The decision to deploy detectives is the most significant development to date in the war crimes scandal now gripping the nation’s elite special forces units.
A federal police spokesperson has confirmed that “investigators recently deployed to Afghanistan in support of the war crimes investigations. The AFP were supported by Afghanistan authorities in country and inquiries with international partners remain ongoing.”
The revelation that federal agents are seeking to corroborate eye witness testimony from SAS soldiers and support staff with first-hand accounts of Afghanis at the scene of the alleged atrocity suggests the AFP have undertaken an exhaustive search for potential witnesses.
“They were here speaking to many people,” said an Afghan defence source.
SAS soldiers and support staff who were at Darwan on the day Ali Jan was killed are among those who have given signed statements to police, according to multiple sources including senior defence personnel. The evidence-gathering mission by the AFP is far more extensive than many in the defence hierarchy thought possible. However, defence sources said even top brass had been frozen out of the federal police probe.
The police investigation is being conducted by the agency’s Offshore and Sensitive Investigation taskforce under the leadership of deputy commissioner Neil Gaughan and is among the most important probes facing incoming commissioner Rhys Kershaw.
The police is collecting evidence to present a brief to the Commonwealth Director of Public Prosecutions and Attorney-General Christian Porter.
The revelation of the AFP trip to Afghanistan comes after media reports that the defence force Inspector-General sent Supreme Court of Appeal judge Paul Brereton and investigators to Kabul to also gather evidence about events at Darwan.
The ABC reported in August that Major General Brereton’s trip was part of the Inspector-General’s exhaustive and ongoing inquiry into allegations that a small number of SAS and Commandos had committed war crimes in Afghanistan between 2006 and 2014, including the mistreatment or murder of defenceless prisoners of war. The Brereton Inquiry — conducted under the auspices of military Inspector-General James Gaynor — is separate to the investigation by the federal police, although both probes have been collecting evidence about Darwan.
The death of Ali Jan
The allegation under police investigation is that Ali Jan was killed after he had been detained and handcuffed by a small SAS team in the village of Darwan in Southern Afghanistan on September 11, 2012.
The SAS patrol team had helped arrest around fifty male villagers from Darwan during a sweep through the small village as they searched for rogue Afghan army sergeant Hekmatullah, who weeks earlier had murdered three Australian soldiers and who was eventually captured in February 2013.
Ali Jan was a shepherd and farmer who, according to relatives who have been interviewed by The Age and The Sydney Morning Herald and 60 Minutes had travelled on a donkey to Darwan from his nearby mountain home to collect flour. The villagers and SAS insiders allege that Ali Jan was handcuffed and in the care of an SAS patrol as a prisoner when an Australian soldier led him to the edge of small cliff and kicked him off. After he fell to a dry creek bed, he was then allegedly executed by another soldier.
His wife and children had prepared lunch anticipating his return that day, but Ali Jan never arrived. In previous interviews with The Age and Herald, villagers have alleged there were eyewitnesses to events at Darwan and The Age and Herald have previously revealed that SAS soldiers and support staff also allegedly witnessed either the cliff kick or the lead up or aftermath of the alleged incident.
Two separate investigations
The investigations by the Australian Federal Police and the Brereton inquiry each has a different purpose.
The federal police is collecting evidence in order to present a brief of evidence to the Commonwealth Director of Public Prosecutions and Federal Attorney General Christian Porter. The CDPP and Mr Porter will then decide if any Australian special forces soldiers should face criminal charges before a jury.
Major General Brereton’s inquiry is a separate fact-finding probe that is taking evidence from Australian soldiers on oath in secret hearings. When a witness appears before an Inspector General probe, they may face charges if they refuse to answer questions or are caught lying. Mr Brereton’s powers allow him to refer evidence for possible prosecutions before the military justice system or the civilian criminal justice system.
But the legislation under which Mr Brereton operates also empowers him to “publicly release all or part of a report” — much like a royal commissioner — detailing his findings about alleged war crimes and any associated recommendations for cultural and command change.
See Nick McKenzie’s full report on 60 Minutes at 8.30pm on Sunday
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Nick McKenzie is an investigative reporter for The Age. He’s won seven Walkley awards and covers politics, business, foreign affairs and defence, human rights issues, the criminal justice system and social affairs.
Gold Walkey award winner and the first Australian journalist to be embedded with special forces in Afghanistan, Chris Masters, has been on special assignment with Fairfax Media since January to report on the SAS’s Afghanistan mission.