The Brereton Report, commonly named so after the leader of investigations, NSW Supreme Court Judge Paul Brereton, was published in November 2020, seventy-five years after the Nuremberg Trials began. The Report found evidence of war crimes committed by the Australian Defence Force troops in Afghanistan between 2009-13. Shannon Maree Torrens discusses the situation in Australia. In an age where ‘sovereignty’ is much discussed (and much superficially in Brexit) this piece shows us something of where the life and death issues of the question really lie.
November marked the 75th anniversary of the start of the Nuremberg trials and the International Military Tribunal at Nuremberg (IMT), the world’s first international war crimes prosecutions, which took place following World War II. It also marked the release of the Brereton report on war crimes allegedly committed by Australian Special Forces in Afghanistan, a timely coincidence.
At Nuremberg, four allied nations: the US, UK, Soviet Union and France prosecuted leaders of the Nazi party for the crimes they had committed during World War II. This was replicated at the International Military Tribunal for the Far East or the Tokyo Trial, this time with Japanese leaders on trial. Australia had a special interest in the latter due to the war in the Pacific and the trial was presided over by an Australian judge.
International crimes committed by the Allies during World War II – admittedly far less severe and in far fewer numbers than the Axis powers but still a reality, were never prosecuted at the international level.
These post World War II trials not only sought to end impunity, but they also provided a framework and terms of reference for future generations to prosecute international crimes. Since Nuremberg we have seen a number of responses to international crimes, some purely international, such as the UN Yugoslav Tribunal and the UN Rwandan Tribunal. Other courts were a collaboration between the UN and a particular country, such as the UN backed Special Court for Sierra Leone, the Khmer Rouge Tribunal and the Special Tribunal for Lebanon.
Australia has supported all of these international justice initiatives, noting its belief in the rule of law, justice and accountability. In these situations Australia facilitated the trials of the nationals of other countries verbally, financially and logistically, however the ramifications of supporting the prosecutions of the “other” are far less than supporting the prosecution of one’s own people or “oneself”.
We now also have the world’s first permanent response to international crime in the form of the International Criminal Court (ICC) which was established in 2002 in The Hague when the Rome Stature, its founding treaty, entered into force. The ICC found its inspiration in Nuremberg and Tokyo and the prosecution of the Axis powers, however interestingly, the Court has now turned its attention to war crimes committed by the countries that held the Nazis and Japanese to account.
Australians have specifically been accused of war crimes in Afghanistan which may be prosecuted by the ICC if Australia does not prosecute effectively, the US is the subject of an investigation at the ICC due to its actions in Afghanistan and the UK is the focus of a preliminary examination at the ICC in relation to Iraq.
All three countries have however been the subject of more general war crimes accusations with respect to both Afghanistan and Iraq. For example, since the release of Australia’s Brereton report there have been calls for the UK to investigate possible war crimes in Afghanistan, suggesting that investigations will only increase as the truth unfolds.
Allegations of Australian war crimes in Afghanistan are centred on the Brereton Report, the most significant report in the recent history of the Australian Defence Force, which was revealed in November. This report was the end result of a four-year inquiry by the Inspector-General of the Australian Defence Force.
Prior to the release of the report, our Prime Minister warned Australians that the findings would be ‘difficult’ and ‘disturbing’ – and he was correct. Australia is a country that very much reveres our war heroes, going back to the Anzac legend of World War I and the Gallipoli Campaign. Australian Special Forces operate under a veil of prestige and until recently, respect for being the best of the best in our Defence Forces.
That reverence may in fact be part of the problem. These crimes seem to stem from a belief that if you commit atrocities overseas in a war, and you are representing your country in a prestigious position, the crimes will somehow be swept under the rug. This is called impunity and we should be in opposition to this behaviour.
In delivering the Brereton report, the Chief of Defence Forces Angus Campbell spoke of systemic failures and a self-centred warrior culture, with a misplaced focus on prestige, ego and entitlement which enabled the ignoring and bending of rules. He explained the toxic competitiveness where soldiers took the law into their own hands. These acts were not committed in the heat of the moment, nor were they the result of confusion during battle, rather there was a motive.
The report found credible information of 23 incidents of the unlawful killing of 39 people in Afghanistan by 25 Australian Special Forces personnel predominantly from the Special Air Service Regiment. Their victims were prisoners, farmers or other civilians, at times killed for sport in a process called “blooding” where new recruits were ordered to obtain their first “kill” as part of a disturbing rite of passage. The report said those who spoke up were discouraged and discredited and there was a sanitising of reporting on the issues to avoid attracting attention.
As Australians reconcile these findings, seeking an end to impunity and accountability is vital for the people of Afghanistan and the victims of these crimes. Australia must therefore step up and hold perpetrators accountable. This is also important for Australia, for the integrity of our Defence Forces and for the deterrence of future crimes in overseas operations.
The Prime Minister of Australia has established an Office of the Special Investigator which will address the criminal matters arising from the report and investigations including the gathering of evidence in collaboration with the Australian Federal Police and potential referral to the Commonwealth Director of Public Prosecutions. The Prime Minister has also announced that a special investigator will be appointed to respond to the findings of the report.
If these prosecutions are not effective or not well implemented, then the crimes may be prosecuted by the International Criminal Court in The Hague, which has been the subject of much criticism and opposition by states such as the US who do not want to be held accountable. If Australia effectively prosecutes these crimes however, the ICC will not be able to prosecute them due to complementarity provisions in the Rome Statute which prioritise national prosecutions.
Upon the release of these findings Australians were told that the alleged crimes of our Special Forces were those of a select few, just a few bad eggs and that higher up superiors did not know, which is a finding that should be further investigated. These actions however don’t occur in a vacuum: people see them, people take part in them, people turn a blind eye, and they allow it. This means there are bigger issues for Australia to address than just the perpetrators, such as a system that enables this behaviour.
It is not disrespectful to those who serve in our Special Forces to investigate and prosecute these crimes. Australia and the international community have standards and laws as to how a combatant must behave in armed conflict. This is for the good of all people and if soldiers do not adhere to those standards then there must be repercussions.
Our soldiers are trained in the laws of armed conflict, they know the rules, but group pressure, ego, a sense of entitlement and also desensitisation during war has an effect. When superiors say nothing, or also perpetrate crimes, they encourage the behaviour.
It is also vital for young Australians who might one day join the Special Forces to know that even at the highest levels of our military that they are not untouchable by the law, that they must behave ethically and honourably and that the lives and dignity of all people matter.
Achieving accountability will not be straightforward. There may be difficulties gathering evidence as the crimes were committed in Afghanistan which is still in conflict and they were perpetrated years ago – the majority of the crimes were committed in 2012-2013. Further, the process could take years, but that does not mean it is a futile exercise. If Nuremberg taught us anything it is that there can be a day of reckoning for even the worst war criminals in history.
Australians should know what has taken place and we should be able to see justice being done in our country for the Afghan people, so that we can understand the trauma that has been caused and so that it never happens again in our name. As part of this process, victims should be central, not adjacent to or absent from the accountability process that stems from the report.
Holding “others” to account when we see them violating international law as occurred at Nuremberg and Tokyo and then at the other international criminal courts and tribunals since is important. As an international community we must all be aware of the violations of others and seek to end impunity for international crimes, but that is arguably not as important as holding our own selves and our own people to account when they commit international crimes and cause trauma and loss.
Shannon Maree Torrens is an international and human rights lawyer. She has worked on war crimes at the UN international criminal courts and tribunals and holds a PhD in international criminal law from the University of Sydney.