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

Following the November 2020 release of the Brereton Report, the Australian government established an Office of the Special Investigator (OSI)to further examine the dozens of incidents identified in the report. The OSI is an independent Executive Agency, the same as its predecessor, situated within the Attorney-General's portfolio. The stated purpose of the Office of the Special Investigator is to review the findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry and to work with the Australian Federal Police (AFP) to ​investigate the commission of criminal offences under Australian law arising from or related to any breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016.

A new era of war crimes trials in Australia?

It is unclear as to how Robert-Smith's defamation case will impact the integrity of criminal investigations. Although criminal charges do not automatically result from the defamation judgment – the factual events and criminal allegations will be followed up by a criminal investigation.

However, care will need to be taken to ensure that the evidence is not tainted. During the Brereton inquiry the Chief of the Defence Force referred two allegations to the Australian Federal Police for criminal investigation. The information referred to the AFP had deficiencies because it was obtained through the use of powers which compel individuals to attend hearings (coercive powers) and/or provide information or documents (coercive material). We know this because the AFP submitted briefs of evidence to the Commonwealth Director of Public Prosecutions (CDPP) in 2020 and 2022.The CDPP informed the AFP it had decided not to prosecute. On 14 June 2023 the Australian Federal Police abandoned the investigation over concerns that the evidence was potentially inadmissible.

Any future war crimes prosecutions of Ben Robert-Smiths will be conducted as a new investigation by the Office of the Special Investigator (OSI). Certainly the Special Counsel can receive information directly from external sources (for example, members of the public), and its remit extends beyond the information contained in, or obtained by, the IGADF Afghanistan Inquiry. Preparing a new brief of evidence will now be the responsibility of Operation Emerald, a joint taskforce of the Office of the Special Investigator and the AFP.

Perhaps Roberts-Smith hoped to deflect, or pre-empt a criminal finding against him? If this was his intention, it most certainly backfired.

Already Roberts-Smith's miliary record, his standing with the Special Air Service (SAS) and the status of his medals (including the Victoria cross) are all fall-out from the legal decision.

His foolhardy staring down of the allegations and imprudent defamation case (for loss of reputation and economic loss) against media outlets, served only to increase the likelihood that he will be criminally charged for among other things war crimes. Far from a modern-day Lieutenant Harry "Breaker" Morant, history will not likely be so generous to Roberts-Smith. While Breaker Morant was court martialled and executed for war crimes in 1902 (for the killing of POWs contrary to the laws of war), he was held to be a national hero of sorts. Morant came to symbolise Australia's resolve not to have Australian soldiers prosecuted for war crimes in foreign countries and instead to try their own citizens. The Polyukovich case represents the Australian government's resolve not to harbour World War II criminals in our midst.

The re-instatement of the Office of Special Investigations unit signals a new era of war crimes trials in Australia and demonstrates a moral fortitude to look introspectively and scrutinize the ugly truth of what occurred in Afghanistan between 2005 and 2016.

Australia has the opportunity here, to call out the worst examples of military atrocities, so as to confirm to the Australian public, and the world, that the allegations relate to isolated incidents, of aberrant conduct by a few. By doing so the Australian Military reputation can be upheld and we can honour what is good about Australia's defence forces.

The writer is a civilian lawyer who worked alongside the Australian military in Bosnia and East Timor – I can attest to the professionalism and discipline of the ADF forces overseas. So too, as a lawyer working in war crime prosecutions in the Hague and East Timor, I know that these hearings can bring healing, shed light on what happened, permit the post-mortems, and draw the necessary lessons.

Australians can expect from the Special Investigations Unit a full and frank criminal investigation. Undoubtedly the findings in the Brereton Report of 39 cases of potential war crimes require further investigation with a view to instituting criminal proceedings. Australia has a positive duty to investigate and prosecute war crimes committed by our soldiers, consistent with our membership of the International Criminal Court and our own domestic adoption of international criminal law. This should be supported by sustained and continued efforts to identify and hold to account all those in the direct chain of command who have directed and coerced their subordinates, in the context of overseas missions, to deviate outside the Geneva Convention's terms of engagement and the internationally accepted laws of war. Only disciplined military forces facilitate probing examination of their own conduct, for this Australian forces are to be whole-heartedly applauded. It is not the actions of Ben Roberts-Smith that tarnish Australia's reputation, but rather how we respond to the revelations now that it is in the public domain.