Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO MUSIC]

Janet 00:31 This is Asymmetrical Haircuts, your international justice podcast with Janet Anderson and Stephanie Van Den Berg.

Steph 00:38 All rise.

Janet 00:40 Hi Steph.

Steph 00:41 Hi Janet.

Janet 00:42 Well, today we have a bit of a different podcast for you.

Steph 00:46 Yes, instead of the two of us yapping at each other and at you about all the things from The Hague, we have a special episode looking at Australia’s inquiry into war crimes allegations in Afghanistan.

Janet 00:57 Yeah, we have covered this topic before in previous episodes, but today we’re bringing you the work of our producer, Susannah Palk. She’s been doing a deep dive into the Brereton Report, what it is and what were the alleged war crimes, which are specifically Australian ones that it uncovered, and what are its ramifications. As well as today’s episode on the Brereton Report, Susannah has also interviewed the former commander of Australia’s Special Forces, Major General Jeff Sengelman. He’s widely attributed with bringing these war crimes allegations to light within the military, and he’s rarely spoken about it, so it will really be worth a listen.

Steph 01:40 Yeah, make sure you tune in next week for our second installment on alleged Australian war crimes in Afghanistan. That’ll be with Major General Jeff Sengelman.

Janet 01:49 In the meantime, here’s Susannah with today’s episode.

Susannah Palk 01:52 The noise you can hear around me is the bustle of Sydney’s city centre. I’m standing in front of the distinct white brick, heritage-listed Downing Centre building, home to the local courts of New South Wales. It’s here that preliminary trial proceedings are taking place in what could be Australia’s first war crimes trial.

Susannah Palk 02:24 It all stems from Australia’s involvement in the war in Afghanistan, and stories that emerged from it, that a small number of Australia’s most elite soldiers were involved in. Our SAS had committed shocking crimes. It led to an inquiry and a landmark report now known as the Brereton Report that revealed details of unlawful killings and torture. What the head of the Australian Army himself called disgraceful. Now a decorated former Special Forces soldier has become the first Australian serviceman to be charged with a war crime under Australian law. His arrest made headlines.

News clip 03:03 They are the elite and sharp point of Australia’s military. But tonight, a member of the SAS is in custody. The first ever Australian war crime arrest of a soldier.

Susannah Palk 03:16 Oliver Schulz was charged with one count of the war crime of murder in March 2023. He’s accused of shooting Dad Mohammad three times in a wheat field while on a raid in southern Afghanistan. It’s an act that was caught on a soldier’s helmet camera back in 2012, but only came to light after it was recorded. In the footage, the victim is seen holding a set of prayer beads with no apparent weapon in sight. Here’s an excerpt from the news report by the Australian Broadcasting Corporation’s Mark Willacy, who obtained that footage. And just to note, I cut this excerpt down to keep it brief.

Mark Willacy / ABC clip 03:52 It’s May 2012 and the soldiers of 3 Squadron SAS are heading north from their base on two Black Hawk helicopters. Their destination is a village called Dejawzi Hasanzi. The Afghan is compliant and quiet on the ground. As the dog is called off, Soldier C trains his weapon on the Afghan from very close range. Three shots from close range, the Afghan is dead and Soldier C walks off. The whole thing, from landing to killing, takes less than three minutes.

Susannah Palk 04:34 This footage would go on to be used as evidence in the Brereton Report. Released in November 2020, the report was the result of a four-year-long investigation. Officially entitled the Inspector-General of the Australian Defence Force Afghanistan Inquiry, it was headed by the New South Wales Supreme Court judge and Army Reserve Officer Paul Brereton. When released, the report sent shockwaves through Australia and made headlines around the world.

News clip 05:02 A shocking reckoning of Australia’s longest war has begun. Lies, intimidation, a self-centred warrior culture and war crimes. Shameful is the verdict of Australia’s Army Chief. Elite Australian troops killed dozens of unarmed civilians and prisoners in Afghanistan.

Susannah Palk 05:22 Over four years, Brereton and his team reviewed over 20,000 documents, 25,000 images and interviewed 423 witnesses. Its findings? As the report states, “The answer to the question, is there substance to rumours of war crimes by elements of the Special Operations Task Group, must sadly be, yes, there is.” At the report’s release, Australia’s then Chief of Defence, General Angus Campbell, faced the media, saying the report was worse than he anticipated.

General Angus Campbell 05:55 These findings allege the most serious breaches of military conduct and professional values. The unlawful killing of civilians and prisoners is never acceptable.

Susannah Palk 06:13 Those alleged to have carried out the killings were Australian Special Forces soldiers, most from the elite Special Air Service Regiment, the SASR. That’s Australia’s equivalent to Britain’s SAS or the US Navy SEALs. From my accent, you can probably tell I’m Australian. And as a nation, there is immense pride in our military. It has shaped our identity and defined who we are, with stories of mateship, camaraderie, grit and resilience. Our ANZACs, or Diggers as we call our soldiers, are revered and mythologised. But now, Australians are grappling with the prospect that some of our soldiers, our elite soldiers, were not heroes at all, but perpetrators accused of committing horrific crimes in Afghanistan.

Susannah Palk 07:03 It’s a complicated and nuanced story, and one that I wanted to fully understand. So I went back through the news stories, government reports, the public press conferences, and I also spoke with Australian academic Emily Crawford to piece this story together. This episode is the result of that work. I don’t have Afghan voices in this piece. This is a story about Australia’s own reckoning with itself. But as the then Chief of Defence told the nation at the release of the report, these alleged behaviours would have devastated the lives of Afghan families and caused immeasurable pain and suffering. And in an upcoming episode, we’ll ask Afghans themselves and those seeking accountability what justice they want to see and what they can realistically expect.

Susannah Palk 07:51 When the Brereton Report into these alleged atrocities was finally released back in 2020, it found credible evidence that 25 of our elite SASR soldiers had committed war crimes, as this Channel 10 News report summarises.

News clip 08:07 Paul Brereton, a Major General, found there was credible evidence of 39 Afghans being murdered on 23 separate incidents by 25 Australian troops.

Susannah Palk 08:15 Shocking, shocking information. The report also recommended that 19 of those soldiers face criminal investigation. Four years on, only one Special Forces soldier has been charged to date, that being Oliver Schulz. The report went on to say that none of the alleged war crimes was committed during the heat of battle, meaning they couldn’t be justified as self-defence and were therefore illegal under the laws that govern war. You may know them as the law of armed conflict or as international humanitarian law. Brereton’s report noted that, quote, “Everyone understood it was impermissible to use lethal force against a prisoner or a non-combatant.”

General Angus Campbell 09:02 Those alleged to have been unlawfully killed were all people under control, in lay terms, prisoners, farmers or other civilians. Rules were broken, stories concocted, lies told and prisoners killed. And once that rule was broken, so too, for some, was any further restraint.

Susannah Palk 09:31 Names and details of what happened have been redacted, but two shocking practices came to light: that of blooding and throwdowns.

General Angus Campbell 09:39 This shameful record includes alleged instances in which new patrol members were coerced to shoot a prisoner in order to achieve that soldier’s first kill, in an appalling practice known as blooding.

Susannah Palk 09:59 For some rotations, a new team member would be required to shoot a prisoner, to quote, “pop his cherry,” to prove that he was up to it. That was the alleged price of entry into the in-group, said the report. Alleged murders were covered up by a practice known as throwdowns, explained here by Emily Crawford, professor at the University of Sydney Law School. Her work focuses on international humanitarian law and international criminal law.

Emily Crawford 10:26 SAS soldiers carrying throwdowns, foreign weapons or foreign material like radios and walkie-talkies that SAS personnel would carry with them routinely to then place on the bodies of any Afghans who were killed in action, in case it turned out that the Afghan they killed was not carrying anything that would clearly implicate them as having been a fighter.

Susannah Palk 10:49 Throwdowns evolved over time. First, they were a response to the policy of catch and release. This is where a suspect would be caught, questioned, but without enough evidence to hold them, they would be released. Planting weapons on these suspects was a practice that took hold so they could be held and questioned for longer. But as the report stated, “It appears this practice gradually morphed into a new, more insidious activity as time went on.” As one witness told investigators, “When you realise your detainees are getting released and they’re going to go and, as we found, kill people again, so sometimes understanding how that process works, and inherently these are evil people, then they don’t come off alive.” Concerns raised by locals about these practices were either covered up using so-called boilerplate terms, that is using standard but vague non-committal language in after-action reports, or they were dismissed by commanding officers. Professor Crawford looked into these findings and co-wrote a paper after the report’s release, focusing on command responsibility. That’s the law that holds senior officers responsible for crimes committed by soldiers under their control.

Emily Crawford 12:02 In terms of the connection to command though, I think what was interesting for me, and certainly what my co-author Professor Aaron Fellmeth and I wrote about, was that there were troubling practices that were clearly being carried out over a period of time that warranted moral sanction, but not any further legal investigation. For example, in the report there is the use of boilerplate after-action reports, so that when the personnel would report on an engagement, they tended to describe what took place in fairly standard, vague terms that got repeated, and the Brereton Report talks about this as being done to essentially try and avoid additional scrutiny from higher-ups. And then there were reports that Afghani civilians had reported commission of war crimes or suspicion of war crimes to the SAS, and that these were being ignored by higher-ups as examples of propaganda, or that they were lying, or trying to seek financial compensation, or things like that, and not something that warranted further investigation.

Susannah Palk 13:08 One of the most controversial findings in the Brereton Report is that despite there being credible information that soldiers on the ground had committed war crimes, the investigation found that no commander above patrol level should bear criminal responsibility.

Emily Crawford 13:25 So what was, I think, for me really interesting about the Brereton Report, aside from the clear cases of war crimes, were there were these practices that should have warranted further investigation because they seemed to, at best, demonstrate an attempt to circumvent scrutiny, which in any hierarchical system should not exist. At worst, was actually evidence of a mindset of trying to cover something up. And in the conclusions in the Brereton Report, Brereton said that command deserved moral opprobrium, that they could be considered morally responsible but weren’t legally responsible, which again, I found that a really interesting conclusion that Brereton came to in that respect.

Susannah Palk 14:04 The report also found that some commanding officers were significantly responsible for fostering, or at the very least, failed to rein in a toxic warrior culture that was developing among some Special Forces non-commissioned officers and their junior soldiers. The dynamic between the commissioned and non-commissioned officers is explained here by journalist Mark Willacy, talking to ABC Radio. ABC is one of the outlets you’ll hear again and again in this episode. They’re the Australian national broadcaster.

Mark Willacy 14:39 This SAS, the squadrons were run pretty much by the sergeants. These are the real battle-hardened war veterans who really commanded a lot of respect and the officers may have been higher in rank, but these guys ran the show.

Susannah Palk 14:50 This warrior culture was something that SASR officer turned politician Andrew Hastie saw firsthand. He was in Afghanistan in 2013 and was interviewed for the Brereton Report. Here he is talking to the ABC.

Andrew Hastie 15:04 There were two warrior cultures. There was a bad one which was built on self-adulation, ego and the worship of war itself. And there was a better warrior culture which was about quiet professionalism, service before self and protecting our country. And the time I was there, the prevailing warrior culture was the bad one. When I went to Afghanistan in 2013, it was at the tail end of the war. I had soldiers who deployed three, four, five and six times and people were tired. They were calloused and it was a very, very challenging environment.

Susannah Palk 15:43 The Brereton Report was even more explicit, as this Australian SBS News report outlined.

SBS / veteran clip 15:49 Veterans describing a warrior culture of arrogance, exceptionalism and lawlessness. Guys just had this bloodlust, psychos, absolute psychos and we bred them. It was sanctioned psychopathic behaviour.

Susannah Palk 16:09 The worst of these crimes are said to have been carried out towards the end of the conflict. Here’s General Angus Campbell again.

General Angus Campbell 16:15 Some of these incidents took place in 2009 and 2010, with the majority occurring in the latter years of 2012 and 2013.

Susannah Palk 16:25 Two of the alleged incidents that took place in 2012 are fully redacted in the inquiry report, with one described as possibly the most disgraceful episode in Australia’s military history.

General Angus Campbell 16:35 I can’t speak to the particular circumstances, that’s why it’s redacted. But Justice Brereton does describe something that is utterly disgraceful and it’s right that it needs legally to be redacted. In time, you know, in the time of history to be written, it is shameful.

Susannah Palk 17:03 Not surprisingly, many Australians were disturbed by the report. However, for those working in the field of international law, while this was big news, it wasn’t necessarily a big surprise. Here’s friend of the pod Professor Melanie O’Brien being asked for her analysis on Australian television just after the report came out.

Melanie O’Brien 17:22 As an Australian, this was really confronting to hear. Yes, and I think in particular the public has been quite shocked about this. For those of us who work in the field of war crimes, it’s not necessarily so shocking because it is something that could be expected to happen, especially in the theatre of war of Afghanistan, which is quite ambiguous and where soldiers are facing situations like being attacked by Afghans who are actually embedded with them. So it’s not necessarily something that’s unexpected, but for Australians it is quite shocking.

Susannah Palk 18:02 Professor Emily Crawford agrees, especially given the numerous other war crimes allegations that have emerged from the conflict in Afghanistan by other special forces, including the United States and the United Kingdom.

Emily Crawford 18:08 There was a non-insignificant proportion of the population for whom allegations of Australian war crimes was, if not expected, certainly not necessarily surprising, simply because Australia having been long-time allies of both the UK and the US, it seems unreasonable to suggest that if US personnel had committed war crimes in Iraq and Afghanistan, which had been alleged some years ago, if not a decade or more ago, and the same with the UK, that it would be highly unlikely that Australian service personnel in the exact same circumstances might not themselves have participated in acts that on the lower end of the scale would have been misconduct, on the higher end of the scale would have been war crimes.

Susannah Palk 18:54 So how did these revelations eventually come to light? To get a better understanding of how and why these events took place, let’s rewind and go back to the start of the conflict. Australia’s involvement in Afghanistan lasted almost 20 years, as the opening sentence of the Brereton Report states: “Of all the armed conflicts in which Australia has been involved, the war in Afghanistan was the longest.” It began just six days after the September 11 attacks on New York’s World Trade Center. Our Prime Minister at the time, John Howard, was in Washington on the day of the attacks and had pledged troops just days after, in what would later become known as the War on Terror. Here’s a breaking news bulletin from Australia’s Channel 9 News back on September 17, 2001.

Channel 9 News clip 19:47 Australia off to war as the PM commits more forces to fight in Afghanistan. Good evening. Australian forces could be fighting in Afghanistan within weeks. The Prime Minister today committed to increase our role in the war against terrorism. His decision follows a personal request from US President Bush.

Susannah Palk 20:10 And it was members of our elite special forces who were the first Australian boots to hit the ground at Forward Operating Base Rhino in southern Afghanistan in December 2001. These were soldiers from one squadron of the Special Air Service Regiment.

Major General Daniel McDaniel 20:22 It would be almost impossible to, you know, completely describe everything that you felt when we, you know, when you got there and you actually stepped foot into country.

Susannah Palk 20:33 That’s Major General Daniel McDaniel. He was recorded here for the Australian War Memorial archive collection as part of their mission to record the experiences of armed forces personnel in conflict and war. Major General McDaniel commanded that first SAS squadron back in 2001.

Major General Daniel McDaniel 20:51 And I remember in the first week, we quickly went through a maturing process where we were pretty confident in our ability. We didn’t quite know how that ability was going to stack up in a place like Afghanistan, knowing the history of other, you know, Russian and British experiences.

Susannah Palk 21:08 This was the start of Operation Slipper, Australia’s first and most active operation in the war. It was a 12-year campaign that saw 26,000 Australians serve, 8.3 billion Australian dollars spent and 41 Australian soldiers killed. According to reports by the ABC, it was also during this period that Australian forces are believed to have killed over 5,000 Afghans, most suspected Taliban fighters, but also a number of innocent civilians. And it’s during these 12 years, mainly at the back end of Operation Slipper, that most of the alleged war crimes are believed to have taken place. By this time, many special forces soldiers had completed more than half a dozen tours of Afghanistan. Here’s Andrew Hastie again, the former SAS soldier and now Australia’s Shadow Minister for Defence, speaking to the ABC.

Andrew Hastie 21:59 We sent guys back over and over and over again. And frankly, we shouldn’t be surprised that the dark energy of war took its toll on people.

Susannah Palk 22:16 Indeed, the Brereton Report would highlight that special forces were treated as the default force of first choice, overused in conventional fighting rather than being reserved for missions of importance. Here is the then Chief of Defence Angus Campbell again, speaking to the ABC program Insiders.

Angus Campbell 22:28 There were aspects right from the start and all the way through that campaign which necessarily had to be done by special forces capability. But there are other elements that Justice Brereton refers to, that in hindsight perhaps we should have seen rotated to other elements of the force earlier.

Susannah Palk 22:55 Of the approximately 26,000 Australian troops that served in Afghanistan during Operation Slipper, only about 3,000 were from the special forces. But tellingly, this force sustained half of the lives lost in the conflict. The multiple rotations of the same people in the relatively small SAS task force, as well as a growing disenchantment with the mission, ensured that quote, bad habits became reinforced and perpetuated over time. After 12 years, Operation Slipper came to a close in 2013, with all but 400 Australian troops leaving the country. As this Al Jazeera report from the time summarises:

Al Jazeera clip 23:33 Australia’s involvement in Afghanistan has been much longer and tougher than anyone expected back in 2001. Prime Minister Tony Abbott says it has been worth the sacrifice. But while most Australians are pleased their soldiers are now out of harm’s way, there’s no jubilation here, more a sense that a difficult chapter is closing.

Susannah Palk 23:50 By this time, rumours were swirling. As early as 2010, stories about special forces behaving badly were seeping into military circles back home. There were stories of excessive drinking, drug taking, partying and worse. Many of the stories revolved around the unauthorised bar known as the Fat Lady’s Arms, located on base at Special Operations Camp Russell in southern Afghanistan. Indeed, one of Australia’s most decorated and now disgraced former soldiers, Ben Roberts-Smith, was found guilty in a landmark defamation case years later, of among other things, souveniring a prosthetic leg from an Afghan victim and taking it back to the Fat Lady’s Arms. This news report detailed the findings from the case at the time.

News clip 24:43 All up, it was found Roberts-Smith either carried out or was complicit in four murders. By machine-gunning a man with a prosthetic leg. The prosthetic leg became a trophy taken back to base used to drink beer. In that same mission, it was proven Roberts-Smith ordered a newly deployed soldier to execute an elderly man in an initiation process called blooding the rookie.

Susannah Palk 25:09 We’ll get back to Ben Roberts-Smith later. In his book No Front Line, Chris Masters, one of Australia’s foremost journalists and one of a handful of reporters to have followed the war crimes allegations for years, wrote, “Friends of friends overheard gossip at parties of Afghan males without weapons found dead in fields and far worse.” Here he is talking to Channel Nine’s 60 Minutes program about his investigative work.

Chris Masters 25:40 This was like an unexploded bomb. The word was out. People were getting drunk at parties and saying stuff.

Interviewer 25:44 From what you’re saying here, this was soldiers who’d come back and they really had this weighing on their minds.

Chris Masters 25:49 I reckon that’s something that ought to be remembered, that it wasn’t a couple of disreputable journalists that were scandal mongering who raised this. It actually came out of the organization itself. It came from the SAS because they saw young soldiers spinning out, coming back from deployments. They should be proud of what they did, but they weren’t.

Susannah Palk 26:09 Indeed, a turning point was reached with the appointment of Major General Jeff Sengelman as the head of Special Operations Command. A decorated SASR-qualified member himself, he had risen through the ranks to become Australia’s Special Operations Commander, but he had notably not served within the Australian Special Operations Task Group, which was deployed in Uruzgan Province, Afghanistan. He had also heard the rumours. In 2015, Sengelman invited soldiers to write to him privately with any details of unacceptable behaviour. He received 209 letters, and as he would later write in a minute entitled Possible Serious Unacceptable Behavior within Special Operations Command in 2016: “Some of these are deeply disturbing and imply that serious or criminal behavior may have occurred.”

ABC clip 27:04 As one ABC report put it, Sengelman was uncovering problems that had been festering in the SAS for years. And there were suggestions that some members of the special forces were doing things that were against the law in some instances, and there were just general cultural concerns. So the then Commander of Special Forces, Major General Jeff Sengelman, in 2016, commissioned a Canberra-based academic to begin interviewing the members of the elite soldiers that Australia had had in Afghanistan.

Susannah Palk 27:32 When completed in 2016, the Cultural Review of Special Forces by sociologist Samantha Crompvoets raised more red flags. This was on top of all the other feedback and insights Major General Sengelman says he had personally received from many sources up until that point. It was enough for Sengelman to formally elevate these concerns further up the chain. And in March 2016, Chief of the Army Angus Campbell asked the Inspector-General of the Australian Defence Force to formally look into the allegations. This was to become the four-year-long investigation that would lead to the Brereton Report. Indeed, at the report’s release, both Sengelman and Crompvoets were singled out by General Campbell.

General Angus Campbell 28:23 I would also like to acknowledge the work of Dr Samantha Crompvoets, who first brought this issue to higher command attention. Major General Jeff Sengelman, who had the moral courage to confront it. And Mr David Irvine, who’s been assisting us with Special Forces reform.

Susannah Palk 28:42 As the investigation got underway, reports were starting to make their way into the media. As early as 2009, stories about military personnel covering up alleged killings of Afghan civilians had been reported. But what really broke through the public consciousness were the Afghan Files, published by the ABC in 2017. These were a series of stories based on hundreds of classified documents leaked from the Defence Force.

ABC clip 29:06 Tonight, we reveal serious allegations that Australian soldiers may have committed unlawful killings during Australia’s longest war. 7.30 has spoken to 10 other former and current soldiers. They agreed that a culture of recklessness infected some elements of Special Forces in Afghanistan around who was a legitimate target and who wasn’t.

Susannah Palk 29:27 The reporters became the stories themselves when Australian Federal Police launched an investigation into how exactly they obtained the classified files. A move that, not surprisingly, also made global headlines.

News clip 29:41 Australian Federal Police officers are this afternoon continuing to raid the ABC’s Sydney headquarters.

News clip 30:00 Files based off hundreds of pages of secret Ministry of Defence documents leaked to the ABC. Instead of dealing with the allegations in the Afghan Files, as they are called, Australian authorities are focused on shooting the messenger, if you will.

Susannah Palk 30:15 Neither of the investigative reporters were prosecuted, but the former army lawyer who gave them the documents, David McBride, was jailed for more than five years. And then there were the reports of venerated war hero and Victoria Cross holder Ben Roberts-Smith. If you’ve heard of Australian war crimes in Afghanistan, but aren’t a specialist in the area, it’s probably the story of Ben Roberts-Smith that you have heard of. A story of hubris and pride that led to the downfall of Australia’s most decorated soldier. Ben Roberts-Smith had received many medals and plaudits for his acts of valour, like when he single-handedly overpowered Taliban machine gunners attacking his SASR platoon. A huge portrait of him hung at the Australian War Memorial, one of two images of him now removed from display, and he was even crowned Father of the Year in 2013. This report from the ABC highlights his fame, with the then Prime Minister Malcolm Turnbull calling him a hero.

ABC clip 31:14 You’re going to hear lots of politicians calling you a hero.

Ben Roberts-Smith 31:21 It’s extremely flattering. It doesn’t really sit comfortably with me, to be honest.

Malcolm Turnbull 31:26 Ben Roberts-Smith is a great Australian hero. He is someone that all Australians look up to in every respect.

Susannah Palk 31:33 Then came the reports from journalists Nick McKenzie, Chris Masters and David Wroe, summarised here in this ABC Media Watch report.

Media Watch clip 31:44 Back in 2018, after a year-long investigation into our forces in Afghanistan, The Age, Sydney Morning Herald and Canberra Times published these front-page stories. “SAS’ day of shame.” “Blood ties.” “SAS rookie told to shoot unarmed man.” And soon after that, their sights turned on Roberts-Smith, with a series of stories alleging he’d bullied his fellow soldiers in Afghanistan, was involved in the unlawful killing of six civilians there, and had assaulted his former mistress.

Susannah Palk 32:13 Ben Roberts-Smith denied all the allegations and sued the newspapers and the journalists for defamation. It was one of the most consequential defamation cases in Australia, lasting 110 days and costing up to 25 million Australian dollars. Witnesses ranged from Afghan villagers kept in safe houses for months, to former and currently serving SASR soldiers. And its findings? As this Channel 10 News report summarises.

Channel 10 News clip 32:42 The outcome was a stunning defeat for the one-time war hero, the judge throwing out his case against the three newspapers and three journalists.

Judge 32:51 In light of my conclusions, each proceeding must be dismissed.

Channel 10 News clip 32:56 Judge Besanko says the journalists and their media bosses did destroy the reputation of the Victoria Cross recipient, but they had a defence. What they said about the killing of unarmed Afghan men was true.

Susannah Palk 33:09 The case highlighted the awful events that had taken place in Afghanistan. While the Brereton Report had redacted much of the information, here the court presented first-hand accounts and eyewitness testimonies that exposed the alleged crimes in detail. Here are reports from Sky News and Channel 9’s Current Affairs News program after Judge Besanko issued his ruling on the case.

News clip 33:32 The federal court found most of the serious allegations made in a series of 2018 articles were substantially true, including that Mr Roberts-Smith kicked an Afghan farmer off a 10-metre cliff, causing his teeth to be knocked out before ordering he be shot dead. The newspapers also claimed that Roberts-Smith murdered another Afghan who had a prosthetic leg. Justice Besanko found that to be true. The newspapers reported Roberts-Smith was involved in two other unlawful killings, as well as bashing an unarmed Afghan in the face with his fists, kneeing him in the stomach, and had to be ordered to stop by his commanders. Justice Besanko found that to be true. The newspapers also reported Roberts-Smith bullied a junior trooper and threatened him with violence. Justice Besanko found that to be true.

Susannah Palk 34:29 It’s important to note here that Ben Roberts-Smith has appealed this judgment and the case is currently under consideration by three appeal judges. The trial was also significant because in the absence of any other court proceedings, it effectively served as Australia’s reckoning with the uncomfortable truth, a de facto war crimes trial, as this Sky News report outlines.

Sky News clip 34:52 This is the first time an Australian court has been tasked with ruling on allegations of war crimes. So this decision has ramifications beyond just Ben Roberts-Smith to other soldiers he was fighting with and even the entire Defence Force.

Susannah Palk 35:09 Here is Emily Crawford again.

Emily Crawford 35:11 The allegation, Ben Roberts-Smith is a war criminal, pretty stark. And Ben Roberts-Smith, in his defence, said, no, I’m not. So the defamation case essentially came down to the defence of truth, that Ben Roberts-Smith said, you have made a defamatory statement calling me a war criminal. Chris Masters and Nick McKenzie said, well, we’re alleging a defence of truth. On a balance of probabilities, we are saying that we’ve got evidence to say that you are a war criminal. So for the journalists to win the case, they needed to prove that the meanings conveyed by their reporting, that Ben Roberts-Smith committed war crimes, were true. And so what it came down to, and it was a judge-only trial, it wasn’t a jury trial, but the judge had to look at the evidence that was being put forward to say, on the balance of probabilities, there is enough here to make the case that Ben Roberts-Smith committed war crimes. So in a sense, a civil defamation case became a proxy war crimes trial.

Susannah Palk 36:03 There are also thoughts that the high-profile defamation case may have had something of a chilling effect on the progress of criminal investigations, which are currently being carried out by the Office of the Special Investigator, or OSI.

Emily Crawford 36:16 In a very practical sense, the defamation case really did have an immediate impact. The evidence that was being used, basically, as soon as that was done, the Office of the Special Investigator sought access to that evidence in order to then be able to use that evidence for their own investigations and possibly potential trials. And that included evidence given by people who were compelled to testify in closed hearings, including Ben Roberts-Smith himself. Now, that request was in large part denied. So some parts of evidence that was adduced in the case was allowed to be accessed by the OSI, but some of it was off limits. And so, in a very practical sense, the OSI will have to garner that evidence anew. So there’s an additional delay in that respect.

Susannah Palk 37:00 The OSI was the body set up by Australia’s government after the Afghanistan inquiry was done. Its role is to criminally investigate each of the war crimes allegations outlined in the Brereton Report, as explained here in this Channel 10 News report.

Channel 10 News clip 37:15 The Office of the Special Investigator, OSI, now it has the task of chasing up each of those cases of alleged murder to see if there are going to be charges of murder laid against Australian troops. There is one charge against a soldier called Oliver Schulz that is going through the courts at the moment.

Susannah Palk 37:33 It must be said that Ben Roberts-Smith has never been charged with murder, although to a civil standard, he was found to have been guilty of war crimes in Afghanistan, including the crime of murder. Here is Emily Crawford again.

Emily Crawford 37:45 In a larger sense, you get the impression that the OSI might have been waiting to see the outcome of the defamation case, partially because so much of the evidence with regards to the commission of war crimes was really centred around Ben Roberts-Smith’s platoon. So therefore, if a judge in the defamation case had said, we can’t trust this evidence to prove the allegation on balance of probabilities, the question then arises, well, to what degree could the OSI trust that exact same evidence to a criminal standard? So I think the OSI was essentially informally waiting to see how the Ben Roberts-Smith trial panned out. There might also be a little bit of kind of waiting to see what happens with the appeal on the defamation case, again, because if an appeal finds that the evidence was improperly presented or was not reliable or the judge relied on it too much in whatever way is so found, that might also act as a bit of a chilling effect on any work done by the OSI, specifically in relation to Ben Roberts-Smith and to anyone who was really kind of closely connected to him.

Susannah Palk 38:49 Do you think it might affect what cases they look at and who they might investigate?

Emily Crawford 38:54 I think so. I think the impression that I get is very similar to what happened with the initial work that was being done by the International Criminal Tribunal for the former Yugoslavia, that when they started their program of work, obviously they issued arrest warrants for Karadžić and Milošević and certainly the higher ups who had stewardship for the war in a macro sense. But certainly a lot of the initial cases tended to go after much lower level personnel, because I think it was important that as the first criminal tribunal since Nuremberg, I think there was a lot riding on making sure that this essentially proto-international criminal court had some early wins, had some early successes. And so I imagine that with the OSI, that if they’re going to go after such a high-profile target as a Ben Roberts-Smith or someone equivalent, they want to make sure that the evidence to prosecute is absolutely bulletproof. And so if they can’t prove that, then they’re going to go after people who are lower level, where there is, say, more evidence or that there’s more likelihood of a less scrutinised or less contentious case that is going to be an easier and quicker win for them.

Susannah Palk 40:08 Like in every international criminal investigation that we look at here on the podcast, it could take years for further charges and actual war crimes trials to take place. In the meantime, the Australian Government announced in September 2024 that it had stripped medals from around nine military commanders who had served roles in Afghanistan. At the same time, it also announced the end of the Afghanistan Inquiry Reform Program, which was established so that the Department of Defence could make changes that the Brereton Report had recommended. Here is Defence Minister Richard Marles addressing Parliament.

Richard Marles 40:45 This is the final step in government action emanating from the Brereton Report. Today I advise the House that the work of the Afghanistan Inquiry Reform Program has formally concluded and with this, the government formally closes its response to the Brereton Report.

Susannah Palk 41:05 This final response by the government reignited debate and concerns that the inquiry did not reach far enough up the chain of command and failed to hold those higher up to account. A visibly emotional Andrew Hastie, who is now Shadow Defence Minister, gave his response to Parliament after Defence Minister Marles spoke.

Andrew Hastie 41:25 My one point of disagreement with the Brereton Report is on how far it reaches up the chain in assigning responsibility. I believe that our troops were let down by a lack of moral courage that went up the chain of command all the way to Canberra, including in this House. I want to be clear. Those who are alleged to have shed innocent blood are alone responsible for that. I do not say this to absolve or condemn anyone, but those in the chain of command who saw the post-mission slide decks with the kill counts and pictures of dead individuals had an obligation to ask questions. From Tarin Kowt to Kabul to Kandahar to Dubai to Canberra, those in the chain of command should have asked more questions. Some may well have done that, but an earlier intervention by our political and strategic leadership may have avoided much of the pain that people have experienced in Afghanistan and through this lengthy process. Leadership matters is my point.

Susannah Palk 42:27 Command responsibility and exactly how you tie individuals to specific crimes that have been committed by their subordinates is one of the major underlying issues facing all the courts and tribunals and has generated reams of scholarly literature. In addition, as Professor Crawford explains, in Australia command responsibility is worded slightly differently to that in the Rome Statute that governs the ICC. It all turns on the use of the word reckless.

Emily Crawford 42:52 In Australia, the formulation is largely the same, but there’s a key substitution in which they say that rather than knew or ought to have known, the test is that a military commander either knew or owing to the circumstances at the time was reckless as to whether the forces were committing or about to commit such offences. So it includes a different term. So essentially what that does is kind of create a higher threshold for the Australian test. It basically sets a higher standard. So by emphasising recklessness instead of reason to know, there is a very strong implication in the Australian law that a commander who negligently or kind of apathetically disregards information that suggests subordinates have or are about to commit war crimes, that that’s not enough to qualify as reckless. So it does seem to be making a mode of liability under Australian law that is different and harder to prove in Australia than it would be under international criminal law.

Susannah Palk 43:49 Many, including Professor Crawford, believe that in his findings Paul Brereton misunderstood and misapplied the law of command responsibility. Indeed, an oversight panel reviewing the Brereton Report stated at the start of 2024 that it disagreed with the conclusion that senior officers couldn’t be held responsible. It stated that a lack of accountability from the top brass had led to, quote, anger and bitter resentment from troops and veterans.

Emily Crawford 44:19 The difficulty is, again, that Brereton didn’t focus in a huge amount of detail regarding the degree to which command were ignoring reports from Afghani civilians or ignoring how widespread the use of throwdowns were or the boilerplate responses. So the degree to which Australian personnel in command positions could be held liable at, say, the ICC, I think there’s a higher chance than in Australia, but I still don’t think it would entirely get to the level such that they would be held accountable under international criminal law.

Susannah Palk 44:59 Much like the senior commanders overseeing operations in Afghanistan, Professor Crawford says Brereton didn’t ask enough questions of those senior officers. With no deeper examination of what they knew, she believes it’s very difficult to know the degree to which commanders were presented with credible evidence of war crimes.

Emily Crawford 45:17 I think the Brereton Report was trying to be incredibly careful in its conclusions, knowing how controversial they were going to be, knowing how essentially groundbreaking they were, being the first public attempt to grapple with Australian war crimes as committed by Australian service personnel. It’s not that Australia has had no experience with war crimes. There were attempts in the 1980s to hold former Nazi war criminals to account. There have been refugee and asylum cases in Australia that have dealt with persons who have been credibly alleged to have committed war crimes in Sri Lanka or the former Yugoslavia or Rwanda. But this is really the first time Australia has had to grapple with war crimes as committed by Australian service personnel. And so I think Brereton was trying to be incredibly cautious to make sure that only the stuff that could legally stick were the allegations that were being made.

Susannah Palk 46:18 So where do things stand now? When it was released, the Brereton Report made 143 recommendations. As part of those recommendations, the Army announced the disbandment of the entire second squadron of the Special Air Service Regiment, a 90 trooper strong force, back in 2020. Then in 2021, the Department of Defence and the military began their Afghanistan Inquiry Reform Plan and Reform Program. This focused, among other things, on changes to command responsibility and to improving the education and training of soldiers with regards to the laws of armed conflict. These reform programs were officially finalised and ended by the government in September 2024, the last action being the stripping of war medals from those nine commanding officers. With this, Defence Minister Richard Marles stated that 139 of Brereton’s 143 recommendations had been addressed.

Richard Marles 47:18 Most significantly, while the formal work of the reform program has concluded, the work of the task force continues and the work of transforming the culture of defence is ongoing and enduring. It remains essential.

Susannah Palk 47:38 Meanwhile, the OSI is still investigating possible criminal charges and says it’s looking into 28 matters. All the while, we’re still waiting for the war crimes trial of Oliver Schulz to begin. A five-day committal hearing has been set for April. Any further charges or war crimes trials could take years. And compensation? The Brereton Report recommended paying the victims and the families of those killed by Australian soldiers swiftly, without waiting for the establishment of criminal liability. This, it said, was in order to restore Australia’s standing, but also because it was simply the moral and right thing to do. Three and a half years later, in July 2024, the Australian government finally announced the establishment of the Afghanistan Inquiry Compensation Scheme. And then only in November did it announce the appointment of the Inquiry’s compensation advocate. This is the person responsible for reviewing the claims and making recommendations to the Chief of the Defence Force, who has the final say on compensation. It’s hard to tell if anyone has actually applied for the compensation scheme or indeed if anyone has received any payments from it. But lawyers from the Australian Centre for International Justice believe it’s unlikely any reparations would have been made at this stage. Wrapping up his statement in Parliament regarding the conclusion of the Afghanistan Inquiry, Defence Minister Richard Marles said this.

Richard Marles 49:04 This will always be a matter of national shame. At the same time, the Brereton Report, its recommendations and the actions of successive governments in implementing these recommendations are a demonstration to the Australian people and to the world that Australia is a country which holds itself accountable. Any prosecutions of Australian war crimes will happen inside Australia by Australian courts. In the history of human conflict, it is worth noting that this accountability is very unusual. Major General Brereton has led a process which has global significance and this accountability is profoundly important.

Susannah Palk 49:47 While Professor Emily Crawford agrees that Australia is holding itself accountable, there continues to be debate as to how accountable it holds those in command and how long it has taken.

Emily Crawford 49:58 There is a sense that Australia has finally stepped up to address its own conduct and that while it’s welcome, it is late in coming. It’s been a really fascinating experience to observe and an important experience to observe, especially as it was something that was driven by the defence forces themselves, that the Brereton Report happened because there was agitation within the service to investigate themselves and to question what was taking place and that this wasn’t something that had been imposed externally. It was about trying to come to terms with conduct that is fundamentally destabilising for the armed forces, that it’s not about saying that the armed forces are unnecessary, but that if they are going to exist and if they are going to operate with a great deal of power and responsibility, that they need to be held accountable to themselves and to the standards that every country in the world agrees people should be held accountable to, which is don’t commit war crimes. It’s a fairly uncontroversial statement and so it’s something that should be affirmed as being one of the fundamental principles of the international legal order.

Janet 51:09 We hope you enjoyed this deep dive episode on the Brereton Report. Did you, Steph? Did you enjoy it?

Steph 51:14 Yes, I did, because I really think that the Brereton Report is something that we’ve touched upon, but we haven’t really gotten to the nitty gritty.

Janet 51:23 Yeah, and I can’t wait to actually hear the interview with Major General Jeff Sengelman, but luckily enough, we’ve had a chance to listen to it already. So here’s just a small excerpt, which is him talking about how he feels about dealing with the war crimes rumours as they emerged.

Jeff Sengelman 51:45 You know, when these war crime allegation issues first came to my attention as a commander, I was not happy. I was dealing with all this feedback at the time and there were shocking allegations about my organisation. I felt a strong weight on me to deal with them, to confront them, to fix them at the time. Let’s call it year one of my command as Commander Special Operations. That was a tough year, tough year for my people too. I was hard on them. I was demanding answers. I wanted to know the truth. What was going wrong? Where were these stories coming from? We weren’t meant to be like this. How do we fix this? How do we do it ourselves? And then we went into year two, which is what triggered Brereton, and we started to get multiple feedback from other sources. There was no single source that declared this. There was no whistleblower.

Janet 52:38 So that’s coming up next week, an interview about what it was like to be Australia’s special operations commander while these allegations were being uncovered, and what decisions Major General Jeff Sengelman had to make. Stay tuned.

[OUTRO MUSIC]This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.