The Australian defence force is facing a watershed moment.
Next week, the findings of a long-running inquiry by the inspector general of the Australian Defence Force (IGADF), Major General Justice Paul Brereton, into war crimes in Afghanistan will be released.
It is widely expected Brereton’s report will show heinous acts committed by a small group of special forces soldiers in Afghanistan, including the killing and brutalising of unarmed Afghan civilians.
On Thursday, Scott Morrison sought to pre-empt the report’s release, establishing a special investigator’s office to help the Australian federal police investigate the allegations raised in Brereton’s report.
It’s a significant step. But what will it mean for the ADF, for the Australian public, the accused special forces troops, and the Afghan victims?
What will a special investigator’s office do?
The Morrison government will establish a new Office of the Special Investigator to further investigate potential criminal conduct raised by Brereton’s report.
The office will sit within the Department of Home Affairs, leverage the powers of the AFP and will be staffed by AFP officers, as well as state and territory police, legal counsel, and support workers. It is likely to be led by a senior barrister or retired judge with extensive criminal law experience.
The purpose of the special investigator is to gather further evidence that can be used in court and then refer matters to the Commonwealth Director of Public Prosecutions (CDPP), which will decide whether to prosecute through the courts.
One of the special investigator’s key roles will be to triage the numerous allegations raised in the Brereton report, investigating the most serious and building briefs for potential prosecution.
Will there be independent oversight?
Yes, the government announced it will also set up a separate independent oversight panel that will exist to ensure the defence force does not stray from its broader response to the inquiry’s findings.
This oversight committee is all about driving the cultural and organisational change needed to avoid any repeat of what some see as a culture of recklessness, elitism, and impunity that pervaded some parts of the special forces.
That oversight panel will consist of Dr Vivienne Thom, a former inspector general of intelligence and security, Robert Cornall, a former secretary of the attorney general’s department, and Prof Rufus Black, an ethicist and vice-chancellor of the University of Tasmania. It will report to the defence minister, Linda Reynolds, quarterly on defence’s progress. Reynolds will in turn report to parliament.
What do the government’s actions tell us?
If nothing else, what Morrison announced on Thursday shows the gravity of what’s about to drop.
We’ve known the seriousness of the allegations for some time, of course. Media reporting has already shown damning evidence of war crimes from some elements of Australia’s Special Operations Task Group in Afghanistan between 2005 and 2016.
Helmet cam footage has shown the shooting of an unarmed Afghan civilian in a field.
Whistleblowers, both Australian and American, have accused special forces soldiers of brutalising and killing Afghans in repeated incidents, including allegedly to make space in a helicopter.
Morrison said: “In terms of what the government has been briefed on, I think you can tell from the seriousness and the gravity of … in the way we are responding to this, that you can get a clear sense of how seriously the government is taking this. This is going to be very difficult for Australians. It is going to be very difficult for our serving community and our veterans community. It is going to be difficult for all of us.”
Why can’t the AFP investigate war crimes? Isn’t that its job?
Ordinarily, the AFP would investigate war crimes.
It has done so for many years. Indeed, the federal court has already heard that it is investigating allegations relating to Ben Roberts-Smith, Australia’s most decorated soldier. Roberts-Smith has categorically denied the allegations.
But Morrison said the agency would simply be overwhelmed by the scale of what’s in the Brereton report.
“This process would significantly overwhelm the AFP and their many other very important works that they have to do,” he said. “So it is necessary to build that capability. It sits under the AFP as commission and continues that process.”
Haven’t we already had an inquiry? Is this just a delaying tactic?
The announcement on Thursday met early scepticism.
Brereton has now been probing war crimes for more than four years. His inquiry has been exhaustive and detailed and his findings are voluminous.
Why then, do we need another investigation, particularly when Morrison has warned it would be a “long and arduous” road ahead and refused to put any timeline on the office’s work?
Morrison has stressed that this is not a new investigation.
Brereton’s inquiry did not set out to build a brief of evidence to the standard required for criminal prosecution.
The office of the special investigator will.
So that makes this announcement more of an extension of Brereton’s probe, rather than a new investigation following it, Morrison says.
Regardless, it does have the potential to drag out the affair for years before we see any prosecutions.
Thankfully, the criminal code does not contain statute of limitations for war crimes offences, meaning the delay is unlikely to frustrate efforts to take matters before the court.
Will soldiers still go to the International Criminal Court?
Morrison made it clear that Australia’s actions mean the war crimes cases will not go before the International Criminal Court (ICC).
“We believe so, yes,” he said. “That is the important advice we have taken on this. We need to deal with this as Australians, [through] our laws, through our own justice processes and we will and I think that will say a lot about Australia.”
The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for war crimes.
But it is also a court of last resort, meaning that it tries to complement, rather than replace, the national courts of the globe. The ICC itself acknowledges that it does not replace the courts of countries like Australia.
Australia’s criminal code also makes this explicit, saying: “It is the parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this division that are also crimes within the jurisdiction of that court.”
What will be released to the public? Will we know the names and details of the implicated soldiers?
This is a lingering question.
We know the ADF chief, Angus Campbell, will speak about the findings of the Brereton report next week.
But whether he releases a redacted version of the report, a summary of its findings or – much less likely – the full report, remains to be seen.
Morrison said on Thursday the government as of yet had only had limited briefings on the report, and did not know any of the accused soldiers’ names.
He said the extent of the release of the report would be governed by a need to protect future legal proceedings from prejudice and to guard sensitive national security information.
“It is quite a voluminous report, I can assure you that, but for obvious reasons, a redacted report both to ensure the integrity of the justice process that is flowing from it, and also national security issues as are relevant,” Morrison said.
What about medals – could they be stripped from those accused of war crimes?
This is a very real prospect.
Defence has already warned that it could strip bravery medals from any soldier, where the Brereton inquiry finds their entitlement to it may no longer exist.
“If a service chief or other authority considers that a person’s entitlement to an award may no longer exist, the chief of the defence force may ask the minister for defence to recommend to the governor general that the person’s award be cancelled,” the defence department told the Australian this week.