The Afghanistan inquiry: what we know so far

What do we know so far? What could we learn?

The Canberra Times spoke with military experts Dr James Connor and Professor Douglas Guilfoyle from UNSW Canberra's Australian Defence Force Academy campus about what the Brereton report could contain and what the long-lasting impact might be.

In 2015, Canberra military sociologist Dr Samantha Crompvoets began investigating problems within Australia's elite special forces unit. She uncovered behaviours that were not consistent with the rules of engagement or the laws of armed conflict. Disturbingly, she found these behaviours had been "normalised".

In March 2016, the Chief of the Army referred these "rumours" to the Inspector-General of the Australian Defence Force for investigation. NSW Justice Paul Brereton was appointed to oversee the inquiry.

The inquiry is looking at 55 alleged breaches of the laws of armed conflict over a 10-year period.

According to leaked documents provided to the ABC by military lawyer turned whistleblower David McBride special forces soldiers were responsible for the unlawful killings of unarmed Afghans, including children. Mr McBride is currently facing charges including theft of Commonwealth property, unauthorised disclosure of information and breaches of the Defence Act.

This report will be landmark for a number of reasons, according to Dr Connor.

"First off, it deals with a group of people that we hold up as heroes, the Special Forces, the SAS," he said.

"These people have such an important role in our war mythology. That this venerated group of soldiers clearly has done something extremely problematic over a long period of time in Afghanistan, which probably includes war crimes, is going to be deeply shocking."

"Not to this scale," Dr Connor said.

The first known war crime committed by an Australian soldier was during the Boer War.

Harry "Breaker" Morant was court-martialled and executed by the British in 1902 after he was found to have killed prisoners of war and civilians as revenge for the death of his commanding officer. His execution was hugely divisive among Australians and he became a folk hero akin to Ned Kelly.

It's also been established that Australians committed war crimes against the Japanese during World War II in response to Japanese aggression in the Pacific although there was no official investigation, Dr Connor said.

"But we haven't seen anything to this extent," he said

"If it's true that there is at least 55 incidents across 10 years, which includes unlawful killing - or let's put it in its real terms, murder, of prisoners and civilians - we haven't seen anything like this."

Yes, according to Professor Guilfoyle.

"There's been a long running investigatory process in the UK, as far as I'm aware, that hasn't yet resulted in any convictions, only one guilty plea so that's been a long internal process," Professor Guilfoyle said.

"It's a matter of record that the Canadian Armed Forces disbanded or very substantially restructured their SAS after events in Somalia where serious crimes were alleged. So it's not unknown."

"It appears that there were certain groups of soldiers who became a law unto themselves and decided that behaving this way was not only acceptable, but they started to encourage other people and they blooded new troopers into these particular activities and behaviours," Dr Connor said.

"And it appears that the leadership at the time, officers commanding these troopers turned a blind eye to what was going on. And nothing was done."

These soldiers were also under enormous pressure, Dr Connor said.

"They were deployed, sometimes up to 10 times across the campaign, there was clearly not enough support for them when they came back home to debrief about what happened and how there wasn't enough oversight of their conduct over there."

The behaviour likely escalated over a period of time, Dr Connor said.

"One of the things we see in the research on police who become corrupt, they never do the big corrupting first, it's often a really long, slow process of slowly corrupting them into doing this. And I think we'll probably see some of these patterns out of the Special Forces as well," Dr Connor said.

An Office of the Special Investigator has already been set up, drawing on resources from the Australian Federal Police, to look at potentially criminal matters raised in the Brereton report.

Professor Guilfoyle warned the process from here would be slow and complex.

"I think the only thing I'd sort of underscore is that we're coming to the end of a fact-finding process," he said.

"And that's, you know, obviously a different standard of proof to a criminal trial. And criminal trials are complex at the best of times let alone when we're dealing with allegations that now go back a number of years. And we're in a foreign country, and where we may not be able to trace or locate eyewitnesses, other than our own service personnel.

"So, you know, if prosecutions eventuate I would expect them to be complex and I wouldn't expect them to be fast."

Even if the soldiers were serving abroad, they were still subject to Australian military service jurisdiction.

That means none would stand trial in Afghanistan unless there was a high-level governmental decision to surrender the soldiers to the Afghan authorities.

"It would seem to me unlikely that an Australian government would want to surrender its service personnel for trial in Afghanistan and would likely say we are perfectly capable of putting our own people where there's credible evidence on trial," Professor Guilfoyle said.

"The Australian criminal code has a detailed series of war crimes provisions that mirror the statute of the International Criminal Court, and that could be prosecuted before courts in Australia."

This includes provisions that allow military superiors to be found responsible for the crimes of his or her subordinates, where they failed to prevent or punish those crimes, Professor Guilfoyle said.

"But what you need is one of two things - they either have had to have actually known that the crimes had occurred or about to occur, or alternatively, had to have had enough information that a reasonable commander in their position would have made further inquiries and taken further action. So the critical thing about superior responsibility is actually proving who knew what, when. And that's the tricky bit."

It has to, according to Dr Connor.

"If there's not [lasting change] that is extremely concerning for all of us who watch the ADF and how it tries to adjust and fix its culture," he said.

"We have to hope that they don't just restrict the reforms to special forces as well, that they really question how the ADF works, or aspects of its culture, its reporting, to make sure that we can learn the lessons from this and not have something like this happen again,

For the special forces themselves, there's going to be a serious shake-up I think in how they are selected, how they're trained, where they're probably trained, and how oversight is carried out on their activities to make sure that we don't get these small groups again, becoming laws unto themselves."

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