Campaign to expose Australian war crimes met with silence

Information regarding war crimes committed by Australians against prisoners of war in Iraq has been ignored for over a decade, writes Rosemary Sorensen.

WHEN FORMER UK military lawyer Nicholas Mercer received information that an Australian special forces senior noncommissioned officer (NCO) had claimed war crimes against prisoners had been committed in Iraq in 2003, he knew he had to report the claims and seek an investigation.

The former British Lieutenant-Colonel, who was the senior military legal adviser to the HQ 1st (UK) Armoured Division during the Iraq War in 2003, left the army to become an Anglican priest in 2011. Shortly after he left, he was alerted by a journalist to what were termed “black site” detention facilities in Iraq in 2003.

Deeply concerned that he had not been made aware of these facilities even though he was responsible for “auditing the battlefield” and recognising that they appeared to operate illegally according to the international rule of law, Mercer began a campaign to find the truth.

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Mercer's attempt to make a statement to the UK Military Police in 2012 was initially blocked. He persisted and was finally able to make a statement in 2016, but was then told in 2019 that the matter had not been investigated because it wasn’t “proportionate” to do so.

It was in 2020, while discussing the matter with a former military lawyer, that Mercer was told of “Australian involvement in this facility and that he’d heard that the prisoners had been killed”.

In a recent interview with ABC Radio National’s Andrew West for the Religion and Ethics Report, Mercer quoted the military lawyer who said that an Australian special forces senior NCO told him that the prisoners at H1, H2, as the facilities became known, had been “dispatched” — in other words, killed.

The interview is short, sharp and chilling. Mercer, who is now Rector of the Priory Church in Bolton Abbey, North Yorkshire, carefully describes how he reported his concerns to first the British military and then, two and a half years ago, to the Inspectorate General of the Australian Defence Force.

“I’ve heard nothing,” he told West, adding:

If this was a simple matter of the prisoners being put into the prisoner of war chain, well, just tell me, it’s not complicated, but the longer this goes on – and I’ve been pursuing it for 12 years – the odder it looks.

There comes a point where the delay becomes unconscionable.

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In the same week as this interview was aired here in Australia, the news broke that Ben Roberts-Smith was one of the Victoria Cross recipients to be honoured by King Charles with a medal, which took place just a few weeks after former military lawyer David McBride was gaoled for stealing classified documents that revealed war crimes by Australian special forces in Afghanistan.

Despite the Brereton Report into war crimes delivered to the ADF in 2020 and the revelations that were made public during the defamation trial brought by Roberts-Smith against the media that published McBride’s leaked documents, McBride is, to date, the only person to be prosecuted.

A year ago, the Federal Court ruled that the ex-special forces officer had been involved in unlawful killings of Afghan prisoners and dismissed his defamation case. The verdict is being appealed by Roberts-Smith, who maintains his innocence.

Speaking to West on ABC Radio National, Rector Mercer underlined his adherence to the rules.

“I will always do this within lawful means,” he said, pointing out that his complaint was about the rule of law itself.

However, he continued:

“I think my case is illustrative of the fact that, if you do that, I’ve been given the runaround for well over a decade.”

Mercer has had some success from his efforts in the UK. He was named Human Rights Lawyer of the Year in 2011 for his work applying human rights laws to prisoners of war. Refuting Ministry of Defence claims that greedy law firms were behind Iraqi claims that British forces had committed war crimes, he said there was a “moral ambivalence” in the way prisoners are treated.

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Mercer said:

“I think we got too close to our American colleagues, in respect to the way people are interrogated and the contempt for international legal norms and some of that has cross-pollinated to our own armed forces which I think is regrettable.”

In 2003, as chief legal officer, he was responsible for ensuring the British forces (operating as a coalition with the U.S. and Australia in the controversial search for Saddam Hussein’s non-existent weapons of mass destruction) operated according to international law. He subsequently received information that, if true, indicates war crimes. And it’s this information that he now wants investigated.

Following “strict protocol”, he lodged his report about the information he had received with the Australian Defence Force Inspector General. As with his reports asking for answers in the UK, there has been no response.

Independent Australia contacted Rector Mercer, who confirmed his frustration at being given the “runaround” by military authorities in both the UK and Australia, and the importance of investigating suspected war crimes. As yet unknown is “the fate of those prisoners who were transported and detained at those ‘black sites’ known as H1 and H2 in the Iraqi Western Desert in 2003”.

Mercer says:

After 12 years, I am still no further forward with establishing the truth of this matter. It is also a reminder that such concerns are not just about Afghanistan but Iraq as well.

It is time for answers.

Rosemary Sorensen was a newspaper, books and arts journalist based in Melbourne, then Brisbane, before moving to regional Victoria, where she founded the Bendigo Writers Festival, which she directed for 13 years.