The Australian government is looking for “a way forward” to compensate families of victims of alleged war crimes in Afghanistan, the defence minister has told legal advocates.
But officials continue to warn about the complexity of the compensation issue, one of the key outstanding recommendations from the landmark Brereton inquiry into alleged war crimes by Australian special forces soldiers.
Human rights and legal groups have stepped up their calls for a compensation plan in the wake of Thursday’s federal court ruling dismissing the defamation case brought by former Australian solider Ben Roberts-Smith.
The full reasons in the Roberts-Smith case are expected to be published on Monday.
The government has not commented on the case itself, saying it is not a party to the civil proceedings but has restated its commitment to acting on the Brereton report.
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.
Brereton’s report said Australia need not wait for a court to establish criminal liability before making compensation payments.
He argued that if there was credible information of an unlawful killing it was “simply the morally right thing to do” to pay compensation swiftly. He also said such steps would help restore “Australia’s standing”.
Guardian Australia understands the government is working through options on the issue of compensation but has yet to made a decision.
The defence minister, Richard Marles, emphasised his personal commitment to action in a letter to the Australian Centre for International Justice, a not-for-profit legal centre that aims to combat impunity.
Marles told the group that since taking office, he had “made it a priority to engage with Defence on the implementation of all of the recommendations arising from the Afghanistan inquiry”.
“This includes action to both address past failures and wrongdoing, and to develop the systems, culture and accountability which will prevent and promptly detect and respond to, departures from required standards,” Marles said in the letter seen by Guardian Australia.
The letter, sent in February, has not been reported until now but provides an update on progress.
“While significant progress has been made in relation to the implementation of recommendations, there remain a number of challenges in relation to the payment of compensation,” Marles wrote.
“Defence is continuing its close engagement with other relevant commonwealth agencies to find a way forward on this issue.”
Fiona Nelson, the director of legal advocacy at the Australian Centre for International Justice, said the compensation issue was “a glaring weak spot in the government’s overall response to the inquiry”.
“Over two-and-half years have elapsed since those recommendations were made and yet we have no sign of any progress on the issue,” she said.
“The previous government dragged its feet on the issue and missed an opportunity to put in place a plan before the collapse of the Afghan government and the Taliban takeover.”
Nelson acknowledged that there were “real logistical and other challenges given the extremely difficult situation on the ground in Afghanistan” but said these factors should not be “used as an excuse to do nothing”.
“Human rights standards are clear that victims of violations of international humanitarian law have a right to reparation that is prompt and effective,” she said.
The Afghanistan Human Rights and Democracy Organization, which is operating in exile, urged Australia to be “receptive to the needs and priorities of victims”.
Its executive director, Hadi Marifat, said: “Survivors and victims’ families have a right to full disclosure of the truth and acknowledgment of the harm caused by Australia’s military operations.”
Daniela Gavshon, the Australia director of Human Rights Watch, said: “Prompt and adequate payments to the victims or their families as recommended by the Brereton report is not only legally required but is the right thing to do.”
The fall of Afghanistan to the Taliban and the closure of the Australian embassy in Kabul 2021 are believed to have added to pre-existing legal complexities surrounding compensation.
The Office of the Special Investigator, which is responsible for considering criminal investigations, has previously declined to comment on whether it had raised any concerns about compensation proposals.
