A step forward over war crimes in Afghanistan

October 21, 2020
NSW police raid on the ABC offices, June 2019.

Just like that, serious criminal charges against ABC investigative journalist Dan Oakes, who reported leaked material of atrocties committed by Australian elite troops against civilians in Afghanistan, have been dropped.

Oakes and Sam Clark were part of a special team at the national broadcaster which was investigating hundreds of pages of secret Australian Defence Force (ADF) documents about the killings of unarmed Afghans by Special Air Service Regiment (SAS) soldiers.

They published what they found in The Afghan Files in July 2017. Since then, they have been hounded by the Australian Federal Police (AFP) and lived with the threat of imprisonment, or worse, after refusing to hand over the files.

Oakes was informed he was a suspect in a crime in September 2018. The following June, the AFP raided the ABC’s offices in Sydney in spectacular fashion. Days before, News Corp journalist Annika Smethurst’s home had also been raided; the charges against her were dropped earlier this year.

The Commonwealth Director of Public Prosecutions (CDPP) and the AFP announced on October 15 they had dropped the case against Oakes. They said there was a “reasonable chance” of securing a conviction against him on two of three alleged crimes, but there was no public interest in doing so.

The AFP said the CDPP had “considered a range of public interest factors” including “the role of public interest journalism” and determined that “the public interest does not require a prosecution in the particular circumstances of this case”.

The “no public interest” argument is important, because legal rulings are never made in a vacuum: context always plays a role.

The fact that the ABC refused to be bullied, left The Afghan Files online, and continued to report on what it had discovered about Australian’ troops criminal actions in Afghanistan, would have helped Oakes’ defence.

The revelations in July of a massacre of up to 11 Afghan civilians by SAS troops in December 2012, adds to a long list of war crimes that the public has only recently been able to see.

In The Afghan Files, journalists make clear they were given hundreds of secret documents suggesting that there was “a growing unease” at the highest levels of the ADF about “the culture of Australia’s special forces”. The documents refer to ingrained “problems” in the SAS, including a “warrior culture”, “a willingness by officers to turn a blind eye to poor behaviour” and divisions between the two elite units — an SAS unit based in Perth and the 2nd Commando Regiment based in Sydney.

The briefs refer to “at least 10 incidents between 2009–2013 in which special forces troops shot dead insurgents, but also unarmed men and children”. We have since learned that frustration among special forces soldiers who spoke up against these crimes drove at least one to take his own life.

A secret investigation into war crimes allegations against Australian special forces operating in Afghanistan, conducted over the past four years by the Inspector-General of the ADF under New South Wales Justice Paul Brereton, has been due to report its results for several months now.

The dropping of criminal charges against Oakes should be welcomed but there is still much to be fought for.

Serious charges for breaching the Defence Act are still hanging over military lawyer David McBride, who faces possible life imprisonment. He said in June last year that he felt compelled to make the war crimes public after the ADF and Department of Defence failed to act on his complaints.

While there is now a greater understanding of the need to protect whistleblowers and journalists, and to bring those responsible for criminal acts to justice, this is not enough.

Lifting the lid on war crimes needs to lead to more. Australia needs to stop joining US-led imperialist interventions. It also has a moral duty to work for the people of Afghanistan to rebuild their country, destroyed by 20 years of war.

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