The Role of Transparency in Australia’s Response to War Crimes in Afghanistan

[Fiona Nelson is Acting Executive Director at the Australian Centre for International Justice. Kobra Moradi is a lawyer at the Australian Centre for International Justice.]

November 2020 saw the publication of a redacted version of the Afghanistan Inquiry Report by the Inspector-General of the Australian Defence Force. The Inquiry was set up in 2016 to investigate potential war crimes and other serious misconduct by Australian Special Forces in Afghanistan between 2005 and 2016. It ultimately found credible evidence of war crimes including cruel treatment as well as 39 unlawful killings of non-combatants or persons who were hors-de-combat, in most cases prisoners. It also found that crimes were routinely covered up through falsified reports and the planting of weapons on the bodies of those killed. 

Almost two years on, as new information pointing to further possible war crimes continues to emerge, various processes are underway in Australia to address the Inquiry’s recommendations on criminal investigations, compensation and reform. This piece examines the importance of transparency throughout these processes. It highlights how a greater emphasis on transparency – paired with some basic outreach measures – can help ensure these processes have relevance for victims, affected communities and those interested in the broader task of establishing the truth and reckoning with crimes committed during the past decades of conflict in Afghanistan. 

What Transparency can do 

The availability of timely and detailed information about the processes underway by the Australian Government and criminal justice authorities in the wake of the Afghanistan Inquiry Report allows for oversight of those processes and an assessment of whether Australia is complying with its obligations under international law. It can lead to a more informed public debate about the legacy of Australia’s engagement in Afghanistan. Transparency also has a key role to play to ensure that these processes are meaningful for victims and observers from Afghanistan. International law increasingly recognises the right of victims to information and participation. Australia’s response to rights violations and war crimes by Australian Special Forces in Afghanistan will have little to no impact on affected communities in and from Afghanistan if those communities are not informed about the ongoing proceedings and engaged. In the absence of transparency and engagement, people from Afghanistan will not be able to access the justice process unfolding in Australia. Transparency across Australia’s responses will also help with the full public disclosure of the truth, a key element of satisfaction for victims of serious violations of international humanitarian law. 

After the closure of the UK’s Operation Northmoor, Australia is perhaps the only country that is actively undertaking investigations into allegations of war crimes by its forces in Afghanistan. A probe into the conduct of international forces at the International Criminal Court is not currently on the horizon since the Prosecutor decided to deprioritise this aspect of investigations into the situation in Afghanistan. Australia’s response has an opportunity to set an important precedent by ensuring that responses to human rights violations resulting from military actions abroad are conducted in an open and transparent manner and are capable of contributing to an accurate historical record of the engagement of international forces in Afghanistan. 

Criminal Investigations and Prosecutions 

Criminal investigations are currently underway by the Australian Federal Police (AFP) and the Office of the Special Investigator (OSI). The OSI was established in 2021 to investigate, with the AFP, any breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016 and to develop briefs of evidence on any established offences for prosecution.

To date, updates on OSI’s work have been made available primarily to the Australian Senate during committee hearings. These consisted mostly of updates on capacity and staffing at the OSI. A more substantial update appeared in the form of a speech by OSI’s Special Investigator Mark Weinberg in July 2022 to the Victorian Chapter of the Hellenic Australian Lawyers Association. These somewhat obscure updates are collated on OSI’s website, which is helpful, but in the absence of any outreach or translation of the information, such updates remain inaccessible to many victims or observers from Afghanistan. 

When it comes to AFP investigations, which commenced prior to the establishment of OSI, freedom of information requests and media reporting have been the only way to learn more about the status of matters. While the AFP media team regularly publishes press releases on arrests, charges and sentencing in select cases, no such updates are made on Afghanistan-related investigations.    

In some instances, information may need to be withheld to avoid jeopardising ongoing investigations and future trials. This requires a balancing act with the interests of transparency and outreach. To date, there is nothing to suggest that victims or affected communities have been kept effectively informed about the ongoing investigations. The scales are tilted firmly towards secrecy at the expense of transparency and outreach. At a minimum, the OSI and AFP should publish regular updates on their website in Dari and Pashto as well as in English about the progress of their Afghanistan-related investigations. A broader strategy will need to be put in place for public information and outreach to interested parties. Australia could for example draw on practices from Sweden, where investigative authorities make information available online for victims and communities affected by international crimes in several languages.

If the Australian authorities decide to discontinue particular investigations or, after investigation, not to refer certain cases to prosecution, where possible the decisions and the reasons for the decisions should be published and effectively communicated. In 2017, Dutch prosecutors used various means of communication to inform victims in Afghanistan about the closure of an investigation into the Kerala massacre, including issuing press releases translated into Dari and organising video-link meetings to which members of the victim community were invited. Adopting such transparency measures improves public trust in the proceedings and enables scrutiny of the decision-making process by victims, civil society and academic commentators. The availability of such information is critical to evaluating the ongoing investigative processes and legal analyses and the extent to which they comply with international (humanitarian) law and with Australia’s Rome Statute obligations to carry out genuine investigations.

Where investigations lead to trials, where possible, trial proceedings should be made available to the public via live stream and/or audio-visual recordings. Some Australian courts, such as the High Court of Australia and the Supreme Court of Victoria already implement measures to ensure public access to their hearings, for example, by providing audio-visual recordings or webcasts of proceedings on their websites. High-profile defamation proceedings brought by former Australian soldier Ben Roberts-Smith – which among other things concern allegations about his involvement in war crimes in Afghanistan – were partially streamed online.

These are some positive developments towards open justice in Australia that should be considered in any future criminal proceedings relating to charges of war crimes by Australian forces in Afghanistan. 

Government Response – Reform and Reparation 

The Afghanistan Inquiry made several recommendations around reforming the Australian Defence Force to address systemic organisational and cultural failings. The Department of Defence accepted the recommendations and has promised to deliver its response through the Afghanistan Inquiry Reform Program. The previous Liberal government set up an independent oversight panel to monitor this response and also promised to regularly update parliament on the panel’s quarterly reports. No such updates ever took place. While the new Labor government’s Defence Minister has signalled his willingness to start making these updates, acknowledging the importance of reporting to parliament as a way “to speak to history”, none have occurred to date.     

There is a stark lack of information about the issue of compensation. The Inquiry recommended prompt compensation for Afghan survivors and families of victims. In July 2021, the Department of Defence indicated that the then Government’s plan for compensation would be published by the end of that year. To date, no such plan has been published. Recent inquiries as to the status of this plan are met with vague assurances that Defence (under a new government as of May 2022), is consulting with different departments and Ministers. Victims of serious violations of international humanitarian law are entitled to adequate, effective, and prompt reparation for harm suffered. They are also entitled access to relevant information concerning reparation mechanisms. When a reparation scheme is finally agreed upon, the Department of Defence needs to consider strategies for effectively transmitting this information to victims. 

The Basic Principles and Guidelines on the Right to a Remedy emphasise that 

“States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access.”

Australian authorities have been scrupulous about informing members of the Australian Defence Force who may be affected by war crimes inquiries and investigations about the services and welfare support that are available to them. To date, however, no such information has been made available to victims or witnesses from Afghanistan. The informational imbalance is glaring.  

Truth and the Historical Record 

The publication of the Afghanistan Inquiry report and General Angus Campbell’s 2020 apology to the people of Afghanistan was a good first step towards the full public disclosure and acknowledgement of the truth. But there remain some serious obstacles in this regard. 

Last year, it emerged that historians at Australia’s official military history unit have been denied access to the unredacted version of the Afghanistan Inquiry Report. This leaves government-funded historians to write Australia’s official account of its military engagement in Afghanistan without reading key findings of a process that benefited from invaluable information and interviews with countless witnesses from the affected communities in Afghanistan and members of the ADF. The contemporaneous operational reports that the historians can access were found by the Afghanistan Inquiry to be wholly unreliable, “routinely embellished, and sometimes outright fabricated”.

Australia’s commitment to the truth is also greatly undermined by the fate suffered by those who helped bring these allegations to light. Journalists involved in publishing the hugely significant “Afghan Files” in 2017, which included several shocking incidents from leaked defence documents about the operations of Australian forces in Afghanistan, faced police investigation for their involvement in publishing classified information. While that investigation was eventually dropped, military whistle-blower David McBride is facing prosecution for providing information to the media. His trial is anticipated to begin next year.  A commitment to the full public disclosure of the truth of Australia’s engagement in Afghanistan demands that this prosecution be abandoned. 

Australia has taken some laudable steps towards accountability for suspected war crimes by its forces in Afghanistan. Making information about these processes more accessible, especially to observers from Afghanistan, would help ensure that these domestic processes are meaningful for victims and affected communities. Information also has a key role to play in the broader process of establishing truthful histories of the conflict. There is work to be done to ensure that Australia’s institutions are helping – not hindering – this endeavour.