“The ‘we didn’t know’ narrative has always been ridiculous.” The Army’s top brass must be held accountable for Afghan war crimes rather than soldiers way down the chain of command, writes army veteran and retired officer, Stuart McCarthy.
Circumstances surrounding the recent resignation of Australian special forces officer Brigadier Ian Langford reinforce the need for the government to pursue criminal command responsibility by senior defence leaders for alleged war crimes in Afghanistan. The legitimacy of our defence chiefs will remain in question for as long as this controversy is allowed to fester.
Langford resigned having reportedly lost the confidence of defence chief General Angus Campbell. A “fallout” between the two is reportedly the result of an incomplete “administrative censure” process focusing on Langford’s alleged “lack of oversight” as special forces commander in Afghanistan.
By all accounts Langford is a well respected officer. Some former soldiers believe he is another scapegoat for higher level command failures. Regardless, this episode highlights the perversity of framing command responsibility as an “administrative”, “moral” or “ethical” nicety rather than more properly as a matter of criminal law.
Widely misrepresented as a criminal investigation, the Brereton inquiry was in fact an administrative inquiry, initiated by Campbell while he was Chief of Army. The premise of Campbell’s referral to the defence Inspector General was that “rumours” of criminality had emerged from within the ranks during a special forces “culture review.”
Some of the killings were in fact covered by the media within days of the respective incidents, including allegations of command failures at the highest levels of government. The “we didn’t know” narrative has always been ridiculous.
Given this government’s decision not to prosecute anyone more senior than patrol commander, the most appropriate judicial authority for command responsibility proceedings is now the International Criminal Court in The Hague.
During Langford’s tenure as commanding officer, Australian special forces were tasked to track down rogue Afghan army soldier Hekmatullah, who murdered three Australian soldiers in an insider attack in Uruzgan province on 29 August 2012.
Enter Defence Minister Stephen Smith
The results of a raid at Sola village two days later were publicly announced by then Defence Minister Stephen Smith. As many as 140 Australian and Afghan troops participated in the mission, which detained 12 Afghan suspects. While 11 of these were soon released, the remaining detainee was, according to Smith, “regarded not just as a leader of the insurgency in Uruzgan province but a person who has also sought to or actually assisted Hekmatullah in his escape.”
Within days, Afghan President Hamid Karzai publicly criticised the unilateral nature of the raid and the killings of Afghan civilians Abdul Jalil and Haji Raz Mohammad. Smith responded that Karzai was “wrong,” claiming the mission was authorised by Uruzgan provincial officials under an agreement between the two national governments. A spokesman for Karzai challenged Smith to produce documentary evidence of the provincial level approval, to no avail.
Six months earlier, several coalition nations had made published agreements with the Karzai government regarding the conduct of special operations. Intended to reduce the risk of civilian casualties, these emphasised the primacy of Afghan law and mandated prior Afghan authorisation for any special forces raid. Neither the Australian-Afghan bilateral agreement nor the specific approval for the Sola raid are publicly available.
Another raid proceeded two weeks later at Darwan village, where intelligence reports suggested Hekmatullah was in hiding. The alleged murder of Afghan civilian Ali Jan during this mission has also been the subject of intense public scrutiny for years.
Hekmatullah was ultimately apprehended in Pakistan, then found guilty of murder in the Afghan criminal courts. Questions over the lawfulness of the orders and rules of engagement made by Australian officials senior to Langford can only be properly answered in criminal proceedings.
Given this government’s decision not to prosecute anyone more senior than patrol commander, the most appropriate judicial authority for command responsibility proceedings is now the International Criminal Court in The Hague.
No accountability for high command
The Brereton administrative inquiry’s finding that accountability for these alleged crimes does not extend to higher Australian commanders “because they did not have a sufficient degree of command and control” is laughable. Rules of engagement, government-to-government agreements and other directions governing these raids were formulated by senior Australian officials and deliberated in Cabinet.
Australian and international laws pertaining to command responsibility apply where commanders should have known, failed to take preventative measures, or failed to exercise proper control over their subordinates.
The Sola and Darwan incidents, among others, were the direct result of demonstrable recklessness or negligence by senior defence officials, who cannot be exonerated from criminal liability by the findings of a farcical administrative inquiry. If the government remains unwilling to prosecute these cases under Australian criminal law, then the only remaining course of action will be to send them to The Hague.
