Former military lawyer says he knew Australian defence force ‘wasn’t going to fix itself’ in affidavit obtained by Guardian Australia
Sarah Basford CanalesSun 26 Nov 2023
David McBride was focused on holding the Australian defence force’s leadership to account.
Much has been written about the former military lawyer, who last week pleaded guilty to three charges, including stealing commonwealth information and passing it on to journalists at the Australian Broadcasting Corporation.
To some he is a whistleblower, a hero and a key part of the reason why the public now know of alleged war crimes being committed during the Australian military’s time in Afghanistan.
To others, particularly those within and orbiting the intelligence and military community, he is a criminal who should be punished for having collected documents against the law and leaking them to the media.
In his own words, according to an affidavit lodged but never tendered to court and since obtained by Guardian Australia, he was just doing his job.
‘Afghan civilians were being murdered’
McBride was dubbed a “war crimes whistleblower” by the media but the term only offers part of the story.
In an affidavit lodged in 2021 during his attempt to use federal whistleblower protection laws to avoid a criminal trial, McBride offered two reasons for why he went to the media in 2015.
According to the affidavit, McBride wanted Australians to know that “Afghan civilians were being murdered and Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour”.
He continued: “At the same time, soldiers were being improperly prosecuted as a smokescreen to cover [leadership’s] inaction and failure to hold reprehensible conduct to account.”
In some ways his mission was a success. Australians now know Afghan civilians were killed – whether lawfully or not could still be decided by a court in future.
But his evidence that alleged “dark events” had occurred between 2007 and 2012 during the Australian defence force’s time in Afghanistan and were “deliberately hidden or obscured” by senior leaders, as he swore in his 2021 affidavit, will never be tested in court.
‘Deeply troubled’
Some public commentary about McBride’s motivations for coming forward centres on his aim to protect special forces soldiers he believed were innocent, or prosecuted more harshly than others.
The reporting has suggested McBride wasn’t looking to expose war crimes at all – only that he felt the rules weren’t being applied properly and that soldiers, rather than the leadership, were being punished.
For McBride, his truth lies somewhere in the middle, according to his affidavit.
Tasked with teaching the rules of engagement to soldiers on the ground, McBride became “sickened” by an incident during his first tour of Afghanistan in 2011.
Two years before his arrival two special forces soldiers killed five children during a raid in Afghanistan’s Uruzgan province.
The soldiers were charged for their involvement but, during a pre-trial hearing, the charges were thrown out by the chief military judge of the Australian military court, who ruled that Australian soldiers did not owe any duty of care to Afghan civilians.
McBride described the judgment as “perverse”, finding it hard to reconcile that these soldiers were “effectively deemed to be ‘beyond the reach of the law’”.
“The way the incident was dealt with deeply troubled me and left me highly alert to the fact that we were asked to teach the Rules of War but that there were no penalties for those who ignored them,” he wrote.
Some years later, while McBride was on his second tour, there was an internal push by senior defence figures to change the rules of engagement to include more obligations.
McBride recalled questioning the need for a change to the rules he said were “simple and understood”.
“We didn’t need to change the rules of engagement, we needed to apply the rules we had,” he said.
He suspected the changes were being driven by media coverage of civilian and prisoner deaths and the political pressure arising from them, pointing to later examples where cases receiving extensive coverage resulted in stronger punitive responses.
By the end of 2013, McBride said, he felt disillusioned with his role and felt it would be “a failure of [his] duty” if he did not report the concerns to the military’s watchdog, the inspector general of the Australian defence force.
“I did not wish to be seen as un-Australian, or anti-soldier, or overly sensitive about civilian and prisoner deaths,” McBride wrote. “It was a burden on me to reveal this information.”
But the IGADF’s inquiry into his allegations was “inadequate”, McBride believed, leaving him with few avenues beyond going to the media.
That part of the story many will know. The documents McBride handed to journalists informed the ABC’s seven-part series, The Afghan Files, published in 2017.
A few years later Justice Paul Brereton would deliver his report finding credible evidence that Australian special forces soldiers murdered 39 civilians and prisoners, with most of these killings occurring in 2012 and 2013.
The special investigator tasked with bringing some of these allegations continues its classified work, having charged one former soldier so far.
McBride will learn of his fate at his sentencing hearing in March. He will be the first person to face possible jail time in relation to the war crimes saga.
“I knew the ADF was not going to fix itself,” he wrote in 2021 of his decision to go to the media. “If I walked away, nothing was going to happen, it was only going to get worse.”
Categories: Afghanistan, Asia, Australia, Europe and Australia, War, War crimes
We need a few more whistleblowers from the US side. I am sure that the Australian saga is miniscule compared to the US one…