Australia: War crimes abroad, justice at home

A civil case against a decorated Australian soldier could spark more legal action against others accused of heinous acts in Afghanistan

“Guys just had this bloodlust. Psychos. Absolute psychos. And we bred them.”

So said an Australian soldier about the war crimes committed by the Australian SAS (Special Air Service) when the scandal first broke in 2016.

And the Australian Defence Force, bless its heart, actually took the accusations seriously.

An independent inquiry led by Justice Paul Brereton delivered a damning report in 2020. It found credible evidence for the murder of 39 Afghans — prisoners of war, farmers and other civilians — by 25 named Australian SAS soldiers in 2007-2013.

None of the killings took place in the heat of battle, it said, and all occurred in circumstances that would, if accepted by a jury, constitute the war crime of murder.

So far, so good and the Australian Defence Force accepted all 143 of Brereton’s recommendations. It apologized to the people of Afghanistan, condemned the “shameful” and “toxic” culture that prevailed within the SAS and made helmet or body cameras compulsory for special forces on future deployments.

The Defence Force also referred the report to the Australian federal police for criminal investigation, including the names of the 25 soldiers who were accused of murder (whose names were redacted in the published Brereton report). That’s when it all broke down.

Not the police force’s fault, not the army’s either. In August 2021, less than a year after the report was published, the puppet Afghan government and its army collapsed, all the foreign forces pulled out and the Taliban took power. Did the behaviour of some of the occupying troops contribute to this outcome? Of course it did, but that’s not the point here.

The point is that the process of gathering evidence for criminal prosecutions of the SAS killers suddenly ground to a halt. An Office of the Special Investigator (OSI) had been created and more than 50 investigators and intelligence analysts assigned to the task, but none of them could go to Afghanistan to interview the witnesses to the atrocities.

As the director of the OSI, Chris Moraitis, explained to a Senate committee in February 2022: “It’s not ideal in the sense that you can’t visit the country and pursue avenues there. It just means that we need to focus on what we can do, rather than what we can’t do.”

But it was looking like they couldn’t do much.

So far, there has been only one indictment of an SAS soldier (this past March) and there is actually film of him shooting his victim. Most of the accused were a little smarter than that and there was reason to fear that the whole process would run into the sand. Then, former SAS corporal Ben Roberts-smith rolled up and inadvertently saved the day.

Roberts-smith is Australia’s most decorated soldier. He was awarded the Victoria Cross, Australia’s highest honour, for “most conspicuous gallantry” in the battle of Tizak in Afghanistan in 2010.

He is also a man who kicked a handcuffed prisoner off a cliff in Darwan in 2012 and then ordered a subordinate soldier to finish the man off. Three years before that, he murdered a disabled man with a prosthetic leg, then brought the leg back to the SAS base, so his soldiers could chug beer from it. And lots more in the same vein.

His name was on the list of 25 and many people had heard about his exploits. A series of articles in three leading newspapers even detailed them at length in 2018. But the evidence was not strong enough for a criminal conviction, so Roberts-smith would probably never have seen the inside of a courtroom, so long as his former colleagues kept silent.

And then the fool sued the three papers for defamation of character. That’s a civil case, not a criminal one and the standard of evidence required is lower.

Last Friday, Justice Anthony Besanko, after a year-long trial, found that the major allegations made by the papers — that Roberts-smith is a murderer, a criminal and a bully — were proven to the civil standard of the balance of probabilities.

He won’t go to jail, but he has lost his job, any money he has will be swallowed up by the costs of the trial (tens of millions of dollars) and he may have to leave Australia to avoid further legal action — because this courtroom drama will certainly reinvigorate the prosecution of the other war criminals.

Every country that sends its troops abroad to fight faces the same problem, especially among its so-called elite units, where a warrior culture is often encouraged. The attempt to impose humanitarian rules on war is always bound to fall short, but the effort must be made, nevertheless.

Australia is doing a lot better than most other countries.