Australian actions in Afghanistan have been the subject of a four-year inquiry. (Photo by Angela Wylie/The AGE/Fairfax Media via Getty Images via Getty Images)
Australian actions in Afghanistan have been the subject of a four-year inquiry. (Photo by Angela Wylie/The AGE/Fairfax Media via Getty Images via Getty Images)

OPINIONSocietyNovember 19, 2020

Australia’s inquiry into its special forces shows up NZ’s pathetic efforts

Australian actions in Afghanistan have been the subject of a four-year inquiry. (Photo by Angela Wylie/The AGE/Fairfax Media via Getty Images via Getty Images)
Australian actions in Afghanistan have been the subject of a four-year inquiry. (Photo by Angela Wylie/The AGE/Fairfax Media via Getty Images via Getty Images)

The current inquiry into allegations of Australian Special Air Service war crimes in Afghanistan highlights the far from admirable culture in our own defence force, writes Nicky Hager.

The reports have gradually been coming out for years: repeated killing of civilians and mistreatment of captives by Australian SAS troops, people who believed they were above the law and would never be held accountable. But they were wrong about never being held accountable. It is very informative to look at what is happening in Australia and then compare it to the New Zealand Defence Force’s response to similar allegations.

As in New Zealand, there had been years of rumours of SAS war crimes in Australia. But in Australia the special operations commander, Major General Jeff Sengelman, on his own initiative, commissioned a Canberra-based sociologist named Samantha Crompvoets in 2015 to investigate. Early the following year she presented a confidential, but clearly disturbing report on the behaviour and culture of impunity in the Australian SAS. Journalists who have seen her report say she wrote that she’d learned about a “large number of illegal killings, often gloated about”.

In early 2016 Sengleman passed the report to the Australian chief of army, Lieutenant General Angus Campbell. Campbell did not deny it or try to bury it. In March that year he requested the inspector general of the Australian Defence Force to do a scoping inquiry “to ascertain whether there was any substance to rumours of unlawful conduct by the Special Operations Task Group (SOTG) during deployments in Afghanistan”. By the end of 2016 this had led on to a full blown, four-year official inquiry headed by Major General Paul Brereton, a Justice of the New South Wales Court of Appeal. Its purpose: to find “whether there is any substance to rumours of breaches of the Law of Armed Conflict by elements of the Special Operations Task Group in Afghanistan during the period 2005 to 2016″.

Like Samantha Crompvoets in 2015, Brereton had clearly been directed to do a serious investigation. The Brereton Inquiry paid to have advertisements put in newspapers across Australia saying: “The Inquiry would like anyone who has information regarding possible breaches of the Laws of Armed Conflict by Australian forces in Afghanistan, or rumours of them, to contact the Inquiry.” Similar advertisements were put in Afghan publications to reach out to Afghan witnesses to atrocities.

Seeing that the military hierarchy appeared to support the inquiry, unprecedented numbers of witnesses have come forward in the four years since. The flood gates also opened for insiders talking to the news media, leading to a succession of stories about Australian SAS crimes.  This includes serious allegations against Australian Victoria Cross recipient Ben Roberts-Smith.

It is Brereton’s inquiry that is due to be published later this week. In preparation for the release of this report, and giving a good sense of what is coming, the Australian Prime Minister last week announced that a special investigator will be appointed to consider criminal cases against Australian special forces personnel

The action of the New Zealand Defence Force, faced with allegations about our SAS and then with the recent Operation Burnham inquiry, could not be more different. From beginning to end, the Australian investigations have been initiated and encouraged by the Australian military. In New Zealand, the military has only resisted being accountable. None of the allegations came to light through the vigilance or sense of responsibility of NZDF officers – and when allegations did come to light, notably in my book Hit & Run, the NZDF response was to deny everything, attack the book and order staff not to talk to media.

When there were calls for an official inquiry, NZDF advised both National and Labour governments not to have one. When the Operation Burnham inquiry was established in 2018 anyway, NZDF set out to dispute, disprove or deny all the allegations. Years of NZDF staff time and millions of public dollars of the military budget went into this effort. The contrast with the Australian inquiry could not have been greater.

The Operation Burnham inquiry deserves to be taught in universities as a case study of unethical and unaccountable bureaucracy. The inquiry started with NZDF claiming that all its records about the events in the book had to remain secret. When I challenged this they said the “vast majority” of them were Nato documents and that they had no authority to release them. This turned out to be untrue (almost none were Nato documents) and eventually the inquiry declassified and released large numbers of key documents onto its website. But much of this was very late in the inquiry because NZDF took a year to hand over most documents and was still being ordered to hand papers over in the inquiry’s final weeks.

At the same time SAS and NZDF intelligence staff made no apparent effort to find out for themselves whether the details in the book were true. For instance they never contacted the regional hospital to confirm that civilians named in the book were treated there (the inquiry staff, in contrast, contacted the hospital and confirmed that various people named in the book were in the hospital records). In the final stages of the inquiry, NZDF staff were still trying to persuade the commissioners that no child had been killed. First NZDF claimed a video of civilian casualties did not exist (NZSAS had somehow deleted it), then they called in a paid consultant to argue that the video of the funeral of a small body wrapped in cloth was not a child – an argument that the inquiry commissioners did not accept. The inquiry report says, “All witnesses who recalled the video continued to believe that it showed the funeral of a child.” This was times a hundred for all the other issues at stake. The behaviour was all about protecting the “reputation” of the military, not its ethics and soul.

Another big surprise for me as part of the Operation Burnham inquiry was discovering that not only NZDF was engaged in the cover up. Throughout the inquiry process a team of lawyers representing the Ministry of Foreign Affairs, Department of Prime Minister and Cabinet and intelligence agencies made submissions and spoke at hearings, in virtually every instance presenting legal advice that implied NZDF had done nothing wrong.

This refers especially to the MFAT international law section and the Department of Prime Minister and Cabinet security staff (who, in effect, worked to subvert their own minister’s inquiry). In Australia, the military itself has taken action to try to deal with its SAS. In New Zealand, a cabal of public servants across several agencies seemed to care only about defending the NZSAS from criticism.

Operation Burnham was only one of many dodgy stories involving NZSAS troops in Afghanistan. In Australia, the military-encouraged inquiry has tried to deal with as many wrongs as it could; to lance the boil. In New Zealand, sadly, many bad things remain to be faced up to.

Keep going!