Australian soldiers sent ‘war crimes notices’
Exclusive: Australian Special Forces soldiers have been served with formal notices accusing them of committing war crimes while fighting in Afghanistan.
The extraordinary development comes four years after investigators began probing rumours that Special Forces operators were involved in unlawful killings and cruelty while on tours of duty in Afghanistan.
In recent days, a number of soldiers have received notices from the Inspector-General of the Australian Defence Force (IGADF), NSW Court of Appeal Judge Justice Paul Brereton. Most are former soldiers although some are understood to be current members of the ADF.
The notices advise the soldiers he intends to make adverse findings against them, and gives them a period in which to justify or explain their actions. Those adverse findings include breaches of the Law of Armed Conflict, and other misconduct allegations.
The soldiers have several weeks to respond, then Justice Brereton's final report will go to the Chief of the Defence Force, General Angus Campbell, along with a series of recommendations on what action should be taken against the individual men named in the report. This could include referring them for criminal prosecutions. Current members can be recommended for discharge from the Army.
The report will also contain recommendations about the culture, supervision standards and behaviours which were dominant within the Special Forces.
It is due to be handed down in July and will ultimately go to the Government.
"The IGADF will give the Inquiry Report to the Chief of the Defence Force. Further dissemination of the Report or material within it will be a matter for the Chief of the Defence Force," an IGADF spokesperson said.
News Corp has been told the "reputational hit'' to the Special Forces will be devastating. The Department of Defence has quietly developed contingency plans to deal with the mental health fallout from such a finding against previously revered Special Forces soldiers.
President of the Australian Commando's Association and the RSL Greg Melick said the inquiry was not yet complete.
"The mere fact the notices have been served doesn't imply guilt and it is inappropriate to speculate until the process is complete,'' he said.
"The speculation has been very damaging to the health and welfare of not only many veterans but their families.''
In a separate but parallel inquiry, the Australian Federal Police continue to investigate two allegations of war crimes allegedly involving two Special Forces soldiers. One is known only as Soldier C, while the second is Australia's most decorated war hero, Victoria Cross recipient Ben Roberts-Smith. The AFP told News Corp both inquiries were continuing, and declined to comment further.
"In June 2018, the Australian Federal Police (AFP) received a complaint to investigate allegations of war crimes committed by Australian soldiers during the Afghanistan conflict,'' an AFP spokesman said.
"The AFP accepted the matters for investigation. As this investigation is ongoing, the AFP will not confirm or deny the specific incidents or the identity of those subject to the investigation. It is not appropriate for the AFP to provide further comment at this time.''
With regards to Soldier C, the AFP said: "The Australian Federal Police (AFP) received a complaint on 19 March 2020 from the Minister for Defence regarding footage aired on the ABC, concerning the actions of ADF members and the death of a man in Afghanistan. The AFP has commenced an investigation, and will not comment further on the specifics of this investigation while it remains ongoing.
Mr Roberts-Smith strongly denies wrongdoing and is suing Nine for allegations it published against him accusing him of war crimes. The case continues this week.
News Corp asked Mr Roberts-Smith's lawyer Mark O'Brien to confirm whether his client had received an adverse finding notice from the Inspector-General, and if so whether he would like to comment on it.
He replied: "I have no comment on any part of that question.''
Asked about the issuing of the adverse findings notices, Defence Minister Linda Reynolds said: "I expect that the IGADF Afghanistan Inquiry will be finalised in coming months, whereupon the inquiry report will be issued to the CDF who will consider its findings and determine appropriate actions, in consultation with the IGADF, and with my close oversight.''
On February 25, Justice Brereton used his annual report, tabled in the federal parliament, to reveal his investigators were examining 55 alleged incidents and had spoken to 338 witnesses.
He said the issues under investigation were "predominantly unlawful killings of persons who were non-combatants or were no longer combatants, but also 'cruel treatment' of such persons.
"The Inquiry is also examining incidents relevant to the organisational, operational and cultural environment which may have enabled the alleged Law of Armed Conflict breaches,'' he said.
"The Inquiry is not focused on decisions made during the 'heat of battle'. Rather, its focus is the treatment of persons who were clearly non-combatants or who were no longer combatants.''
He foreshadowed that his report would contain: "A summary and analysis of the evidence pertaining to each significant line of inquiry, and a conclusion as to whether or not and to what extent there is evidence of a breach of the Law of Armed Conflict or other misconduct.''
Originally published as Australian soldiers sent 'war crimes notices'