The son of a key Afghan official who was killed in a friendly fire incident by Australian soldiers says financial compensation is less important to him than asylum for members of his family in hiding from the Taliban in Afghanistan.
A compensation scheme for victims of unlawful killings by Australian soldiers has now been outlined in regulations quietly published earlier this month, after years of advocacy from human rights and legal groups.
Compensation for Afghan victims was a key recommendation of the landmark 2020 Brereton report, of prisoners and civilians committed by Australian special forces.
Under the compensation scheme, a new Afghanistan Inquiry Compensation Advocate (AICA) will receive claims recommended by the chief of the Defence Force.
The person being compensated must be a family member of a victim of an unlawful killing, must not be a member of a terrorist organisation, and not be under sanctions, or an associate of someone under sanctions — in what appears to be a reference to members of the Taliban.
Rozi Khan, a former police chief in Afghanistan, was considered a key ally of Western forces in Afghanistan. Source: Supplied
Rozi Khan was a police chief in the province of Uruzgan, where Australian and Dutch soldiers were based for several years during the 20-year Afghanistan war. As the governor of the Chora district, he cooperated extensively with foreign troops and was considered a key ally of the West.
The Netherlands considered Rozi Khan a hero for rescuing a group of Dutch soldiers from an operation in 2007.
Khoshal said he was at home when his father received a call warning him late at around 11pm.
"A friend of ours called to say that [my father's] house was surrounded," he said.
"We went there, but it was dark and we couldn't see anything. We had a police car with us and gunfire was directed at us.
"My father was martyred. My brother-in-law and I were injured."
Hayatullah Khoshal (in blue traditional garb) shakes hands with Dutch officials at a 2013 ceremony where he received a certificate for Afghans who helped Dutch soldiers in Afghanistan. Source: Supplied
In a letter of complaint lodged with the Afghanistan Human Rights Commission shortly after the attack, obtained by SBS Pashto, Khoshal's family said it considered the attack an "unlawful and unfair act".
Khoshal claims he was asked by the Afghan government at the time not to take things further.
"[Hamid] Karzai, who was the president of Afghanistan at that time, had forgiven them (the Australian government) without our permission and asked us to forgive him (Karzai) as well," Khoshal said.
Former prime minister Kevin Rudd reportedly rang to apologise to former Afghanistan president Hamid Karzai about the incident that led to the death of Rozi Khan. Source: AAP / Sergeant John Carroll/Department of Defence
He says receiving compensation over his father's death is less important to him than asylum for members of his family who remain in Afghanistan in hiding from the Taliban.
He says he's applied for humanitarian refugee visas but is yet to hear back from Australian authorities on the application.
SBS News has contacted the Department of Defence and Department of Home Affairs for comment.
Afghanistan expert William Maley says Australian authorities will have to administer compensation for Afghan victims with "great discretion" to avoid risks for civilians. Credit: SBS News
"The distinction is between a death in combat and a death as a consequence of a war crime of some sort," he said.
"What one normally requires for a killing to be unlawful is some kind of malignant intent and it's difficult to prove that in the context of a friendly fire incident when a major military operation is underway."
Outlining the difficulties of compensation being paid under the remit of the Taliban, the plan also requires the AICA, or Advocate, to take into consideration the probability that compensation could benefit sanctioned people, terrorist groups or criminal organisations.
Hayatullah Khoshal (in blue garb, centre) at his home in remote Afghanistan. He says his home was later damaged by the Taliban after its 2021 takeover of the country. Source: Supplied
Maley says the compensation scheme will have to be carried out by Australian authorities with "great discretion".
"Partly to avoid any kind of engagement with the Taliban but also to protect the people who might be receiving the compensation," he said.
The Taliban says the compensation plan outlined for the families of victims of unlawful killings by Australian special forces in Afghanistan will not be enough for "acquittal".
But the regime, which took over the war-torn country after the withdrawal of coalition forces in 2021, says financial compensation should be paid to victims by "all countries involved".
"In exchange for all these crimes, financial compensation should be paid to the victims of these incidents by the countries involved," the Taliban's deputy spokesperson, Hamdullah Fitrat, told SBS Pashto.
"The financial compensation mentioned by the Australian government or any confession of crimes committed by their forces is very small and cannot cover the crimes committed by Australian forces in Afghanistan or acquit them of these crimes."
Fitrat did not say whether it would assist the dispersal of the compensation regime, given the Taliban's stronghold in rural parts of Afghanistan where the families of alleged victims reside.
