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Key Points
- The ADF has been accused of threatening a potential war crimes witness.
- An ADF document shows the soldier was warned about speaking to “any third party”.
- The solider – Person 4 – ultimately did testify against Ben Roberts-Smith.
An official ADF record shows Person 4 was warned in 2020 that disclosing information to the media or “any third party” could lead to criminal ramifications — and was ordered to report any other soldier for doing so.
Person 4 said he witnessed Ben Roberts-Smith kick a handcuffed prisoner off a cliff before ordering his execution. Source: AAP / Dan Himbrechts
The warning came just months after the ABC aired vision of an SAS soldier shooting an unarmed Afghan man in a wheat field, and as rumours about committed in Afghanistan were gathering pace.
“In this case, that would include the International Criminal Court (ICC). Criminal redress is threatened in order to dissuade the soldier from making unauthorised disclosures about war crimes he witnessed.
It’s a powerful example of a formal, administrative code of silence being imposed on a witness to murder. So the obvious question is: Who knew about and authorised this conversation?
What does the ADF document show?
“You are reminded that it is an offence under the Commonwealth Criminal Code to disclose Defence information obtained in your official capacity where you are not authorised to do so,” Person 4 is warned in the document.
The record of conversation between Person 4 and a superior.
“Unauthorised engagement with the media or any third party constitutes grounds for criminal, disciplinary and administrative action,” the document reads.
It is also unclear who in the ADF was aware of the June 2020 conversation.
Is the timing significant?
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Military lawyer Glenn Kolomeitz was alarmed by the warning, which he believed was an attempt to “suppress” Person 4’s ability to disclose war crimes.
The warning came just months after the ABC aired vision of an SAS soldier allegedly murdering an Afghan man. Oliver Schultz has since been charged with murder over the incident. Source: ABC Australia
While an investigation by the Office of the Special Investigator (OSI) was not yet running at the time, the Australian Federal Police (AFP) had jurisdiction to investigate war crimes allegations separately from the Defence Department, which oversees the ADF.
Kolomeitz said the soldier could have reasonably believed the conversation was an order not to speak to the AFP.
It tells me, in no uncertain terms, that they’ve been directed not to tell tales out of school.
“The obligation is for commanders at all levels to submit these sorts of matters to the competent authorities, which includes the AFP, the OSI [or] anybody tasked with investigating [them].”
Who is Person 4?
He testified that during a mission to Darwan in 2012:
- Roberts-Smith kicked a handcuffed Ali Jan down an escarpment or cliff
- Roberts-Smith followed Ali Jan down the cliff with another soldier, dubbed Person 11
- Roberts-Smith ordered Person 4 and Person 11 to drag Ali Jan, injured but still alive, under a tree
- Roberts-Smith and Person 11 held a discussion
- Person 4 heard gunshots and saw Person 11 standing over Ali Jan’s body, with Roberts-Smith still nearby
- Roberts-Smith later told fellow soldiers who were present to lie about the shooting
But Besanko also found Person 4 executed a prisoner on Roberts-Smith’s orders during a separate mission in 2009. One SAS soldier described Person 4 as apparently “in a bit of a shock” immediately after the killing.
In the ruling, the judge noted that Roberts-Smith’s lawyers argued that Person 4’s mental health struggles made him an “unreliable witness”.