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DANIEL:

From Schwartz Media, I’m Daniel James. This is 7am.

The Brereton inquiry uncovered shocking allegations of war crimes committed by Australian soldiers in Afghanistan.

But there was one finding of Australian soldiers that wasn’t investigated.

According to documents and interviews, some Australian soldiers in Afghanistan used foreign rules of engagement in combat, rules they weren’t trained in, or permitted to use.

And the use of these rules, may have resulted in the killing of a large number of unarmed Afghans who would not otherwise have been killed.

Today, contributor to The Saturday Paper Ben Mckelvey, on how and when Australian special forces are allowed to kill.

It’s Friday, February 14.

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DANIEL:

Ben, thanks for joining us.

BEN:

My pleasure.

DANIEL:

I wanted to start in 2012 in a village called Sola in Afghanistan. Can you tell me a bit about what happened there?

BEN:

So there was an SAS raid in Sola in August 2012. The reason for that raid was because an Afghan sergeant who'd been trained by some Australian forces had turned his gun on his trainers and killed three Australian soldiers.

Audio excerpt — Voiceover (4Corners):

“A rogue Afghan soldier named Hekmatullah had killed three of their comrades. Special Forces soldiers from 2-Squadron SAS were going from village to village searching for him…”

BEN:

So Hekmatullah, this is ozebet or sergeant who shot these Australians and ran away, some intelligence popped up that he was in this village of Sola, which is in the Tarin Kowt bowl. And it was, you know, poor, mud brick, like everywhere else in Uruzgan where the Australians were primarily operating. And also it was a place of mixed loyalties, which was true of most places where the Australians would end up going.

Audio excerpt — Voiceover (4Corners):

“2-Squadron swept into the village of Sola looking for Hekmatullah. There they focussed on the local mosque…”

BEN:

So the SAS were sent out almost immediately on a kill capture mission. Hekmatullah. He was raised on this thing called the Joint Prioritised Effects List, which was basically a massive kill capture list across the country, where if they found those people, they would kill them or capture them. He became a priority target. The SAS was sent off and then they went to Sola and tried to find him.

DANIEL:

So they tried to find him. What happened in Sola when they got there?

BEN:

They didn't find him and they didn't find any evidence of him. But they did detain a number of Afghans. And one of the people that they detained in the official reporting grabbed an Australian soldier's gun. They wrestled and then the Australians shot this man dead and then the Australian SAS killed another man. There were two soldiers that were involved in this killing where the official line was that they had seen this man with an ICOM, which is a handheld radio, and that he had been reporting troop movements. So they were killed. And these men were father and son. They were the mullahs, the two mullahs of this village.

DANIEL:

So you’ve been looking into this operation, what was it that stood out to you about the mission?

BEN:

So, one of the interesting things about this mission is that they sent someone in to investigate this because this mission and these killings had become a bit of a political hot potato because Hamid Karzai, the president of Afghanistan, had complained about this mission and about these killings. He'd complained to the Australian prime minister and the ambassador, and so there'd been a bit of media interest. So they sent in a brigadier to do an investigation about what had happened here. And in interviewing the SAS soldiers, the SAS said that they had shot these people under ISAF rules of engagement.

So ISAF is the multinational force that came to support the Australian Government. So basically all of the foreigners that were over there. The ISAF rules engagement and the Australian rules of engagement are classified. But there are parts of those rules of engagement that I can talk about. So the difference between the Australian rules of engagement, ISAF, rules of engagement, as they're understood by the SAS, was that you can shoot someone who demonstrates hostile intent rather than having committed a hostile act. So the standard for lethal force was directly participating in hostilities.

It was accepted that the ISAF rules of engagement were stricter than the Australian rules of engagement. But the way that the Australians applied those ISAF rules of engagement that they weren't trained in, then it gave them a little bit more leeway.

The way that it had been applied by these guys was that you just had to have hostile intent. If we thought that you were acting in a hostile manner, then we could lethally target you.

And then these investigators found that the entire rotation, that rotation 18, had been using these ISAF rules of engagement, and they were not meant to be using those rules of engagement. And the brigadier called this a systemic failure.

DANIEL:

The soldiers have cited using ISAF rules of engagement in the field. You said there's a different standard there as to what constitutes hostile intent. What does that look like in practice when it's applied?

BEN:

Well, there are multiple ways in which you can target the enemy, but the primary way is in self-defence. You see them acting hostilely in front of you and then you can react and shoot them. Threats, however, don't just look like somebody's raising a gun at you; ferrying ammunition, sending information as to where your position is going and getting help, you know, things like that, then that could potentially be somebody that is directly participating in hostilities as well. And that's where the nuance is with rules of engagement.

So with the ISAF rules of engagement, it seems that the Australian SAS basically applied their understanding of what hostility looked like or had looked like previously and then applied that to a circumstance. So they had seen a lot of Afghans running towards the river and getting cached weapons and then coming back and attacking them. So if they came to a compound of interest and they saw someone running towards a river, then they may consider that to be a hostile act. But it's likely that something like that would not have been allowed under Australian rules of engagement.

The best example of that is in the report that I cited they said that patrol reports would come back to legal offices and officers. And they said that they had killed people who were just seen running away. And the legal officer said, you know, this really doesn't cut the mustard, so please, can you please rewrite this report with more descriptors so it's more in line with Australian rules of engagement? So that's what had happened.

DANIEL:

So why were the soldiers following rules that they weren't actually trained in? They were trained in Australian rules of engagement, why are they practising in ISAF rules of engagement if they're not trained in those rules?

BEN:

Well, it certainly looks like the Australian soldiers thought that they were allowed to use these rules of engagement.

And the thing that was really particularly interesting for me, I had written a book about the kill capture program, and basically that's what the SAS did primarily in Afghanistan. They'd come into the country, there was multiple lists of people who were, you know, bad guys, essentially, as far as they were concerned. One of the lists had 6000 people. And then they just went out there and did mission after mission, either capturing or killing them.

One of the major issues with these 2012 killings and the report that I found after that was that normally you have a very strict and codified understanding of when you can employ your weapon system. Whereas in this instance, the SAS were using their own understanding of what hostile intent and hostile acts were. So it wasn't something that was written down. It was just them saying, we've been in Afghanistan for a long time. We know what the enemy looks like. I can tell when someone who's running away is a bad guy so I can shoot him because I can make that distinction.

DANIEL:

After the break - who knew this was happening.

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DANIEL:

Ben, there's no evidence that some Australian soldiers in Afghanistan use foreign rules of engagement as a way to justify killings. Did the bosses know this was happening?

BEN:

It's a question of which bosses knew. But some bosses almost certainly or undoubtedly knew that this was happening. I mean, the fact that these patrol reports were being changed. They had to be changed by someone. They were being sent back to the soldiers. You know, so as soon as you see a report and it shows that the rules of engagement were being used and not the ones that you should be using, then you are aware of that and you have an obligation to report that. But you weren't reporting that you were sending it back to the soldiers. And it was this sort of go along to get along attitude.

DANIEL:

The Brereton inquiry was supposed to be a sweeping investigation into misconduct and alleged crimes by Australian forces. Did they look into this?

BEN:

They didn't look into this.

Audio excerpt — Chief of the Defence Force:

“Turning to the inspector general's report: he found none of the alleged unlawful killings were described as being in the heat of battle. None were alleged to have occurred in circumstances in which the intent of the perpetrator was unclear, confused or mistaken.”

BEN:

This is one of the things that I put to defence. I said, you know, in the Brereton report they say that the Australians had a good understanding of which rules of engagement that they should be using and they applied those. But it seems that, you know, this report that I've seen, that was a 2013 report calling this a systemic failure, this would have been a report that would have been available to Paul Brereton and his team. So it's something that should have been flagged in the Brereton report but wasn't.

DANIEL:

Do we know why?

BEN:

We don't know why.

DANIEL:

And as you've been reporting on this, what do you think the skirting of these rules says about Australia's role in the war in Afghanistan?

BEN:

Well, I don't know whether it's a case of skirting the rules. I mean, it puts me in the mind of this quote from the Crompvoets report. So when Samantha Crompvoets did her report, there was an officer who offered a quote saying, you know, Special Forces, you've got to love them like brothers and watch them like children.

DANIEL:

Right.

BEN:

So if these guys think that they should be using, or are allowed to use this ISAF rules of engagement that they weren't trained on and that their legal officers weren't briefing them on, then it's not exactly their failure if they're using this this rule of engagement in the way that they thought that it could be used. But what it does say, I think, about our operations in Afghanistan, is that we did get to a point where there was a maximalist attitude in regards to kinetic activity. So there was a lot of shooting and a lot of killing that probably didn't need to happen.

DANIEL:

What has the Department of Defence said to you about what they are doing to address this?

BEN:

I would be surprised if they're addressing this at all. My understanding is that they generally don't talk about rules of engagement with the media, but they did send me a line saying that, you know, the Brereton report noted that rules of engagement change temporally. And from a geolocation perspective, suggesting that they were allowed to use these ISAF rules of engagement, this report that I got from 2013 does not say that. It says that the Australians were obliged, the SAS included, to use Australian rules of engagement.

DANIEL:

The SAS has suffered huge reputational damage from this, but also from the findings in the Brereton inquiry. What impact has that had on our Special Forces capability?

BEN:

Well, I mean, there's been two erosion of capability and one is post Afghanistan. As you said, there's been this reputational damage. It's been difficult to deploy Australian SAS, especially in theatres where it's primarily Muslim population. That's been an issue. A lot of soldiers have decided that they just don't want to be in the army any more. So, you know, you invest $1 million a year into these guys, you know, they've got these 20 year careers. You've got $20 million behind a corporal or a sergeant, and he just decides to walk away because he feels like he's being treated poorly. So you have that erosion.

But then you have this other erosion that happened over Afghanistan because the SAS, they meant to be, you know, all of the clichés, the tip of the spear, the greatest soldiers. You know, they're also meant to be the Swiss Army knives. And in a time when they were meant to be sort of migrating over to being able to do other things, gray role, intelligence gathering, they were being used as basically an American fungible force. They were just doing these kill capture missions. They were doing the same thing over and over again against a force that was not a near-peer opponent. And so their marshal skills went down in that period as well. So you've had these two instances where we've had a lessening of capacity.

DANIEL:

What are the chances of any of us getting to the bottom of this as to what actually happened, what rules were applied?

BEN:

Well, I think that if you want to understand any one part of Afghanistan, then you kind of have to understand the whole thing. And I think the only way that we can understand the whole thing is it's not through defamation. It's not even through murder cases as the one coming up with Oliver Schulz, It's a royal commission. You need to have a body with subpoena powers. You need to be able to get to the officers. You need to be able to get to the politicians. And you need to be able to talk to the soldiers in an open and closed environment.

So if you think, as this report suggests, that there were systemic failures, that, you know, officers had done things that sort of had allowed or fostered a circumstance in which unnecessary killings happened, I think the only way that we would get justice is through something like a royal commission.

DANIEL:

Well, Ben, thank you so much for your reporting and thank you so much for your time.

BEN:

Thanks.

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DANIEL:

Also in the news today,

Nurses have gathered outside NSW parliament to protest hate speech, after two nurses were filmed threatening to harm Israeli patients.

NSW Nurses and Midwives Association assistant general secretary Michael Whaites says members were “horrified” and “devastated” by the footage.

Meanwhile, the NSW police commissioner Karen Webb says police have spoken to the Israeli influencer who captured the video, who has agreed to supply an unedited version.

The investigation is ongoing and the nurses have been stood down.

And, Communities in Western Australia’s Pilbara region are bracing for impact as tropical cyclone Zelia intensifies to a category 5 system, bringing winds of up to 290km/h.

Authorities have closed schools, highways, and the Port Hedland port, while emergency services prepare for widespread flooding and damage.

Evacuation centres have been set up as residents are warned to expect life-threatening conditions when the cyclone makes landfall on Friday evening.

7am is a daily show from Schwartz Media and The Saturday Paper.

It’s made by Atticus Bastow, Cheyne Anderson, Chris Dengate, Erik Jensen, Ruby Jones, Sarah McVeigh, Travis Evans, Zoltan Fecso and me – Daniel James.

Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

We’ll be back Monday. Thanks for listening.

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