The Albanese government is looking to compensate families of victims of alleged Afghanistan war crimes, more than two years after a landmark inquiry found payments should be offered quickly to restore “Australia’s standing”.
Guardian Australia can reveal the deputy prime minister, Richard Marles, has received a number of briefings from officials about compensation, one of the key outstanding recommendations of the Brereton report he is examining.
“Whilst there are a number of complexities associated with this, the government remains committed to implementing, to the extent that it can, the Brereton report,” a spokesperson for Marles said.
The four-year-long inquiry by Maj Gen Paul Brereton found “credible” information to implicate 25 current or former Australian special forces personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others.
Criminal allegations are being considered by the office of the special investigator, but the inquiry also made a range of other recommendations, including cultural reforms to the Australian defence force and administrative action against individuals.
The Department of Defence originally set late last year as a deadline for deciding on a system for offering compensation, but this was missed by the former Morrison government and the issue had not been resolved by the time Labor won the election in May.
The fall of Afghanistan to the Taliban and the closure of the Australian embassy in Kabul last year are believed to have only added to pre-existing legal complexities, as no one has yet been charged or convicted over the alleged war crimes.
But the Australian Centre for International Justice, a legal centre that aims to combat impunity, said these challenges “should not be relied upon as an excuse for inaction”.
The ACIJ said UN agencies were operating across Afghanistan, while Australian humanitarian groups were either present or had physical access through Afghan partner organisations.
It said the Australian interim mission on Afghanistan based in Doha, Qatar, could help with consultations and delivery of redress.
Brereton had recommended Australia not wait for a court to establish criminal liability, saying that if there was credible information of an unlawful killing it was “simply the morally right thing to do” to pay compensation swiftly. The chief of the Australian defence force, Gen Angus Campbell, voiced support at the time.
Kobra Moradi, a lawyer at the ACIJ, said some progress had been made “to respond to the dark history of Australia’s military engagement in Afghanistan” since the inquiry reported two years ago.
Manizha Isaar from the Transitional Justice Coordination Group, a coalition of 26 human rights organisations, said Afghan victims and civil society organisations were “disappointed that so many of the recommendations have not yet been addressed, especially around reparation”.
New legal advice commissioned by the ACIJ describes reparations as “legal obligations” in response to “acknowledged wrongs”.
Prof Carla Ferstman, of the Essex Law School and Human Rights Centre, said this obligation was distinct from the practice of certain countries, including Australia, to make payments for death, injury or property damage arising from military actions without accepting liability.
Last week the government faced criticism from the Australian special forces community and some politicians, including the Tasmanian senator Jacqui Lambie, over the potential revocation of awards from a number of people who held command roles.
Marles is standing by a decision of the former defence minister, Peter Dutton, to allow about 3,000 special forces soldiers to keep the meritorious unit citation.
But Marles has given permission to Campbell to resume considering administrative action against a much smaller group of commanders – a process Dutton suspended last year.
Marles told parliament Campbell had issued show-cause notices to “a small number of people” who had held command positions “at troop squadron and task group level during particular special operation task group rotations”.
This is based on an inquiry recommendation that has long attracted discontent among the special forces community, because it did not call for accountability further up the chain of command.
The national chairman of the Australian SAS Association, Martin Hamilton-Smith, called for due process in “any punitive administrative action taken to remove awards or to sanction veterans”.
Defence confirmed it was still considering another yet-to-be-completed recommendation to mandate the use of helmet or body cameras by special forces during operations.
The spokesperson said “detailed work through studies and trials” was required, so an “interim capability” would be pursued in 2023.
