On 19 November 2020, the Australian Defence Force released a report prepared after four years of investigation by Justice Paul Brereton. The Inspector-General of the Australian Defence Force Afghanistan Inquiry Report provides redacted details of allegations of war crimes committed by Australian Special Forces soldiers in Afghanistan between 2005 and 2016. There are many potential discussion topics within the report, such as prosecution procedural challenges, but only a few can be covered here. This perspective will focus on the relevant substantive law, and the issue of command responsibility that the report raises. I preface this analysis by saying that significant portions of the detail of the allegations in the report are redacted, and therefore any analysis is undertaken without knowledge of specific details. On the available details, there are allegations of 39 instances of unlawful killings, and two instances of cruel treatment, perpetrated by 25 soldiers.
Alleged War Crimes
With regards to the relevant substantive law, firstly it must be stated that the relevant law is that applicable in a non-international armed conflict. The conflict in Afghanistan involved coalition forces fighting against non-state armed groups including the Taliban and al-Qaeda. Consequently, the relevant international humanitarian law (IHL) that applies is Common Article 3 of the Geneva Conventions, and Additional Protocol II to the Geneva Conventions (APII). The allegations in the report cover only two war crimes: unlawful killing of civilians or prisoners, and cruel treatment. These crimes would fall under prohibitions in Common Article 3, which provides that persons who are hors de combat (not or no longer taking active part in hostilities) shall be treated humanely, and it is prohibited to commit ‘violence to life and person, in particular murder… cruel treatment and torture’ against these protected persons. Article 4 of APII prohibits the same conduct, and provides for an obligation to protect the civilian population (Article 13).
In Australian domestic law, the applicable provisions are found in the Commonwealth Criminal Code Act 1995. All of the Australian war crimes provision apply extraterritorially (Division 15- Extended geographical jurisdiction, s.15.4 category D). Subdivision F of the Code covers violations of Common Article 3, committed in a non-international armed conflict. Within Subdivision F, s.268.70 proscribes the war crime of murder: causing the death of one or more persons who are hors de combat. This attracts a penalty of life imprisonment. This offence would apply to the killings of civilians and captured prisoners in the context as far as we understand them to have occurred: this seems to be that civilians or combatants are captured, tied up, and shot. The details are general, because of redactions. Subdivision F also contains s.268.72, the war crime of cruel treatment, under which it is an offence to ‘inflict severe physical or mental pain or suffering upon one or more persons’, who are hors de combat. Punishment for this crime is 25 years imprisonment. It is not clear precisely what conduct in the report is categorised as cruel treatment, so it is not possible to make an analysis of whether such conduct would also or alternatively amount to torture (s.268.73, 25 years imprisonment).
A significant aspect of the report is the issue of command responsibility. The report and, in his press conference, General Campbell, Chief of the Australian Defence Force (ADF), refer to ‘moral responsibility’ for commanders. The report notes that patrol commanders may be held accountable, but no other command level (e.g. troop/platoon, squadron/company or Special Operations Task Group (SOTG) should be held accountable. These commanders are said to only ‘bear moral command responsibility and accountability for what happened under their command and control’. Further up the chain, ‘responsibility and accountability does not extend to higher headquarters’. Given the importance of the military hierarchy, and the very role of command and control in the military, this allocation of mere ‘moral responsibility’ is not enough.
Command responsibility is a well-known and applied mode of liability in international criminal law, tracing back to the post-World War II In Re Yamashita case. Since then, charges under command responsibility have been brought and perpetrators convicted, across international and hybrid criminal courts and tribunals. These cases confirm the necessity of charging commanders with failure to properly supervise their subordinates as a means of prevention of the commission of war crimes. It is a crucial part of the military hierarchy that commanders are specifically tasked with controlling the behaviour of their subordinates and thus should be held accountable for failing to do what is necessary and reasonable to prevent and punish war crimes.
Generally, if investigation and prosecution proceeds, the International Criminal Court will have no interest in exercising jurisdiction over these soldiers. Australia is certainly able to prosecute the perpetrators and is demonstrating that it is willing. However, if no prosecutorial action is taken against commanders, this may raise issues of potential ICC jurisdiction: have we fulfilled our obligations if we have not prosecuted commanders? While it is unlikely that the ICC would show interest in prosecuting, especially if the individual perpetrators are prosecuted and punished, the prospect is still there.
Despite the comprehensive nature of Australia’s war crimes legislation, there is also the fact that Australia’s command responsibility laws do not echo that of the Rome Statute and other international definitions of command responsibility. The international standard is that a commander knew or should have known about their subordinates’ commission of war crimes (Art.28 Rome Statute), and it is accepted that superiors must take measures within their powers with a ‘very high standard of foresight’. The Australian law (s.268.115) applies responsibility if a commander knew or was reckless as to the commission of crimes by subordinates. ‘Should have known’ and ‘recklessness’ are clearly two very different standards that may make it much more difficult to prove command responsibility under Australian law. The report states that commanders above patrol level did not know, nor were they reckless, about the commission of the alleged war crimes, so therefore there is no command responsibility. However, this ignores the responsibility of commanders to know what their subordinates are doing at all times. The report implies that blindly trusting subordinates and never questioning any reports through ten years of war is not reckless; whereas this conduct could well be argued to be reckless.
This Perspective only touches on the two major legal issues from the Brereton report, but there is much to explore about the context of the Report and as the prosecutions proceed in the future, particularly command responsibility.
Dr Melanie O’Brien is Senior Lecturer in International Law at UWA Law School. She recently authored ‘Women’s voices get louder: Sexual harassment on our screens and in our workplaces’, Alternative Law Journal 45(2) (2020), p.147. She tweets @DrMelOB.