The agency set up to investigate alleged war crimes by Australian special forces in Afghanistan is unlikely to be able to send investigators to the Taliban-ruled country for some time.
Experts have described the fall of the Afghan government as a setback to potential evidence-gathering activities stemming from the Brereton report, even though the Taliban may be receptive to such investigations.
When asked about the impact of the Taliban takeover on the upcoming evidence gathering, the Office of the Special Investigator (OSI) said it was “examining the implications of the situation in Afghanistan as part of our investigations.” .
“Any future OSI work in Afghanistan would require an assessment of the security situation and other relevant considerations at that time,” a spokesperson for the newly formed agency told Guardian Australia.
“The safety of investigators and witnesses will be the primary consideration. “
Brereton’s long-standing investigation found “credible information” implicating 25 current and former members of the Australian Defense Force in the alleged unlawful killing of 39 people and cruel treatment of two others in Afghanistan.
The inquiry recommended that the allegations against 19 people be referred for criminal investigation, a task currently being undertaken by the OSI, led by former prosecutor and judge Mark Weinberg QC.
But the rapid collapse of government in Afghanistan following the US-led withdrawal of Western military forces from the country casts a cloud over this process.
In the short term, ADF personnel have been ordered not to leave Kabul airport to come to the aid of Australians currently stranded at Taliban checkpoints, the security situation being deemed too dangerous.
In the long run, the Taliban “may well be receptive to co-operating in the war crimes prosecutions against Western soldiers,” according to Professor Ben Saul, an expert in international law.
“However, I believe in the short term their victory will exponentially increase the difficulty of gathering evidence for criminal prosecution,” said Saul, who is the Challis Chair in International Law at the University of Sydney. .
He said Afghan witnesses may be inaccessible due to large-scale displacement, insecurity and possible disruption of foreign communications by the Taliban.
Key agencies with which Australia is said to have dealt in Afghanistan may have ceased to exist and a number of officials have fled the country, Saul added.
A crucial question will be whether Australia decides to recognize the new Taliban-led government. So far, the Australian government has not disclosed whether it will offer such recognition, saying only that trust must be earned.
Prime Minister Scott Morrison said of the Taliban: “We know their form. I will make decisions, the government will make decisions, depending on their form.
Saul said if the Taliban were not recognized by Australia as Afghanistan’s new government, then legal cooperation – whether police to police, or formally through mutual legal assistance to obtain testimony in court – would be impossible.
“From a diplomatic point of view, even if the Taliban are willing to cooperate, there could be foreign policy reasons and pressure from civil society not to deal with them at all, due to their record on the matter. rights and the need to isolate them internationally, ”Saul said. .
“At trial, defense lawyers would also surely wonder if the Afghan witnesses were pressured by the Taliban. “
Donald Rothwell, professor of international law at the Australian National University, echoed this point of view.
Rothwell said that a supportive approach from a Taliban government in Afghanistan “raises questions as to whether the evidence collected from witnesses will be credible because of the possibility that witnesses will be compelled to provide certain evidence to Australian investigators in because of pressure from the Taliban ”. .
“I can see a defense attorney in all Australian war crimes trials seeking to discredit the evidence provided in these circumstances,” Rothwell said.
He said that the question of whether the Australian government has recognized the Taliban government “actually raises a very, very important international legal question, which goes to the heart of Australian politics.”
For decades Australia has said it doesn’t recognize governments – it recognizes states. But the Australian government “changed” that approach in early 2019 when it recognized Venezuelan opposition leader Juan Guaidó as interim president.
“So that maybe opens the door for Australia to say okay, look, we continue to recognize the state of Afghanistan, but we are not going to recognize the Taliban government,” Rothwell said.
“Eventually, it will get to a point where the Australians have to go to Afghanistan to collect the evidence that interests us.
“And unless they can access it, it will be very difficult, and inevitably, that kind of access, I think, depends on the help of whoever was in charge of Afghanistan at the time.”
In addition to criminal investigations, the Brereton report recommended that the ADF consider taking administrative action against certain serving members, including in cases “where there is credible information of misconduct” which “does not reach not the threshold for referral for criminal investigation ”.
Morrison declined to confirm a Daily Mail report on Friday indicating that 13 SAS soldiers were no longer subject to administrative action by the defense, after receiving notices last year asking them to justify why they were not should not be made redundant.
A defense spokesperson said the military had issued a Termination Notice against 17 people “where a suspected breach of the expectations and values of the Australian Defense Force has been identified.”
The spokesperson said that all of those members had been given due process and had now been “notified of the outcome of their termination notices”. But the defense said it would not comment on the rulings for reasons of confidentiality.