Rory Callinan
The Brereton inquiry and the fall of Kabul

In late May, Prime Minister Scott Morrison and Foreign Minister Marise Payne issued a joint press release announcing the imminent closure of the Australian embassy in Afghanistan due to the “increasingly uncertain security environment”.

The closure, they hoped, would be temporary. In the meantime, Foreign Affairs officials would visit Afghanistan regularly.

“This form of diplomatic representation is a common practice around the world,’’ they said. “It does not alter our commitment to Afghanistan or its people.”

The decision was not unexpected. The Afghan government was failing and our footprint in the country was small. But the closure came at a critical time for investigations into war crimes involving Australian soldiers.

In Canberra, a new federal government body known as the Office of the Special Investigator (OSI) had started probing allegations uncovered by the Brereton inquiry, a long-running Australian Defence Force investigation.

Headed by New South Wales Supreme Court judge Major General Paul Brereton, the inquiry found “credible evidence” of shocking war crimes. It said 25 Australian soldiers were implicated in the murder of 39 Afghans.

Much of the evidence gathered by the Brereton inquiry relied on information supplied by soldiers, who bravely spoke out about illegal actions they witnessed. But the military-run inquiry’s findings are only a starting point for the OSI, which must gather its own evidence in Afghanistan to build cases that will stand up in a criminal court.

The withdrawal last week of Australian troops from Afghanistan, as the country falls back into the hands of the Taliban, makes this almost impossible. In addition to the limits it places on gathering evidence for war crimes prosecutions, it will likely affect the media defence in the ongoing Ben Roberts-Smith defamation case. Afghan witnesses simply will not be able to be called.

Presumably – had the embassy remained open – the OSI would have been relying on an official Australian presence in Afghanistan to facilitate its investigations, which included interviewing Afghan witnesses. Obviously, embassy resources were vital, providing a secure place to conduct investigations and uninterrupted interviews with victims and their families.

The specially trained personnel who work in the embassy, including Foreign Affairs staffers, immigration officers, intelligence officers and Australian Federal Police, would have played a key role in helping locate, transport and interview the Afghan witnesses, many of whom reside hundreds of kilometres away from the capital.

Some of the Afghans may have been required to travel to Australia to testify and would have been given assistance through the embassy’s immigration section.

The value of the embassy for this purpose was proved last year when its resources were used by the Brereton inquiry as it travelled to Kabul to conduct its investigations.

Major General Brereton reportedly interviewed Afghan witnesses brought to the embassy in Kabul from other provinces. Nine newspapers reported the same witnesses were also spoken to by Australian Federal Police, who would have operated out of the embassy facilities.

Trying to track down witnesses in remote villages in Uruzgan province and then persuading them to give statements or testify to a standard acceptable in Australian courts without embassy resources now seems unlikely.

Testimony from these Afghans could have played a key role in some of the prosecutions, as they were key witnesses to the crimes.

One such case involves the alleged murders of an elderly grandfather, Haji Sardar Khan, and a young man, Mirza Khan, in the small village of Sarkhume in Uruzgan in 2012.

Relatives say Haji Sardar was shot and wounded in the leg without warning by the Australians. Then, while wounded, he was taken to the village mosque and possibly stomped to death.

About the same time, also in Sarkhume, Mirza Khan was alleged to have been unarmed and posing no threat to Australian soldiers when he was savaged by one of the military’s dogs and then shot dead in a field.

Australian Special Air Service Regiment medic Dusty Miller, in an interview with Nine newspapers, has told of treating Haji Sardar in Sarkhume but then saw him removed from his care by another soldier and taken away. Miller says he was later told by the soldier “that guy didn’t make it”.

His evidence is obviously important to any OSI investigation, but it represents only half the story.

Haji Sardar’s son, Hazratullah, was a witness to his father allegedly being shot and saw a soldier carrying his father away. He
says he was also present when villagers found his father dead in the local mosque with boot marks on his chest.

Hazratullah is also a potential witness to Mirza Khan’s killing. In interviews with the ABC in 2019, he told of seeing an Australian military dog attack Mirza in a field in Sarkhume during the same raid. “They [the dogs] tore all his clothes,” he said. “He was moving away from their dogs – they [the Australians] fired a round of bullets and martyred him.”

Any investigation by the OSI into the killing of both men would presumably have taken statements from Hazratullah and other villagers who were in Sarkhume that day. But now it seems highly unlikely Hazratullah will ever be able to give evidence, let alone seek justice for the death of his father.

Afghanistan’s new rulers, the Taliban, have so far given no public insights into how they might view any such investigations of war crimes by foreign soldiers. They carry their own baggage of war crimes – acts some would argue far outweigh allegations levelled against Australian soldiers.

An insight into the Taliban’s thinking on such issues can be found in recent events in Uruzgan province’s capital, Tarin Kowt, in relation to the Afghanistan Independent Human Rights Commission.

For nearly a decade, the AIHRC office in Tarin Kowt has received complaints of human rights breaches. These included alleged war crimes committed by Australian soldiers, the Taliban and government security forces.

The tiny office, which was disguised as a suburban home for security reasons, contains extensive records of the allegations and also the names of the complainants.

Two days after the Taliban captured Tarin Kowt, the manager of the local AIHRC office received an unnerving visit from the district’s new administrators.

They summoned him to the AIHRC office, where they were in the process of seizing all the files, computers and any other equipment, says Dr Abdul Ghaffar Stanikzai, the former manager of the Uruzgan office.

“They told him here is the list of what we are taking, sign here and go home and wait. Nobody will harm you but do not go away anywhere. We are investigating if you have done anything wrong,” Stanikzai, who has been in regular contact with the man, told me. “He’s now at home very worried, not going out, not doing anything, not opening the door to anyone.”

Based on past experience, the Taliban is unlikely to investigate any of the allegations made to the AIHRC about its own war crimes – a scenario that is a betrayal of human rights at the highest level. But nor will those documents be available to any Australian investigations.

There have been moves by some to argue the Brereton inquiry findings and media reporting have unjustly smeared the reputations of Australian soldiers who risked their lives in Afghanistan and who now should not be pursued for war crimes.

Last week, the ABC revealed that in November one of the key war crime witnesses, a former special operations intelligence officer, had been relocated by the Defence Force after the windows to her house were smashed by an apparent blast.

If the situation in Afghanistan means that war crime allegations against Australian troops are never fully investigated, the nation’s international reputation as any sort of champion of human rights will be badly tarnished. So will that of the Australian Defence Force, which may never regain the trust of those it is called upon to protect in the future.

This article was first published in the print edition of The Saturday Paper on September 4, 2021 as "The Brereton inquiry and the fall of Kabul".

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