What is the accountability of Australia’s military top brass in alleged war crimes in Afghanistan? Stuart McCarthy, a veteran of two tours in Afghanistan, looks at the case of former defence minister Stephen Smith who has just been appointed High Commissioner in London.
“The DEA people were having troubles getting their own country to support them, and they had these Australians saying yes. They were very appreciative.”
Special Operations Task Group Plans Officer Greg Barton, quoted in Ben McKelvey, The Commando, 2017.
The Albanese government’s appointment of former foreign affairs and defence minister Stephen Smith back into public office as the next High Commissioner to the UK is merely another example of a political mate landing this plum overseas posting.
Much in the way of Kevin Rudd’s appointment as Australia’s ambassador to the US, or the Liberal government’s appointments of Joe Hockey and Arthur Sinodinos before Rudd. That these are all “jobs for the boys” is no reflection on competence or their expertise. There would be few less qualified than Kevin Rudd or Stephen Smith for their respective positions.
Yet, if Australia’s alleged war crimes in Afghanistan are ever heard at The Hague, or even tested in a bona fide war crimes commission in Australia, there will be political ramifications.
The Wong choice
Smith’s appointment at the completion of his Defence Strategic Review early next year reflects “the eminence of Australia’s relationship with the UK,” announced foreign affairs minister Penny Wong on 30 September. Not much to see here.
Not much to see at all, until we consider Smith’s connection to the alleged war crimes by Australian special forces in Afghanistan, and the possibility that senior defence officials might have to answer charges of command responsibility in the International Criminal Court (ICC).
Today I announced new appointments that strengthen Australia’s diplomatic capability and match people with the right qualifications and expertise to senior postings.
This includes our intention to appoint Stephen Smith as Australia's next High Commissioner to the United Kingdom.
— Senator Penny Wong (@SenatorWong) September 30, 2022
Australia’s military commitment to Afghanistan was at its peak in 2010 when Stephen Smith became Minister for Defence. Critical of the lack of a coherent strategy and having derided European troop contributing countries for “organising folk dancing festivals,” in 2009 Prime Minister Kevin Rudd had increased our Afghanistan troop presence from 1100 to 1550.
Part of a NATO “surge,” the intention was to build the country’s fledgling democratic institutions while defeating a growing Taliban insurgency.
The Narco State
One of the wicked problems in dealing with both the insurgency and endemic Afghan government corruption at the time was the country’s decline into a nascent narco-state. So lucrative was the opium trade and so pervasive the corruption that in 2009 the estimated export value of opiates produced in Afghanistan amounted a third of the country’s GDP.
[ABC News YouTube video – Mark Willacy 21 Oct 2020 story on allegations of Afghan detainee murdered during 2 Cdo Regt/DEA counter-narcotics raid in Helmand province, mid-2012]
Coinciding with the NATO surge was a switch in the counter-narcotics component of the nation building strategy from eradicating opium poppy crops to interdicting the financial “nexus” between the drug trade and the insurgency.
Poppy eradication had proven not only unsuccessful but counter-productive. The prerequisite stable security situation, alternative livelihoods, functioning law enforcement and judicial systems, would take a decade or more to establish. Worse, destroying the only viable cash crop in most parts of the country was a surefire way to push impoverished farmers into the ranks of the rural insurgency.
In the minds of its proponents, a “counter-nexus” campaign targeted at the Taliban-aligned drug lords thus came into play as a silver bullet that could win the war. This despite the fact that no such endeavour has ever succeeded, anywhere, in the context of an ongoing war.
While the folly of fighting a drug war amid an escalating insurgency precluded most of the International Security Assistance Force (ISAF) armies from directly supporting this US Drug Enforcement Administration (DEA)-led campaign, the main question was actually one of legality.
How legal was it?
Targeting an active participant in hostilities with lethal force is perfectly legitimate under the internationally accepted laws of armed conflict (LOAC), but extra-judicial killing of crime suspects is questionable at best. Summary execution is certainly illegal under Australian law.
Concerns about rewriting the rules of engagement (ROE) to target Afghan drug producers and facilities under the legal auspices of international armed conflict had been raised at the highest levels in ISAF. In a classified letter to NATO high command leaked to Der Spiegel in 2009, ISAF commander U.S. General David McKiernan wrote that this would:
“… seriously undermine the commitment ISAF has made to the Afghan people and the international community … to restrain our use of force and avoid civilian casualties to the greatest degree predictable.”
Hence in 2010 the DEA mandarins in Kabul had a problem. To prosecute their counter-nexus drug war in the opium heartland of Helmand province they needed a willing contingent of well-trained special operators. When even the US military wouldn’t provide this, they looked further afield and found the commando component of the Australian Special Operations Task Group (SOTG) in nearby Uruzgan province.
[ABC News YouTube video – Mark Willacy 21 Sep 2022 story on allegations seven civilians were killed during 2 Cdo Regt/DEA counter-narcotics raid at Qarabagh, Oct 2012]
On a visit to Uruzgan soon after he was shuffled from Foreign Affairs to Defence in September 2010 – making way for Rudd in the new Gillard cabinet – Smith was approached by officers from the 2nd Commando Regiment. The commandos had developed a counter-nexus joint operating concept with their DEA colleagues, but encountered “every kind of obstacle” in seeking approval through the chain of command.
According to one account, when the commanding officer briefed Smith in person during his visit:
“From the beginning, [the minister] saw the logic in the proposal and was just as keen to get the idea underway as [we] were.”
With Smith’s direct approval, over the next two years the commandos undertook dozens of DEA-led drug raids in southern Afghanistan, principally in Helmand. These were tactically successful, as one of the commandos explains in Ben McKelvey’s 2017 book The Commando:
“They were instant gratification missions. You go in there at night, fuck up a bunch of shit, blow up drugs, ruin some bad dude’s week … you were basically Batman.”
A decade later, reports of exactly the civilian casualties McKiernan anticipated in 2009 are emerging in the Australian media. A US Marine Corps helicopter crewman has alleged that an Australian commando executed a detainee during a mid-2012 raid in Helmand.
In another incident in Helmand later that year, local Afghans and “Defence sources” have alleged that seven civilians were killed, including six who were “under the control” of Australian commandos.
At least two of the incidents from the DEA-led counter-nexus raids are now reportedly under criminal investigation by the Office of the Special Investigator, newly established by the federal government amid the national outcry which followed the publication of the Brereton Report in 2020.
My statement on today's distressing report by the Inspector-General of the Australian Defence Force into actions by Australian personnel in Afghanistan. pic.twitter.com/zSN7qarZAH
— Kevin Rudd (@MrKRudd) November 19, 2020
One of the Brereton inquiry’s questionable findings was that accountability for the crimes identified in his report does not extend to higher Australian commanders “because they did not have a sufficient degree of command and control” over SOTG.
In reality, the decisions to commit the commandos to the DEA-led counter-nexus campaign, and the national rules of engagement governing the use of force and prevention of civilian casualties during those raids, were made by senior Australian officials.
Like the 2012 SAS raids in Sola and Darwan villages, the paper trail for these counter-nexus raids goes all the way up to Stephen Smith. There is arguably a potential case here for recklessness or negligence, supporting charges of higher command responsibility under Article 28 of the Rome Statute – although his story makes no imputations as to Smith’s culpability.
Nevertheless, these incidents might not have happened without Smith’s personal approval of SOTG’s participation in the DEA’s ill-fated, legally questionable, “instant gratification” campaign to “fuck up a bunch of shit” like Batman in Helmand.
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*Stuart McCarthy is a former Australian Army Officer. During his 28-year military career he saw active service in the Pacific Islands, Southeast Asia, Africa and the Middle East, including two deployments to Afghanistan. He has written for Canberra Times, The Australian, Herald Sun, Globe & Mail, and various academic journals. As a leading voice in the veteran community, his recent advocacy efforts have included the Royal Commission into Defence and Veteran Suicide and the evacuation of locally employed interpreters from Afghanistan in 2021.
They didn’t know, really? Pursue top brass over alleged war crimes in Afghanistan, says veteran
