While any criminal responsibility of individuals is still to be established,the public release on Thursday of a redacted version of the Afghanistan inquiry report makes it clear events took place that are capable of amounting to deeply shocking war crimes.
The 143 report recommendations traverse the need for a criminal investigation of 36 matters involving 19 individuals. These people have been selected taking into account who bore greatest responsibility,the gravity of allegations,the existence of immunities awarded as a result of disclosures made to the inspector-general,and whether there is a realistic prospect of gathering evidence enabling charges to be laid.
The recommendations also cover a broad range of measures aimed at ensuring war crimes are not committed again. Implementing these broader recommendations will require significant change within the ADF. Cultural change is notoriously difficult to achieve,particularly in large organisations steeped in tradition. This said,there are at least four reasons to believe the necessary changes will be made.
First,the report was clearly no whitewashing exercise:it is unflinching in its findings and unhesitating in its recommendations. While credit for this is largely due to Justice Paul Brereton,who led the inquiry,it also reflects well on the Department of Defence,which commissioned it.
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Second,we have every reason to be confident that the criminal justice process that was launched (separately to Brereton's final report) with the referral of allegations concerning Ben Roberts-Smith and"Soldier C"to the Australian Federal Police,and which will now be widened under the Office of the Special Investigator,will be independent and impartial.
While the Attorney-General,Christian Porter,would have to consent to any war crimes prosecution,it is widely understood that a refusal of consent is reserved for cases such as one reliant on universal jurisdiction where there is no real nexus to Australia,and where a prosecution could cause serious harm to Australia’s international relations.