Investigators are continuing to look into alleged war crimes by Australian special forces in Afghanistan uncovered by the Brereton inquiry, despite media claims implying some individuals have been exonerated.
Several media outlets have reported that more than a dozen soldiers who were issued with “show cause” notices no longer face termination, and in some cases this development has been conflated with separate investigations into alleged war crimes.
But the independent agency charged with overseeing criminal investigations arising from the Brereton inquiry has told Guardian Australia it is irrelevant to its task whether the army does or does not sack soldiers who have faced allegations.
In radio interviews last week, the 2GB host Ray Hadley pressed the prime minister and the defence minister to apologise to “these 13 men who have been vilified and called cold-blooded murderers”, with Hadley claiming “there is insufficient cause for it to be referred to an investigator”.
The Office of the Special Investigator confirmed to Guardian Australia that it continued to investigate allegations alongside the Australian Federal Police “and the outcome of any Defence administrative action is not relevant to our work”.
The Brereton inquiry identified two categories of soldiers alleged to have committed misconduct, one where there was likely to be sufficient evidence for criminal investigation, and one where there was not.
It found “credible information” to implicate 25 current or former Australian Defence Force personnel in the alleged unlawful killing of 39 people and the cruel treatment of two others in Afghanistan.
The inquiry recommended that allegations against 19 of those individuals be referred for criminal investigation, and the government set up the OSI, led by the former prosecutor and judge Mark Weinberg QC, to oversee that task.
In the final report, Maj Gen Paul Brereton wrote: “The inquiry’s approach is that those who have incited, directed, or procured their subordinates to commit war crimes should be referred for criminal investigation, in priority to their subordinates who may have ‘pulled the trigger’.”
The report recommended the ADF consider taking administrative action against a second category of serving members, including in cases “where there is credible information of misconduct” that “does not meet the threshold for referral for criminal investigation”.
The army issued notices to 17 individuals asking them to show cause why they should not be terminated, and they have now all been notified of the outcome.
Defence has not given a public breakdown of the decisions reached in each case, but says some had already left the ADF based on medical advice that they were “no longer able to perform their duties”.
“Some individuals issued notices have since separated from the Australian Defence Force on medical grounds,” a statement on the Defence website said. “Others continue to serve, whether in the permanent or reserve force.”
Some media reports have presented the outcomes in a way that appeared to blur the two categories and seemed to call into question the credibility of the war crimes investigation, with one story even suggesting that some special forces soldiers were now considering a class action.
Daily Mail Australia told its readers on 19 August: “Despite all the claims of war crimes against the soldiers, their versions of events have ultimately been preferred over what was found in the Brereton report.”
The Daily Telegraph reported on 25 August that the ADF had “quietly told 13 members of the SAS that there is not ‘sufficient information’ to refer allegations of war crimes to investigators and their contracts will not be terminated”.
But in his report, Brereton attempted to avoid any overlap, saying the inquiry “has not made a recommendation for administrative action in respect of a member who is the subject of a recommendation for criminal investigation”.
A spokesperson for the OSI told Guardian Australia the agency was concerned only with the potentially criminal matters. They said the OSI was working closely with the AFP “to investigate potential criminal matters raised in the report and any additional allegations of criminal offences under Australian law arising from or related to breaches of the Laws of Armed Conflict by ADF members in Afghanistan from 2005 to 2016”.
“The joint OSI-AFP criminal investigations are independent and the outcome of any Defence administrative action is not relevant to our work,” the spokesperson said.
“While we are receiving information relevant to our mandate from Defence and other sources, the OSI does not comment on the detail of investigations or allegations.”
Last week the defence minister, Peter Dutton, offered a qualified apology to soldiers identified in the Brereton inquiry if they had been wrongly accused.
“If people have been wrongly accused, and they’ve now been cleared of that, then I do apologise for what they’ve been through, what their families have been through,” Dutton told Hadley.
Dutton said if people had criminal charges to answer “then that’s a matter for the courts, but for the rest, we move on from that chapter now”.
Daily Mail Australia, the Daily Telegraph and 2GB’s Hadley also reported that one of the cleared soldiers had been sent to Afghanistan to help rescue Australians from Taliban-controlled Kabul, but the government has rejected this claim.
“Defence can confirm no individuals who have received administrative notices in relation to the Afghanistan inquiry were deployed by the Australian Defence Force to support the Australian government’s evacuation effort from Afghanistan,” a spokesperson said.
