Australia’s Afghanistan Inquiry Compensation Scheme: A Pragmatic Model for Individual Reparations

Editors’ note: This post draws from the author’s forthcoming examination of the Afghanistan Inquiry Compensation Scheme’s legal framework and international law implications, to be published in the Australian Yearbook of International Law later this year.

Professor Ben Saul recently critiqued Australia’s compensation scheme for victims of Australian Defence Force (ADF) operations in Afghanistan as inadequate “military charity” that falls short of international legal standards. His analysis correctly identifies serious procedural and substantive shortcomings. But the scheme also represents a practical model for how States can provide individual reparations while maintaining administrative control over the process.

The Defence (Afghanistan Inquiry Compensation Scheme) Regulations 2024 (the Regulations) establish a legislative framework explicitly designed to compensate victims of international humanitarian law (IHL) violations based on prior findings set out in the ADF Afghanistan Inquiry. This inquiry-based model offers a potentially replicable approach for other States grappling with post-conflict accountability challenges. Understanding this model’s framework and implications is therefore crucial as international law continues developing in this area.

From Interstate Frameworks to Individual Rights

Australia has historically compensated its own nationals for conflict-related harm through extensive legislative schemes. By contrast, it has used more limited schemes for foreign nationals, schemes that have either relied on intermediation by the victim’s State of nationality or adopted an explicitly charitable approach. The 2009 Tactical Payment Scheme, for example, authorized field commanders to make payments up to $250,000 per case to foreign nationals harmed by Australian military operations. Crucially, this scheme expressly maintained its ex gratia character, thereby avoiding any contribution to State practice regarding reparative obligations toward foreign victims.

The Regulations mark a departure from this explicitly ex gratia approach. While retaining discretionary elements, they establish a legislative framework that creates formal pathways for compensation based on violations of IHL rather than general damage from military operations.

The Legal Framework

Under the Regulations, two key actors administer the scheme: the Chief of Defence Force (or delegate) and the Afghanistan Inquiry Compensation Advocate (currently Justice Ruth McColl), who is appointed by the Defence Minister. The process is straightforward. The Chief of Defence Force may refer a claim to the Advocate if it meets the prescribed eligibility conditions (Regulation 5). The Advocate considers referred claims and makes recommendations (Regulation 6). The Chief of Defence Force decides whether to accept the Advocate’s recommendations or take different action (Regulation 8).

Eligible recipients must be “reasonably likely” to have been victims of assault or property damage, or family members of victims of unlawful killing (Regulation 5(1)(a)(i)). The conduct must have been “substantiated by credible information” through the ADF Afghanistan Inquiry (Regulation 5(1)(b)). This requirement substantially constrains the scheme’s reach, effectively limiting it to incidents specifically documented in the Brereton Report.

The Brereton Report documented 23 incidents involving at least 39 unlawful killings. While the evidentiary threshold of “credible information” is not overly burdensome, linking the scheme directly to the Inquiry’s findings creates a distinction between victims of substantiated as opposed to unsubstantiated conduct.

The Advocate may recommend no action, monetary compensation, in-kind compensation, letters of apology or acknowledgment, or compensation to “any other person or group” beyond eligible recipients (Regulation 7(2)). This flexibility could enable culturally appropriate responses and address broader community impacts.

The framework reveals a careful balance between acknowledging harm and preserving State control. Unlike tactical or condolence schemes that rely on opaque exercises of executive discretion, or judicial mechanisms that operate independently of government, Australia’s model creates structured discretion by establishing formal procedures and criteria that guide decision-making while retaining ultimate executive authority. Significantly, and in contrast with most condolence programs, the scheme establishes eligibility based essentially on violations of IHL rather than general conflict damage.

International Law Development and State Practice

The scheme’s impact on international law development operates on multiple levels. As State practice, it demonstrates domestic implementation of individual reparations obligations without requiring traditional inter-State mechanisms or intermediation of the victim’s State. This contributes to evolving recognition that individuals may hold direct rights under international law.

The scheme’s connection to specific IHL violations, rather than general conflict damage, suggests the acceptance of legal obligations. However, the scheme’s discretionary elements complicate its contribution to customary international law. In particular, the concentration of decision-making power in the Chief of Defence Force indicates political choice rather than legal compulsion. The International Law Commission notes that practice disclaiming legal obligation typically cannot contribute to customary law development. The Regulations occupy an ambiguous middle ground that is neither explicitly charitable (like the Tactical Payment Scheme) nor fully rights-based.

This ambiguity may reflect the current state of international law regarding individual reparations. While soft law instruments like the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation advocate for individual rights, State practice remains inconsistent. Australia’s approach, which acknowledges harm while preserving control, may represent a pragmatic middle path that other States could adopt.

The Replacement Explanatory Statement’s framing of the scheme by reference to human rights treaty obligations rather than customary international law may limit its direct contribution to developing norms around IHL violations. However, this does not diminish the scheme’s significance as State practice that demonstrates how States may operationalize domestically their international obligations.

A Military Inquiry-Based Model

While inquiry-then-compensation approaches exist internationally, Australia’s model has distinctive characteristics that merit examination. Many precedents involve civilian truth commissions addressing domestic violations, such as Peru’s Truth and Reconciliation Commission leading to a comprehensive reparations program, or South Africa’s Truth and Reconciliation Commission (though reparations were never fully implemented).

Australia’s approach differs in three key respects. First, it relies on military rather than civilian inquiry findings. The Brereton Report details the findings of a military inspector-general within defence structures, not an independent civilian commission. Second, it addresses violations by State forces against foreign nationals rather than domestic populations. Third, the scheme has extra-territorial effect in a hostile environment rather than within established domestic institutions.

This military inquiry-based model may appeal to States reluctant to establish civilian truth commissions but wishing to acknowledge victims or facing accountability pressures. The United Kingdom’s extensive Iraq investigations through the Iraq Historic Allegations Team and Chilcot Inquiry, for example, resulted in civil settlements but no formal compensation scheme. Australia’s approach demonstrates how inquiry findings and recommendations can be systematically operationalized through reparations mechanisms.

The model also offers advantages for States concerned about the prospect of claims overwhelming the process. By limiting the scope of a scheme to documented violations and maintaining executive control, it enables an acknowledgment of harm without creating open-ended liability. Despite its limitations from a victim-centric perspective, this controlled approach may prove attractive to other States facing similar accountability challenges.

Broader Implications and Future Applications

The inquiry-based model’s replicability will depend on several factors. States must be willing to conduct credible investigations into military conduct, accept findings of wrongdoing, and create formal redress mechanisms. The model also requires sufficient political will to move beyond expressly ex gratia approaches while maintaining acceptable levels of State control.

Importantly, the scheme demonstrates that incremental progress in operationalizing individual rights to reparations remains possible even within existing political constraints. However, early implementation reveals significant challenges, for as of February 2025 the scheme had received no valid claims. This highlights the persistent gap between creating formal frameworks and achieving practical access to justice in hostile environments.

While “perfect” justice for victims may prove elusive, meaningful advances in State practice can contribute to broader legal development over time. The challenge now is ensuring that formal frameworks translate into accessible justice for those they are designed to serve.

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Dr Emily Camins is a Lecturer at the University of Western Australia Law School, where she coordinates the International Humanitarian Law unit.

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: Petty Officer 1st Class John Collins