February 2009 incident in Afghanistan: An undoubted tragedy but let the self-correcting system work

In mid February 2009 a night raid in Afghanistan resulted in the deaths of six Afghan civilians, four of them small children and one a youth, at the hands of the ADF. Two more children and two adults from this family group were wounded.

By definition the incident occurred in a war zone and in territory that is disputed across the physical, military, political and human senses. It also happened in circumstances where formal Afghan legal mechanisms were and remain inoperable — and clash anyway with long-established cultural and religious mores that contradict Afghanistan’s laws and indeed nominal government structures. 

Determining truth in such circumstances is difficult. Accurately apportioning responsibility or blame is even harder. Both must be done, however, in order for Australia to comply with International Humanitarian Law (IHL), to reassure Afghans that there is a moral difference between the ADF and the Taliban, and to preserve the professional and operational integrity of the ADF as the defence force of a liberal democracy ruled by law. 

Operational limitations on the ground, including security concerns, respect for bereaved victims and wider cultural sensitivities affected both the initial operational investigation and the subsequent criminal investigation it recommended. Both were not able to visit the scene of the deaths or interview the survivors and any witnesses at first hand in the same way we would in downtown Australia. Indeed the SBS documentary team covering the incident later ran into many of the same limitations. 

Discerning truth must also account for the background context. In the final analysis any war is a contest of will and ends when one side gives up. This means in both the Afghan and international arenas the wider public information and propaganda clashes can never be entirely separated from the shooting on the ground. 

In this particular incident, and with the Taliban insurgency seeking to win popular support generally, the Taliban have naturally sought to portray what happened so as to boost their cause and undermine ours. Moreover, because of justifiable anger, genuine allegiance, Taliban intimidation or a combination, the objectivity of in-situ evidence from the villagers involved may be problematic in both a factual or legal sense. As the generally balanced SBS Dateline documentary showed, this is not an insurmountable problem as long as it is recognised. In this case many of the known facts do not need much embellishment by the Taliban anyway. 

The ADF operates in Afghanistan within a legal framework of Australian, Afghan and international law (and in accordance with appropriate constitutional and professional mechanisms). The overall legal basis of the International Security Assistance Force in Afghanistan (ISAF) stems from the UN Charter in general and several UN Security Council Resolutions in particular. 

The conduct of our military assistance is governed by that specialist branch of IHL known as the Laws of Armed Conflict (LOAC), chiefly based on the Hague and Geneva Conventions. The Taliban on the other hand do not respect IHL and LOAC and regard our adherence as a vulnerability to be (illegally) exploited. They have no process for investigating breaches of IHL and LOAC. Indeed they reward not punish acts such as the indiscriminate targeting of non-combatants. 

Under the LOAC umbrella our troops are subject to Rules of Engagement (ROE) governing the overall application of armed force to the particular circumstances of the Afghanistan War. There are also ISAF commander’s directives applying to all troops in the alliance on matters such as night raids on Afghan compounds. On the ground, the ROE are further broken down into Orders-for-Opening-Fire (OFOF) which tell each digger when they can and cannot use lethal force. 

Interpreting ROE and OFOF in the hectic chaos of battle can be tough, certainly much tougher than subsequently in peaceful court rooms. Accidents of all kinds also happen frequently in the confusion of war and the chaos of battle. But deliberate killing contrary to ROE and OFOF is generally and necessarily illegal because the alternative is the barbarism of our Taliban enemy. Accidental killing can also be illegal if resulting from actions that could be reasonably foreseen, or from professionally reckless or negligent use of force by those commanding, planning or doing the fighting. 

No-one is disputing that something went dreadfully wrong in this incident. The operational procedure flaws have already been fixed. But nothing more should be allowed to go wrong in finding out how, why and who might be at fault. 

All Australians should be reassured that there have been no cover-ups. Nor delays beyond those dictated by the operational situation in Afghanistan and the time needed for due legal process. We should also be encouraged that our national war-fighting systems are so self-correcting. Unlike the Taliban we have professional, legal and moral accountability processes than can objectively investigate battlefield mistakes. 

The professional debate within the ADF about possible underlying causes of the incident is also a necessary and professionally healthy phenomenon. It shows there is no institutional culture of deceit, groupthink or resistance to accountability and appropriate and transparent supervision of the ADF’s use of armed force. 

Criticism of the ADF for the time taken in investigation, or its care not to prejudice due legal process by public comment, is uninformed, unfair and invalid. We should let the law take its course. Only the statutorily independent Director of Military Prosecutions can properly decide whether any ADF personnel should face criminal or disciplinary charges.