbell’s lonely uniformed presence before the cameras conveyed with great contrition – and apologies both to his Afghan counterpart and the Australian people – his disciplined acceptance on behalf of the Australian Defence Force (ADF) of all responsibility for the alleged crimes.

The legal language of the report is suitably chilling.

It finds ‘credible information’ that 39 ‘non-combatants or persons hors de combat’ were ‘unlawfully killed by or at the direction of members of the Special Operations Task Group (SOTG) in circumstances which, if accepted by a jury, would be the war crime of murder.’ Similarly, two other non-combatants were victims of what would be a war crime of ‘cruel treatment.’

Cutting the throats of two fourteen-year-old boys and tossing their bodies into a river, ‘blooding’ young soldiers by having them shoot defenceless non-combatants to get their first kill, and mutilation of bodies seem to be the kind of behaviours we are talking about.

Altogether, the Inquiry recommends that the CDF refer 36 matters to the Australian Federal Police for investigation. Those matters relate to 23 incidents and involve 19 individuals. Neither the report nor the CDF assumes they have documented every war crime that may have occurred. Both explain that channels remain open to receive further information.

Part Two of the redacted 531-page Inquiry Report is its main body. It sets out in six entirely redacted volumes the evidence it provides to support criminal proceedings in relation to the alleged war crimes. Part One contains essential background, context and the legal framework for the inquiry.  Part Three deals extensively with the systemic issues: culture, strategy, organisation, and the moral as well as legal dimensions of collective command responsibility.

The report concludes that ‘the criminal behaviour of a few was commenced, continued and concealed at the patrol commander level, that is at corporal and sergeant level’. Contingent on that principal conclusion was the other one, which has proved in the recent press to be more controversial: ‘the Inquiry has found no evidence that where was knowledge of, or reckless indifference to, the commission of war crimes, on the part of commanders’ at higher levels in Afghanistan and all the way to Australian Defence Headquarters in Canberra.

Is this a whitewash of the political direction and higher command of the war?

The report acknowledges a sense ‘at least at Squadron level’, which is two levels above patrol commander level, that ‘lethal force was being used when perhaps it was not always necessary.’ The report hastens to emphasise that sense ‘falls well short of knowledge, information, or even suspicion that non-combatants were being deliberately killed’ – such as might constitute evidence of criminal culpability in the higher command.

It still seems more than passing strange that, during the nine years between 2007 and 2016 examined by the Inquiry, no officer at the command and staff levels all the way to CDF, Minister for Defence and Prime Minister had a serious idea of what happened.

Dr Samantha Crompvoets, the author of the February 2016 study of the rumours of war crimes that finally helped to initiate the Brereton Inquiry, wrote that ‘the nature of the stories I was told [in 2015], have been described before, having emerged in numerous media stories over the last decade or so.’

She went on to indicate that press was too diffuse to have political traction. ‘Just as soon as these stories emerge,’ she wrote, ‘they are gone.’ Still, the fact that the press had no influence on the government and army before 2015 is notable.

As is much else.

What about recent comments by former Defence Minister Joel Fitzgibbon in the Daily Telegraph, November 13, that responsibility for what happened ‘goes right to the top – national cabinet‘?

What about the case of army lawyer David McBride? During or after his service in Afghanistan in 2011 and in 2013, he is said to have made internal allegations of war crimes in Afghanistan – not long after the worst spate of atrocities occurred in 2012.

From 2014 to 2016, he provided information that detailed multiple cases of unlawful killings of unarmed men and children. In response, he was charged in 2018 for theft of Commonwealth property and could face a life sentence. The AFP also raided the ABC’s offices in June 2019 and confiscated all material related to the matter.

What about The Guardian’s 21 November story reminding us of an April 2013 directive issued from then ‘chief of the defence force’. This was General David Hurley, who wrote: ‘An ADF member is exposed to criminal and disciplinary liability, including potentially the war crime of murder … for opening fire on a person when there is a substantial risk that the person is not DPH (direct participant in hostilities).’

Hurley, who was appointed Australia’s governor general in July 2019, has said he did not know of war crimes and finds the revelations ‘horrendous’.

What about the case of former-junior-SAS-officer-turned-prominent-parliamentarian Andrew Hastie?  ABC News and The Australian ran stories about him on 24 November. According to these, he ‘heard rumours of wrongdoing before [his] deployment to Afghanistan in 2013,’ again, the year after the alleged war crimes peaked.

When he got there, he says he saw ‘tired’ and ‘calloused’ soldiers. This may not be saying much in a war zone, but other recent comments by him were that the ADF’s public relations were ‘stage managed’ so as to ‘sanitise’ Australia’s role in the ‘degrading’ conflict and prevent necessary scrutiny.

My own P&I pieces (13 August and 14 October 2020) are among others that align further with calls by Fitzgibbon and Hastie that those ‘at the very top’ should be held accountable as well as those at the bottom, who stands accused of war crimes.

Now, I am unaware that any of the above or other expressions of disquiet contradict the Brereton report’s strict claim that the commanders’ sense of the situation fell ‘well short’ of ‘even suspicion that non-combatants were being deliberately killed’. The fact that Hastie gave evidence to the Inquiry, which is redacted, would seem to reinforce this conclusion.

This conclusion also brings us to a central point. All those expressions add up to something more than the ‘arse covering’, ‘politically correct’, ‘stage-managed’ military command culture of ‘cover up’ often described for good reasons in the media. The central point is, indeed, that they add up to the larger problem of a self-serving command culture that has normalised self-deception within a wider set of societal and political norms.

The importance of the Brereton report is that this is what it tends to show.

By definition, an inquiry completed for the Inspector General of the ADF, such as Brereton’s had a political ceiling. It was never going to involve direct examination of the political direction of the war. Yet, Part 3 of the report, which deals with the systemic failures of a higher and collective military command, still does a great deal to put upwards pressure on that political direction.

‘While Government may have had an understandable preference for using Special Forces, because of their proved success in the past and the lower risk profile,’ the report states, ‘it was the ADF’s responsibility not simply to accede to that preference’.

That the ADF’s high command failed ‘to provide fearless and firm advice that the protracted use of Special Forces to conduct what were not in truth “special operations”, but missions that could have been conducted by … conventional forces, was imprudent, unwise, and potentially jeopardising the welfare of Special Forces personnel.’

To use William De Maria’s apt phrase (P&I 18 November), a ‘truth-warping’ command culture comes into view.

Dutiful high command submission to political direction institutionalised acceptance of the major policy flaws in the Afghanistan deployment. Yet, in showing that, the report has clarified what the generals merely failed to modify: the prime-moving ‘preference’ of ‘Government’ to send the Special Forces to War, because the use of conventional forces would not have been cost-effective and would have entailed political risk.

The worst policy flaws are built into that essential aspect of the Afghanistan engagement. With arguable qualifications at the beginning, no government has been able to define the mission in the ‘war on terror’ for almost two decades.

The troops had no clear mission and little if any sense of being part of a winning strategy in a foreign battle environment where presumed friends could suddenly turn into enemies.

Under such conditions, the isolation of the very small-scale, light-weight Special Forces Units in combat zones remote from national command was almost bound to stimulate the deviant ego-centric ‘warrior culture’, which the report deems to have nurtured the war crimes. And, indeed, that murderous culture fits rather well with the slovenly, self-serving command one.

The geographical dispersal of military command arrangements inherent in the deployment skewed them and undermined their control of the fighting soldiers. The handing down of ‘politically correct’ policy positions that seemed irrational to the soldiers and were even downright dangerous to them exacerbated command cleavages.

The corruption of bottom-up after-action battle reporting meant that higher commanders often had little idea of what was happening in the field. Lower-level obstruction of the Provost Marshal’s top-down ADF Investigation Service within the SOTG was far from helpful either.

At the lower levels of the command culture, the report finds further that ‘Commanding Officers of SASR [Special Air Service Regiment] during the relevant period bear significant responsibility for contributing to the environment in which war crimes were committed’. The reference is especially to those officers who embraced the inappropriate ‘warrior culture’ and empowered, or did not restrain, the clique of NCOs who propagated it.

None of this is any reason to excuse criminal behaviour. On the contrary, it is an excellent feature of Australian democracy that the Brereton Inquiry is concerned with detailing and combatting war crimes.

We may note the report’s comment that it would be ‘too simplistic’ to say that it is about explaining the deviant conduct. In relation to that, the ‘psyche’ of those involved is often a dominant factor, which cannot be wholly explained by extraneous causes.

Nonetheless, the Inquiry’s attention to the systematic factors is most important, because it can be shown that they helped to create opportunities for and, even, conditioned the occurrence of war crimes. Studies incorporated into the report shows, for example, how deviant behaviour can be normalised over time.

A main, politically driven policy flaw in our Afghanistan engagement will, for that reason, haunt us for a long time: the ‘imprudent, unwise’ and, many would add to those words of the report, grossly irresponsible overworking by successive governments of Special Forces personnel over many years, because of their relatively small numbers, in far too many rotations through the combat zone. In this flaw, high command acquiescence is also a given.

Then, of course, we saw vividly on 20 November how the Government let General Campbell take full responsibility for our war crimes on behalf of the ADF. We saw that, indeed, the Brereton Inquiry was set in a political as well as legal process.

As the Inquiry has ended and the evidence it has found is being passed on to a Special Prosecutor to frame further proceedings, we also see the war crimes moving into history.

Andrew Hastie has been talking about our ‘degrading’ war’; others about the ‘shame’ of war crimes that are as disgraceful as any in our history.  One may indeed wonder if the string of shameful defeats from Vietnam through Afghanistan and Iraq, none of which were shy of atrocities great and small, will have any long-term effect on the way we go to war.

This will take more than the administrative action that began with the disbanding of 2 Squadron SASR and, on 26 November, with the dismissal of ten members of the Regiment, apparent ‘accessories’ or witnesses’ of murders in Afghanistan, who are not among the 19 individuals to be referred to the AFP for criminal investigation. It will also take more than the prosecution of any war criminals.

Let us hope, at least, that the important work of the Brereton Inquiry will now boost the important work of Paul Barrett’s War Powers Reform Group. This Group has long been calling for parliamentary control of any decisions Australians make to go to war.

This would mean prime ministers working in secret with one or two others will no longer be able to send the country to war for private reasons. Such a change should force us to think about whether or not prospective wars have anything to do with the national interest. Rather than require our generals to be obedient political cyphers, parliament might also encourage cultural change by turning to them for professional advice.