Self-described whistleblower and former Australian Defence Force lawyer David McBride, this week sentenced to five years and eight months jail for theft and sharing of secret documents, complained that soldiers who had mutilated Afghan corpses had been investigated, the judgment in his case shows.
He also objected to an investigation into the killing of Afghan children and believed the ADF was too willing to investigate soldiers for war crimes out of concern for public and media opinion.
This week ACT Supreme Court Justice David Mossop sentenced McBride, who pleaded guilty, to a non-parole period of two years and three months and detailed his reasons in a 50-page judgment. The judgment reveals previously undisclosed details about McBride’s efforts to raise concerns about the ADF’s investigation and prosecution of possible war crimes by Australian soldiers in Afghanistan.
Those efforts included contacting both the ADF and the inspector-general of the ADF (IGADF) in May 2014, prior to contacting journalists late that year or in early 2015. McBride alleged to the AFP that a number of offences may have occurred in the ADF, including conspiracy to pervert the course of justice. The AFP rebuffed McBride, saying no criminal offences were apparent. He later made an extensive submission to the IGADF, now detailed for the first time.
McBride told the IGADF “I believe there was an absence of the ‘reasonable suspicion’ necessary to commence a criminal investigation” in relation to several investigations that had already taken place into possible war crimes or breaches of the Geneva Convention. Mossop — the same judge who presided over the trial of Bernard Collaery — details one at length.
Section E related to an incident on April 28, 2013. This was an incident where one or more (the submission was ambiguous) dead insurgents’ hands were removed in order to identify whether any one of them was a key bomb maker. The submission indicated that this involved a failure to distinguish between an incident which was sensitive and one which was suspicious. The section on this incident was lengthy. It contended that the soldier’s actions were justified by military necessity and that the soldier had received a lecture from an ADFIS member who had given him the impression that removing the whole hand was best practice to ensure accurate identification. The submission criticised the commencement of a disciplinary investigation in circumstances where the action had been investigated and no administrative action had been recommended. It criticised the finding of the Administrative Inquiry that the officer in question had exercised ‘poor judgment’ by failing to appreciate potential responses from ‘the Australian public and media’. The submission criticised the lack of support from the minister for defence and the chief of the defence force when, on August 30, 2013, the Australian Broadcasting Corporation (ABC) reported on the incident.
The incident was first revealed by the ABC’s Michael Brissenden in 2013, who revealed that a unit was under investigation for mutilating corpses. The ABC’s Dan Oakes, to whom McBride had provided documents in 2016, later covered the incident in 2017, revealing that the mutilation of the corpses had caused consternation even within the unit. Then SAS captain, now Liberal defence spokesman Andrew Hastie, had demanded to know what was going on and ordered the practice stopped. Ironically given his later actions, McBride was, in the words of Mossop, unhappy “that special forces should have to consider what the ‘Australian media’ might think of their actions during combat”.
Mossop also detailed McBride’s concerns about another incident in February 2013 when Afghan children were killed by the ADF.
There were two groups which matched the description of ‘two boys with donkeys/farm animals’. The wrong group was targeted and civilians were killed. The submission contended that there was no basis for an investigation of the war crime of murder because there was nothing to suggest that the boys were deliberately targeted with the knowledge that they were not insurgents. Despite this, the submission records that a decision was made to conduct an investigation into the war crime of murder.
McBride’s submission was sufficient to prompt an IGADF investigation by a former Victorian judge and a Royal Australian Navy captain. They concluded that “many of the complaints made by McBride could not be substantiated” although “some warrants issued by Australian Defence Force Investigative Service were invalid because they identified the wrong service offence, and they made adverse findings in relation to the issuing of those warrants”.
In short, McBride’s concerns that there was something improper, or even criminal, in the willingness of the ADF to investigate Australian troops for possible war crimes had no basis.
“In late 2015,” Mossop adds, “Mr McBride was given, and took up, the opportunity to read the report that had been prepared by the officers of the IGADF. He did not raise any concerns about the report with anyone at the IGADF.”
