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Redacted documents leave open the possibility that the International Criminal Court made contact with the government about the involvement of ADF special forces in civilian deaths in Afghanistan. By Kristina Kukolja.

ADF actions and the Criminal Court

Australian troops from Special Operations Task Group with local counterparts in Afghanistan.
Credit: CPL Christopher Dickson

Six years after military litigation against three Australian commandos charged over civilian deaths in Afghanistan collapsed, the federal government still won’t release documents concerning possible contact from the International Criminal Court about the matter. Five of the six victims from a 2009 compound raid were children.  

Documents from 2010, obtained from the Attorney-General’s Department under freedom of information laws, show email exchanges discussing drafts of a ministerial briefing in response to media coverage suggesting the ICC had made contact with the Australian government about the incident. 

The notes cite publicly available information that the court had begun preliminary analysis of the Afghan conflict and had not turned its attention to specific cases.

But the paragraphs under the question, “Have we been approached by the ICC on the 12 Feb 09 incident?” remain heavily redacted under exemptions pertaining to documents affecting national security, defence and international relations and communications in confidence from foreign governments or international agencies.

Talking points for what appears to be a ministerial briefing from the Attorney-General’s Department assure that “while the International Criminal Court has the ability to consider information about alleged crimes from a range of sources, only those cases that have not been appropriately dealt with at the national level, and which are of sufficient gravity to justify further action, will proceed”.

They go on to say that it “could only do so if Australia were unwilling or unable to prosecute the alleged war crime in the first instance. Given that Australian charges have now been laid, it is unlikely that the International Criminal Court would further investigate this matter.”

The charges – two of manslaughter against two Special Operations Task Group personnel and another of failing to comply with an order and prejudicial conduct – were ultimately never heard by courts martial. In two of the cases, they were dismissed by the judge advocate. In the third, the charge was dropped before the process could begin. 

Despite the view expressed in the departmental notes that ICC interest in the matter is now unlikely, could further investigation be forthcoming?

“There’s still a possibility the ICC could seek to exert its jurisdiction over the alleged crime because what the ICC is looking for is a genuine process,” Gideon Boas, a professor at La Trobe University law school, says.

“It would want evidence that the Australian authorities had properly investigated and the matter had been properly considered, and the determination of how to proceed was commensurate with the evidence available.

“If the ICC prosecutor isn’t satisfied that is the case then nothing would stop her from initiating an investigation herself or seeking to do so.”

Boas, a former senior legal officer at the UN’s International Criminal Tribunal, says the investigatory and prosecutorial processes of Australia’s military and civilian criminal justice systems are highly regarded internationally. But while it would be unusual for Australia to face ICC intervention, it is not out of the question.

The 2009 incident was brought into focus again last year with the release of new information by the ABC, including on the alleged reason charges against one of the commandos were dropped by the army’s former director of prosecutions.   

Brigadier Lyn McDade came under heavy criticism at the time for attempting to proceed with prosecution of the other two men.

With regard to the third, the ABC report cited freedom of information documents that show McDade chose not to go ahead with charges because of the fact that information provided by some senior officers to their Australian Defence Force counsel differed from what was initially given to the ADF Investigative Service.

“This kind of event could trigger the ICC’s involvement, depending on what the examination of the detail revealed,” Boas says.

“If the investigation led to a decision to prosecute and that decision changed due to variation by key witnesses of the evidence they would give, that is deeply troubling and should be the subject of careful and independent scrutiny – preferably outside of the armed forces legal process.”

Details have since emerged of Australian special forces’ alleged involvement in multiple Afghan war zone incidents – among them the killing of a detainee in 2013, the severing of a dead Taliban fighter’s hands the same year, and the deaths of at least two children in separate incidents in 2012 and 2013.    

At least one of these deaths is being examined as part of an inquiry into the culture of the special forces, under the ADF inspector general and led by New South Wales Supreme Court judge Paul Brereton. In at least one other instance, the ADF’s internal investigation identified a potential war crime.

The Australian effort has been welcomed by groups such as Human Rights Watch, which expressed disappointment at what it sees as a lack of commitment by British authorities to investigate allegations against members of their special forces units. 

“The ADF realises it may have a serious problem on its hands and it’s better to be on the front foot about it than not,” Neil James, the executive director of the Australia Defence Association, says.

James believes that the soldiers charged over the 2009 civilian deaths should have had their day in court, and that “there were other aspects of that raid to do with its command and control that probably were worth airing in court”. 

Of the newer allegations, he says it’s important to establish whether the more serious among them are true, and if they are “there have to be disciplinary procedures against the people involved”. But he is of the view that they “tend to go to disciplinary misbehaviour rather than criminal offences”.

“The chief of army is a special forces officer. The deputy chief of army is a special forces officer. And they thought that some of these allegations are serious enough to have the inquiry,” he says. “So, you have to assume that they wouldn’t have continued with this and referring stuff to the inspector general if there wasn’t something in it.”

That military personnel and the states they serve should be properly held to account for their conduct in war zones is a driving force for Amsterdam-based human rights lawyer Liesbeth Zegveld. She has led successful criminal and civil litigation against Dutch authorities, on behalf of, among others, survivors of the 1990s Srebrenica massacre in Bosnia, and the widows of Indonesian men killed by Dutch soldiers during the 1940s war of independence.

Zegveld is currently representing a group of Afghan men whose wives and children were killed during Dutch military attacks directed against the Taliban in Uruzgan province in 2007. They allege they were told by the Dutch army to remain in their homes, which were then bombed.

Zegveld argues that it is often not a satisfactory process to test alleged misconduct by troops against civilians through courts martial because effectively this involves “conducting a case, ruling on a case, litigating a case by peers”.

“You have people on the bench who have similar experience and know what military are dealing with and have to deal with in a split second,” she says. “In a way that’s understandable, but if you are at the end of the day, after so many years, with no conviction you must conclude that there is a factual immunity that we are dealing with for the military.

“I cannot believe that in all these cases, in all this use of military force, there’s never any form of criminal misbehaviour.”

Since 2007 the ICC has been undertaking what it calls a preliminary examination of the situation in Afghanistan to determine whether it would seek to move ahead with a formal investigation of the behaviour of all foreign forces in the country.    

The announcement by chief prosecutor Fatou Bensouda is highly anticipated, not in the least because a formal probe could pave the way for the first war crimes charges against United States military and intelligence personnel.

Gideon Boas hopes thorough investigations are conducted at home into allegations against the Australians.

“I think there is a prevailing sense at the highest political level that it would be highly unpopular to put Australian special forces or military personnel in the frame for the commission of war crimes,” Boas says. “That is perfectly understandable.

“But when allegations are made that that has occurred then it is a political and legal imperative that those matters be investigated, fully resourced and investigated carefully, and that the results of those investigations are ultimately brought to light. Otherwise it undermines the confidence of the Australian community and the international community in Australia’s military forces, which have generally a very good international reputation.”

The federal Attorney-General’s Department did not respond to requests for comment.

This article was first published in the print edition of The Saturday Paper on Sep 2, 2017 as "Military policing". Subscribe here.

Kristina Kukolja
is a journalist and broadcaster.

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