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.

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Janet 00:00 Hi, Steph.

Steph 00:11 Hi, Janet.

Janet 00:12 So, today is the third episode in our series exploring how Australia has confronted allegations of war crimes committed by its special forces in Afghanistan.

Steph 00:23 Yeah, that’s right. In our previous two episodes, we examined how these allegations came to light, particularly with the release of the Brereton Report in 2020. But today, we’re going to shift our focus to where things currently stand and what accountability, if any, has been delivered for Afghan victims.

Janet 00:41 Before we dive in, here’s a quick reminder of what we covered so far. In our first episode, our producer, Susannah Palk, took an in-depth look at the Brereton Report and its key findings. 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 01:08 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 01:16 Shocking, shocking information.

Janet 01:25 As General Campbell put it:

General Angus Campbell 01:27 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.

Janet 01:47 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. Next, we sat down for a wide-ranging interview with Major General Geoff Sengelman. He is the former commander of Australia’s Special Forces, and he was instrumental in prompting the military to investigate itself, which led to Australia’s Afghanistan inquiry and also the Brereton Report. In his interview, he shared his insights on his responsibility as a commander, and how the military can better prepare soldiers for combat, and of course also his reaction upon first hearing of the rumours of war crimes.

Geoff Sengelman 02:29 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 into 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.

Janet 03:00 So if you haven’t already, please go back and take a listen to those two episodes. But now we’re going to turn to the question: where do things stand today?

Susannah Palk 03:09 A study by the Raoul Wallenberg Institute released last year examined accountability for human rights violations in Afghanistan, and in it it stated, quote, “There has been almost complete impunity for all state actors of various ideologies that have held power and for all armed forces, including those of foreign states that took part in the conflict.” So with this in mind, what accountability has there been, particularly for the victims and their families affected by the alleged actions of Australian soldiers in Afghanistan?

Susannah Palk 03:43 What we see so far in Australia is that much of the attention has been centred on the alleged actions of the Australian soldiers. There was intense interest in the defamation case involving disgraced former soldier and so-called war hero Ben Robert Smith. And there was also an intense interest in the impending war crimes trial of Special Forces soldier Oliver Schultz. There is also debate over command responsibility and whether those in leadership have been properly held accountable. But there has been little focus, especially from the government, on those in Afghanistan.

Susannah Palk 04:16 To get a point of view from the other side, we first spoke to Shaharzad Akbar, Executive Director of Rawadari, which is an Afghan human rights organisation in exile which monitors human rights violations taking place in Afghanistan and works around issues of accountability. Prior to the Taliban takeover of Kabul, she was the chair of the Afghanistan Independent Human Rights Commission, and she’s also currently an academy fellow with Chatham House. And I started by asking Shaharzad how she saw the process of seeking accountability in Australia.

Shaharzad Akbar 04:51 It’s immensely significant, of course, particularly for the victims of these alleged violations, but also for the broader community. There is a sense in Afghanistan we have dealt with almost 50 years of impunity now, an impunity of different perpetrators, different actors, you know, the Soviet-backed government and the Soviet forces and then later the Mujahideen and, you know, the Taliban and the first time they were in power and then international intervention in Afghanistan and all these different militaries operating on the ground with very little transparency about, you know, what’s going on and also very little accountability when there were allegations raised. So, of course, it’s of huge significance that this is happening in Australia, that there are efforts being made around better understanding what happened and who is responsible, but awareness of the process. I think this is one of the problems with the process, that Afghans are not an intentional audience. They are really not seen. Despite those who are being impacted and victimised being Afghans, Afghans are not being seen as one of the intentional audiences that you’re actually focused on.

Susannah Palk 05:59 While Shaharzad noted that the Australian investigation was significant in its efforts to hold military personnel accountable, her concerns were with the concerted lack of effort to communicate the investigation and its process to Afghans.

Shaharzad Akbar 06:14 Well, I think the primary audience, I guess, for the investigation, in the minds of the government, in the minds of the media in Australia, everyone, is Australians. So there hasn’t been a real attempt made in terms of trying to communicate what’s going on to Afghans broadly and to victims in particular. Human rights organisations have been trying to do this, some human rights organisations in Australia and also, of course, when I was in the commission. In the commission, we did big efforts trying to explain the process and manage expectations, but also talk to the Australian government at the time, for instance, about reparations. What could this mean? Where are the victims in this process? But I think it’s very sort of hit and miss. If someone knows it, it’s because people are following it up because either they were directly impacted or because they are interested in sort of accountability efforts, particularly around the presence of international forces in Afghanistan. But also a lot of space is being eaten up, of course, understandably, by current violations in Afghanistan and the whole focus on the horrific situation that’s right now on the ground. So a lot of the human rights organisations’ and activists’ time and attention and resources go to that.

Susannah Palk 07:31 We also reached out to Professor Ben Saul, who is the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. That is a mouthful. He echoed Shaharzad’s concerns and is also deeply troubled by the Australian government’s lack of communication with Afghan victims.

Ben Saul 07:50 What I think is quite shocking about the way Australia has responded is, although the Chief of the Defence Force issued a public apology to the whole people of Afghanistan for what the Australian soldiers did, there’s been zero communication with the family members who lost their loved ones. So they haven’t received a direct apology from the Australian government. They haven’t received any information about the progress of criminal investigations and prosecutions. They’ve received no information about the prospects of compensation. There’s been no consultation about what that compensation should look like, what would be an appropriate amount, how it should be disbursed in order to ensure that they safely and securely receive it. So although Australia, within Australia, has been in many ways doing the right thing, they certainly have not been doing the right thing by the people who matter most, and that is the victims and their families. And this really flies in the face of the most basic principles of the right to an effective remedy and to reparation under international law.

Susannah Palk 09:06 While Ben Saul believes that Australia has led the way in terms of investigating its own alleged war crimes, he emphasises that reform and redress for Afghan victims have been unacceptably delayed.

Ben Saul 09:18 Australia has taken the question of accountability for violations by Australian forces in Afghanistan pretty seriously, and actually more seriously, I’d say, than some other countries that were deployed as part of the International Assistance Force in Afghanistan, like the United Kingdom and the United States. But the problem is, of course, it’s been a long time coming. I mean, a lot of these allegations stem back to 2012, so over a decade without any justice yet for any of the victims. The centrepiece of the response has been to launch a criminal investigative and prosecution process, so the Office of the Special Investigator. It’s been really well resourced, so there’s been over $100 million put into that office. There are over 120 staff, very senior criminal police and prosecutorial staff in that office, but still things have been moving very slowly. That office has been going for a couple of years now. We’ve still only got one charge that’s been laid and not yet moved to trial. And of course, the Brereton Inquiry found that there were at least 23 incidents where 39 unarmed prisoners were murdered by 25 Australian personnel involved in those murders, and there could be more. So in that light, the fact that it’s taken so long to get any semblance of criminal justice moving is itself a problem and shows the real failure that there existed in the Australian military discipline system, that this wasn’t picked up earlier and acted upon immediately. I mean, in ordinary domestic law, if you come across a murder, you generally don’t wait 10 or 12 years to think about starting a prosecution process. There has been some really good cultural reform in the defence forces to ensure that this doesn’t happen again, so changes to training and leadership and so on. So that’s all very positive. The government has accepted the recommendation to pay compensation, but that has also moved very slowly and nobody has yet been compensated in Afghanistan.

Susannah Palk 11:28 As we outlined in the first episode of the series, the Brereton Report, released in 2020, recommended paying the victims and the families of those allegedly killed by Australian soldiers swiftly, without waiting for the establishment of criminal liability. But it took the government three and a half years to announce the establishment of its Afghanistan Inquiry Compensation Scheme. That was back last year in July 2024. It then announced the appointment of the inquiry’s compensation advocate, Justice Ruth McColl, in November last year. And her role as advocate is to review the claims and to make recommendations to the Chief of the Defence Force, who has the final say on compensation. On Australia’s Department of Defence website, it states that compensation provided under the scheme may include monetary or non-monetary compensation. But there seems to be very little detail provided on the scheme and how it works.

Susannah Palk 12:28 Ben Saul, along with Richard Bennett, who’s the Special Rapporteur on the situation of human rights in Afghanistan, and along with a number of other UN special rapporteurs, wrote a strongly worded letter of communication to the Australian government last year about the delays in compensation and concerns with how the scheme has been set up. Here he is again.

Ben Saul 12:49 The other problem with the compensation scheme is precisely that it is a military ex gratia scheme. There’s no admission of legal liability, even though Australia has accepted that it was responsible for the unlawful killings, the war crimes of murder, of up to and possibly more than 39 people in Afghanistan. And if you think about that, 39 people, that’s hundreds of family members and extended family members on top of that, that have been adversely affected in an incredibly impoverished rural society, where even small payments make a big difference. Now, as you know, under international law, violations of the right to life entail an obligation to make reparation, and that includes compensation foremost, where people have been killed, and compensation not just as a charitable gift, but compensation according to the rules for quantifying compensation under international law. That means measuring what was the physical or mental harm, lost opportunities, including employment, education, social benefits, material damages, loss of earnings and earning potential. On top of that, moral damage, and then all the costs that may be entailed: legal and expert assistance, medical care and medicine, psychological and social services. So this is the way that international law quantifies compensation. It’s for a very good reason, so that you’re not left out of pocket for the awful harm that has been done in these cases. And if you just give a discretion to a bunch of military officers to come up with a number they think looks good and give it to somebody, that may well, and usually would, fall short of what international law requires by way of full compensation.

Susannah Palk 14:42 Friend of the Pod and Executive Director of the Australian Centre for International Justice, Rawan Arraf, also wrote to the Department of Defence about how the Australian government was structuring and implementing the compensation scheme, raising her concerns.

Rawan Arraf 14:56 The scheme really fails to provide an enforceable right of compensation. There’s no human-rights-consistent criteria, such as the grounds and amount of compensation. And one thing that we’ve highlighted in our questions and correspondence to Defence, for further clarification about the compensation scheme, is really what we see as a lack of due process and judicial safeguards in relation to how this scheme will work. Most importantly, there’s no requirement to provide information or to consult with the victims. And I think for us, one really critically important missing piece is that the regulations specify that the claims are only for cases that are investigated by the Brereton Report, which is concerning because there are numerous cases that even the Office of the Special Investigator that was set up to investigate allegations of crimes, even the OSI is investigating incidents that the Brereton Inquiry did not have knowledge of. So they’re the broad concerns that we have with the scheme.

Susannah Palk 16:05 Rawan also pointed out the absence of external review in the scheme, noting that it’s administered by Australia’s Department of Defence.

Rawan Arraf 16:13 So it’s a highly discretionary scheme, and the Chief of the Defence Force has the final say in relation to claims made, assessed and processed. The scheme itself does not allow for external review, which means that an independent government body cannot assess whether that decision made on compensation was the right and preferable decision. And anyone who has a complaint can only have it made internally and to the Department of Defence. And they might be of the view that the compensation advocate is working in an independent manner or capacity, and therefore external review is not necessary. But to us, we’re concerned with the lack of avenues for any affected persons to be able to appeal decisions not to award compensation.

Susannah Palk 17:02 She also voiced concern, not only about the lack of outreach to victims regarding compensation, but also about the Office of the Special Investigator, known by its acronym OSI, which is responsible for criminally investigating allegations of war crimes committed by soldiers.

Rawan Arraf 17:19 We have been calling on the government to do more outreach to victims’ communities since even before the release of the Brereton Report. And we suspect that there has been no outreach. And that’s not just in relation to the compensation scheme. We would say, again, it’s an assumption that we would say is probably on good grounds, that even the OSI hasn’t done enough outreach. Just in December, when the OSI made a decision that was reported by the media to drop investigations into, I think, two or three incidents, we don’t know that the victims and their families were told about the decision. So it’s a broader issue, I think, that’s systemic in relation to Defence and the OSI — of course, the OSI being independent — in how they’ve sought to inform affected communities in Afghanistan about the consequences of Australian Special Forces action and the accountability process that’s begun, and obviously this new compensation scheme. In relation to the compensation scheme, we know that the website, the Defence website relevant to post-Brereton, has been updated. It’s in Dari and Pashto. But it provides minimal information about the scheme itself. Again, like I said, it doesn’t appear that there’s been any outreach by Defence. And it’s unclear how they’re going to ensure that people who are eligible, according to their own criteria and the regulations and the legislative criteria, are aware of the existence of this scheme and can access the scheme more broadly. You know, there is an online form, but you don’t have to be well versed in access issues in relation to Afghanistan to know that a lot of these communities would be in remote villages in provinces like Uruzgan. There may be issues in relation to access to the internet and other forms of communication. Even just expert advice — it’s something that our organisation hasn’t been able to do, or indeed our partner organisations from Afghanistan, who are unfortunately now not in Afghanistan due to obvious reasons. But on that point, journalists have been able to access victims and their families, victims’ families. So if journalists are able to do it, it shouldn’t really be a hindrance to the Australian government, Defence Department, or indeed investigators at the OSI, should they need to be able to reach the people affected about the cases that they’re working on.

Susannah Palk 19:52 According to Ben Saul, Canberra has put forward a number of different explanations as to why it’s taken so long to get this scheme underway.

Ben Saul 20:01 Of course, Australia, like most countries, does not have diplomatic relations with the Taliban government yet, so facilitating payments is difficult on that basis. There are also security concerns in the areas where these victims may live. There are problems in accessing the Afghan banking sector, the question of counter-terrorism sanctions, laws and policies, which Australia, like many countries, has in place. And also just the very practical problem of extortion by criminal gangs, bribes, taking the money away from the people who may want to receive it. Despite all of those factors, I think it is absolutely feasible to make payments to the families in Afghanistan. Aid agencies are still operating throughout Afghanistan. There’s cooperation with the Taliban authorities. Some of these problems which Australia identifies are not insurmountable if there is the political will to act, including through using intermediaries, if that’s necessary. Apart from the delay, which is a real problem, because many of the people killed were male breadwinners of families, and the consequence of their deaths was, of course, that their families have been, and children — in some cases dozens of children — have been left destitute in impoverished rural Afghanistan for, in some cases, over a decade. Now, if you wait that long, I mean, the children have left home by the time you get around to making payment. I mean, you’ve already ensured that their childhood has been destroyed because they have had almost no access to resources and have been facing utter destitution for the last decade. Australia doesn’t seem to be motivated by that, which I find quite shocking, just from a human standpoint, let alone the human rights concerns that that entails.

Susannah Palk 22:01 Rawan also emphasised that beyond financial compensation, other forms of reparations are essential.

Rawan Arraf 22:08 You know, we provided correspondence to the Department of Defence about basic rights under international law for victims of gross violations of human rights or international crimes. We even provided them with expert evidence from the likes of Professor Carla Ferstman on a compensation scheme, and that reparations or rights to reparations should not only just include financial compensation, but forms of rehabilitation, restitution, satisfaction, guarantees of non-repetition, things like apologies, memorialisations. You know, this is something that our partner organisation, for example, ARDO, the Afghanistan Human Rights and Democracy Organisation, are real specialists in, and they’ve been working on these types of issues for over a decade, and they have publicised in their various reports and works and exhibitions how important non-monetary forms of compensation are to people and communities in Afghanistan. Because, you know, this is a country and a people who have had over four decades of war, and financial compensation is important and is necessary, but it’s not the only form of redress that actors involved in allegations of international crimes should address, because you have cycles of violence and human rights violations and impacted communities over generations that don’t necessarily even see apologies for what’s happened to their communities and families. So those types of things we don’t think have been attended to, and it’s unfortunate and condemnable. It’s not just to, you know, mince our words, but these are obligations on states to really do the best and minimum forms of standards in how victims and victim-survivors of these types of gross violations of human rights should be treated.

Susannah Palk 24:05 I also spoke with Afghan human rights defender Horia Mosadiq, who also emphasised that compensation and redress cannot follow a one-size-fits-all approach.

Horia Mosadiq 24:16 I think it may vary from person to person. Maybe someone whose whole situation is now to rebuild their life, and they may need some kind of compensation. Someone may need a reparation, and someone may need, you know, a true criminal justice process. I think this is why looking at that through the angle or lens of the victims is so important, and also to come to some kind of conclusion with that. Because, of course, if the same group have committed multiple crimes, and one victim wants compensation, and another wants criminal justice, and another wants that, how you can bring them together, how you can make sure that, you know, at the end of the day, the end result is something that you’re all satisfied with the outcome. I think this is really, really key, because at the end of the day it would be also extremely, I would say, naïve to assume that everyone wants the same thing. So, for that reason, I think what we are really missing is a thorough consultation with the victims. And that consultation needs to happen, and that consultation needs to take place, and these victims need to have a say in this process.

Susannah Palk 25:38 I followed this up by asking Horia whether these narrowly focused inquiries were overlooking the larger, ongoing issues of impunity, especially given the lack of justice in Afghanistan for decades, and if, in fact, they are just really a distraction from what’s truly needed, namely a larger, more comprehensive process.

Horia Mosadiq 26:00 Nearly half a century that Afghanistan have been through different phases of war and different factions and groups started fighting and committed a lot of crimes and atrocities, and some may even amount to war crimes. So, I think that lack of justice has played a significant role in the way that the justice system is operated in Afghanistan, because someone who was a victim, they became a perpetrator, and perpetrators became the victims. And because there was simply lack of justice and accountability, so as a result, many people took the matter into their hands. People do not trust in the judicial system in Afghanistan, regardless of who is in power, because first of all they see that it’s hugely politicised, and second, because those judiciary and judicial systems are not sustainable. You know, the moment regime changes, everything else changes with that. So this is also one of the things that, at least if that justice starts with the international accountability, then it may also force any future Afghan government to look at that also more seriously. So then you have to set some good examples in the world, so people can see and learn and understand that it is not as they assume or as they see it.

Janet 27:34 Of course, international accountability for war crimes is our bread and butter at this podcast, and we think it will be important to kind of wrap up this series by putting the Australian inquiry also in a more international context. So next month, we’re going to be looking at some of the other inquiries that we know of in the United Kingdom, for example, and what the Dutch are doing, but also, of course, what happened at the International Criminal Court, and we’re going to be asking what is going on and whether Australia is making a difference in how other militaries are looking back. But before we do that, we’d just like to leave the final word in this podcast for the perspective of those Afghans seeking justice for Afghan victims. So, here’s Shaharzad Akbar.

Shaharzad Akbar 28:17 There was the sense, especially with the war, the 20 years of war in Afghanistan, you talk to many Afghans — Afghan blood is cheap. No one cares if we die, right? If an international soldier is harmed in any way, or if an international visiting Afghanistan is harmed in any way, there’s so much more focus. There’s so much more effort in trying to find out who did this. But our blood is cheap. Everyone comes and kills us and no one is asking who did this. The sense of, we say in Farsi, there’s bâzkhâst, like there’s no asking even. No one is asking who did this. Why did this happen? How could this happen? So, I think in that sense, yes, it’s important, which is why I also think we as the Afghan human rights community should try to do more to inform, to make sure that people know that this is happening and people know what exactly is happening and what might this mean. So, I think it’s significant. And one of my dreams, longstanding dreams, has been doing something perhaps even with people in multiple countries looking at the impact of the war on terror and then investigations around the war on terror and how civilians were impacted. I mean, this was a huge thing for 20 years. Yes, it happened in Afghanistan, drones in Pakistan, Yemen. And we have people in multiple countries being impacted by this. So, also in the context of that bigger conversation — what did the war on terror mean? How are human rights being upheld? How are human rights norms being undermined constantly as part of a bigger narrative of “we are killing the bad guys,” and how little appetite there was for accountability.

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This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net,  an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. 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.

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