Defending investigative journalism and Australia’s international military reputation; a new era of war crimes trials in Australia

The establishment of the Special Investigation Unit SIU in Australia

After World War II there were an estimated 4,000 to 5,000 war criminals who found sanctuary in Australia. Mr A.C.C. Menzies AM, OBE in his Report on the Review of Material Relating to the Entry of Suspected War Criminals into Australia (Menzies Report 1987) identified 70 cases for follow up. The report also recommended the establishment of a Special Investigations Unit ('SIU') to investigate allegations of serious war crimes.

In the late 1980s, Prime Minister Bob Hawke and Attorney General Lionel Bowen decided that a Unit be established within the Attorney-General's portfolio tasked with investigating and prosecuting accused war criminals through Australian criminal courts, rather than deporting them. They created the Special Investigations Unit (SIU) to oversee and investigate these, and any allegations subsequently brought to its attention.

The Unit was a response to the widespread concern following revelations of suspected Nazi war criminals living in our midst. The Special Investigations Unit (SIU) commenced operation on 11 May 1987 and was commissioned to examine allegations made against Australian citizens or residents. The Unit employed lawyers, historians and researchers to collect documentary and eye-witness evidence, prepare matters for trial and prosecute cases of war crimes.

Many of the historical war crimes trials were always going to face obstacles including the Australian criminal standard of proof, elderly defendants, failing memories of witnesses/victims, quality of evidence, collection of evidence from international exhumation and investigations sites, witnesses that needed to travel to Australia to give testimony and defence lawyers that were able to cast doubt on the veracity of memory recall relating to past events. Of the hundreds of investigations conducted, only three charges were perused, Polyukhovich the most prominent, with no convictions. Along with Polyukhovich, two other Ukrainians - Heinrich Wagner and Mikalay Berezovsky - were charged following investigations by the SIU. Only Polyukhovich stood trial and the other cases were later dropped.

Over time the public support for these war crime trails diminished and ultimately the limited appetite for these types of investigations and prosecutions saw the winding-up of the Special Investigations Unit. The SIU finally shut down in 1992, but stories about Australia being a safe haven for war criminals continued to surface, notably Latvian Nazi collaborator Konrad Kalejs in the early 2000s who used his Australian citizenship to evade attempts to extradite and prosecute him for war crimes in Latvia.

As Australia failed to consolidate its war crimes program many of those Australian investigators went on to lead investigative teams in international criminal tribunals abroad. The Australian Federal Police AFP who have the mandate to conduct investigations into these crimes took their specialist expertise and training and applied this to international criminal investigations in the former Yugoslavia and Rwanda.

However rumours and revelations of incidents of alleged war crimes committed by Australian special forces in Afghanistan began to emerge. In May 2016, the Inspector-General of the Australian Defence Force commenced an inquiry led by Justice Paul Brereton following persistent rumours of possible breaches of the Law of Armed Conflict by members of the Special Operations Task Group in Afghanistan over the period 2005 to 2016. (Brereton Report).The AFP also commenced investigations into some of the allegations of crimes.

The Australian public first learned of possible war crimes by Australian Special Air Service Regiment (SAS) members against Afghan civilians and captured combatants in Afghanistan, on March 16, 2020 in an episode of ABC's Four Cornersthat broke the story (see Mark Willacy's "Killing Field: Exposing killings and cover ups by Australian special forces in Afghanistan".

On 6 November 2020, the Chief of the Defence Force received the Afghanistan Inquiry report from the IGADF, and he announced the findings on 19 November 2020. A copy of the Afghanistan Inquiry Report(Known as the Brereton Report- Public Release Version - heavily redacted) is available to the public.

The report found that;

The nature and extent of the misconduct allegedly committed by ADF members on operations in Afghanistan is very confronting. The Report discloses allegations of 39 unlawful killings by or involving ADF members. The Report also discloses separate
allegations that ADF members cruelly treated persons under their control. None of these alleged crimes was committed during the heat of battle. The alleged victims were non-combatants or no longer combatants.