Australian War Crimes in Afghanistan

When good men refuse to be silenced

Kabul, Afghanistan Photo by Sohaib Ghyasi on Unsplash

Investigative journalism is an important function of democracy: it serves as a check on powerful institutions and people. There has never been a greater need for public scrutiny and accountability of those holding powerful positions. Associate Professor of Journalism Andrea Carson describes investigative journalism as providing “a check on power in society” that “plays an essential watchdog role in the life of Western democracies”.

Neoliberal policies and an increase in national security laws have been the drivers behind an increasingly corrupt and secretive federal government in Australia. Additionally, social media has become a dangerous vehicle for disseminating disinformation: this makes it hard for the average person to distinguish between fact and fiction.

This places investigative journalism in a powerful position to expose injustice and corruption. Brant Houston said in a 2016 interview: “When all other means of redressing injustice fail, investigative journalism is the court of last resort.”

One of the most extraordinary and seminal examples of investigative journalism in Australia is the series of articles based on the “Afghan Files” leaked by military lawyer David McBride and the articles written by journalists from The Age based on the accounts of whistleblowers within the military about alleged war crimes by Australian soldiers serving in Afghanistan between 2004 and 2015.

An article written by Dan Oakes and Sam Clark called “Death in Kandahar”, published by ABC news on 10 July 2017, detailed a secretive enquiry by the Australian Defence Force (ADF) into the alleged killings of at least two children by Australian troops in Afghanistan that were covered up. (ABC news, 2017) Through a confidential source the ABC obtained photos of one of the dead children, as well as details of the alleged cover-up.

The ABC contacted the ADF to inform them of the material in their possession and the ADF then referred the matter to the Australian Federal Police (AFP) to investigate potential war crimes. The next day McBride leaked hundreds of pages of defence force documents to the ABC, which detailed incidents of troops killing unarmed men and children. Some of these allegations related to unlawful killings committed by decorated soldier Ben Roberts-Smith.

Prior to the ABC publishing the Afghan files, Dr Samantha Crompvoets had been appointed by army chief Angus Campbell to interview returned SAS soldiers to investigate the culture within the ADF. Her work triggered the biggest enquiry in Australian military history.

Speaking publicly for the first time on 60 Minutes on Sunday November 15, she said after interviewing dozens of SAS soldiers over hundreds of hours, she concluded that there was a “killing for sport” mentality among this elite group of soldiers.

Civilians, including children, who posed no threat, were executed as part of a “kill culture” in the SAS. She said this culture doesn’t happen overnight and that over time, calculated and deliberate killings became “celebrated and normalized.”

The ADF tried to dismiss her findings, but she refused to be silenced. A war crimes investigator was appointed last week as a result of her investigation and at least 12 killings have been referred to police for investigation. It is expected that charges will be laid against several SAS soldiers, including Roberts-Smith.

The stories written by ABC and The Age journalists about these alleged crimes are in the tradition of exposing systemic corruption or crimes and stand firmly in the tradition of hard-hitting exposure/reveal investigative journalism. Rather than disappear in a fast-moving news cycle, these stories will continue to reverberate nationally — in Australian courts, the Australian Defence Force and in the highest echelons of Australian politics.

Being such an important example of investigative journalism that will no doubt have historical significance, it deserves examination. Let’s take a closer look at the journalistic methods employed; the ethical and legal implications of publishing this story, and the impact it has had already and will potentially have in future.

A key method used to develop this story was collaboration. A story of such magnitude could never have been done without a team of people working on it. One of the journalists working on the story, Nick McKenzie who works for The Age said in an interview “the smart thing to do is to work in partnerships with rival networks.” This gives the story “fresh legs” and “creates momentum around it.”

On explaining why collaboration is important, Richard Sambrook says newsrooms have “fewer resources available to deal with long-term, technically complex investigations” and pooling resources “enables news organisations to support investigations they would be unable to conduct alone.” It makes sense for journalists to collaborate — it’s more efficient and cost effective.

Another method employed in developing this story was human sources. Dozens of people were interviewed, including whistleblowers and anonymous sources. This method was crucial to the story, because it was through human sources that it was revealed there had been a major cover-up within the ranks of the ADF.

Importantly, the documents leaked by McBride served to verify the human source accounts. This is a crucial element in investigative journalism to give a story credibility. “To get a document is everything”, says McKenzie.

Finally, the investigation undertaken by Dr Crompvoets uncovered dozens of witness statements and evidence that corroborated and verified the war crimes allegations.

Publication of these stories has had serious legal ramifications. Roberts-Smith is suing Nine Entertainment for defamation over the front -page article in the Age titled “The Cracks in a War Hero’s Façade”. He claims his “business, personal and professional reputation has been and will be brought into public disrepute, odium, ridicule and contempt”. He is also pursuing the journalists who wrote the articles: Nick McKenzie, Chris Masters and David Wroe.

The challenge for journalists in Australia regarding defamation law “is that what (they) wrote is assumed to be false, and it is necessary for the journalist…to prove, on the basis of evidence admissible in a court of law, that it is true.” (Pearson & Polden, 2019, p259)

Nine Entertainment is using the truth defence to fight against Roberts-Smith’s defamation action. This is difficult because the burden of proof is on the defendant to establish that the information published is true: it’s hard to prove truth when crucial evidence is protected under the National Security Information Act.

Roberts-Smith also applied to the courts to force the identification of the journalists’ confidential sources so that he could sue them too. Fortunately, the judge ruled against this. Any investigative journalist knows how important it is to protect their sources: most would rather be jailed than reveal a source.

Julie Posetti says there is a “globally established ethical obligation upon journalists to avoid revealing their confidential sources.” She also says that legal source protection is being undermined by anti-terrorism legislation, surveillance and data retention policies. This is having a seriously deleterious effect on public interest journalism.

Roberts-Smith suffered a setback last week when he was ordered by the judge to disclose files he tried to keep secret; his legal team had argued that to release them would put national security at risk. (Cooper, Adam. the Age, November 11, 2020)

The legal complications don’t end with defamation. In 2019, the Australian Federal Police raided ABC headquarters on government orders based on a potential breach of national security laws. Journalists Dan Oakes and Sam Clark were facing criminal charges. The three alleged offences were for “the receipt of prescribed information” and “unlawfully obtaining information.” The ADF seized 124 documents that were leaked by McBride to the ABC.

Just last month Commonwealth prosecutors announced that they won’t be prosecuting Oakes and Clark due to “public interest” considerations. (Karp, Paul. The Guardian. October 15, 2020). The managing director of the ABC, David Anderson, said that the raids were “an attempt to intimidate journalists for doing their job” and that “legitimate journalism should not be criminalised.” (Meade, Amanda. The Guardian, February 17, 2020). McBride, however, is still facing charges.

The ethical considerations of this story are very clear — the public has a right to know about war crimes committed by Australian Defence Force soldiers. This over-rides Roberts-Smith’s or any other SAS soldier’s right to privacy, or concern about national security. The story exposes wrongdoing against a vulnerable group of people and this justifies its publication.

The war crimes allegations intensified last week with the announcement that the Afghanistan Inquiry has been completed and its findings handed to Inspector General Angus Campbell. Prime Minister Scott Morrison foreshadowed explosive revelations in the report’s findings, stating the findings will be “difficult” and “disturbing for Australians to comprehend.” (Hurst, Daniel. The Guardian. November 12, 2020.)

The bravery and tenacity of key whistleblowers, as well as journalists, has paid off. Without them this story would never have seen the light of day. Nick McKenzie says, “the number one game in investigative journalism is impact”. Given most stories are “exclusive” for only “30 seconds”, the aim is to have “political impact…to make those in charge of government agencies care and feel enough public pressure to respond.”

The impact of this story is far-reaching and will last for years to come. A public summary of the investigation conducted by judge Paul Brereton is due to be released on Thursday November 19. It is expected that charges will be laid against individuals for these crimes and there is no doubt that a protracted legal process will ensue.

The victims of this story are not just the brave SAS soldiers who spoke up, but also the families of the victims of the unlawful killings, whose suffering will continue.

The first element of journalism states that “journalism’s first obligation is to the truth” and the fifth element states that “it must serve as a monitor of power”. (Kovach & Rosenstiel, 2014, p9) By pursuing this story in the face of intense pressure and denials, the journalists who published these stories have adhered to these principles.

“When you take on decorated war heroes you will cop a tremendous amount of artillery…” but you have to “put a wall up and focus on one thing: is it true? And, if it is: is it in the public interest? Find the truth and tell it without fear or favour”, said McKenzie.

Telling this story will have a profound impact. The ADF will be forced to undergo an unprecedented transformation, and decorated war heroes will no longer get away with murder.

Writer, publisher and content manager.

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