Clean hands and credibility lacking in Special Adviser appointment

Then Chief of the Defence Force Mark Binskin meets Afghanistan's LTGEN Iqbal Ali Naderi back in May 2018. Allegations of Australian war crimes between 2005 & 2016 still have resulted in no accountability for ADF leaders and personnel involved. Image: Defence.

Written by

Michael Shoebridge and Anthony Bergin

The Albanese government has appointed former Chief of the Defence Force Chief Marshal Mark Binskin as Special Adviser to advise the government on the sufficiency of Israel’s response to the Israel Defence Forces strikes which killed seven aid workers in Gaza. It’s a dangerous precedent.   

Binksin is to examine the arrangements for the investigation of the incident, IDF policies and procedures for operational incidents, and the measures taken to hold those responsible to account. He’ll also look at measures adopted to prevent such incidents happening again and what could be taken to ensure a “full and transparent investigation and to hold those responsible to account”.  

It’s unprecedented for a democracy to unilaterally send a senior military officer into another friendly democracy to audit its military discipline and investigations in the middle of a war. When the MH17 airliner was shot down by the Russians over Ukraine, we worked with the Dutch using the Dutch Safety Board and a Joint Investigation Team. But we only needed to do that because we and the Dutch couldn’t negotiate with the Russian government. That’s not the case here. By sending Binkin we’re treating Israel’s system as a failure. 

One wonders what we would say if any other country announced that they were appointing a special adviser on Afghanistan incidents involving our soldiers. The IDF have already announced that they’ve dismissed two officers and reprimanded three others for their roles in the strike. That’s extraordinary quick action given that Israel is in the middle of a complex conflict.

We should give the Israeli’s time to complete their investigations and to have their prosecuting authorities examine the evidence for legal proceedings beyond the IDF’s internal system – a step that the Israeli government has already put in place. We should show patience so they can work out everything that happened. This is only one of a thousand issues being faced by a country at war. Normally such investigations take place well after a conflict.

Australia is not coming to this issue with clean hands or credibility.  It is jarringly sanctimonious for Australia to be demanding urgent, transparent disciplinary action and legal proceedings from the Israeli government over these tragic deaths when we take a moment to see how our government and military have been handling allegations into war crimes by ADF personnel in Afghanistan.  These allegations date back to conduct between 2005 and 2016 – beginning almost two decades ago – and there have still been no legal proceedings to test the evidence in court or hold anyone responsible. 

The Australian military reluctantly and slowly conducted its own internal inquiry, resulting in the Brereton Report of 2020, and then a new separate body and process was stood up – the Office of Special Investigation.  Here we are in 2024, and quick as a flash, nothing has happened – except that the passage of time has made any prosecutions harder. A single prosecution began in March 2024, almost 20 years from the start of the period the allegations covers.

For Afghan families and for Australian military who want to see any ADF personnel who acted against our values and laws held to account, justice delayed is justice denied.

How on earth is our government and any former ADF leader to be taken seriously by the Israeli government and military, with this history of inaction and delay as our track record?

How do we expect to press the Israelis for urgent, transparent accountability we don’t deliver ourselves?

There’re suggestions that the UN could investigate. But a UN investigation team would lack any credibility given the perception it is simply  anti-Israel. The agenda for a proper inquiry would be lost.

We’re setting a serious risk of setting a precedent that could come back to bite us – right now with the alleged Afghanistan war crimes, for example. Maybe the government should have thought this aspect through. 

Whenever the Albanese government talk about the war generally they should start by calling on Hamas to cease fighting, lay down their arms, handover the hostages immediately and unconditionally as called for by the ICJ. Too much discussion of the conflict is as if there is only one party to this war, with Hamas being edited out of the picture. 

Hamas is revelling in civilian deaths – Palestinian, Israeli and international.  The Israeli government has investigated its military’s actions faster and more thoroughly during a war than we have shown ourselves able to do about a now distant limited deployment.  The Special Adviser might bring this to the government’s attention as he begins work.

This article was first published in The Australian on 9 April 2024