Retired commando and failed Senate candidate Heston Russell allegedly fired indiscriminately from a helicopter at unarmed Afghan civilians on the ground and “may be reasonably suspected … of the war crime of attacking civilians”, documents filed in the federal court claim.
The alleged act was investigated by the inspector general of the Australian Defence Force (IGADF) in a secret war crimes inquiry, the ABC has claimed in its defence to a defamation case brought by Russell.
But Russell says the broadcaster does not have the full video of what took place prior to the incident and the IGADF found there was no credible evidence he was involved in any war crime.
Russell, a former special forces major who deployed four times to Afghanistan, is suing the ABC and two of its journalists over reports he alleges defamed him by falsely accusing him of involvement in war crimes.
Those reports relate to allegations a bound prisoner was executed during a mission in Afghanistan in 2012. Russell says the ABC’s reporting imputes he was involved.
In 2020, the ABC reported that a US marine helicopter pilot alleged Australian commandos shot and killed a handcuffed Afghan prisoner after being told he would not fit on a US helicopter extraction flight during an operation in Helmand province in 2012.
But the ABC’s defence documents makes public new allegations not previously reported about Russell, including that he fired from a helicopter at people on the ground and that he was being investigated by the Office of the Special Investigator (OSI), the government agency set up to investigate allegations of war crimes by Australian special forces soldiers.
Russell, an officer in the 2nd commando regiment and the platoon commander of that regiment’s “November platoon” in 2011 and 2012, denies all allegations of wrongdoing.
According to the ABC’s defence, on a mission during rotation XVIII – which ran between June and November 2012 – “Russell fired multiple shots from the door of a Blackhawk helicopter towards Afghan nationals on the ground below as the helicopter was ascending away from the target”.
The incident was recorded on a helmet-mounted camera and parts of the footage are reproduced in a compilation video – set to music – featuring footage captured by the 2nd Commando regiment during their 2012 deployment.
“In the footage, the Afghan nationals appear to be running, do not appear to be armed and do not appear to be posing any threat to the force element” [the Australian soldiers in the helicopter], the defence documents state.
The ABC defence documents allege: “Russell’s conduct in shooting from a Blackhawk helicopter was the subject of investigation by the inspector general of the Australian Defence Force (IGADF) Afghanistan inquiry.”
“Russell may be reasonably suspected by the department of defence and the office of the special investigator of: the war crime of attacking civilians; and/or breaching the rules of engagement.”
The office of the special investigator is the agency established by the government to investigate allegations of war crimes by Australian special forces soldiers in Afghanistan.
It was set up in the wake of the four-year IGADF inquiry which produced the Brereton report. That report found credible evidence that 39 Afghan nationals were killed, in 23 separate incidents, by a total of 25 current or former ADF personnel, either as principals or accessories.
The OSI’s investigations are continuing. The agency has not confirmed the subjects of any of its investigations. No charges have been laid.
The helicopter footage has been previously broadcast on the ABC but the court documents are the first time the soldier firing has been publicly identified as Russell.
The ABC says it believes the November platoon, which Russell commanded, is being investigated by the OSI because one of its journalists, Mark Willacy, has been interviewed by the investigators about his original report about the apparent execution of a civilian in Afghanistan in 2012.
Additionally, a freedom of information request for mission communications for November platoon in 2012 was denied by the defence department, stating the information sought “could reasonably be expected to prejudice the conduct of a current investigation of a possible breach of the law”.
“Russell may be reasonably suspected by the OSI of being criminally responsible for the conduct of members of November platoon … Russell is the subject of an investigation by the OSI,” the ABC’s defence documents state.
The court documents also accuse Russell of “dishonest conduct”, including lying to veterans charity Swiss 8 over his “unauthorised fundraising initiative of selling nude photographs via OnlyFans”.
The ABC claims Russell established an OnlyFans account purporting to raise funds for the Swiss 8 veterans charity and assured the charity the OnlyFans content would not involve nudity. However, he posted nude content and sold a picture of himself holding his erect penis to a member of the public for $94 on Anzac Day 2020. The image was circulated on an online chat forum.
Russell has filed a response to the ABC’s defence document with the federal court, stating the allegations made against him by the broadcaster were “knowingly false, or otherwise dishonest in their context, evasive and included merely to besmirch Russell”.
Regarding the video footage, Russell’s response does not deny he is the soldier firing from the helicopter but states the ABC does not “have the entire video or the footage preceding that alleged in the particulars”.
“Warranting investigation does not amount to an allegation of reasonable suspicion or being the subject of an active criminal investigation,” Russell states in his claim.
Russell said the Brereton inquiry – formally the Inspector General of the Australian Defence Force Afghanistan Inquiry – “found no credible evidence of war crimes against any commando”. He said the IGADF inquiry was “an administrative process and was not a criminal investigation”.
Russell’s reply document states “a breach of the rules of engagement is not, per se, a criminal offence”. Russell alleges parts of the ABC’s defence are “nonsensical [and] embarrassing”.
In his originating statement of claim, Russell states the ABC’s reporting of the original allegation – that his platoon murdered a bound prisoner – caused “serious harm” to his reputation, particularly because he was the only commando named in the article “thus directing all of the allegations to him”.
He said he “received hateful messages from people” as a result of the ABC’s publication of the allegation.
“The ABC’s stated basis in making that very serious false assertion was at best tenuous, and frankly so illogical that it must have been knowingly false, or at least wilfully blind.”
In respect of the Swiss 8 dishonest conduct claim, Russell says that allegation “has been included for an improper purpose, such that it is scandalous and vexatious”.
Russell has been a high-profile figure since his retirement from the military.
He has been an outspoken advocate for the welfare and rights of veterans, and in 2021 founded the Australian Values Party, which declared itself committed to “our ‘uniquely Australian’ way of life”.
He ran as a candidate for the Senate in Queensland in the 2022 federal election. The Australian Values Party attracted 15,000 votes – from 3.1m ballots cast in the state – and Russell garnered 2,167 personal votes. He was not elected. Following the election he was embroiled in a dispute with the owner of a bus he had painted in his political party livery. The owner alleged Russell reneged on a commitment to remove the signage from the bus.
In August, Russell pleaded not guilty in Sydney’s local court to one charge of common assault resulting from police allegations he was involved in a fight at a private pool party. That matter returns to court next year.
Russell’s defamation case is listed for hearing in the federal court before Justice Michael Lee on 30 November.
