Updated: June 2024

Rumours had been swirling around Australian forces in Afghanistan about soldiers having executed innocent civilians. Further rumours suggested a growing unease among decision-makers back in Canberra that these stories might trigger an international criminal investigation which could embarrass Australia.

War is hell, the saying goes. To ensure civilians and prisoners do not suffer more than necessary in war, militaries have rules of engagement. Rules prohibit a soldier from walking up to a passive, unarmed civilian or prisoner of war, whose hands and feet are tied up, and shooting them dead. Soldier killings of a civilian or prisoner must be investigated, usually by a military lawyer, who determines if the soldier obeyed the rules of engagement or broke them.

Against this backdrop, it was military lawyer David McBride’s job to investigate. What he revealed shocked the public, embarrassed the Australian military leadership and contributed to the Brereton Report, the most important and honest examination of the problems in the Australian Defence Department held this century.

Ultimately McBride would reveal an array of chilling alleged war crimes. But his first conflict with his command came when he refused to prosecute Australian soldiers for an array of offences that he regarded as utterly baseless. He was confused as to why he was being pressured to lay unjustified charges. He formed the view that he was being used to create a busy smokescreen around a series of what he viewed as far more sinister activities.

He compiled a series of incident reports around the deaths of civilians and prisoners at the hands of Australian forces that he believed had not been properly investigate. He gave his report internally and that was ignored. Alarmed at what seemed to him to be wilful ignorance, he gave parts of it to journalists at the Australian Broadcasting Corporation (ABC). The ABC published the Afghan Files - the first insight the Australian public had into a shocking array of alleged war crimes committed in Afghanistan.

The Afghan Files documented incidents of Australian soldiers killing unarmed civilians, including children. According to a University of Queensland report on Press Freedom,

The leaked documents were said to reveal possible war crimes, including ... execution of an unarmed detainee and the mutilation of the bodies of enemy combatants. The reports also examined how a ‘code of silence’ within the defence community enabled those responsible to escape prosecution.”

The ABC report led to an unprecedented attack from the Australian federal government on the national broadcaster. The Australian Federal Police (AFP) stormed the Sydney headquarters of the ABC in June 2019. During an eight-hour raid, the AFP seized reporters’ confidential materials.

Astonished, Australians around the country watched the live-tweet feed by a journalist in the ABC headquarters as police walked out the door with boxes containing confidential material and journalists’ private notebooks.

Journalists’ union official Marcus Strom told the Sydney Morning Herald the raids were ‘preventing the media from shining a light on the actions of government.’

What had started as hunting down the whistleblower had been transformed into a full-on assault on the media, designed to make it cower in fear. Worldwide condemnation from journalism organisations, free speech civil society groups and other media put considerable pressure on the government.

Eventually the government announced it would not charge any of the journalists.

Instead it had charged the David McBride, the man who had disclosed the evidence of alleged war crimes, with theft and three counts of breaching the Defence Act. This is an offence that carries ‘an unlimited fine or prison time as penalty when heard on indictment’.

A British permanent resident and Australian citizen, David McBride has spent most of his life in the military. McBride was one of four children of Dr William McBride, the Sydney obstetrician who raised the alarm about thalidomide causing birth defects in the 1960s.

After earning a degree at Oxford University in 1988, David McBride joined the British Army and became a Captain. After 12 years in the UK, he returned to Australia to join the Australian Defense Force as a lawyer and was assigned as a Major to the Special Forces in Afghanistan. British and Australian forces occupied parts of Afghanistan supporting the US invasion of the country ordered by US president George W Bush, following September 11, 2001.

Involvement in potential war crimes in Afghanistan was not unique to Australia’s military.

Subsequent to McBride’s disclosures, the actions of other Coalition Special Forces in Afghanistan has also come under sustained investigation. The BBC’s Panorama revealed similar allegations in 2022 against certain British special forces in the same time period. The Panorama episode featured an interview with McBride.

McBride was originally arrested and charged in 2018. In 2020, the Brereton report, a four-year investigation by the Inspector-General of the Australian Defence Force, effectively vindicated McBride’s decision to come forward.

Brereton found credible evidence of 23 incidents, involving the alleged unlawful killing of 39 Afghans by Australian special forces.

A total of 25 Australian Defence Force Members were identified as perpetrators, either as principals or accessories.

Cover-ups of alleged crimes were part of a pattern of behaviour identified in the Brereton Report, with soldiers planting weapons or radios on a murdered prisoner to make a cover story appear true. A culture of extreme secrecy within special forces prevented the truth coming out.

The Brereton Report recommended that the chief of the defence force should refer 36 matters for criminal investigation and potential charges. To date not a single one of the alleged perpetrators has been charged. The only person facing jail is David McBride, the man who first alerted his command to these alleged war crimes.

Charging the whistleblower as a criminal while allowing alleged murders to go utterly unpunished leaves the West in a morally ambiguous position. As another war rages in Ukraine, new allegations of war crimes have emerged. For the West to have the moral authority to comment on this, it needs to have its own house in order.

Australia is a state party to the world’s first permanent criminal court, the ICC. The Court has an obligation to investigate and prosecute international crimes, and to prosecute international crimes within its jurisdiction if a state is unwilling or unable to do so.

Despite a change in federal government in Australia, the Labour Govt is allowing the criminal charges laid by its predecessors to continue. The decisions face growing community opposition.  His trial is expected to begin in 2023.

The 2022 Blueprint for Free Speech Whistleblowing Prizes is given to David McBride for his integrity and fearlessness of character. Without these characteristics, the public might never have learned the truth – or been able to demand accountability – for alleged war crimes.

Update: In May 2024, David McBride was sentenced to five years and eight months in prison. He had previously pleaded guilty to stealing and sharing military secrets after the presiding judge had ordered that his defence was inadmissible.