As dust begins to settle on Major General Paul Brereton’s explosive finds, a critical question arises.
What comes next?
Where does the Australian defense force go from here?
Can the Special Air Service regiment be reformed? Or are the problems too deep? And what’s next for the 25 alleged perpetrators?
Investigations and possible prosecutions
The first is the first. The report identified a total of 25 perpetrators, either as principals or accomplices, of alleged war crimes.
The fate of the 19 who were referred for investigation now rests with the criminal justice system.
The ADF has referred the charges against them to the special investigator’s office to be established soon.
That office will be staffed by federal and state police, and will be headed by a high-ranking legal figure, be it a judge or an attorney, with extensive experience in criminal law.
The office will need to conduct its own investigations. The fundamental difference between his job and that of the Brereton investigation is that the special investigator will need to produce evidence papers to a standard that will satisfy a criminal court.
In this case, it is not an easy task.
The accusations are now nearly a decade old. The alleged crimes took place in a war zone in Afghanistan, in the remote Oruzgan province. Multiple legal experts have warned of significant barriers to conducting a criminal investigation of this type, although the Brereton report provides a solid foundation from which to start.
Once that work is completed, the reports will be turned over to the Commonwealth Director of Public Prosecutions (CDPP), who will then decide if there is enough to prosecute for war crimes.
One thing that is not in doubt: the road to criminal proceedings is long.
This is something that concerns human rights groups. Elaine Pearson, director of Human Rights Watch in Australia, said the special investigator must have all the necessary resources to be able to act quickly to ensure justice.
“As time passes, the prospect of justice for Afghan victims becomes increasingly remote,” Pearson said.
It should also have ensured the independence of the government, he said, pointing to flaws in the prosecution of war crimes in the UK, where political interference and obstruction were rife.
In Afghanistan, human rights groups have urged the government to closely involve alleged Afghan victims and their families in the looming criminal process.
Medals, Commendations and the abolition of Squad 2 of the SAS
The most immediate next action the defense will take is to disband SAS Squad 2, one of the four SAS squads. The second squad was singled out by Defense Chief Angus Campbell during his press conference Thursday.
This is the squad that Ben Roberts-Smith, Australia’s most decorated soldier, served in. He has denied all allegations of wrongdoing.
All special operations soldiers who served in Afghanistan will also lose their meritorious unit citation awards. That will take the award away from thousands of people who served in Afghanistan. The Guardian has already heard concerns among the ranks of the special forces over this decision.
In addition, the ADF will examine the award of individual medals to soldiers implicated in alleged irregularities.
There have been some calls for the dissolution of the SAS, a move that would follow Canada, where a similar scandal in Somalia led to the dissolution of its elite Canadian airborne regiment.
Cultural change and strengthening supervision
The Brereton report made one thing very clear: There are deep flaws in the culture of special forces.
The report described a culture of elitism and exceptionalism among the special forces, a kind of “warrior culture”, where a high death toll was celebrated, the usual rules of war were unenforceable and a sense of brotherhood and secrecy reigned.
Campbell said Thursday that it was this culture, combined with a leadership failure and weak oversight mechanisms, that created an environment for this crime to occur.
It makes sense, then, that much of what Brereton has recommended goes towards fixing the culture of special forces.
The government has already acted on this front. It has established an independent oversight committee, chaired by Dr. Vivienne Thom, former Inspector General for Intelligence and Security, Robert Cornall, former Secretary of the Attorney General’s Department, and Professor Rufus Black, Ethics Specialist and Vice Chancellor of the University of Tasmania .
This oversight committee will help drive cultural and organizational changes in the ADF. The chief should periodically report on progress to the committee, which in turn will report to Defense Minister Linda Reynolds.
Compensation to alleged victims
The government will also soon focus on paying compensation to the alleged victims in Afghanistan.
It will not be an easy task. It already has a tactical payment system that it makes to civilians in Afghanistan, but that system is described as insufficient for the severity of what has been found here.
Hadi Marifat, executive director of the Afghanistan Organization for Democracy and Human Rights, said a new reparation system must be created and Campbell has promised to make compensation payments.
But how is the ADF going to find the alleged victims now and deliver the payments to them? How will you arrive at a fair and equitable amount?
Certainly, there are aspects of the report that will continue to raise questions for the ADF. Chief among them: is it conceivable that no one above the level of patrol commander knew about these war crimes over a seven-year period?
The report largely absolves senior officers of any knowledge of the alleged war crimes. That will irritate the excavators.
There are also questions about the unfounded allegations contained in the report. Those incidents investigated by Brereton but not found accumulated.
There are very few details on how these incidents were investigated or why they could not be substantiated by the report.
Rawan Arraf of the Australian Center for International Justice says the special investigator’s office should reopen investigations into those baseless allegations, to ensure they were fully scrutinized.
In Australia, support and advice for veterans and their families is available 24 hours a day at Open Arms at 1800 011 046 or www.openarms.gov.au and Safe Zone support on 1800 142 072.
Digsmak is a news publisher with over 12 years of reporting experiance; and have published in many industry leading publications and news sites.