Recently ANZSIL member Douglas Guilfoyle discussed the concern that the Brereton report into war crimes by Australians in Afghanistan apparently finds no evidence that “there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of Troop, Squadron and Task Group Commanders, or higher commanders.” The report foreshadowed disciplinary and administrative consequences for leaders and commanders but not criminal prosecution. This article questions whether Australia and the UK are willing and able to prosecute public officials for torture which took place overseas when there is no clear route to establishing complicity or superior liability.

As Melanie O’Brien observed in the November edition of ANZSIL Perspective, this is an area fraught with complication with differing modes of liability for complicity in international and domestic law. Although, it may be appropriate to observe that the newly appointed War Crimes Investigator Justice Mark Weinberg is well versed in the field, recently contributing to Edited Edition Accessorial Liability After Jogee to which we both also penned chapters.

It is a concern that the law on complicity may not have been understood by the fact-finding exercise that produced the Brereton Report. We are also concerned that whilst the report considered command responsibility for war crimes, there may not have been a specific focus on the ability to prosecute domestically for torture which has taken place overseas which in turn reflects on willingness.

This piece therefore explores whether the common law of complicity, provides for a sufficient legal framework for ICC state parties to meet obligations under the complementarity regime.

Complementarity

Central to the ICC system of international criminal justice is the complementarity principle. Article 17(1)(a) of the ICC Statute stipulates that a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it unless the State is “unwilling or unable genuinely” to carry out the investigation or prosecution. State Parties retain the primary responsibility to investigate and prosecute crimes falling under the jurisdiction of the Court. The ICC only deals with cases under very limited circumstances. This is to ensure accused persons are not subject to double jeopardy for the same alleged crime, to prioritise national sovereignty in the exercise of criminal prosecution including for the most serious of crimes, to limit those matters brought before the ICC but at the same time place a burden on states to be demonstrably willing and able to prosecute international crimes.

Two recent events have brought this issue to international attention: Firstly, the Brereton Report in Australia, which exposed significant issues over the conduct of the Australian military which has led to the appointment of the war crimes investigator. Secondly, the ICC prosecutor with significant reservation decided to end a preliminary investigation into alleged war crimes and torture by British forces in Iraq and not to seek authorisation to open an investigation for the purposes of ICC proceedings, on the basis that it could not be concluded that the UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions. In relation to the latter, Human Rights Watch have stated that the ICC prosecutor’s decision is “likely to fuel the perception of a double standard in international justice” where leaders in certain states appear to have more chance of being prosecuted than others. This perception may well be fuelled if states (here Australia and the UK) investigate and that is sufficient to end ICC involvement.

Torture

The International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Furundzjia held that the prohibition of torture “has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rule”. As a result of ratification of the Convention Against Torture (CAT), torture has been criminalized in both Australia and the jurisdiction of England and Wales and has developed into a self-standing international crime with universal jurisdiction.

Torture, unlike ‘fully-fledged’ international crimes – war crimes, genocide and crimes against humanity – is not part of the international criminal law ‘acquis’. As such it does not come with international modes of liability such as command/superior responsibility, applicable to these fully-fledged crimes and criminalized in separate legislation. For participation in torture, prosecutors will charge defendants/leaders under the ‘ordinary’ domestic modes of liability in the criminal law, i.e. complicity. Only when torture is committed in the context of an armed conflict or as part of a widespread or systematic attack on a civilian population, does it constitute a war crime or crime against humanity, respectively. As such there is an obligation on both Australia and the UK, under the ICC’s complementarity regime, to investigate and prosecute domestically and to do so genuinely, aligned as much as possible to the ICC’s legal framework.

Both the UK and Australia have enacted legislation to prosecute torture and have frameworks for complicity liability but each appears to lack a framework for superior liability.

Complicity liability

The law on complicity took an interesting turn when the UK Supreme Court in R v Jogee [2016] UKSC expunged parasitic accessory liability and restated the common law on complicity. There can be individual or shared intention amongst parties to the crime and conditional intention – I will assist you if torture becomes necessary. There also needs to be some knowledge or belief that torture would be committed as an accused person cannot intend something or intend to assist something they do not know about. Statute provides for a separate form of liability for what used to be incitement which carries a lower threshold but still requires conduct. Post Jogee the prosecution also has to prove that what actually happened was not beyond the contemplation of someone in the accused person’s shoes (Jogee calls this overwhelming supervening acts but it is more properly a test for remoteness). Of course, it depends on specific facts but, if there is evidence a person in a leadership position contemplated what in fact happened this provides a sufficient basis for a connection to the crime subject to proof of conduct and fault as a principal or as a secondary party in torture.

The High Court of Australia in Miller, Presley and Smith declined to follow Jogee and retained extended common purpose. In Australia, complicity in the Commonwealth Criminal Code allows for intentional or reckless liability but causation and remoteness are less clearly specified.

Complicity Liability will be easier to prove where there is a close connection to the crime but in either jurisdiction, a causative link to an absent leader does become harder to prove. Such issues depend on the quality of the investigation, the available direct and circumstantial evidence and the correct application of law.

Superior Responsibility

However, a more complex issue relates to omission liability. In international law, this type of liability is captured in the theory of command or superior responsibility. Superior responsibility, which applies to military and non-military superiors, is premised on the idea that those in leadership positions who fail in their duty to prevent or punish the commission of crimes by subordinates, are criminally liable for those crimes. Control must be effective, which means there must have been a material ability to prevent or punish direct perpetrators. Also, there must be knowledge on the part of the superior that crimes were about to be committed or had been committed. This can be a ‘must have known test’ based on circumstantial evidence (nature of crimes, number of crimes, geographical location). Article 28(a) of the ICC Statute stipulates that the military superior who should have known that forces under his/her effective command and control were committing or about to commit crimes is criminally responsible. For non-military superiors, who are responsible for and in charge of ‘subordinates’ (employees for instance) in an analogous way as military commanders, the knowledge threshold is higher effectively requiring intent. Art. 28(b) requires that the non-military superior consciously disregarded information which clearly indicated subordinates were committing or about to commit crimes.

The theory of superior responsibility is a sui generis theory of liability that sits between complicity liability and co-perpetration. The superior is liable for crimes committed by subordinates as a result of his/her failure to supervise subordinates. Superior responsibility as a liability theory has an international pedigree. Developed originally in military law it has been applied and shaped in the case law of international courts and features in statutes of these courts. There have been debates around its nature: is it a separate offence of a failure to supervise or a type of accomplice liability? The ICC in the Bemba case has decided in favour of the latter interpretation. It has a more practical function than trying to extend an alleged common purpose. Superior responsibility does not apply to torture in either the jurisdiction of England and Wales nor Australia.

Conclusion

According to Benzing, ICC membership requires State Parties to make their system of criminal law enforcement more effective. The question is to what extent does this affect substantive criminal law? Does it require State Parties to incorporate the crime definitions of the ICC Statute? Robinson answers this question in the affirmative and adds that States by incorporating international crime definitions are less likely to be found “unwilling” when definitions in domestic law are broader rather than more narrow than the international definitions.

For complementarity to work, superior responsibility is a concept that has an international source and pedigree and therefore, we suggest, domestic implementation is required. It is not enough that modes of liability as codified in art. 25(3) of the ICC Statute mirror domestic concepts of complicity liability. Criminal responsibility of commanders in such internationally recognised crimes requires separate modes of liability for those with superior duties. The application of general criminal law principles means that conduct of others may be too remote even where leaders must have known what was happening on the ground and they omit to act.

Intentional, ‘approving’ presence can, under certain circumstances, be characterized as moral encouragement i.e. active conduct. As such it could be dealt with under complicity law. Reliance on ‘ordinary’ modes of liability, however, remains problematic as it does not cover leadership negligent omission liability.

The Brereton report’s findings with regard to military commanders seems to indicate liability was more in the sphere of negligence rather than an active contribution. It is not clear if the UK investigation was affected by domestic modes of liability and stopped short of failure to supervise.

In order to be willing and able to prosecute torture, in particular complicity to torture by leaders, both present and absent, the scope and purpose of the domestic law needs to be both understood and applied and the inconsistency with international law needs to be considered.

As both Melanie O’Brien and Douglas Gilfoyle have suggested, superior responsibility is distinct from complicity liability and progress on domestic prosecutions for torture may be inhibited by the legal framework and the application of the law on complicity. We suggest in turn that this has a knock-on effect to willingness and ability to prosecute war crimes and torture. For complementarity to work there has to be a practical understanding of complicity in torture by leaders. In both the UK and Australia, the legal frameworks, at least when it comes to liability of commanders/superiors, are not sufficient to demonstrate ability under the complementarity regime of the ICC. Accordingly, both willingness and ability remain a challenge in bringing domestic prosecutions for torture overseas.