The government should now drop all charges, unless it cares to admit that what they are doing is a vendetta disguised as criminal justice.
Since I last wrote about the case of Australian whistleblower David McBride in Soul of Darkness back in August there have been some major developments to report on. Last Thursday a long awaited report of the findings of an inquiry looking into reports of possible war crimes committed by Australian SAS troops in Afghanistan between 2005 and 2016.
Soul of Darkness
The Brereton Inquiry
In 2016 the Inspector General of the Australian Defense Force appointed a justice of the New South Wales Court of Appeal, Major General Paul Brereton, to head an inquiry that would determine the veracity of rumors surrounding possible war crimes being committed by ADF troops in Afghanistan. It was to be called The Inspector-General of the Australian Defence Force Afghanistan Inquiry, though it was more popularly known as the Brereton Inquiry.
In the 2017-18 IGDAF Annual Report the focus of the inquiry was stated to be:
…an administrative process, not a criminal investigation. This process is intended not only to ascertain whether there has been misconduct, but equally to exonerate those who may be affected by unsubstantiated rumours and allegations.
As CDF directed IGADF to conduct the Inquiry, the Inquiry has powers to compel the production of evidence similar to those of a Royal Commission.IGADF Annual Report 2017–2018
The following year, the Annual Report reflected that as of June 30th, 2019 the Inquiry was examining:
55 separate incidents or issues covering a range of alleged breaches of the Law of Armed Conflict (LOAC), predominantly unlawful killings of persons who were non-combatants or were no longer combatants, but also ‘cruel treatment’ of such persons and
incidents relevant to the organisational, operational and cultural environment which may have enabled the alleged LOAC breaches.IGADF Annual Report 2018–2019
The final report of the Inquiry that has been issued for public release has had large portions of redacted, but a vast majority of its findings remain uncovered and they reveal reports of disturbing behaviour.
- The Law of Armed Conflict and International Humanitarian Law prohibit as war crimes the murder and cruel treatment of non-combatants and persons who are hors-de-combat (that is, outof-the fight because they have been seriously wounded, or have surrendered or been captured and are prisoners or ‘persons under control’), in a non-international armed conflict, which the war in Afghanistan was. Those binding international law obligations are implemented in Australian criminal law and they applied to all Australian Defence Force members on Operation SLIPPER. Australian Defence Force members were and are extensively trained on this subject, and the Inquiry did not encounter a single witness who claimed to be under any misunderstanding as to what was prohibited. Uniformly, everyone understood that it was impermissible to use lethal force against a prisoner (or ‘person under control’), or against a non-combatant.
- In 28 incidents the subject of detailed examination (and a further 11 which were discontinued), the Inquiry has found that rumours, allegations or suspicions of a breach of Law of Armed Conflict are not substantiated.
- However, the Inquiry has found that there is credible information of 23 incidents in which one or more non-combatants or persons hors-de-combat were unlawfully killed by or at the direction of members of the Special Operations Task Group in circumstances which, if accepted by a jury, would be the war crime of murder, and a further two incidents in which a non-combatant or person horsde-combat was mistreated in circumstances which, if so accepted, would be the war crime of cruel treatment. Some of these incidents involved a single victim, and some multiple victims.
- These incidents involved:
- a. a total of 39 individuals killed, and a further two cruelly treated; and
- b. a total of 25 current or former Australian Defence Force personnel who were perpetrators, either as principals or accessories, some of them on a single occasion and a few on multiple occasions.
- None of these are incidents of disputable decisions made under pressure in the heat of battle. The cases in which it has been found that there is credible information of a war crime are ones in which it was or should have been plain that the person killed was a non-combatant, or hors-de-combat. While a few of these are cases of Afghan local nationals encountered during an operation who were on no reasonable view participating in hostilities, the vast majority are cases where the persons were killed when hors-de-combat because they had been captured and were persons under control, and as such were protected under international law, breach of which was a crime.
It goes on further to state:
- The Inquiry also found that there is credible information that some members of the Special Operations Task Group carried ‘throwdowns’ – foreign weapons or equipment, typically though not invariably easily concealable such as pistols, small hand held radios (‘ICOMs’), weapon magazines and grenades – to be placed with the bodies of ‘enemy killed in action’ for the purposes of site exploitation photography, in order to portray that the person killed had been carrying the weapon or other military equipment when engaged and was a legitimate target. This practice probably originated for the less egregious though still dishonest purpose of avoiding scrutiny where a person who was legitimately engaged turned out not to be armed. But it evolved to be used for the purpose of concealing deliberate unlawful killings.
- In different Special Operations Task Group rotations, the Inquiry has found that there is credible information that junior soldiers were required by their patrol commanders to shoot a prisoner, in order to achieve the soldier’s first kill, in a practice that was known as ‘blooding’. This would happen after the target compound had been secured, and local nationals had been secured as ‘persons under control’. Typically, the patrol commander would take a person under control and the junior member, who would then be directed to kill the person under control. ‘Throwdowns’ would be placed with the body, and a ‘cover story’ was created for the purposes of operational reporting and to deflect scrutiny. This was reinforced with a code of silence.
VC winner could be stripped of medal.
War hero Ben Roberts-Smith could be stripped of his Victoria Cross along with dozens of other elite soldiers if they are convicted over ‘war crimes’ in Afghanistan
I can now identify the soldier I named as “Soldier B” In Soul of Darkness as Ben Roberts-Smith. He was awarded the Australian Victoria Cross in 2011 for actions during an operation in Afghanistan in 2010, actions that it has been alleged were war crimes. The allegations have not been proven in a court of law as of this time, in fact no criminal charges have been laid as yet. However Maj.Gen. Brereton did recommend that the Chief of the Defense Force refer a total of 36 matters to the Australian Federal Police for criminal investigation, which relate to 23 seperate incidents and involving 19 individuals including Ben Roberts-Smith.
Roberts-Smith will likely retain the VC throughout the investigation and any subsequent trial, however should he be found guilty he will no doubt be stripped of it. The unfortunate thing about this is that because of the actions of a few men, as many as 3,000 soldiers in the Australian SAS will lose some of their medals when the whole regiment is stripped of group citations earned between 2005 and 2016, as is expected.
A letter from 10 SAS operators.
A group of SAS operatives penned an open letter to the Australian public last week with the title “They Are Not One Of Us.” These are the men who volunteered to serve their country and to die if necessary to protect the principle of the rule of law under which their country was founded. These are people who live by a code and to not live up to it means that they are unfit to serve in the SAS. It is a reminder that they shouldn’t be coloured by the actions of a very small minority.
We are the soldiers, the ‘Operators’ as we are known, who have served or are continuing to serve in the Special Air Service Regiment.
We have decided to speak, as one, to the Australian public, who have trusted us and invested in us to defend our country for over 60 years.
All of us have been carefully selected for the privilege of serving our country in the SASR. Our government has invested millions of dollars of public money in each one of us to provide you with unique and specialised capabilities in the defence of our nation.
Our regiment is now the subject of the longest inquiry into allegations of war crimes conducted by the Australian Defence Force. Accusations and allegations of war crimes as well as failures of leadership cut to the very core of the SASR. Such actions go against the very purpose of who we are as an organisation, and against the very nature of who we are as individuals.
We are not indifferent to human suffering. We do not have a callous disregard for human life. We are, however, selected for our unwavering moral compass, on which we proudly hang our Sandy Berets. We are not out of control. In fact, we have spent the majority of our professional soldiering careers in the SASR drilling and exercising, specifically to avoid casualties among non-combatants.
We define SASR mission success by how precisely we can apply the minimum amount of force to achieve a desired strategic outcome with the absolute minimum loss of human life. This is evident in the tens of thousands of missions and programs we have carried out around the world.
We are all singularly bound by the principle of “truth in reporting”. This principle underpins our single most important regimental capability: long-range surveillance and reconnaissance. Truth in reporting enables the SASR to act as the operational eyes and ears of the Australian Defence Force and the Australian government. Without truth in reporting, we are nothing.
As early as 2006, it was our commitment to truth in reporting that instigated what has now resulted in the four-year-long Brereton inquiry into allegations of war crimes in Afghanistan. Truth in reporting is why we speak up then and now.
The matters before us are of an extremely grave nature, and we accept that the impact of the Brereton inquiry may adversely affect former and current serving members and their families, as well as our strategic relationships with other coalition forces around the world. Whatever the outcome, we prefer our regimental history to reflect hard truths over comforting fantasy. If it can be destroyed by the truth, it deserves to be destroyed by the truth.
We also believe that the same principle of truth in reporting should be embraced by the media, so as not to unduly impugn the reputation of the SASR as a whole, or inadvertently imply improper behaviour committed by former or current serving members. Equally, we applaud accurate portrayals of misconduct provided it is supported by appropriate context and evidence.
Just as we embrace truth in reporting, we demand our leadership to do the same. Leaders are bound in their duty to convey what we have seen and reported and we hold them to the same standards to which we hold ourselves.
We hold our leadership to the same unforgiving standards to which we hold our teams, and ourselves, individually. It is our relentless pursuit of individual and organisational excellence that defines us as an organisation and a regiment.
We lead by example. On combat operations, we were forced to sacrifice many of our technological advantages over highly adaptive adversaries who knew no rules or bounds. We accepted continually shifting goal posts and decisions made by governments in the absence of a defined campaign outcome in Afghanistan. We begrudgingly accepted these strategic decisions while attempting to effectively operate in an environment characterised by uncertainty, danger and our own casualties.
We are not war criminals, nor have we ever set our morality aside. We are professional volunteer soldiers who frequently upheld the values of the Australian Army during a 10-year expeditionary campaign in the Middle East, despite the absence of any clear definition of victory.
We believe in the same legal principles that underpin the very fabric of Australian society, something that we have sworn to defend with our lives.
We support the removal from the regiment and legal prosecution of anyone found guilty of breaching the laws of armed conflict, the Geneva Convention or the rules of engagement. We outright reject and despise criminality in all its forms, especially in the context of soldiering. We support unbiased investigatory due process, the rule of law and the burden of proof. There is absolutely no place in the ADF, least of all in the SASR, for any individual who believes they are untouchable or above the law.
Having had full legal representation, should it be proven that any former or current serving individuals within the SASR have acted outside the law or the expected standards and behaviours demanded of an Australian soldier, we underline that we will wholeheartedly support their prosecution and removal from the regiment. They have acted against everything the SASR fights and stands for. They are not one of us.
We are committed to accepting the outcomes and consequences of the Brereton inquiry and to action its recommendations. Then we will return to the shadows where we belong. We do not seek to be glorified for our actions or demonstrating our moral courage. We only seek the validation that truth in reporting is who we are and what we do.
We are proud of the internal examinations into our regiment that have highlighted a culture of toughness and professionalism of the extraordinary men and women who do extraordinary work under extraordinary circumstances.
We are the tactical, operational and strategic eyes and ears for the ADF and the Australian government, with strategic and innovative capabilities to reach out and strike our adversaries when required.
We are soldiers, we are professionals, and we are Australians. We are committed to upholding the values of the Australian Defence Force. We believe in truth in reporting, moral courage and constant vigilance from the shadows in defence of Australia.
We are the SASR. Who Dares Wins.They Are Not One Of Us
So what of David McBride?
As of November 21st David McBride has had criminal charges pending against him for 626 days. That’s one year, eight months, and fifteen days that he has had the spectre of a lifelong prison sentence weighing on him. And for what exactly?
For having the temerity to think that he could call out senior military officials and politicians for their criminal behaviour? Or perhaps it was because he was going to ruin the good thing that they had going for themselves. With Rules of Engagement that weren’t entirely clear to the troops in the field, and so many blurred lines surrounding who is a combatant and who isn’t they set themselves up for success in a rather devious way.
It’s all about the popularity.
For any state that is at war one of the most important things to have is popular support for said war. One way that this can be achieved by appealing to and exploiting a nations sense of loss in the wake of the death of a soldier. It can at times unify a people to rally behind the troops to avenge those killed in action. These are also opportunities for politicians to exploit the situation for their political benefit. Being seen greeting a casket at the airport with a grieving family or showing up at a funeral can work to bump up a politicians popularity and polling numbers.
The other thing that any country loves to have are war heroes, especially ones awarded with the highest decoration there is to offer them as in this case with the Victoria Cross, perhaps the most prestigous of awards for valour and gallantry in the world. Once a hero has been made everything possible must be done to maintain the image and persona, because maintaining the myth is good for the public’s perception.
As a result the “hero” is able to get away with a lot he wouldn’t ordinarily be able to. For instance all Australian special forces operations were monitored from above using drones to a provide live video feed to commanders and others. It has been alleged that Roberts-Smith would tell a Brigadier to ensure that no drones would by overhead during any of his operations. It seems incredulous to me that senior commanders would not have been aware of what Roberts-Smith was up to.
As legal officer McBride was able to see what had been going on, and after noticing patterns in what he was seeing he took what he found to the authorities. For two years he tried his best to get someone at any official agency in Australia to act on what he found, only to be told that you can’t charge the government.
Time to dismiss the charges.
The findings of the Brereton Inquiry do nothing but exonerate David McBride. They back up what he had been saying the whole damn time, and for his troubles he has had the pleasure of having the government throw its weight against him in an attempt to punish him. They couldn’t and wouldn’t be able to silence him so they wanted to lock him away instead.
There is no reason for the government to pursue this case against McBride now, other that to try to wield the law like a sword against a citizen when it should be there as a shield.
It is my most fervent hope and expectation that the next article I write about David McBride will be when all the charges against him are dismissed and he can live out his life a free man.