News & Current Affairs
08 November 2014
by James Brown
An Australian War Crime
Defence’s silence is loud and clear
Under Australia's new laws, this reporter could be jailed for conveying this article
As a supporter of the Australian military it gives me no pleasure to write these next sentences. Based on the available evidence, the Australian public would be forgiven for thinking that their military is unaccountable and the Department of Defence untroubled by its legislated duty to be transparent to the public and the parliament. There’s been no cover-up, nor to my knowledge have any lies been told. But the Defence Department is deliberately suppressing information about an incident of which it is not proud. And for all the damage it is causing to public confidence in the institution, the effect of this policy is much the same as if a cover-up had occurred. Let me explain.
On the evening of April 28 last year, soldiers from the Special Operations Task Group (SOTG) conducted a night raid in Zabul province, Afghanistan. Their target, though publicly described only as an “Improvised Explosive Device facilitator”, was in fact a key commander for the Taliban in southern Afghanistan. With local partners from the Afghan National Police, the SOTG personnel landed in remote territory, were fired upon, and subsequently killed four suspected insurgents.
Identifying the dead men now laid out on the ground in this lawless district was no easy task and remaining exposed to danger while carefully fingerprinting each one was not prudent. Weighing the options, an SAS soldier decided to sever a hand from each of the dead men. Placing the four hands in a bag, he boarded a helicopter back to the SOTG more than a hundred kilometres away in Tarin Kowt.
The work of these rough men is full of grisly decisions that, abstractly analysed at home, might seem unnecessary or unconscionable. But this decision seemed wrong, even by the SOTG’s standards, and a commander dutifully flagged it with his superiors. Nine days later the coalition headquarters in Kabul routinely announced an investigation. Not until three months later, thanks to investigative media reporting, did the Australian public become aware that its military stood accused of committing a war crime.
None of this detail has been officially released. In the 18 months since the Zabul incident, the Department of Defence has issued just two short statements concerning it – both times in response to external pressure. Neither outlined any facts and both asserted an inability to comment during ongoing investigations. Journalists attempting to understand the basic facts of the incident, the process of the investigations under way, or the reasons for the department’s secrecy, receive generic and curt “no comment” replies sent from an anonymous defence email account. Strategic communications bureaucrats have deliberately ignored complaints to the department about this stonewalling.
Senate estimates queries have yielded only this faint response from defence, although it remains the most complete account of the Zabul incident on the public record: “The Inquiry Officer’s Inquiry Report was submitted to CJOPS [the Chief of Joint Operations] on 26 July 2013. The related Australian Defence Force Investigative Service investigation continues.”
I’ve defended the Australian Defence Force, and Special Forces in particular, when baseless allegations have been made against them in the past, and there have been plenty. In the three years before the Zabul incident, for example, 193 baseless allegations of detainee mistreatment were made against Australian forces in Afghanistan. Special Forces soldiers have been accused of murder by journalists on the basis of scant, and sometimes falsified, evidence. But this incident is different: the basic facts are not in contention, there is no one disputing that an Australian soldier did sever hands from multiple dead bodies. And though there were necessary tactical reasons to keep the incident secret at the time it occurred, there is none apparent now, given the last Australian forces left Tarin Kowt nearly a year ago.
There are many concerning aspects of this incident that compel heightened transparency and reassurance of accountability. From the limited evidence available, it appears that the Special Forces are unsure who the four men killed that night were. Curiously, the four suspected insurgents shared just one pistol and one rifle. Allied military commanders were concerned about the conduct of Australian Special Forces, too, sufficiently so that Australia’s Special Operations Commander was urgently dispatched to Afghanistan to meet with them. An account of one such meeting has a coalition two-star general pointing at the commanding officer of the SOTG and delivering an angry, expletive-laden injunction that they be removed “out of my battle space”. At the direction of allied commanders, the SOTG’s operations were shut down for more than a week – a serious and extremely rare occurrence.
Of course, defence and national security matters require extensive secrecy provisions. But they must be balanced with the requirement for government to be open and transparent in a democracy. External scrutiny is an essential component of the system that keeps the Defence Department operating at its best, and ensures personnel are accountable for any misconduct.
And yet at each opportunity to be transparent on this incident, defence has instead acted to suppress the release of information. The department’s single proactive step has been to refer the journalist who first reported the facts of the Zabul incident –the ABC’s Michael Brissenden – for investigation by the Australian Federal Police, pressing him to reveal his sources.
Defence’s policy of suppressing information on the incident arises from the toxic combination of a delayed investigation, structural deficiencies within the bureaucracy, and a culture of secrecy. The Australian Defence Force Investigative Service has well-known structural deficiencies, including under-resourcing, that it has been labouring to resolve for more than a decade. In this instance, their investigation is complicated because their own personnel were involved. An ADFIS investigator allegedly told Special Forces personnel during pre-mission training that bringing back insurgent hands was an acceptable practice. The ADF is also awash with investigations at the moment, including hundreds relating to past sexual abuses. The net result is that after 18 months the Zabul investigation still has not been completed. And until it is, departmental lawyers advise against comment on any aspect of a case under investigation.
Pressed to justify this blanket information blackout, vague references are made to “sub judice” and the “English common law”. Yet lawyers with military expertise I have consulted note there is much about a case that can be discussed publicly without prejudicing its outcome. In any event, no charges have yet been laid over the Zabul incident, nor a court martial convened. None of Australia’s military allies has such a restrictive information policy on operational incidents or military discipline proceedings.
One journalist describes defence’s default approach to transparency as “a closed, defensive officiousness, where all official information is assumed to be confidential except when someone in authority deigns to release it”. That cuts across the Freedom of Information Act requirements for defence to publish information it holds with the object of “increasing public participation in government processes” and “increasing scrutiny, discussion, comment and review of the government’s activities”. It is at odds with defence’s own published policy of “a pro-disclosure culture”, and the duty enshrined in the Public Service Act for officials to be “open and accountable to the Australian community under the law”.
Information on the Zabul incident can’t be prised from defence’s grasp through FOI requests. Regulations enacted in 2007, which both the Commonwealth Ombudsman and attorney-general’s Administrative Review Council warned then were “overly restrictive” and “may lead to a culture of secrecy”, prevent officials below the level of the defence minister from releasing completed inquiry reports. This is a classic wicked bureaucratic conundrum: everyone is doing their job, no one is accountable. The only person who can solve the problem is the minister, David Johnston, and he’s possibly not even aware of it.
In the meantime, suppressing information has been a failed policy by almost every measure. Journalists have had their views of defence as a closed, unaccountable organisation confirmed. The ADF’s reputation has been tarnished internationally. The Special Forces community is disappointed because their people have languished for 18 months neither being cleared nor convicted. As it happens, it seems unlikely that the soldiers involved could be convicted of a war crime. Their actions showed poor judgement, particularly given the risks of a Taliban propaganda backlash, and are likely to have contravened customary international humanitarian law. But they were not reckless, and there was a legitimate military imperative. In any event, under Australian law the act of severing a hand from a dead body does not constitute a war crime. Of course, no one from the Defence Department has yet made this clear to the public.
All of this is happening amid a public debate about the dangers of national security authorities with enlarged powers and reduced transparency. A debate so important it has seen an improbable unity ticket form between the likes of Lachlan Murdoch and David Marr. Defence transparency has never been more vital.
When he spoke at the Lowy Institute before the last election, Johnston voiced frustrations with defence’s inability to meet its duty to be transparent and accountable. Part of the problem then was that the former defence minister, Stephen Smith, had blocked the public release of inquiry reports, against the advice of officials, including the current chief of the defence force. When I recently asked Johnston’s staff what measures to increase transparency the minister had instituted within his first year in office, they were unable to point me to any.
The Zabul incident is a problem in search of leadership. An excellent starting point for a minister personally committed to making defence transparent. Placing a suitably redacted copy of the initial inquiry report, and some basic facts, onto the public record would be the right first step.