The agency set up to investigate alleged war crimes by Australian special forces in Afghanistan is unlikely to be able to send investigators to the Taliban-led country for some time.
Experts have described the fall of Afghanistan’s government as a setback to potential evidence-gathering activities stemming from the Brereton report, even though it is possible the Taliban would be receptive to such investigations.
Asked about the impact of the Taliban takeover on forthcoming evidence-gathering, the Office of the Special Investigator (OSI) said it was “considering the implications of the situation in Afghanistan in the context of our investigations”.
“Any future OSI work in Afghanistan would require an assessment of the security situation and other relevant considerations at that time,” a spokesperson for the recently established agency told Guardian Australia.
“The security of investigators and of any witnesses will be the paramount consideration.”
The long-running Brereton inquiry found “credible information” to implicate 25 current or former Australian Defence Force personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others in Afghanistan.
The inquiry recommended that allegations against 19 individuals be referred for criminal investigation, a task now being undertaken by the OSI, led by the former prosecutor and judge Mark Weinberg QC.
But the rapid collapse of the government in Afghanistan after the US-led withdrawal of western military forces from the country puts a cloud over that process.
In the short term, ADF personnel have been ordered not to leave Kabul airport to help Australians currently blocked at Taliban checkpoints as the security situation is deemed to be too dangerous.
In the long term, the Taliban “could well be receptive to cooperating in war crimes prosecutions of western soldiers”, according to Prof Ben Saul, an international law expert.
“However, I think in the short term their victory will exponentially increase the difficulty of gathering evidence for criminal prosecutions,” said Saul, who is the Challis Chair of International Law at the University of Sydney.
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He said Afghan witnesses may be unreachable due to large-scale displacement, insecurity, and possible disruption of foreign communications by the Taliban.
Key agencies that Australia would have dealt with in Afghanistan may have ceased to exist and a number of officials would have fled the country, Saul added.
A critical question will be whether Australia decides to recognise the new Taliban-led government. So far the Australian government has not revealed whether it will offer such recognition, saying only that trust needs to be earned.
The prime minister, Scott Morrison, said of the Taliban: “We know their form. I’ll make decisions, the government will make decisions, based on their form.”
Saul said if the Taliban was not recognised by Australia as the new government of Afghanistan, then legal cooperation – whether police to police, or formally through mutual legal assistance to obtain witness testimony in court – would be impossible.
“Diplomatically, even if the Taliban is willing to cooperate, there could be foreign policy reasons, and civil society pressure, not to deal with them at all, because of their human rights record, and the need to isolate them internationally,” Saul said.
“At trial, defence lawyers would also surely question whether Afghan witnesses have been pressured by the Taliban.”
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Donald Rothwell, a professor of international law at the Australian National University, echoed that view.
Rothwell said a supportive approach by a Taliban government in Afghanistan “raises issues as to whether any evidence that is collected from witnesses will be credible due to the potential for witnesses to be coerced to give certain evidence to Australian investigators due to pressure from the Taliban”.
“I can see defence counsel in any Australian war crimes trials seeking to discredit evidence given under those circumstances,” Rothwell said.
He said the question of whether the Australian government recognised the Taliban government “actually raises a very, very important international legal issue, which goes to the heart of Australian policy”.
For decades, Australia has said it does not recognise governments – it recognises states. But the Australian government “tweaked” that approach in early 2019 when it recognised Venezuela’s opposition leader Juan Guaidó as interim president.
“So, that possibly opens the door for Australia to say well look, we continue to recognise the state of Afghanistan, but we’re not going to recognise the Taliban government,” Rothwell said.
“Eventually there’s going to have to be a point reached where Australians are going to have to travel to Afghanistan to collect the evidence that we’re interested in.
“And unless they can get access there, it’s going to be very difficult, and inevitably, that sort of access, I think, does rely upon the assistance of whoever’s in charge of Afghanistan at the time.”
Apart from the criminal investigations, the Brereton report recommended the ADF consider taking administrative action against some serving members, including in cases “where there is credible information of misconduct” that “does not meet the threshold for referral for criminal investigation”.
On Friday Morrison refused to confirm a Daily Mail report indicating 13 SAS soldiers no longer faced administrative action from defence, after being sent notices last year asking them to show cause why they shouldn’t be terminated.
A defence spokesperson said the army had issued a show-cause notice for termination of service against 17 individuals “where alleged failure to comply with Australian Defence Force expectations and values was identified”.
The spokesperson said all of these members had been afforded due process, and they had now been “notified of the outcome of their termination notices”. But defence said it would not comment on those decisions for privacy reasons.