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Charles Miranda

Allegations that Australian Special Forces executed an “innocent” Afghani businessman that was central to sensational war crimes claims cannot be substantiated to any level to prosecute.

The outcome has raised calls from veterans for the federal Government to draw a line in the sand and end the pursuit or charge soldiers to give them a right to clear their names.

It also throws doubt on the ability to gather admissible evidence for other cases in the now Taliban-run country; only one soldier has so far been charged with a crime.

After eight years investigating the 2011 killing of Hayat Ustad in a warehouse at Tarin Kowt in Uruzgan in south central Afghanistan, no case can be made.

It is understood the Office of Special Investigator (OSI) has been unable to reconcile or substantiate claims about the killing or find evidence to sustain wrongdoing or criminal prosecution.

Both Defence and the OSI declined to comment. The case was part of the 2020 Brereton inquiry that identified at least 45 incidents involving 19 Special Forces soldiers from the SAS and 39 possible “unlawful” deaths.

The Inspector General of ADF began an inquiry into the Hayat case in 2016 amid rumoured claims by some Afghani locals he was not a Taliban leader as suspected but an innocent businessman who had a snub-nosed handgun planted on him by the SAS to justify him being shot dead.

According to an intelligence brief at the time, the warehouse was raided during a clearance operation led by Afghan National Police backed by ADF.

Hayat was listed on the Joint Prioritised Effects List (JPEL), which coalition forces and local authorities used to capture or kill enemy militants.

“He was a highly influential insurgent and key logistician with links to the senior insurgent leadership in southern Afghanistan,” a report from the time stated, citing his alleged weapons and IED trafficking and fighter facilitation. “He was also heavily involved in suicide attack co-ordination, direction and planning.”

His planned arrest, codenamed Operation Heget, was ordered by the local police chief Colonel Sherzad and signed off by an ADF Special Operations lieutenant.

During an attempt to detain the suspect he reportedly drew a pistol and was shot dead.

Australian Special Air Service (SAS) Association national chairman and former SAS soldier Martin Hamilton-Smith he wouldn’t be surprised if many other cases fell over.

“This will not end until they charge people or determine there is not enough evidence to charge people,” he said.

“We would welcome further charges in the sense that it would give these soldiers an opportunity to clear their name in a proper process. But this can’t be allowed to drag on, we won’t be able to move on from the Afghanistan conflict and properly commemorate the fallen and help the wounded until this entire matter is brought to a conclusion one way or another.”

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