Australian Compensation for War Crimes in Afghanistan: A Rights-Based Approach, Not Military Charity, is Needed
In July 2024, Australia adopted a new legal scheme to compensate victims of war crimes committed by the Australian Defence Force (ADF) in Afghanistan, which was deployed there from 2001 to 2021, including as part of the NATO-led International Security Assistance Force. ADF special forces undertook counter-insurgency operations up until 2014, centered on Uruzgan province.
An official inquiry by the Inspector-General of the ADF (the Brereton Report) concluded in 2020 that there was credible evidence the ADF unlawfully killed 39 people who were obviously non-combatants, or persons hors de combat, in 23 incidents involving 25 soldiers, amounting to the war crimes of murder. There were also two incidents of unlawful cruel treatment. The report recommended that Australia compensate victims even without establishing criminal liability, both to avoid delay and because it is the “morally right thing to do” and would be “an important step in rehabilitating Australia’s international reputation.”
To its credit, the Australian Government accepted all the inquiry’s 143 recommendations, including to pay compensation. It has pursued ambitious cultural change within the ADF, along with a genuine process to investigate and prosecute perpetrators for war crimes, through a new Office of the Special Investigator. However, only one charge has been laid, which has not yet proceeded to trial.
Despite various unlawful killings occurring well over a decade ago, Australia appears to have made no compensation payments so far, including when it was still deployed in Afghanistan and had established an ex gratia “tactical payment scheme” in 2009. In 2010, NATO adopted Non-binding Guidelines on Monetary Payments for Civilian Casualties in Afghanistan to encourage and harmonize practices among States.
In my diplomatic communication to Australia as the UN Special Rapporteur on human rights and counterterrorism, I and other UN experts raised serious concerns about the consistency of Australia’s new compensation regulations with international law. In a nutshell, a military ex gratia scheme like Australia’s may fall short of fulfilling the legal right to reparation under international law, including as regards the grounds and quantum of compensation, the procedures for compensation, and forms of reparation other than compensation. Australia’s official response fails to substantively engage with these concerns.
The Compensation Regulations
The Defence (Afghanistan Inquiry Compensation Scheme) Regulations 2024 empower the Chief of the ADF (or their delegate) to compensate people who were “reasonably likely” to be victims of assault, victims of property damage, or the family member of a victim of unlawful killing, where the harm was already substantiated by the Brereton Report. The government can make payments or other compensation to individuals or groups, and issue letters of apology or acknowledgment. Australia can only pay compensation if the person receiving payment is not reasonably likely to be a member of a terrorist organization and is not a person under sanctions or acting on behalf of or directed by a sanctioned entity.
The ADF Chief has the discretion to act on the recommendation of a “Compensation Advocate,” who can review only claims submitted by the ADF Chief (at their discretion) and cannot solicit other claims. The Advocate “must” consult Australia’s foreign ministry in relation to sanctions and “Australia’s foreign policy interests” writ large, and “may” engage with eligible recipients or their representatives as well as relevant experts. The Advocate must also take into account “cultural expectations” in Afghanistan of appropriate action and the risk of diversion of payments to sanctioned persons or entities, terrorist organizations, or criminal organizations.
Where a person is eligible for compensation, the Advocate must further consider: their living standards, work status, and other circumstances; the person’s relationship to and dependency on a deceased victim; whether action could endanger the person; and “any other cultural, gender, societal, economic or geopolitical factors the advocate considers relevant.”
After making a decision, the ADF Chief must inform the person unless she or he reasonably believes it is not appropriate, necessary, or practicable to do so. A person affected by a decision by the Chief’s delegate has a right to review by the ADF Chief personally.
A Human Rights Lens on Compensation
While any effort to compensate victims is better than none, Australia’s new regulations are seriously deficient from an international law perspective. The Brereton Report justified compensation in moral and reputational terms, and the ex gratia approach under the regulations conceives of it as an act of grace or military charity. In contrast, under international law, Australia is required to make reparation, including compensation.
Under international humanitarian law (IHL), “[a] State responsible for violations of [IHL] is required to make full reparation for the loss or injury caused,” including in non-international armed conflicts (International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, rule 150). Reparation has traditionally been an inter-State obligation, although the ICRC notes “an increasing trend in favour of enabling individual victims … to seek reparation directly from the responsible State.”
Regardless, under international human rights law (IHRL), a State responsible for the arbitrary deprivation of life is required to provide effective remedies to the victims, including reparation (International Covenant on Civil and Political Rights (ICCPR), art. 2(3); UN Human Rights Committee (HRC), General Comment No. 31, para. 16). The Afghans killed in the custody of Australian military forces in foreign territory were clearly within the power or effective control of Australia or were otherwise affected by its military activities in a direct and reasonably foreseeable manner and were thus within its jurisdiction under IHRL (ICCPR, art. 2(1); UN HRC, General Comment No. 36, paras. 22, 63). The Brereton Report confirmed that these were not killings in the heat of battle, but the murder of detainees.
Further, the right to life under Article 6 of the ICCPR is “the supreme right from which no derogation is permitted, even in situations of armed conflict” (UN HRC, General Comment No. 36, para. 2). Unlawful killings under IHL ipso facto violate the human right to life (UN HRC, General Comment No. 36, para. 64), under either a lex specialis or a “harmonious interpretation” approach.
Where violations of the right to life are thus established, violators must provide full reparation (which may entail restitution where possible), compensation, rehabilitation and measures of satisfaction (such as public apologies, public memorials, guarantees of non-repetition, and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations) (UN HRC, General Comment No. 31, para. 16; General Comment No. 36, para. 28). Reparation must be “adequate, effective and prompt” (Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 2005 (Basic Principles 2005, principle 11).
The Grounds and Quantum of Compensation Under International Law
In the case of deceased persons, restitution is not possible, and the violator must pay full and effective compensation proportional to the gravity of the violation and the circumstances of each case (Basic Principles 2005, principles 18, 20). Compensation must be provided for any economically assessable damage, including “(a) physical or mental harm; (b) lost opportunities, including employment, education and social benefits; (c) material damages and loss of earnings, including loss of earning potential; (d) moral damage; and (e) costs required for legal or expert assistance, medicine and medical services, and psychological and social services” (Basic Principles 2005, principle 18).
Material damage could also include funeral and burial costs. “Moral damage” should include compensation for the pain and suffering experienced by the affected families and wider communities.
Since Australia views compensation as a charitable, ex gratia gesture, rather than as flowing from the above-mentioned legal obligations, it remains unclear to the victims and the public on which bases Australia intends to pay compensation, including as regards the heads of compensation and the quantum of awards, which are not articulated in the regulations.
The Procedures of Compensation
It is further unclear what procedures and modalities Australia intends to use to assess, structure (such as in lump sums or installments) and practically make payments. Under international law, remedies must be accessible and States must adequately inform the victims about their rights and remedies (Basic Principles 2005, principle 24; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, (Declaration of Basic Principles 1985, principles 4–5). Specifically, victims must be informed of the role and the scope, timing and progress of the compensation processes, be able to present and have their views considered, and be assisted throughout the process (Declaration of Basic Principles 1985, principle 6(a)–(c)). They must also be treated with compassion and dignity (Declaration of Basic Principles 1985, principle 4).
In this regard, the Australian scheme is not victim-centric in any meaningful way. Australia “may” consult victims, but there is no requirement to do so, or any indication as to the manner of engaging them. Australia has still not informed the victims of anything relating to the compensation process. Early and regular consultation is essential not only to respect victims’ dignity and recognize their agency and suffering, but to ensure compensation is effectively assessed, designed, and distributed in the light of their personal and community circumstances and vulnerabilities and the local and cultural context.
Further, the Australian scheme is broadly lacking in due process and any right to independent review and effective remedies. There is no legal right to independent merits review; the ADF is the final decision-maker. Any judicial review under Australian law would be limited to examining legal errors, not factual errors, thus excluding substantive review of the merits or human rights consistency of compensation decisions. The very wide discretions given to the ADF under the regulations would severely curtail even the limited judicial review available.
International Obligation to Promptly Compensate
Redress for serious violations of international law must be prompt and avoid undue delay (Basic Principles 2005, principle 11(b); Declaration of Basic Principles 1985, principle 6(e)). It has now been almost thirteen years since some of the murders and over four years since the Brereton Report recommended compensation. Australia has explained the delay by referring to: insecurity and the Taliban’s return to power in mid-2021; the lack of diplomatic relations; difficulties identifying and locating victims’ families; the danger of travel in Afghanistan; barriers to payments within Afghanistan’s charitable and banking sectors, including sanctions; and the risk that a recipient could be put in danger and become a criminal target (Afghanistan Inquiry Implementation Oversight Panel’s Final Report, November 2023).
Even accounting for these challenges, the delay in paying compensation would appear to be unjustified, in view of the relatively small number of victims and the affordability of compensation. Other factors cutting against a justification for delayed payment include:
– The feasibility of compensation, such as through neutral humanitarian intermediaries and non-monetary means where appropriate;
– The urgency of remedying violations that have profoundly impoverished families and left many dozens of children destitute for most (thirteen years) of their formative childhoods, in which they have been denied access to education and other basic services and life opportunities;
– The situation of acute and distressing vulnerability in which the families have been left without fathers in a rural subsistence economy, an economic crisis deepening poverty, and the highly gendered society under Taliban rule; and
– The need to repair relations with the victims’ wider communities in Afghanistan, who legitimately perceive impunity for grave violations of international law by Western forces.
Afghanistan’s authorities are unlikely to oppose compensation, given their interest in remedying violations by foreign forces. Neither counterterrorism laws nor related sanctions regimes would generally inhibit payments.
Other Measures of Reparation Under International Law
The duty to provide reparation under international law is not limited to compensation but also encompasses measures of satisfaction, including rehabilitation, apology, guarantees of non-repetition, and establishing the truth. Australia has taken and is taking some genuine measures to these ends, including through the powerful scrutiny of the Brereton Report itself and the government’s commitment to implement it, the Office of Special Investigator, criminal prosecutions, effecting cultural change, and a general public apology “to the people of Afghanistan” by the ADF Chief in November 2020.
Nonetheless, Australia has not communicated with the victims’ families about measures of satisfaction. They have not yet received any direct apology (such as by a letter or direct communication in accessible languages), any recognition of the truth, any update on the progress of criminal investigations or opportunities for them to participate in them, or any information about the far-reaching cultural reforms within the ADF. The circumstances of the killings remain redacted in the Brereton Report, preventing the publication of, and the right to the truth for the victims. States have an obligation not only to establish the truth and provide full disclosure of the facts of the killings, but also to engage victims’ relatives in that process and inform them of the findings (UN HRC, General Comment No. 36; Basic Principles 2005, principles 22, 24; Minnesota Protocol on the Investigation of Potentially Unlawful Death, para. 11).
Australia has also failed to take any serious steps to publicly memorialize or commemorate the victims (Basic Principles 2005, principle 22). To the contrary, the official Australian War Memorial continues to publicly commemorate as a war “hero” one soldier a civil court found to have been complicit in four murders. The government recently updated the display to very briefly acknowledge those findings, but omitted the life-changing suffering of the victims and their families. Relevantly, the principle of satisfaction should involve an accurate account of violations in educational material at all levels (Basic Principles 2005, principle 22(h)).
In addition to monetary compensation, international law may require the provision of medical and psychological care and legal and social services to the victims’ families (Basic Principles 2005, principle 21), which could feasibly be arranged through neutral humanitarian organizations in Afghanistan.
Concluding Thoughts
Australia has taken accountability for war crimes in Afghanistan more seriously than some of its allies. Its recognition of the need to compensate victims is welcome. Like too many countries, however, Australia still regards compensating victims of war crimes as its charitable gift, rather than as an international obligation to atone for its atrocities. Such a response risks failing to make reparation in the structured ways required by international law, including in regards to the grounds and proper quantum of compensation, and the procedures for engaging victims and ensuring due process and independent review. It ultimately devalues the suffering of victims and fails to adequately recognize the responsibility of the State for violations of the right to life.
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Professor Ben Saul is Challis Chair of International Law at The University of Sydney and the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Leading Seaman Paul Berry 1st Joint Public Affairs Unit, Australian Defence Force
