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Some Australian soldiers used foreign rules of engagement in Afghanistan that may have resulted in alleged war crimes – a failing not investigated by the Brereton inquiry. By Ben Mckelvey.
Exclusive: SAS troops employed wrong rules of engagement
A little over a decade after Australian forces entered Afghanistan, soldiers on deployment there stopped using Australia’s rules of engagement.
Interviews and documents have revealed that in 2012 – the year most of the alleged war crimes were committed by the Special Air Service Regiment (SASR) – many Australian special forces soldiers began using international rules of engagement for which they were not trained and which they were not permitted to use.
The use of these rules of engagement (ROE) may have contravened Australian law and may have resulted in the killing of a large number of unarmed Afghans who would not otherwise have been killed.
Australian ROE restricted the killing of “squirters” – that is, people trying to run away from compounds and areas of interest – and “spotters”, a term given to Afghans who may have been observing Australian forces and may report back to insurgent positions.
Australian ROE also forbade targeted killings, with Australian forces obliged to attempt to capture targets when practicable.
There is now evidence SASR patrols used an interpretation of the International Security Assistance Force ROE in Afghanistan, which they believed allowed the killing of spotters and squirters and also allowed targeted killings.
The International Security Assistance Force (ISAF) was the multinational military taskforce established by the United Nations to support the new Afghan government. ISAF had rules of engagement that were often more restrictive than Australian ROE overall when being strictly applied, but it seems the SASR may have used ISAF ROE selectively or incorrectly as a way to skirt some aspects of the Australian ROE.
Documents and interviews have also revealed that many officers working within Special Operations Command knew the SASR were not primarily using Australian ROE, despite orders to the contrary.
A starred officer investigating SASR killings in 2013 described the use of these ROE as a “systemic failure” in a document seen by The Saturday Paper, yet it seems that this incorrect use of ROE was not investigated by the office of the Inspector-General of the Defence Force or the assistant inspector-general, Paul Brereton.
The rules of engagement that the SASR were obliged to primarily use was Operation Slipper Rules of Engagement Serial Seven 2009. These rules were a directive issued by then chief of the Defence Force Angus Houston and approved by the National Security Committee of Cabinet helmed by then prime minister Kevin Rudd.
Before going to Afghanistan in 2012, and when they arrived at their base in Tarin Kowt, the SASR were briefed exclusively on Operation Slipper Rules of Engagement Serial Seven 2009. The SASR were also issued orders for opening fire (OFOF) cards explaining when they could and couldn’t fire according to the ROE.
Throughout their time in country, the SASR were supported by legal officers who had themselves been briefed on Australian ROE. In the field, however, it seems some SASR patrols used ISAF ROE that, according to orders, were only allowed to be used when patrols were seconded to other international force elements and in other limited circumstances.
In 2012 the SASR used ISAF ROE 421, which dictated the use of lethal force against civilians, including unarmed civilians, who demonstrated hostile intent. Some SASR patrols defined hostile intent through their own understanding of insurgent techniques, tactics and procedures, not through an established or codified doctrine.
This effectively empowered soldiers to kill any unarmed Afghans who they thought showed hostile intent.
Evidence uncovered by The Saturday Paper has found some SASR patrols filed reports that admitted to killing Afghan locals who were simply witnessed fleeing when Australians approached.
These reports, which were to be sent back to Canberra, were returned to the soldiers by their officers, who asked that more descriptors be added to reflect Australian rules of engagement.
In the wake of some 2012 SASR killings, including those now being investigated as war crimes, “higher headquarters were becoming increasingly dissatisfied with the opaque language in operational reporting”, according to the “Inspector-General Australian Defence Force Afghanistan Inquiry Report”, also known as the Brereton report.
As revealed by The Saturday Paper in August last year, Defence sought advice from the Attorney-General’s Office on the legality of Australian rules of engagement after this opaque SASR reporting.
The advice only related to Australian ROE, however, with no investigation of the ISAF rules of engagement that the SASR had been using, or of the application of these rules.
There are many ways of reading the decision to only investigate Australian rules of engagement. A cynical reading could see the decision as an attempt to ensure that SASR operational reporting – which was often the only evidence left after missions – appeared legal regardless of what may have happened on the ground.
Killings by Australians soldiers who mistakenly used ISAF ROE are not believed to have been in the scope of the Brereton report.
In fact, the report says it “does not consider it likely” that “there was any ambiguity in the minds of SOTG [Special Operations Task Groups] personnel about the primacy of Australian ROE”.
Yet Major General Paul Brereton and his team should have known about the SASR’s use of ISAF ROE and would also have had access to the report in which a starred officer complained about the widespread use of ISAF ROE by the SASR.
On April 29, 2013, then chief of the Defence Force David Hurley issued a ROE amplification order, further restricting those using Australian rules of engagement.
In the wake of killings that may have been authorised under ISAF ROE 421, which approved lethal engagement of civilians participating in hostilities, the ROE amplification issued a “Directive on the Lethal Engagement of Civilians Directly Participating in Hostilities Under OP SLIPPER Rules of Engagement”.
This amplification order further restricted the circumstances in which spotters and squirters could be killed.
This amplification order would not have affected those using ISAF ROE.
It’s believed that the SASR also used another ISAF ROE serial to facilitate targeted killings of Afghans on the Joint Prioritised Effects Lists (JPEL).
The JPELs were lists of the names of Afghans believed to be helping the insurgency or hindering the Afghan government. Every Afghan on those lists became an “objective” and was given their own codename.
One of the primary roles of the SASR was to hunt people on these lists in “kill/capture” missions.
The nature and nomenclature of these missions was denied by Defence while the war was being conducted, but it’s now generally accepted that these missions were conducted and were a primary role of the SASR under a line of operation called Operation Tevara Sin.
These ISAF ROE believed to be used in JPEL killings were 429A, which allowed the targeting of “individuals … resisting ISAF in its mission to facilitate the lawful extension of Afghan government”, and 429B, which allowed the targeting of “Individuals … challenging ISAF’s complete and unimpeded freedom of movement”.
ISAF ROE 429A and 429B may have allowed such targeted killings but their legality under Australian law has never been tested.
It seems likely some SASR patrols used these ISAF rules of engagement on kill-capture missions, with the use of these ROE not being reflected in reports written later.
This would be consistent with confused reporting about the killing of Tarin Kowt businessman Hayat Ustad, who was shot by the SASR in 2011.
Ustad was elevated to the JPEL in 2011 after it was discovered the shipping company he and his brothers ran had been bringing bomb-making components into Uruzgan from Kandahar.
He was killed close to the Australian base in Tarin Kowt on April 29, 2011.
Locals interviewed by the ABC and sources within the military have said Ustad was unarmed when he was killed. This is at odds with a press release issued by the Department of Defence on April 30, 2011.
The release headline read: “Insurgent commander killed attempting to shoot Australian troops”.
The release described the killing as an “Afghan National Police-led operation in Tarin Kot” against a “known insurgent leader”, and declared that “the operation was conducted with strict adherence to Australian rules of engagement”.
The operation was Australian-led with the intelligence, approvals and action undertaken by Australia’s Special Operations Task Group.
The mission was against someone who was not an insurgent leader, but a close business ally to Matiullah Khan, the warlord with whom the Australian special forces had chosen to partner.
Ustad did facilitate the logistics of bomb-making, however, and had been marked on the JPEL list as “Objective Heggitt”.
If Ustad was attempting to fight a heavily armed special forces patrol – which was supported by armoured fighting vehicles, according to local sources – then Australian rules of engagement regarding self-defence would have allowed the killing.
If he was not armed, and the Australian patrol had used a “throwdown” or weapon or radio used to justify the legality of killing, then the killing would have been in contravention of Australian rules of engagement, though an interpretation of ISAF 429 may have allowed the killing.
If Ustad was unarmed and his killing had been authorised under ISAF 429, it’s a particularly galling incident, as Ustad had been a test subject for a new ADF initiative called the Rule of Law Cell. The cell had been created to instil faith in the Afghan justice system, gain convictions against insurgents and curb the number of Afghans being killed by Australians.
The Department of Defence was approached and said all ADF members were trained on the application of ROE. It also noted the IGADF Afghanistan Inquiry Report made clear that during the Afghanistan campaign there were several sets of ROE that applied to different tasks and geospatial sub-areas. Defence did not respond to some questions.
This article was first published in the print edition of The Saturday Paper on February 1, 2025 as "Kill switch".
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