By Alexandra Koch, Rohini Kurup, Tia Sewell
The inspector general of the Australian Defense Force (ADF) released on Nov. 19 a report on its inquiry into allegations of serious misconduct by Australian special forces in Afghanistan, including accusations of war crimes. The report paints a brutal picture of the Australian special forces’ conduct in Afghanistan as part of the American-led military coalition that has been active in the country since 2001.
The details given in the report—the few that were made visible to the public, that is—evoked international shock and elicited graphic headlines such as the New York Times’s “Blood Lust and Demigods: Behind an Australian Force’s Slaughter of Helpless Afghans.”
It’s a huge document: 531 pages, although littered with redactions. And as the Times notes, “It is the first time that a member of the American-led coalition in Afghanistan has so publicly, and at such a large scale, accused its troops of wrongdoing.” So what’s in the report, and what steps led to its coming to fruition?
The inspector general opened the investigation in March 2016 and examined incidents occurring between 2005 and 2016. During the inquiry, investigators interviewed 423 witnesses and reviewed more than 20,000 documents and 25,000 images. The report has three parts: Part One describes the inquiry and provides background information; Part Two details allegations of wrongdoing and whether they have been substantiated; and Part Three considers strategic, operational, organizational and cultural issues in Australia’s special forces.
The bulk of the report comes from Part Two, which examines specific incidents and issues that were subject to investigation. One problem: It is entirely redacted, as it “contains material the publication of which at this stage could compromise potential criminal proceedings, as well as security classified information.” Still, the report provides a window into Part Two through details about its contents provided in other nonredacted sections.
And the information the report does give is jarring to read. Notably, the first page of the document provides a warning that the report “contains objectionable material” and that “[a]ppropriate care is taken to limit exposure.” The content warning also provides a link, specific to the Afghanistan inquiry, which points readers to resources if they “require support after accessing this material.”
The report doesn’t shy away from decrying the conduct of the Australian troops. In an opening letter to the report, James Gaynor, the inspector general of the ADF writes that “[t]he nature and extent of the misconduct allegedly committed by ADF members on operations in Afghanistan is very confronting. The Report discloses allegations of 39 unlawful killings by or involving ADF members.”
He continues, detailing that the report includes “separate allegations that ADF members cruelly treated persons under their control. None of these alleged crimes was committed during the heat of battle. The alleged victims were non-combatants or no longer combatants.”
On Nov. 19, officials held a press conference on the inspector general’s Afghanistan inquiry, during which Gen. Angus Campbell apologized “sincerely and unreservedly” for any wrongdoing by members of the ADF. Campbell reemphasized Gaynor’s comments—none of the alleged crimes detailed in the report occurred during times of duress in battle:
None were alleged to have occurred in circumstances in which the intent of the perpetrator was unclear, confused or mistaken. And every person spoken to by the Inquiry thoroughly understood the Law of Armed Conflict and the Rules of Engagement under which they operated. These findings allege the most serious breaches of military conduct and professional values.
Below, we summarize the inquiry's findings in each part of the publicly released report.
Part One: “The Inquiry”
The report begins with an introduction explaining that the war in Afghanistan is the longest armed conflict Australia has been involved with to date. It stresses that the special forces component of Operation SLIPPER (Australia’s contribution to the war in Afghanistan as part of NATO) overwhelmingly “performed skillfully, effectively and courageously.”
But SLIPPER was not without its problems. The inspector general’s report details that Operation SLIPPER ended in 2014 and then “a number of issues emerged in Special Operations Command, including rumours that war crimes had been committed by some members of the Special Operations Task Group in Afghanistan.”
Samantha Crompvoets, a sociologist and research fellow at Australian National University, was appointed to direct research on the rumors and produced in 2016 two documents about her studies. In a January 2016 report, Crompvoets detailed specific disturbing stories that ADF members described to her during the course of her inquiries. These included instances of competitions among service members to get the highest “body counts,” “sanctioned massacres,” cover-ups of unlawful killings and other “vague, nameless scenarios.” She described the totality of the behavior as reflective of “deeply concerning norms” within Australia’s special forces.
Crompvoets’s February 2016 report specifically studied the culture within the special forces organization in Australia. In the executive summary of this report, she wrote that there were “unverifiable accounts of extremely serious breaches of accountability and trust” in the Special Operations Command (SOCOMD). Crompvoets also stated that during her interviews, SOCOMD members alluded to behavior and practices involving “illegal application of violence on operations, disregard for human life and dignity, and the perception of a complete lack of accountability at times.”
The ADF special operations commander, Jeffrey Sengelman, received this information about SOCOMD and alerted the chief of the ADF (then called the chief of army) of possible misconduct by Australian forces in Afghanistan. Sengelman also encouraged every member of SOCOMD to write to him personally if they had witnessed or conducted any unacceptable behavior—in total, Sengelman received 209 letters from special forces members.
In light of these allegations, the ADF chief wrote to the ADF inspector general on March 30, 2016, to request that the inspector general open an inquiry into the following:
a. possible crimes (illegal killings, inhumane and unlawful treatment of detainees, or mistreatment of corpses);
b. the cultural normalisation of deviance from professional standards within SOCOMD, including intentional inaccuracy in operational reporting related to possible crimes;
c. a culture of silence within SOCOMD;
d. the deliberate undermining, isolation, and removal from SOCOMD units of individuals who tried to address this rumoured conduct and culture; and
e. a systemic failure, including by commanders and legal officers at multiple levels within SOCOMD, to report or investigate the stories as required by Defence policies.
Inspector General Gaynor then appointed Maj. Gen. Paul Brereton, a senior Army Reserve infantry officer and a judge of the Supreme Court of New South Wales, to conduct the inquiry.
The report clarifies that the inquiry’s purpose was to ascertain whether there was credible information to corroborate the rumors and allegations of unlawful misconduct by special operations officers. It further notes that the inquiry was “the beginning of a process that in any individual case may or may not lead to a criminal investigation by the Australian Federal Police, a prosecution and a conviction following trial by jury, or to administrative action against serving Australian Defence Force members.” The inspector general cautions that the report itself “cannot and does not find guilt in any individual case” but asserts that the investigation did find substance to the rumors of misconduct by ADF special forces members. The scope of the probe went broader than a criminal investigation, and the inquiry was not confined to collection of evidence that would be admissible in a court of law.
The report’s conclusion? It explains, “[T]he answer to the question ‘is there substance to rumours of war crimes by elements of the Special Operations Task Group’ must sadly be ‘yes, there is’.”
Legal Justification and Implications
Part One of the report cites both legal and moral justifications to explain the need for the inquiry. It also details the legal basis for the inquiry. In the inspector general’s account, the legal justification for the inquiry is both legitimate and unambiguous.
The inspector general notes that the legal obligation to investigate the misconduct flows from Australia’s status since Sept. 1, 2002, as a state party to the Rome Statute—which established the International Criminal Court (ICC). As a state party, Australia is bound by international humanitarian law—specifically, the law of armed conflict. And state parties to the Rome Statute are potentially vulnerable to investigation by ICC prosecutors into alleged violations of the law of armed conflict.
The ICC opened an inquiry of its own into the situation in Afghanistan in November 2017. The investigation remains open today, and its scope includes all war crimes and crimes against humanity committed on Afghan soil, irrespective of combatant nationality. This means that the conduct of Australia’s special forces in Afghanistan would fall within the purview of the ICC’s investigation.
But the report asserts that the ICC doesn’t yet have jurisdiction to take on the case. The report notes that the principle of complementarity outlined in Article 17 of the Rome Statute stipulates that the ICC “will only exercise its jurisdiction if a State fails to genuinely investigate and prosecute a situation in which crimes against international humanitarian law have been committed.” In other words, Australia maintains its national jurisdiction over these allegations unless the state is unable or unwilling to prosecute, in which case the ICC can intervene.
Therefore, any transfer in jurisdiction of the case to the ICC would be contingent on Australia’s attorney general determining that Australia is unwilling or unable to carry out the investigation or prosecution under Article 17. If the ICC and Australia were to be at odds about Australia’s capacity to sufficiently prosecute alleged criminal conduct by its military, there is no clear set of rules, nor absolute precedent, for how to proceed. This is because it’s not fully resolved how the ICC or national courts will handle contested complementarity, in which the ICC and the state party are in disagreement over the state’s willingness or ability to investigate and prosecute.
The report argues that the conduct of Australian special forces in Afghanistan is unlikely to become a matter for investigation by the ICC. In the view of the inspector general, Australia has shown a demonstrated commitment to investigate and, if appropriate, prosecute any allegations that may otherwise fall under the ICC’s jurisdiction. That commitment, the report argues, should preclude an independent ICC probe.
The report clarifies that the conflict in Afghanistan is one of noninternational character, so Common Article 3 of the Geneva Conventions applies as a matter of legal obligation.
The report digs into allegations of serious crimes—namely war crimes. The report particularly is interested in the parts of Australia’s domestic legislation, discussed below, that codify the obligations of the Rome Statute into domestic criminal law. These provisions mean that Australian investigators and prosecutors have primacy in looking into the allegations in the report.
The report heavily cites Division 268 of the Commonwealth Criminal Code Act 1995, which codifies into domestic law Australia’s legal commitments under the Rome Statute. The act was incorporated into Australia’s domestic legislation as an amendment within the International Criminal Court (Consequential Amendments) Act 2002 on Sept. 26, 2002. Investigators looked at the reported incidents through the lens of possible violations of Division 268.
Division 268 includes offenses of war crimes committed in a noninternational armed conflict context—like the conflict in Afghanistan—the most relevant for this report being murder and cruel treatment. Division 268 also has the consequence of extending the geographic jurisdiction of the Australian government for any war crimes committed by ADF members in Afghanistan from 2006 to 2014: The provision means that the offense applies regardless of whether the alleged misconduct occurred in Australia or another country.
Those who commit offenses under Division 268 are subject to criminal liability, and those who aid in concealing the commitment of an offense may be criminally liable as an accessory to the crime under Australia’s Commonwealth Crimes Act.
Notably, the report further discusses a second form of criminal responsibility that can apply under Division 268. It’s a type of criminal responsibility, often found in international law, that is commonly known as “command responsibility.” This form of criminal responsibility contends that figures of military authority—whether official or de facto—can be held criminally responsible for the actions of their subordinates. Command responsibility includes an officer’s duty “to take all possible measures” to prevent violations of the laws of war by his or her subordinates. The report explains that in order to establish liability pursuant to command responsibility, one must prove that a leader had “knowledge of, or reckless indifference to” the offense and still failed to either prevent the crime beforehand or properly investigate the misconduct after it occurred.
The report explains that defendants accused of crimes falling within the purview of Division 268 can mount two types of defense: code-wide defenses and a Division 268-specific defense.
Code-wise defenses are defenses that a defendant charged with any crime within Australia’s criminal code could make. The code-wide defenses include mistake or ignorance of fact, intervening conduct or event, sudden or extraordinary emergency, self-defense, and lawful authority. The defense of “superior orders,” by contrast, is specific to Division 268—meaning that, unlike the code-wide defenses, it can be used only for offenses that fall within the scope of Division 268. The defense of “superior orders,” outlined in Section 268.116 of the Criminal Code, contends that a defendant can argue he or she is not guilty of war crimes under Australia’s domestic legislation if the crime committed was pursuant to an order of a government or superior, the defendant was under a legal obligation to obey the order, the individual was not aware the order was unlawful, and the order was not “manifestly unlawful.”
The report cites self-defense and “superior orders” as the most important and relevant defenses to the inquiry.
The report also considers the relevance of applying the Defense Force Discipline Act 1982 (DFDA) in prosecuting war crimes as service offenses, rather than in civilian criminal courts where Division 268 applies. The report ultimately casts doubt on the relevance of the DFDA to the alleged behavior. The DFDA applies to Australian military members located geographically outside of Australia and can appropriately be applied to the noninternational armed conflict context in Afghanistan. The Australian High Court has previously addressed overlap between civilian and military jurisdictions, articulating a preference for civilian trial where possible. The court asserted that where a given defendant could be tried in either a civilian or a military context, civilian criminal jurisdiction should be exercised when it can be “appropriately invoked” and service tribunals should be reserved for the purposes of maintaining service discipline.
The report explains the Australian government’s reasoning for not using DFDA service offenses to prosecute war crimes. For one, the report notes that the DFDA does not apply to suspected perpetrators who are no longer serving. And applying the DFDA here could also create a number of additional problems. There is potential for constitutional complications as well as the bureaucratic difficulty of multiple agencies seeking to conduct criminal investigations with overlap into the individuals and conduct they are probing. But there’s one other important practical consideration: If a state opts to investigate ICC crimes as a service offense through an “ordinary-crimes approach”— that is, prosecuting a crime under a criminal offense not designated by international law (for example, by choosing to prosecute an “ordinary” crime such as murder rather than an “international” crime, such as war crimes or crimes against humanity)—it could possibly be opening itself up to ICC investigation of the same behavior.
To address the legal implications of these allegations of misconduct, the report ultimately recommends that any of the resulting criminal investigations and prosecutions the Australian Federal Police and the Commonwealth Director of Public Prosecutions undertake occur in Australia’s civilian criminal courts. This recommendation is grounded in consideration of complementarity, in regard to both the jurisdiction of the Rome Statute and the difficulties of applying the DFDA to this particular context.
Part Two: “Incidents and Issues of Interest”
Part Two, the main body of the report, surveys the incidents and issues that are the subject of the inquiry. All six volumes of this section of the report are entirely redacted, but the report’s executive summary and chronology provide some clues about its contents.
According to the summary, Part Two describes allegations of wrongdoing against members of Australia’s special forces in Afghanistan and probes whether or not they have been substantiated. It begins with an explanation of the relatively narrow scope of the investigation into specific incidents, and it contains an evaluation of the credibility of key witnesses.
The executive summary also indicates that Part Two details the evidence related to 57 incidents of misconduct and gives the inquiry’s findings and recommendations in each instance. Later chapters describe 12 additional incidents that were subject to an initial inquiry but were found to have insufficient evidence, leading the inquiries into those cases to end. And a later chapter details 10 more incidents which remain open, with recommendations as to how to proceed.
What we can gather about the contents of Part Two is deeply disturbing. Here, the report contains accounts of a host of alleged crimes, including one that it describes (without further unredacted information) as “possibly the most disgraceful episode in Australia’s military history.”
In other words, this section bears the devastating magnitude of the report. It describes in detail and provides evidence for the willful unlawful killing of 39 Afghans in 23 incidents by or at the discretion of Australian special forces, which is revealed in Gaynor’s opening letter and the executive summary. Notably, these killings were not committed during battle, and the victims were noncombatants or no longer combatants. Brereton writes in the executive summary that if the circumstances detailed in the report were accepted by a jury, these incidents would constitute the war crime of murder. Two further crimes, according to the executive summary, involved two Afghans cruelly treated. If accepted by a jury, those crimes would constitute the war crime of cruel treatment. In all, a total of 25 current or former ADF personnel were implicated as perpetrators in these incidents, according to the executive summary.
Based on the executive summary, it is clear that Part Two contains credible information that some special operations members were found to have carried “throwdowns”—foreign weapons to be placed with bodies of “enemy killed in action” in order to manipulate photos. The report states that the practice probably began as a dishonest attempt to avoid scrutiny in cases where a legitimate target turned out to be unarmed and “evolved to be used for the purpose of covering up deliberate illegal killings.”
Part Two also supposedly details a practice known as “blooding,” in which junior soldiers were expected to undergo a form of initiation-by-killing that was directed by more senior commanders:
In [redacted] different Special Operations Task Group rotations, the Inquiry has found that there is credible information that junior soldiers were required by their patrol commanders to shoot a prisoner, in order to achieve the soldier’s first kill, in a practice that was known as ‘blooding’. This would happen after the target compound had been secured, and local nationals had been secured as ‘persons under control’. Typically, the patrol commander would take a person under control and the junior member, who would then be directed to kill the person under control. ‘Throwdowns’ would be placed with the body, and a ‘cover story’ was created for the purposes of operational reporting and to deflect scrutiny. This was reinforced with a code of silence.
The executive summary further establishes that “[a]lmost all of the incidents in respect of which the Inquiry has found credible information of a breach of law of armed conflict involve members of Force Element [redacted]”—meaning that there is evidence indicating that one SOCOMD unit, in particular, was responsible for “almost all” of the war crimes described in the report. Most of this paragraph is redacted, but the report states that alleged incidents occurred in 2009, 2010, 2012 and 2013.
Part Three: “Strategic, Operational, Organisational and Cultural Issues”
The third part of the report addresses systemic issues within the ADF. It includes reflections on the factors that allowed for the misconduct to take place, the failure of oversight mechanisms to detect the misconduct and the responsibility of commanders.
This section begins with an analysis of a range of factors that might have contributed to the conduct detailed in the second part of the report. The findings here draw on a discussion paper on the culture of Australian special forces that was developed by the staff of the inquiry as well as on a report prepared by David Whetham, professor of ethics and the military profession in the Defense Studies Department of King’s College London, who was appointed by the assistant inspector general to provide an independent assessment for the inquiry.
The investigation singles out a “warrior culture,” particularly within the elite Special Air Service Regiment. The report explains that certain patrol commanders were considered “demigods” who could make or break a soldier’s career—this meant that even unlawful orders were followed. Furthermore, the notion that being part of the special forces conferred a sense of exceptionalism led members to see themselves as above the rules that applied to the rest of the ADF. And an atmosphere of secrecy and loyalty within the special forces fostered a code of silence that allowed for the alleged misconduct to continue and made its discovery over the course of the inquiry all the more difficult.
Notably, the 2nd Squadron of the Special Air Service Regiment was disbanded following this report’s release due to the allegations raised by the inquiry.
The report cautions against the systemic blind allegiance to authority among lower ranked soldiers:
It is a striking and troubling feature of the incidents described in Part 2 that, although they must have known that what they were being told to do was unlawful, there is no evidence of any subordinate who was told or encouraged to commit an unlawful killing objecting, resisting or even questioning it. This bespeaks a deference to superiors so extreme that it overrides legality and morality.
To that end, the inquiry recommends that all members of the special operations forces should be educated about the causes of war crimes so that they understand how their peers and superiors may erroneously describe these crimes as mandatory and even justified. It also recommends all members receive training on practical ethical decision-making to reinforce that it is the member’s personal and legal duty to reject unlawful orders.
Another issue the inquiry found was that special operations forces with more refined capabilities continued to be employed in Afghanistan where appropriately trained conventional forces would have sufficed. With their high standard of training and their high degree of readiness, special forces proved an attractive option for initial deployment. But, the inquiry found their long-term employment in Afghanistan to be a “misuse” of their capability. And because the pool of special force personnel is relatively small, members were required to deploy on multiple rotations with smaller breaks between deployment, which contributed to what the report calls “a wavering moral compass” as well as declining psychological health. To address the problem, the inquiry recommends that special forces not be considered as the first choice force for expeditionary deployments, except in unconventional operations. It also calls for a review of dwell times between operational deployments.
The report also considers why the oversight systems in place for operational reporting and investigations failed to detect the breaches to the law of armed conflict that the inquiry identified. It names several reasons including inaccurate reporting that justified questionable actions, “boilerplate language” and other embellishments in reports that obscured killings, the discounting of complaints from local authorities and nongovernmental organizations, and an assumption of innocence that hindered investigations into allegations of misconduct. These behaviors, according to the report, created an environment void of scrutiny and accountability. How should the army address these issues? The report recommends training officers and noncommissioned officers on the importance of reporting as an ethical obligation and operational necessity, providing safe lines outside the chain of command to report or discuss suspected unlawful behavior, and the mandatory use of helmet or body cameras by special forces on operations, among other measures.
Part Three also considers where culpability lies for the alleged criminal misconduct. The inquiry determined that “[t]he criminal behaviour described in this Report was conceived, committed, continued, and concealed at patrol commander level,” that is, at the corporal or sergeant level, “and it is overwhelmingly at that level that responsibility resides.” The inquiry found no evidence that higher level commanders had knowledge of or indifference to the commission of war crimes. And it found that there is no indication that commanders at these levels failed to take steps that could have prevented or discovered the war crimes listed in the report.
But the report doesn’t let commanders totally off the hook. The inspector general notes that commanders “bear moral command responsibility and accountability” for what happened under the command, and that they indirectly contributed to the criminal behavior, particularly by accepting the embellished reports and not questioning external accounts and criticisms. And most notably, the report explains that some domestic commanders of the elite Special Air Service Regiment bear significant responsibility for creating an environment where war crimes were committed, particularly through the “warrior culture” they propagated.
The report situates the crimes it alleges within a broader history of global war crimes. The first chapter details this long and complicated history of war crimes perpetrated by both Australian and foreign armed forces, noting that, “[w]hile Australia has traditionally been firm, but fair, in investigating and prosecuting the war crimes of our adversaries, we have generally been less proactive in dealing with reports or allegations of war crimes by Australian personnel.” This report represents a notable pivot from this dynamic—it presents a scathing and unwavering condemnation of ADF conduct, written by the ADF itself.
And more broadly, it derives lessons from the handling of past abuses. “History teaches that the failure to comprehensively deal with allegations and indicators of breaches of Law of Armed Conflict as they begin to emerge and circulate is corrosive—it gives spurious allegations life, and serious allegations a degree of impunity,” the report maintains.
With these lessons, the report leaves readers with a warning that the “consequences of not addressing such allegations as and when they eventually arise are measured in decades.”
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