‘We want justice’: at the scene of alleged Australian war crimes in Afghanistan

Miniature Murder in Afghanistan: Trouble with the Taliban

Murder in Afghanistan: Problems with the Taliban

On September 11, 2012, Australian SAS soldiers were in Afghanistan hunting for a killer.
Two weeks earlier, a rogue Afghan soldier named Hekmatullah had shot dead three Australian troops playing cards at their base.

Australia’s most decorated soldier, the now disgraced Ben Roberts-Smith, was part of the hunt to find him.

Ben Roberts-smith salutes while wearing a green beret and military fatigues

Ben Roberts-Smith, Australia’s most decorated soldier, was part of the hunt for Hekmatullah, who killed three Australian soldiers. Source: Getty / Stefan Postles

Acting on intelligence, Roberts-Smith and fellow special forces soldiers first raided the village of Sola and an imam and his adult son were shot dead. An internal investigation by the Australian Defense Force (ADF) at the time found that these killings were justified.

Roberts-Smith and a team of Australian SAS soldiers continued their hunt for Hektmatullah and later flew by helicopter to the remote village of Darwan in Uruzgan province.
When the soldiers left, three Afghans – including a farmer named Ali Jan – lay dead.
Until recently, Darwan and the surrounding areas were considered too dangerous, even for local Afghan journalists.

That was until Australian journalist and anthropologist Dr. Michelle Jasmin Dimasi traveled there to interview local witnesses at the murder scenes and pave the way for SBS Dateline’s visit.

Two men in dark clothing and white and red hats stand in front of a sandy yellow cliff and structures.

The cliff in remote Darwan, the place where Ali Jan died.

Alleged war crimes

Ali Jan’s death became the focus of Roberts-Smith’s failed defamation action against several publishers, who had branded him a ‘war criminal’.

Last June, Federal Court Judge Anthony Besanko found it was “substantially true” that Roberts-Smith had kicked Ali Jan, handcuffed, off a small rocky cliff before he was shot dead on Roberts-Smith’s orders.

Ben Roberts-Smith in white shit, blue tie and black jacket.

Roberts-Smith is appealing his failed defamation case against several Australian publishers who branded him a ‘war criminal’. Source: MONKEY / Bianca De Marchi

Roberts-Smith and another soldier denied this version of events at the trial, saying they only shot a legitimate enemy who was spotted using a radio. Roberts-Smith is currently appealing his failed defamation case.

The two other deaths in Darwan that day did not involve Roberts-Smith and were not part of the defamation case.

First journalist in Darwan

Dimasi spoke to locals in Darwan and heard stories from people who said they had seen Ali Jan’s murder.
Local farmer Shahzada told Dimasi that he saw a soldier kick Ali Jan off the cliff.
“As we got close, he was shot and lay down with blood pouring from his mouth,” he said.

Shahzada was a video witness during the defamation trial of Roberts-Smith. The judge said he approached Shahzada’s story with caution but accepted certain aspects of it.

An old man in purple clothing, with a white beard and a green turban stands in front of a sandy plain and mountains in the distance.

Farmer Shahzada gave evidence via video link in the defamation trial of Roberts-smith as a witness to Ali Jan’s murder.

The almond room

The two other men killed by Australian SAS soldiers in Darwan that day were shot in a small building used to store almonds.
Those two men were Ali Jan’s father-in-law, Yaro Mama Faqir, and a man named Haji Nazar Gul.

The soldiers who shot them gave their version of events during Roberts-Smith’s libel trial.

The soldiers, identified at trial as ‘Person 32’ and ‘Person 35’, said the men were found separated from other villagers, legally engaged and legally killed according to the rules of engagement.
Person 32 said the men were armed and “posed a threat.”
Locals in Darwan dispute this claim, but say the villagers were all held together.

They say Yaro Mama Faqir and Haji Nazar Gul were taken separately to the almond room before being shot dead.

A man in black clothes holds his hands up

Sayed Hamid gave his account of the events leading to the murders from the almond room where the men were murdered.

In a video sent to Dateline, Sayed Hamid said he was detained along with the men, who held up their hands and were searched and interrogated by Australian soldiers.

He said the Australian soldiers punched Haji Nazar Gul and knocked off his turban before leading both men away.
Dimasi spoke with Yaro Mama’s sister, Shawo, who described finding the men’s bodies on the floor of the almond room.

She says the pair were “poor men sitting in their own homes” and that the Taliban were not there.

A woman in black takes notes from a woman wearing a black headscarf

Yaro Mama’s sister, Shawo, found the men’s bodies in the tonsil room.

“They were pushed into one room and I was pushed into another,” she said.

“They were beaten, they were shot.”
Shawo says her brother was shot in the back of the head, while Haji Nazar Gul was shot in the side of his abdomen.
“The blood flowed, like a container leaking and flowing away.”
In accordance with the Geneva Convention, it is a war crime to harm someone in custody.

During Roberts-Smith’s defamation trial, Person 35 confirmed he was under investigation for war crimes, but denied any wrongdoing.

The pursuit of justice

In 2020, the Brereton Report into alleged war crimes committed by the ADF found credible evidence that 39 Afghans were unlawfully killed in 23 incidents, either by members of the Australian Special Forces or at their direction.
No Australian soldiers have been criminally convicted for their actions in Afghanistan.
Locals told SBS Dateline that they want to provide witness statements, but no investigators have been to the village to collect them.

The Office of the Special Investigator (OSI), established in response to the Brereton report, has said it will not travel to Afghanistan due to security reasons.

The OSI is working with the Australian Federal Police to investigate allegations of war crimes, but progress is slow.
Ben Saul, the UN special rapporteur on human rights and counter-terrorism, told Dateline that the testimony of Afghan witnesses could be “absolutely decisive” in securing convictions for war crimes.

Saul says that while it is “possible to travel safely to Afghanistan”, Australian investigators could also obtain witness statements in other ways, such as via video link, through foreign lawyers in the country or intermediaries such as the United Nations.

The family stayed behind

Dimasi also spoke to Ali Jan’s widow, Bibi Dhorko, and two of their children, who were babies when he was killed.

A woman dressed in a blue robe talks to Michelle in a black scarf

Ali Jan’s widow, Bibi Dhorko, and her family say they have been left destitute since her husband’s death.

Dhorko says the family has been left destitute by the loss of their main breadwinner and the children now work as laborers picking cotton.

“Now we want justice,” she said.
However, Bibi Dhorko never got the path to justice.
Saul said victims of crimes allegedly committed by Australian soldiers should be involved in criminal proceedings so they can: “feel that justice is being done in the Australian courts”.

Saul said he is concerned about the time it has taken to investigate allegations of war crimes in Afghanistan and says Australia must “pull out all the stops” to pursue justice.

“But if you think about it in plain Australian terms, we would never allow someone accused of murder to walk the streets of Australia for more than a decade without being arrested and tried.”
Shawo and Sayed Hamid’s accounts have not been tested in court.
In response to Dateline’s questions, the OSI said: “All investigations are continuing as quickly as possible.”

“These are very complex matters that necessarily require a significant amount of time.”

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