The Ben Roberts-Smith case must force ADF leadership to re-examine Brereton report flagging how unethical conduct can flourish

Last week Justice Anthony Besanko handed down his decision in the defamation case brought by retired Corporal Ben Roberts-Smith against several Australian media organisations.

The judgement has reopened the wounds of a shameful period of Australian military history.

Beginning with the Brereton report of 2020, and through to the BRS judgement last week, two Australian judges have exposed war crimes by Australian special forces soldiers but have also shown how the command and leadership culture of the Australian Defence Force (ADF) failed.

A grim tally of alleged crimes

On November 19, 2020, the ADF publicly released a report on the actions of multiple rotations of the Australian Special Operations Task Group (SOTG) in Afghanistan.

The Inquiry Report is a grim tally of allegations of criminal and unethical conduct by some members of the special operations community over a decade. It described credible reports at least 39 suspected murders of Afghans, none of which occurred in combat.

Despite the early attention to the report, and myriad Defence working groups and documents, it is unclear if any real progress has been made in addressing the cultural aspects of the Brereton report.

Two Australian governments have essentially decided that "we shall not speak of this again".

No senior special operations commander has been held accountable. If they have, it has been done in secret, which ensures the wider military institution is unable to learn.

And unlike the more thoughtful Canadian military, which disestablished its Airborne Regiment for the torture and murder of a Somali man in 1995, the Special Air Service Regiment has escaped a reckoning for a much larger number of alleged crimes.

As a result, there remains widespread dissatisfaction in many parts of the Australian Defence Force about the absence of accountability of the special operations community from Afghanistan.

Three areas of failure

There were three principal failings of leadership identified in the Brereton report.

Defence's senior military leadership failed

The Brereton report describes a culture of unethical behaviour at multiple levels of command. It notes that "while many factors contributed, they include the dominance of a clique of non-commissioned officers (NCOs) who embraced a "warrior hero" culture; the notion that being designated "special" justified exceptionalism from ordinary rules and oversight; the promotion of the wrong exemplars".

Further: "That culture was not created or enabled in SOTG … it was in their parent units and sub-units that the cultures and attitudes that enabled misconduct were bred, and it is with the commanders of the domestic units who enabled that, rather than with the SOTG commanders, that greater responsibility rests."

Brereton found that "personnel and staff who had concerns or suspicions ... were reticent to raise them, being deterred by the risk of being perceived to be disloyal, as much as by fear of professional or personal ostracism, or threats, bullying, or other retribution, from doing so. A deep-seated team or tribal culture led to the ostracism of members who might question the actions of other team members."

A failure of curiosity in leaders

Brereton found multiple instances of leaders being oblivious to indications of unlawful conduct.

The "inside the wire versus outside the wire" mentality, while occurring in many military institutions, does not excuse those who might spend more time on base from asking questions or verifying information. In the military, mission command places trust in subordinates but never excuses commanders from verifying their orders are being carried out.

Brereton did find that there was no evidence of knowledge at command levels, from troop through to Australian Defence Headquarters, that war crimes were being committed under their command.

But his report noted:

"Quite apart from the question of war crimes, ethical leadership was compromised by its toleration, acceptance and participation in a widespread disregard for behavioural norms … which would not have been tolerated elsewhere in Army. This significantly contributed to a kind of collective organisational blindness, where the collective sacrifice on operations was seen to justify certain excesses."

The trust that is essential to unit cohesion is not improved by blindness to, or avoidance of, inquiry. While those responsible for the worst atrocities obviously possessed a certain form of cunning and intelligence, why weren't their officers smarter?

Brereton found there existed "an 'abandoned curiosity' in matters which ought to have attracted attention … for a commander to repose trust in what a subordinate report is both natural and proper. But while this may be so, a commander also cannot abandon curiosity for understanding deeper aspects of that which may be possible."

A failure of civil military relations

A theory and practice of civil-military relations is an essential part of any democratic nations' relationship with its military organisations. Not only does this clarify the subordination of the military instrument to the legally elected civil government, it also defines mutual obligations, and how national values and expectations govern the behaviour of military personnel.

This is a knowledge (and practical) gap in the Australian military institution.

A clear description of the Australian version of civil military relations would have provided the underpinning for the kind of relationship that senior military leaders should have had with the civilian leaders in government. As Brereton found, no senior military leader provided written advice to government of the risk of protracted multiple deployments by a small pool of people.

The Australian military profession has also failed to explain to the Australian people that the notion of "anything goes", that "war is war", is just not true.

As the only part of Australian society permitted to plan for, and execute, deliberate operations to kill other humans, the ADF also has a profound responsibility to exercise this power legally, ethically, discriminately and proportionately. This responsibility was ignored by some of the special operations leadership during our Afghanistan commitment.

These three strategic failures represent deep shortfalls in the command and leadership culture of the Australian Defence Force. When war crimes occurred, leaders failed to know, to ask about, to report them or prevent future occurrences.

Our nation can do better. The judgement in the defamation battle of retired Corporal Roberts-Smith is an opportunity for the Australian government, and our community more broadly, to consider anew the full implications of Brereton's 2020 report.

And that starts with leadership.