ICC could look at Australian special forces and Afghan civilian deaths in 2009

07 Sep 2017By kk


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SBS World News Radio: Could the International Criminal Court try to exercise its jurisdiction over alleged Australian special forces' involvement in civilian deaths in Afghanistan?

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Part of the answer may lie in redacted documents from the federal Attorney-General's Department concerning a 2009 raid by Australian commandos in which six civilians - most of them children - were killed.

It comes as a special Defence inquiry examines the culture of the special forces, amid mounting allegations of military misconduct in the Afghan war.


The federal Attorney-General's Department is refusing to release information on possible communication with the International Criminal Court.

The information sought concerned a 2009 raid on a compound in Afghanistan's Oruzgan province that saw Australian special forces soldiers charged over the deaths of six civilians - most of them children.

The manslaughter charges against the two Special Operations Task Group personnel were dismissed.

The documents from 2010 were obtained under Freedom of Information laws.

Compiled before the legal action was dismissed, the documents show email correspondence discussing a ministerial briefing in response to media reports that the ICC may have contacted the Australian government about the incident.

They state that based on publicly-available information, the court was undertaking preliminary analysis of the situation in the country, but was not focusing on specific incidents.

La Trobe University law professor Gideon Boas has previously worked as a senior legal officer at the International Criminal Tribunal for the former Yugoslavia.

He says the ICC focuses on the most serious breaches of international humanitarian law, though interest in the 2009 raid cannot be ruled out.

"There's still a possibility that the ICC could seek to exert its jurisdiction over the alleged crime because what the ICC is looking for is a genuine process. And if it has a genuine interest in the matter it would want evidence that the Australian authorities had properly investigated, and the matter had been properly considered, and the determination as to how to proceed was commensurate with the evidence available. If the ICC prosecutor (Fatou Bensouda) isn't satisfied that is the case, then nothing would stop her from initiating an investigation herself or seeking to do so. It would be unusual in relation to a state like Australia which has a highly-functioning military and civilian criminal justice system that's fairly highly regarded as providing fair trial rights and providing proper prosecutorial and investigatory processes, but it could happen."

The documents obtained offer Australia's "comprehensive military justice system" as an explanation for why it was "highly unlikely that the ICC would pursue consideration of war crimes charges" against the Australians.

They go on to say it could only do so if Australia was "unwilling or unable to prosecute the alleged war crime in the first instance", and, given that Australian charges had been laid, it was unlikely the ICC would further investigate the matter.

But the sections under the questions: "Have we been approached by the ICC on the 12 Feb 09 incident?" and "Will the ICC be able to prosecute the diggers?" have been heavily redacted.

The ABC reported last year that charges of failing to comply with an order and prejudicial conduct against a third commando linked to the deadly raid were dropped because information provided by some officers during the initial Defence Force investigation allegedly differed to that offered to the Defence counsel.

Gideon Boas says if that led to prosecution efforts being abandoned, it could be relevant.

Among other alleged violations by Australian special forces in Afghanistan are the killing of a detainee in 2013, the severing of a dead Taliban fighter's hands the same year and, on separate occasions, the deaths of at least two children in 2012 and 2013.

At least one of the latter is reportedly being considered by a Defence inquiry into the culture of special forces units, led by New South Wales Supreme Court Judge Paul Brereton.

Neil James, from the Australia Defence Association, says it is important the allegations are closely scrutinised and, where necessary, dealt with by Australia's military justice system.

"The ADF realises it may have a serious problem on its hands and it's better to be on the front foot about it than not. The new allegations tend to go to misbehaviour - disciplinary misbehaviour rather than criminal offences. So, even if charges are preferred they'll be disciplinary charges, not criminal charges. I think that's an important distinction people need to understand. But we'll just have to wait and see. The Chief of Army is a special forces officer. The deputy Chief of Army is a special forces officer, and they thought that some of these allegations are serious enough to have the inquiry. So you have to assume that they wouldn't have continued with this, and referring stuff to the Inspector General, if there wasn't something in it."

ICC chief prosecutor Fatou Bensouda is due to reveal whether the court will proceed with a formal investigation into the Afghan war, going back to 2003, that could see charges laid for the first time against members of international forces.

Legal processes are already underway elsewhere.

Amsterdam-based lawyer Liesbeth Zegveld represents a group of Afghan civilians whose wives and children were killed during a Dutch military bombardment of Taliban targets in Oruzgan province in 2007.

She has previously succeeded in criminal and civil litigation against Dutch authorities on behalf of survivors of the Srebrenica massacre in Bosnia-and-Herzegovina, and for widows of Indonesian men killed by soldiers from The Netherlands during the 1940s war of independence.

Professor Zegveld says testing alleged war zone misconduct in military courts-martial often doesn't really achieve justice for the victims.

"It really works in the favour of the state and military concerned. A military court martial in general, of course, it means ruling on a case, conducting a case, litigating a case by peers. On the bench are, of course, military. That was done to have people who have similar experience and know what military are dealing with, and have to deal with, in split seconds. In a way that's understandable, but if you at the end of the day, after so many years, after decades (are) with no prosecution whatsoever and no conviction you must conclude that there is a factual immunity that we're dealing with - immunity for militaries."

Professor Gideon Boas hopes the Australian army will thoroughly investigate allegations against the special forces personnel.

"I think there is a prevailing sense at the highest political level that it would be highly unpopular to put Australian special forces or military personnel in the frame for the commission of war crimes. That is perfectly understandable. But when allegations are made that that has occurred, then it is a political imperative - and certainly a legal imperative - that those matters be fully resourced and investigated carefully, and that the results of those investigations are ultimately in appropriate form brought to light. Otherwise it undermines the confidence of the Australian community and the international community in Australia's military forces which have generally a very good international reputation."

The Defence inquiry into the culture of Australia's special forces soldiers has made an unprecedented call for witnesses into alleged Australian war crimes in Afghanistan.

The Inspector-General of the Australian Defence Force says any current or former soldiers can contact the inquiry privately.


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