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Episode 123 – Confronting Australia’s War Crimes Allegations with Major General Jeff Sengelman

Janet: Hi, Steph.

Susannah: Hi, Janet.

Janet: So today we have an interview for you from the type of person that we don’t often hear from on asymmetrical haircuts.

It’s not our usual perspective from inside from an activist or analysis from an expert or an academic in international law.

Instead, we’re going to hear from somebody who’s actually been at the sharp end of war and conflict.

Stephanie: Yeah, I think this is a real departure for us.

We’re going to hear from Major General Jeff Sengelman, one of Australia’s former most senior military commanders.

He was Special Operations Commander Australia, and he was the head of Australia’s Special Forces Units from 2014 to 2017.

Janet: And this interview follows on from last week’s episode.

And that’s where we took an in-depth look at the alleged war crimes in Afghanistan committed by Australian forces.

Just a reminder there, the Inspector General of the Australian Defence Force Afghanistan Inquiry, as it’s officially entitled, which is known as the Bereton Inquiry, after the judge Paul Beretton, who headed it up.

That began in 2016 and was set up after rumors emerged of unlawful killings by Australia’s elite Special Forces soldiers while they were fighting in Afghanistan between 2005 and 2016.

Stephanie: That inquiry led to the landmark Brereton Report, which found essentially credible evidence that 39 Afghans had been murdered in 23 separate incidents by 25 members of Australia’s armed forces.

And when it was released, the report sent shockwaves through Australia and made headlines around the world.

Here is a small excerpt from our first episode by our producer Susannah: 

“A shocking reckoning of Australia’s longest war has begun.

Lies, intimidation, a self-centered 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.

Over four years, Brereton and his team reviewed over 20,000 documents, 25,000 images and interviewed 423 witnesses.

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.

These findings allege the most serious breaches of military conduct and professional values.

The killing, the unlawful killing of civilians and prisoners is never acceptable.”

Janet: So let’s kick off today’s episode with trying to understand what was General Jeff Sengelman’s actual involvement in this landmark war crimes investigation.

Well, to answer this, let’s bring in our producer Susannah Palk, who was the one who conducted the interview with General Sengelman back in Australia a few months ago.

Hi, Susannah.

Susannah: Hi, Janet. Hi, Steph.

Janet: So can you explain to us how General Sengelman is connected to the Brereton Inquiry and to the report?

Susannah: Yeah, General Sengelman is widely credited with sparking the Afghanistan Inquiry and the Brereton Report while he was head of Australia’s Special Forces.

So for years, rumours had been swirling in military circles about bad behaviour and possible illegal behaviour in Afghanistan.

But it’s only when General Sengelman takes command that any meaningful internal investigations actually begin.

I think looking at this story, that these events would have come to light eventually.

They were in the water, so to speak.

But Sengelman is key really to establishing an atmosphere, the command climate, as he says, for individuals to feel confident in coming forward.

And also in helping the wider military to recognise, as he says, the strategic significance of this, and ultimately to act and officially investigate their own alleged illegal actions.

Janet: I think we should just also mention at this point, Susanna, that you’re Australian, aren’t you? People can probably hear that in your accent.

So is that one of the reasons why you decided to try to do this and why you pursued the interview with Sengelman?

Susannah: Yeah, I think so. I think it’s because when we look at war crimes, we often think it’s something that happens in other countries, in other places in the world. It’s remote.

Well, that’s how I think. And especially in Australia, where we really think of our military as very well organized, we don’t think that these crimes could be committed by our forces.

So for Australians, for me, to come to grips with something that we had potentially done, allegedly done, it’s something that I really wanted to look into, yeah.

Janet: So tell us why this interview with Sengelman?

Well, in my initial research, his name kept coming up as one of the figures who had really sparked the investigation and the inquiry in the first place.

But it wasn’t a voice that we’d heard before.

And he has a unique insight into how these war crimes allegations came about and really does interviews. So I thought if we could get him, great.

And in his conversations with me, he really raised questions about why he thinks these alleged war crimes may have happened and what could make soldiers in such an elite and such a well-trained force commit such acts. And really what the responsibility of those in command actually is.

Stephanie: Why do you think he wanted to speak now to this niche podcast out of The Hague when he’s been quiet so far?

Susannah: I think actually he really wanted to talk because the issues surrounding Britain are still very much present in Australia at the moment, especially the issue of the role of senior leaders and their responsibility. It’s become a big political talking point, especially at the end of last year.

And in our interview, he told me that this issue really wears on him personally, and it’s probably one of the major reasons he’s speaking to us now.

One of the first points he really wanted to stress to me was that although he was a commander, he didn’t see himself as a part or above the soldiers he served with, that he was, quote, one of them.

Janet: Yeah, I find all these things that you’re talking about, Susannah, fascinating. What his responsibility was, how he dealt with the allegations that came up, and particularly the stuff about command responsibility.

So we’re on the edge of our seats now, waiting to hear the interview. Let’s jump right in.

Sengelman: When we look at the war in which the war crime allocations are set, as a commander special ops, first of all, can I say these things?

I wasn’t separate to these matters. I’m not some third party that came in and whistle blew and claimed that these things happened and aren’t I a virtuous individual for doing so. I was one of them.

I joined special operations in 1997 when I successfully passed the SAS selection course. I fulfilled appointments at almost every level as an officer in that command, ultimately in also commanding it.

I was one of them and I’m proud to say it. Incredible people, incredible organizations.

And if there is implied criticism at the culture, the organization, its service, its history, its reputation, then can I be clear to your listeners that I’m standing with them too?

That matters to me, but it also matters most to any veterans that might hear this conversation. I’m one of them.

Some people afterwards have gone, Oh, Jeff, you must feel vindicated about what you did as a commander and all that sort of thing. And while I don’t dismiss the well-intended expression of that offered to me, I don’t feel vindicated at all.

I’m a commander or was a commander of troops. And as a commander, any criticism or allegation on my force was also by extension, felt as one-leveled at me as well. I didn’t feel like a whistleblower or vindicated. I felt exhausted.I felt saddened.I felt concerned that such serious things could have been said about my organization and our people.

And yes, it did feel when I had to formally report these things, like a loving parent taking their child to the police station to report a very serious issue. If some people reflect to me and say, well, why did you do it? Didn’t you feel some loyalty? You just leave what happened in the war, and all that sort of thing. And we will know what the right answer to that question is.

But the point is that if someone seriously comes to you with a story, it essentially is a murder allegation. What do you do? What does everyone know to do? Every mum, every dad, most school kids, we know you reported to the appropriate authorities. And that’s all we did.

We had serious allegations, very serious allegations. We didn’t know the factual basis to them. At the time, we didn’t overreact. We knew we needed to try and understand the facts. And that was going to inform the decisions we took next. And that, very generally, was the thing that triggered Brereton, a search for what was the substantive factual basis.

Stephanie: So what is it that the general did that triggered the eventual investigation into war crimes and the Bererton report?

Susannah: Well, Sengelman took up his position as Special Operations Commander at the end of 2014. That’s a full year after the majority of Australia’s troops had actually left Afghanistan. And five years after these war crimes allegedly started to take place.

But as I mentioned before, these rumours had been swirling for years, going back as far as 2010 from some anecdotes and articles that I’ve read. So up until his command, there really seems to have been no meaningful investigation into what Sengelman himself described as “toxic stories.”

I actually think it’s important to note here that Sengelman didn’t serve with the Special Operations Task Group in Afghanistan, and so none of the war crimes allegations are connected to him.

So maybe in a way this has actually helped. His distance from the battlefield has helped him to actually take action into listening to these rumours and following them up and taking action.

Stephanie: So he’s in office, he’s hearing all these toxic stories. What does he then do?

Susannah: Yeah. So in his first year in office in 2015, Sengelman says he was so concerned about what he called endemic problems, that he actually did a number of things.

So first he imposed an operational pause in the command, and he also sends his deputy to Campbell Barracks. That’s the base of Australia’s Special Air Service Regiment, or SASR, which is located in Perth.

And that was to ensure that they were actually following the Australian Defence Force operating procedures. Also at this time, he invited his special forces soldiers to write to him privately, with any details that they knew of, of unacceptable behaviour, and he receives 209 letters.

And then sometime after this, and also as he told me, after receiving feedback from a range of individuals and agencies, he commissions a report. And this is a cultural view of special forces from a Canberra-based sociologist called Dr. Samantha Crompvoets. 

This report is to see how the SAS forces are integrating with the rest of the Defence Force units. From this, more disturbing stories and red flags are raised when the report is completed in 2016, which is a year later.

Janet: Well, it sounds like an awful lot of bits and pieces, but an awful lot of information. So what does he do when he’s faced with all of this disturbing stuff?

Susannah: Yeah, so this is when General Sengelman takes all this information to his boss, the Chief of the Australian Army. This is at the start of March 2016.

And then by the end of that month, the Chief of the Army, who at the time is Angus Campbell, has written to the Inspector General of the Australian Defence Force and has asked for an enquiry into these allegations.

So this is what would become the pivotal Afghanistan Inquiry that would later lead to the Brereton report.

Stephanie: So there’s another bit of official machinery that you need to explain to us a little, which is the Office of the Special Investigator, which was set up after the Brereton report.

Susannah: Yeah, that’s right. The Office of the Special Investigator, or OSI. And this was a government organisation that was set up by the Australian government to criminally investigate those accused of war crimes.

This body is very different to that of the Brereton Inquiry. Brereton was an administrative enquiry done by the military itself. The OSI, on the other hand, is an independent body responsible for investigating any criminal matters arising from the Brereton report, and then referring these on for prosecution.

Essentially, they’re tasked with going back and reinterviewing witnesses and sourcing evidence again so that cases can be brought before a court. So far, they’ve charged one former soldier with war crimes, and we’re still waiting for that trial to take place.

And just before we go ahead here and listen to General Sengelman, I do want to note here that General Sengelman does talk at length when giving his answers.

When I interviewed him, he was very clear on what he wanted to say, so we’ve kept his answers long for that reason. So here he is again talking about how he felt while dealing with these rumours and bringing them to light.

Sengelman: I don’t think they’d be angry at me if I said this, but I was approached by the Office of the Special Investigator which was looking at these issues. And I was asked one question, which is a very clear question, and that was, ‘Do you know who did these things? What actually happened?’

There was a reasonable expectation that given my position and my experience and everything I did around this case, that I might have some privileged inside or information or intelligence that they weren’t aware of and that I could offer it.

And I had to respectfully disavow them of that. And I’d say, I tell you with all honesty as a leader, that when I wrote to my Chief of the Army and the Chief of the Defense Force, and I raised these allegations initially, that at the time I expressed them as stories and as allegations, I did not have any provable facts at that time.

And the processes that unfolded as a result afterwards, which turned into Brereton and other reports, was a genuine or intended to be a genuine, authentic, balanced undertaking to try and work out, was there any truth to these rumors or if there wasn’t.

It wasn’t a search for someone to blame or someone to go after. It wasn’t that at all. My motivation, which is part of the document suite, which has been released on the public record, is actually that I felt at the time that these allegations were so destructive and defamatory that I needed to act on them just simply to retire them as toxic stories that were circulating in my command.

One way or the other, I couldn’t ignore them and allow them to go unchallenged. That’s all it was.

Now, there’s a simplicity to that action, which I believe should be inarguable. Right? When we heard these things from multiple sources as a commander, then we acted on them and we attempted to discern the truth. And that’s broadly, at least in my interpretation, what Brereton’s  job was. Is there substance to these allegations? Very serious ones. And if so, what should we do next?

And the time it’s taken to do this, while I guess it’s regrettable, was also an exercise in care that we didn’t want to unfairly blame or say anything of anyone, that may not have been true. And that remains the case in my opinion. And anyone that is leaping ahead of that process or doing it, well, I don’t quite understand it.

Susannah: General Sengelman also told me how he personally felt when dealing with these allegations and how it was important for him that it be the military that held itself to account.

Sengelman: You know, when these war crime allocation issues first came to my attention as a commander, I was not happy.

I was dealing with all this feedback at the time and they were shocking allegations about my organization. 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 a 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.

Susannah: In my talks with him, General Sengelman said that from very early on in the start of his command, so that’s in 2015, he had multiple sources from multiple entities, both formally and informally coming to him with concerns.

According to Sengelman, these sources ranged from colleagues, interagency soldiers, special forces operators, military chaplains, coalition partners, and some others as well.

He wanted to state very clearly that there was no one person or individual reporting to the military about allegations and stories of war crimes.

And that anyone who, quote, ‘claimed an individual unique status in reporting to us’, that is to Sengelman, ‘the existence of the war crime stories and allegations’, he said he thinks ‘doesn’t know the full story.’

And then he continued:

Sengelman: In that second year, I should have been quicker at doing this. In that second year, I felt remorse as a commander, because I realised, hang on, my commander had just come through 12 years of war, they had been exposed to and done some incredible things, the sacrifices, the combat operations, the casualties we took, the impact on the families.

I said, we need to be approaching this a different way. And I knew my mindset was wrong then, it wasn’t about it’s broke, how do I fix it? It need to be, my people are hurting, something’s bad happened to them, how do I work out what’s wrong and how do we do this better?

And that’s when I realized with some humility, a really strong feeling of pride, which I don’t think has come through the public reporting sufficiently, and that is that the people that reported these things that are currently allegations of war crimes, we’re our own people.

We, I believe, almost uniquely globally, we reported on ourselves. Special Operations self-reported that bad things happen, and we were the ones that brought it to light and commenced the actions.

We were the ones. Brereton didn’t do this to us. A journalist didn’t do this to us. We did it.

So while a small number of individuals may or may not be found guilty of allegations, the vast majority of our people, who saw things weren’t right, came forward and reported them.

That, more than anything, says we were more right than wrong. We knew on the inside what the right thing to do was, and those brave individuals that came forward and reported this, they did it. This is internationally remarkable. Almost everywhere else, I’m happy to, if someone clever, to cross-examine me on this. Almost everyone else gets caught out on this stuff by external reporters or examiners or whistleblowers.

We called ourselves out, and it was really ugly and it continues to be hurtful, but we called ourselves out, and I think that says a lot about our people.

Janet: So as General Sengelman states, the Brereton report found that, yes, there was credible evidence that war crimes did take place, and that report concludes that criminal responsibility should lie with soldiers on the ground.

Of course, in the war crimes tribunals that we cover, we’re mainly thinking about command responsibility. I mean, the ICC is always looking at those most responsible, so we’re talking about higher ups.

And in this case, many Australians were also wondering about why it was that the senior members of the Australian Army were apparently being let off the hook, and that raised questions about whether that Brereton administrative report really got it right.

Susannah: Yeah, that’s right. In his report, Paul Brereton laid blame for the alleged war crimes squarely at the feet of the special forces soldiers at the troop commander level. So that is the soldiers that are fighting on the ground.

And it stated that the more senior commanders, while they may have been morally responsible, should bear no criminal responsibility. There has been huge blowback on this with a lot of debate on commander responsibility and how it’s interpreted.

If you take a listen back to my first episode on the Brereton report, I speak with international law professor Dr. Emily Crawford who believes that Brereton essentially misapplied the law of commander responsibility.

That’s the law that makes a commander criminally responsible for crimes committed by forces under his or her authority. And essentially that there wasn’t enough scrutiny of senior leaders in the inquiry.

Stephanie: As I understand it, this debate in Australia about senior leadership was actually re-ignited again in September when the Australian government announced that it would strip the medals off of some senior leaders.

Susannah: Yeah, nine military officers involved in the Afghanistan conflict, they were stripped of their medals.

It was announced by the Minister of Defense Richard Miles, and at the same time, he also announced that that was going to be the government’s final step in its response to the Brereton Report, and so this happened in September 2024.

This prompted a pretty bitter political debate and a lot of blowback from former soldiers and opposition politicians, saying that the stripping of these medals didn’t go nearly far enough.

Actually, an oversight panel that was set up to review the Brereton Report, which came out with its findings earlier last year, so before the stripping of medals, and it said that it essentially disagreed with the Brereton Report about the issue of command responsibility. And it said that the lack of accountability from the top brass had led to, quote, anger and bitter resentment from troops and veterans.

So when I asked General Sengelman about his thoughts on the report’s findings, this is what he had to say.

Sengelman: If you’re inviting me to have a personal opinion on those recommendations, look, in part, I would say that they were matters for the Chief of the Defence Force to determine and that he, right or wrong, should be judged on those choices, given it was his responsibility at the time.

The one area I professionally, though, as a retired general would have liked to have been explored even further was this question about senior leader accountability.

I feel that because, having served in different theatres during the same period of the global war on terror, I understand that there are complexities and aspects of these things that probably justify further analysis and understanding.

Two, and this is a personal state, it’s not meant to apply to anyone else but me. But I actually do feel that I own a degree of accountability for what happened in the conflict. And I continue to do so. I’m not ashamed to say that. I served in the conflict. I was a senior leader. I was accountable. There’s nothing mysterious about saying those things.

And from that, why might I have expressed that? When we went into Afghanistan, someone at some stage had to make a choice about where will we be? Who will we work with? What will be the chain of command? What will be the mission? All of those things.

Susannah: Indeed, early on in the conflict, General Sengelman was sent over to Afghanistan to help advise and recommend to Australia’s chief of defense and the government on what the operational design of the conflict should be.

So basically, the organization and position of Australia’s forces within Afghanistan. He was ,almost like an architect to, and a part of the decision-making group on how Australia’s role in the war was ultimately executed.

Sengelman: Early in the conflicts, I was the officer selected by the chief of the defense force who went into Afghanistan and helped them to determine the answers to those questions.

I deployed in alongside a senior United States officer, Rear Admiral Bill McRaven, who went on to command US Special Operations Forces and was perhaps most notably the commander of that force when Osama bin Laden was found.

I accompanied Admiral McRaven into Afghanistan and at the time, representing both our different nations in our own ways, we were looking at, okay, what do we do here? What do we recommend back to our higher commanders about how should we do it?

So I reflect back now and say, how did we end up in Uruzgan? Partnered with the Dutch, working under a particular chain of command with an entity called ISAF SOF that was overseeing all special operations forces and the like? And I was a party to the design of that. I to a degree had a significant role in shaping those decisions.

And so when I look back now, almost, gosh, we must be getting close to 20 years since I did that. Do I feel some accountability about my recommendations and how they played out on the end? Did I make the right recommendations at the time? Did they play out the right way? Of course I do. It’s natural, it’s human to reflect upon that.

And it’s also one of the many, many reasons I’m very comfortable in saying, of course, I’m one of those accountable leaders. For this period of conflict, it doesn’t mean I’m responsible for any of the individual incidents or actions that occurred that I wasn’t even there for. We’re not talking about that.

But as a leader, am I, and do I believe my fellow commanders are accountable? In that context, I personally believe that we are. And I’m happy to say that.

But we’re reserved and quiet at the moment because the processes of determining, guilt or otherwise, are still unfolding. And given our status, the authorities we had and the knowledge we have, for us to be talking publicly too much about these things, well, that would not help the process of justice. I believe it would hinder it. Although I feel the pain of our people.

So on that accountability question, it matters. It wears on me personally, and it’s probably the major reason I’m talking to you today.

Susannah: And in our interview, General Sengelman went on to talk about what he considers command responsibility to be.

Sengelman: As a leader, not just as a general, those two words, responsibility and accountability, matter a lot. It especially is important that they’re understood. They’re not complex concepts that are subjectively interpreted in a situational basis. They need to be quite clearly understood, especially in the battlefield. What is clear to a general needs to be equally clear to a soldier when it comes to accountability and responsibility. 

So is it possible that in a military operation or in a military setting that you have many thousands of individuals with assigned responsibilities, and also accountabilities that sit alongside them for those matters? The answer is, of course, yes. And does there also need to be a very clear understanding of how those responsibilities and accountabilities lay out alongside each other, within a chain of command where these things lay out? Absolutely.

They need to be clear before we deploy into combat operations. They need to be clear during combat operations, and they sure as hell must be clear in the aftermath of a thing, especially if there’s some question in the aftermath and how it went.

So I’m just simply saying, I’m one of them for my particular role and responsibilities. I was and I remain accountable.

And if you’d ask me the rhetorical question, why am I talking to you today? It’s because, at least in my military, officers and leaders are always accountable for that period in which they commanded. It’s not something you ever walk away from. Those people you served with, those people you led, what happened during your time, you’re always accountable for that. It goes with you, always.

At the moment, I feel those accountabilities of my command time and my service in Australian Special Operations Command, I feel that is quite a heavy burden. I feel it because I don’t believe that the full story, the full narration around the war, what happened and why, is well enough understood at the moment.

I’m also personally disturbed at a range of concerns that have been expressed in various reports, official and on social media, that some veterans feel that their senior leaders haven’t been outspoken enough about their accountabilities and responsibilities around the stories and the periods in which these war crime allegations are said.

Stephanie: And this is General Sengelman’s first deep dive podcast into the Brereton Report, isn’t it?

Susannah: That’s right. As you’ll hear him state, General Sengelman hasn’t sat down with any Australian media since he retired on this issue.

And it was a very conscious and deliberate decision on his part to speak now. He told me he thinks it’s actually unhelpful for former commanders to be, as he says, ‘sniping from the side with their opinions.’ So, he really was hesitant, I think, to speak.

But I think the fallout from the Brereton Report and the ongoing legal and criminal proceedings have taken a lot longer than he or many people have imagined.

So while he’s remained quiet until now, I think there’s a certain desire to provide his perspective and an understanding of what happened from his side and from his position and point of view.

Sengelman: I’ve never done an interview with the media since I’ve retired. In part, that’s because the position I held and the responsibilities that were linked to it, involved highly sensitive information and natures of which I’m still bound.

And two, there are processes, judicial and criminal, which are under way. And I need to be cautious in expressing myself in a way that doesn’t complicate or compromise any of those processes as they unfold.

Susannah: And General Sengelman has expressed concern about some of the stories and reports that have come out in the media while these criminal investigations are still ongoing, as you’ll hear next.

Sengelman: I think that it’s helpful for audiences to start to hear from people like me, not on specific facts that are still to go before the courts, or any specific individuals around which any of these allegations might be made. And I won’t be doing that here today. But in a broad narrated setting, what happened in the war? What we were trying to do? What are some of the background stories that help take the context as the narrator, help people understand more?

If I was to imply any criticism, it would be that, I was a little surprised and disturbed at the range of public comments that started to occur in the media or a range of individuals were offering on these matters. And I think that those issues unfortunately have emotionalized or complicated issues. And these are matters of public record, so there’s no mystery here.

There were many media reports surrounding these stories. They were often fed by individuals who spoke to journalists about what they saw or did or had done in the war, or what they thought others had done. People were telling their truths, and the media was reporting it.

Now, don’t get me wrong here. I’m all for open media in a democracy, and I know they play their role. But the number of stories that came out from different sources and the like surrounding these issues, while the process of determining the facts and the criminal and justice systems are making its way through it, well, personally, I think that’s deeply regrettable.

I think, potentially, it’s very unfair on the individuals. And I’m a big believer that we should be allowing the systems that are set to do these things to appropriately take their course.

I’m also concerned that some of the motives around these stories aren’t exactly clear. And that for a public that is very understandably proud of its defence force and those that served, then reading stories about our people and what they did, whether they’re true or untrue or some variation in between, well, that can trigger debates that aren’t necessarily accurate.

So who speaks authoritatively on these things, Susannah? At any level, what are the facts and what’s the distinction between someone’s truth and the truth? And if a court of law for a serious allegation is not the appropriate setting to do so, then I’m a little confused.

I saw documents were leaked that I was the author of, that I was surprised and I don’t know where they came from. I’ve seen that books have been written. All sorts of things are out there that have surprised and disappointed me.

And again, while I know it happens, I just believe that it makes it very difficult for justice to be done the right way.

Susannah: General Sengelman was also very clear that he not only wanted to focus on Brereton and what took place in Afghanistan, but he also wanted to discuss the wider issues around why these alleged illegal actions take place at all.

And he stressed that these are not only issues facing Australia’s military.

Janet: Yeah, of course. I mean, these war allegations during the Afghan war are numerous.

There were killings of Afghans by US Forces at Bagram and in Kandahar, including the 2012 Kandahar Massacre, that killed 16 civilians, including nine children.

And the United Kingdom is currently undertaking its own inquiry into allegations of unlawful killings by some UK Special Forces soldiers between 2010 and 2013. And also that these allegations were allegedly covered up.

So recently on that UK inquiry, there was some news. I mean, what happens is that the evidence is taken in secret, and then occasionally bits are made public with, I presume, some degree of details scrubbed out to make sure that they’re not going to cause a problem for national security.

And the release of new evidence, which was just a few weeks ago, evidence that was given to the inquiry was that a former Special Forces officer had said that the SAS had a, quote, ‘golden pass allowing them to get away with murder’, unquote.

And we’re going to have some more on that inquiry in the next part of this series, number three, when we look into also the other inquiries that have been going on.

Stephanie: Yeah, the Netherlands has also said that it was looking into possible war crimes in Afghanistan after the Brereton Report came out, because of course they served together with the Australians on the same base.

Now, in preliminary remarks, the defense minister has said that there were no indications, they didn’t find any extra indications that there might have been Dutch involvement in war crimes, but our friends at the Dutch War Documentation, Genocide and Holocaust Institute, NIOD, are working on a much larger historical investigation, looking into all aspects of Dutch military presence in Afghanistan from 2001 to 2021.

But that is an ongoing research with no date yet, where we can expect outcome, as friend of the pod, researcher Thijs Bouwknegt told me.

And of course, the International Criminal Court, the ICC is also looking into Afghanistan. It opened a preliminary probe into possible war crimes way back in 2007.

And just last week, ICC Prosecutor Karim Khan announced that he had applied for arrest warrants for two Taliban leaders, accusing them of persecution of women and girls. And this is the first time that he brought this application of arrest warrants really centered around gender persecution.

It’s also the first time that the ICC publicly sought warrants in their investigation into potential war crimes in Afghanistan and these investigations once famously included also looking into alleged crime by foreign forces, US troops and members of the CIA, as well as members of the Taliban and Afghan forces.

That was driven by the former ICC Prosecutor Fatou Bensouda. But after taking office in 2021, Karim Khan said the Afghanistan probe would de-prioritize alleged crimes by US troops and its partner forces, and he would instead focus on crimes by the Taliban and Islamic State Khorasan.

And this week, he made good on his promise and came with applications for arrest warrants.

Susannah: Yeah, so this isn’t just a problem for Australia, as you’ve outlined.

The question I keep coming back to, maybe a bit naively, is why are these rigorously trained elite soldiers from countries across the globe who know the rules of engagement, why are they allegedly committing these crimes?

It’s a question I asked General Sengelman, and it’s something that he’s been focusing on and thinking about himself.

And again, General Sengelman talks at length here, so take a listen.

Sengelman: I now spend more time thinking about how do we, as a professional organisation, understand the impacts of war better, prepare our people for those things better, and limit or respond better to the consequences of them afterwards.

When these allegations first arose, it’s not a mystery or a secret that our alliance partners also had similar allegations level against partner forces. The US, the UK and Canada. I won’t talk about them, but we were very closely working alongside each other.

And the point is that the challenges we faced and how they’re unfolding through these war crime allegations are not unique to Australia. Clearly, there are broader factors in play. So what does war do to people? And where do war crimes come from? And is there something about this thing called war crimes that we need to be smarter on as things like court cases and that are starting to emerge over the horizon?

As a lay person on this, and I guess there are people in The Hague that would know more about this than me, but it begs the question definitionally, as what is this? This definition of behaviour or exceeding of approved behaviour, legal behaviour, moral behaviour.

And have our definitions and understandings and interpretations of these things evolved sufficiently for the world we’re currently experiencing today, and the world with autonomous systems and new technologies that are coming, that are emerging?

Has our law and has our social outlook on these matters and how we hold ourselves and our soldiers, and our politicians and the decisions on these things accountable? Have they matured adequately for the change that’s underway? I’m inclined to think not.

Susannah: General Sengelman is very concerned with how modern warfare tactics are affecting today’s soldiers and their actions on the battlefield, and also how they cope with these experiences post-deployment.

Another aside here, Sengelman mentions in this next part, the Australian Royal Commission into Defence and Veterans Suicide. This was an inquiry, which actually Sengelman provided a witness statement for, which was set up to look at why rates of suicide are so high in Australia’s military.

Take a listen.

Sengelman: Now, a thing that I’ve struggled with, and it’s not making excuses for those who provably have conducted behaviours that are currently defined as war crimes. But in my experience, wars affect everyone, especially intense combat, and they don’t affect them positively.

Yes, there are acts of selfless sacrifice and courage that many nations acknowledge and record. But on the whole, wars are ugly, vicious, harmful places. We know this about war. It damages, it harms people. And especially if you’re a good, balanced, law-abiding person, then being exposed to that sort of violence and death and extreme behaviour, it changes you.

So even though our Special Operations are amongst the most historically well-trained, well-equipped and prepared to do their job that we’ve ever known, what if we, over a period of 12 years, kept sending them in to combat time and time and time again? Isn’t it possible? Isn’t it possible that even the best of us would be affected eventually, no matter how hard we try?

And what if, because our intelligence and our technology was so incredible, what if that particular group of people or organizations were so well positioned on the battlefield that almost every time they deployed outside the wire, they were involved in combat?

In previous wars, especially with conscript armies, there were very violent battles, of course, but they were often interspersed with long periods of not much at all.

In the conflicts in the global war on terror, especially, at least in the area of experience that I’m aware of, our special operations and those of what we might consider to be the Five Eyes countries and some of our coalition partners, they were continuously exposed to high-intensity combat operations that often, if not almost always, involve some form of lethal type outcome in it.

Well, what does that do to someone? How many people do you need to see killed to be disturbed? So what if the answer is five, or ten, or twenty? And what if it happens year after year after year? And should we be surprised if it impacts?

And so the thing I’m grappling with now that again falls into this word accountability, especially with the Australian Royal Commission into Service Personnel and Veteran Suicide is that if we are in the military meant to be professional masters of those things that involve in war, then why do we appear to be so continually surprised that at the end of those conflicts, there’s so much harm and damage that happens to our people and their veterans?

Why aren’t we better at this by now? Better at anticipating it, better at looking at the risk factors, better at managing our people’s exposure in these difficult situations, in a way that doesn’t ask them to be superheroes to deal with this, it just asks them to be decent humans.

And have we got that right? And could that be one of the big lessons that comes out of this for Australia? Not a negative one, is there someone to punish? But how do we learn from these operational conflicts to look after our people better? To manage them better in their exposure in combat operations and in war?

We might train them and call them special. We might view them as a nation, as amazing. But at the end of the day, they’re husbands and brothers and sons as well. They’re people as well. I was one of them.

So I asked myself philosophically, yes, do we know how to prosecute military operations and are our professional forces today amongst the best in the world in doing so? Absolutely, without a doubt. Are we equally as good at understanding what those operations do to our people? And exercising accountability as leaders over those people when they’re exposed to it, and helping them with the consequences or collateral of it afterwards. I think I’m of the current view that we can do better, and we should be doing better.

Susannah: As a former commander, Sengelman is also asking how leaders and indeed the military itself, as an organisation, can better equip its soldiers to deal with modern day warfare.

And as he stresses, this isn’t just a challenge for Australia’s military.

Sengelman: Here’s what I’m grappling with as a commander. When we select people into special forces, it’s almost unique because that selection course is one of the best of its type in the world. And to pass it is recognised as being very difficult.

At the end of that process, when we accept people into Australian Special Forces, they are, at least by the criteria we’re selecting for, the best that they can be. In other words, we, as a quality control mechanism, own the quality of the product that comes through it. There’s almost no other employment category that I’m aware of in the world that does that. So, not even normal soldiers.

So, in Australian Special Forces and some international equivalents, when you pass and join the organisation, you have achieved a qualitative standard, that is, by all of the measures we’re able to apply, exceptional, we earn the quality of it.

So, at one point in time, we know that that person is as good as they can be, ethically, mentally, physically, even spiritually. We test all those things. It’s a process that’s been going on for over 60 years. It’s a very rigorous and objectively measurable process.

So, theoretically, having achieved that quality benchmark, that is, we know at a certain point someone is healthy and good or better than that. What does it or could it say, if 10 or 15 years later, that goes wrong, that person breaks, or that person is involved in an alleged incident that might send a shock through the community?

What has gone wrong with that high quality thing that we selected? And how much of that is the individual’s responsibility to be answerable for? How much of that is an aspect of what I would call their exposure to their workplace? In this case, it might be the battlefield or service life. Or how much of it, perhaps is an obligation on the leadership that is accountable for these people and how they’re employed and overwatching them and making sure that they’re employed effectively, but also have a reasonable expectation of coming out the other side as reasonably intact, healthy people.

I don’t know the answer to the balance between those three. But if I was courageous enough to offer a personal opinion, it would be that it’s no one of those three alone. It’s not just exposure. It’s not just individual responsibility. It’s also not just senior oversight accountability. It’s some combination of those things.

And I wonder, did we get it right? And if we learn lessons from our recent operational experiences, how can we do it better? That’s what I’m thinking at the moment. And if you’re detecting a degree of senior leader empathy here, how do we improve? How do we prevent these things happening again? How do we understand our people and what we put them through better? Then you’re right. I’m big on that now.

I know this is a global journey here too. There’s no one answer by the way. It needs to be some sort of big, bold, major, internationally connected initiative to get across this stuff. But we’ve got to stop relearning the same lessons every time we deploy people into combat operations. And there’s reasons why that happens, but we’ve got to stop it.

And dealing with the consequences of war needs to be as prominent a part of the professional mastery and education of soldiers like me, as is deploying to the fight and executing it. And currently it’s not. It is not. So we need to do better there.

And if there is some form of nexus between the harm that can be done to people, mental and physical in war, and how that may or may not impact on their behaviors and actions in combat and operations, gee, I’m hoping there are people out there that are thinking about this and looking at this and helping us to understand it better.

Because I think we as a society want to know that. We know our people aren’t naturally criminals. They were good people. They are good people. Dealing with war crime allegations, I got it is a necessary response in a law abiding society. We are defined by these laws and our national character. The value of the social fabric that keeps us together is all anchored on these things. We need to believe in them and we must reinforce them.

So how do we do that? Hold ourselves accountable when serious actions or allegations are made, but do it in a way that also leads to a better place afterwards. 

Janet: Wow, that’s a marathon that we’ve just been running, Susannah. I mean, there’s so many different interconnected themes running through this interview. Amazing sit down interview that you got with this former general.

So tell us, what are your final thoughts? And then maybe Steph and I will chime in.

Susannah: I think what really stood out for me when speaking with General Sengelman was that given all of his experience, all of his training, and his time in conflict zones, there is still this sense of what do we do to fix this?

I was really struck with his comment that these were the best of the best. Emotionally, mentally, physically, these are our and were our best soldiers, and still they are alleged to have committed these awful crimes.

So how do we fix it? And I think it’s important that people like General Sengelman of his rank and stature are talking about these problems, but also it’s very sobering at the same time.

We have a long way to go. And as he says, it’s not just a problem for Australia. Like, how does IHL become real and practical on the ground? Because it doesn’t seem to be working at the moment, not for soldiers and certainly not for civilians.

Stephanie: I think the debate in Australia about command responsibility is really interesting because even though this has been quite widely dealt with by international tribunals, and we had a lot of rulings from the Yugoslav tribunals, there seems to be still a kind of difference between how this gets adjudicated and how it’s experienced by the military.

And it seems that the Brereton Report mentions these people is only looking at the people on the ground and has the kind of, there are some bad apples argument, but you know, from the bad apples discussion, you can also say what kind of organization do you have that allows these bad apples to operate? 

If you have such extensive allegations, I mean, if you get 209 letters about possible misconduct, then you know, you could also look at the military and the structures that make this kind of behavior possible. And the fact that it could go on for so long before anybody stepped up, like Sengelman did, I think is also something to look at.

Janet: Well, I just find it really interesting to get to hear the inside of somebody’s brain at that level and how they are thinking about these issues. Because we’re in a situation at the moment when we’re thinking a lot about how the laws of armed conflict actually work.

How did they get transferred around inside militaries? How did the military lawyers interpret them? What do military commanders actually obey? What don’t they obey? Because what we can see is that the rules seem to be interpreted differently in different conflicts that are going on on the ground. And we’re in our community,  kind of getting particularly worried about that. I think that’s really interesting to see.

And of course, another kind of bigger issue also is that we know that we’ve just done this recording and, also our previous piece that Susannah put together on the Brereton Report. And in neither of them do we actually get to hear directly from any Afghans about what they want to tell us about their expectations.

So that’s something that we’re doing. Just as we are putting this one together, we’re also putting the next one together and making sure that we also reflect on what the prospects are for reparations, particularly in the Australian case where there is a scheme.

It’s a scheme, but let’s see how it’s actually happening in practice. And we’re also going to be asking Afghans themselves what they want in terms of justice and in terms of accountability for what is alleged to have happened in their country.

Because at the end of the day, it’s going to be what happens for the people of Afghanistan and how they move on from this. Just as much as it’s going to be about how the Australian military and other militaries move on and learn from what went wrong.

Stephanie: Well, Susannah, I wanted to thank you because I think this was an amazing deep dive into a very complex subject that we touched upon before in the podcast, but we really didn’t have all the details with.

I think we’ve really infected you with the kind of war crimes interest virus just from being on the podcast. So thank you so much for doing all this amazing work.

Janet: Yeah, above and beyond the call of duty, Susannah, thank you so much for joining the team and for coming with such an interesting interview for us.