Burying crimes under layers of legal process is tantamount to cover-up. And cover-ups destroy democracy. Just another one to add to the list of evidence showing the Morrison government’s problem with accountability – ‘sports rorts’ and the bonanza for Liberal donors from the ‘Leppington Triangle’ land deal being just two examples.
With the appointment of Mark Weinberg QC to lead the special investigation into war crimes allegations – up to 39 murders allegedly committed by 19 current and former special forces soldiers – the government has effectively smothered the issue.
It took more than a decade after the first alleged killings to produce a heavily redacted account of what transpired. Who’s to say that the Special Investigation won’t also take a decade before any criminal prosecution is concluded, particularly in a pandemic-constrained world?
In his report, Major General Paul Brereton, a senior Army Reserve officer who is also a judge of the NSW Court of Appeal, laid the blame squarely on the shoulders of the Non-Commissioned Officers who led operational patrols. He exonerated the military chain of command, with the astonishing justification that they did not know what was going on. And he absolved from any responsibility at all the Australian government, which made the decisions to commit the Australian Defence Force (ADF) to armed combat in Afghanistan.
As an all-volunteer force, the ADF is necessarily highly professional: without mass, we need advanced capabilities and the full suite of skills to operate them. For Australia, warfare cannot be the business of fools or felons. Commanders must always be in control, and, to meet their accountabilities and responsibilities, governments must always be fully aware of the ADF’s activities and their consequences. Ignorance within the chain of command and by ministers is totally unacceptable. Current ministers need to reassure themselves that these circumstances cannot reoccur.
War crimes are a serious stain on Australia’s image as a rule of law democracy that advocates and upholds international legal standards in the conduct of armed conflict. More than that, they represent a fundamental erosion of the integrity and reputation of the ADF as the trusted instrument of government strategic policy. If Australia cannot be trusted to carry out its international defence activities legally and honourably, and if the ADF cannot be trusted to carry out the government’s directions in full accord with the Laws of Armed Conflict, how can the electors who vote governments in (and out) trust either the government or the ADF?
Without full transparency and accountability, they can’t. Burying crimes under layers of legal process is tantamount to cover-up. And cover-ups destroy democracy which, as so many commentators point out, is under threat everywhere.
This is why we need a Royal Commission into the war crimes allegations. Of course, the alleged perpetrators must be investigated, briefs of evidence assembled, charges laid if appropriate, trials conducted and sentences imposed where warranted. This is a massive undertaking, especially where the events occurred in a war zone, the local witnesses are non-English speaking non-combatants, the military witnesses are accustomed to operating in a cocoon of secrecy (and consequent unaccountability) and the investigators themselves are less experienced perhaps in conducting forensic analysis relating to homicide and murder across jurisdictions, languages and cultures.
But the work of the Special Investigator does not go to the heart of the issue, because the war crimes represent systemic failures in decision and command, not just moral failure on the part of a few ‘bad apples’. When wars become purposeless, soldiers lack purpose and direction. They will fill the void, especially when repeated deployments and heightened exposures reduce moral sensibility.
It is the job of the chain of command to ensure that soldiers are not left to their own devices, just as it is the job of government to ensure that the chain of command is both able to do its job and actually does its job. It is simply not good enough to go after the perpetrators when they are themselves symptomatic of a more serious and more dangerous systemic failure.
We should recall that it took two Royal Commissions to get to the bottom of the systemic issues that led to the ‘Voyager incident’ in 1964 – the Royal Australian Navy’s biggest peacetime disaster. Owing to cover-ups, the first Royal Commission led to a miscarriage of justice. In conducting a Royal Commission into war crimes, the government would not just be addressing the fundamental causation factors that resulted in criminal acts. It would be acting in the national interest, and in its own interest as the ultimate custodian of legality and probity.
Such a Royal Commission is not dependent on the Special Investigator’s work for its raison d’être. Care must be taken to ensure that the Terms of Reference commissioning a Royal Commission do not overshadow the Special Investigator or compromise his inquiries. Indeed, it needs to be quite separate from the Special Investigator, since Major General Brereton’s review of the circumstances that generated the war crimes allegations is sufficiently robust to justify the root and branch evaluation of the systemic failures of which the war crimes are symptomatic.
To restore the ADF’s national reputation, and Australia’s international reputation, the Royal Commission should be convened without delay.
The Australia Institute published a detailed discussion paper on Major General Brereton’s war crimes report here.
Allan Behm heads the International and Security Affairs Program at The Australia Institute, Canberra
Comments
10 responses to “War Crimes? What war crimes? Nothing to see here”
Currently the real problem with this and a number of other issues is Scott Morrison and the Australian Federal Government. There can be ten Royal Commissions into War crimes but, as the banking Royal Commission showed, if the government doesn’t want to implement the recommendations it won’t do so. Conservative governments like this one are in thrall to the military. All our soldiers are heroes.
The “bad apples” so far fingered by Brereton are really the meat in a much bigger sandwich (sorry) that spreads much wider to the politics of interoperability and the battle ethos of our trigger happy Ramboesque Great and Powerful Friend. By all means try genuinely to hold miscreants identified by Brereton to account but one must acknowledge that their culpability occurs in a wider normative context. Where were they trained, who with, and was it under home-grown norms only? Or was it strongly influenced by ‘foreign’ norms in ‘foreign’ interoperability training camps using ‘foreign’ manuals less focused on compliance with Laws of War to which Australia is party? More pointedly, would they have been seen as “bad apples” by US commanders and by US comrades or would they have been expected to operate as they did?
As for a Royal Commission, yes, it might have educational value: it might come up with laudatory constructive findings which might just found a better normative basis for command and training and for in-action performance in future. Its main value would be the public airing of broader practical and policy considerations. Just as likely its actual findings would be largely ignored or buried and be of little practical effect.
Patriot act: Inalienable rights.
Thank you for your well balanced story Alan Behm.
Where to from here? ‘Oh for a few Good Men’ comes to mind, who appear to be very sparse on the ground.
“when they are themselves symptomatic of a more serious and more dangerous systemic failure” … I agree entirely!
When writing a unit history related to Vietnam, I discovered that material provided by DVA to Australian schools stated (and still does) that Australian soldiers shot enemy wounded and those who were unable to defend themselves. I asked if these matters had been investigated. The answer was no. I asked the Minister at the time, if he could give an assurance to the Australian public that such things could never happen again. He did. A submission has been made to the Inquiry; happy to provide a copy to the Australia Institute.
“the war crimes represent systemic failures in decision and command, not just moral failure on the part of a few ‘bad apples’.”
False. There has never once in human history been an event qualifying as “war” in which there were not also events qualifying as “crimes.” The crimes flow predictably and inevitably from the institution; as long as we hold matters of violence and aggression (forget that weasel word “Defence”) as honourable, worthy of vast expenditure and, above all, excusable in ourselves, then there will be war crimes. Only “fools and felons” would believe otherwise. The problem isn’t the commies, terrorists and towelheads who are causing trouble “over there,” it lies in our breasts. We, the voters who allow wars, are the problem.
We can take this further, and blame the culture that shapes people’s behaviour and change it, rather than blame individuals or groups, high or low in the system. They will always muddy the water to defend themselves.
The dark-age rooted European culture we are brought up to honour and serve produces generation after generation of the most aggressive people in modern history. We invest unstintingly in weapons of effortless lethality, which we place in the hands of our uniformed punitive ambassadors. Just as we manipulate formidable property laws to coerce our fellow citizens, we crave the whip-hand in our dealings with other cultures. We send our punitive ambassadors to kick ass in the world because it gets us better trade deals.
One would expect Mark Weinberg to value his reputation and not let the grass grow under his feet. If the ADF brass is as concerned as it claimed to be about the Brereton findings, one would think they would like to see the matter resolved. This would remove the need to expect a government which holds itself blameless in all matters even in the face of scandals like the long-running and much forewarned Robodebt. But if the brass is not completely blameless, that might be asking too much.
This just seems to leave the Opposition to keep the matter alive.
Mr Behm: thank you, that is pretty convincing. in major transport system accidents (rail, air, ships) there is a similar issue – temptation, particularly in house or in industry to blame the driver/pilot / mechanic. in such transport there is (should be) a very clear chain of command. when things go wrong, proper investigations often – usually – ask ‘how was the driver put in that position’ i.e. training, state of mind, managerial oversight. if nobody noticed the bad apples in the barrel, there needs to be better ways of looking at apples, and that involves some sheeting of responsibility to those who were supposed to look. regards
Well said!