Command responsibility for Australian war crimes in Afghanistan

Introduction

On 4 January 2021 the Australian Office of the Special Investigator officially commenced work (“OSI”). Its task is to conduct criminal investigations into Australian war crimes in Afghanistan, as revealed in the Brereton Report (discussed here). The report focusses on the killing of persons hors de combat or under Australian control by members of the Special Air Service Regiment (SAS). It also discusses evidence of very liberal targeting of persons running from compounds of interest (“squirters”) and a practice of planting evidence (“throwdowns”) on bodies found to be unarmed in order to suggest the deceased was a direct participant in hostilities.

The terms of reference for the OSI are not yet known, but hopefully they will allow the Special Investigator to follow the evidence where it leads. This is of particular concern regarding commanding officers.

A disturbing and contentious finding of the report was that (at p. 31):

The Inquiry has found no evidence that there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of commanders at troop/platoon, squadron/company or Task Group Headquarters level, let alone at higher levels such as … Joint Operations Command, or Australian Defence Headquarters. Nor is the Inquiry of the view that there was any failure at any of those levels to take reasonable and practical steps that would have prevented or detected the commission of war crimes. … [First], in judging the reasonableness of conduct at the time, it needs to be borne in mind that few would have imagined some of our elite soldiers would engage in [such] conduct … Secondly, the detailed superintendence and control of subordinates is inconsistent with the theory of mission command espoused by the Australian Army, whereby subordinates are empowered and entrusted to implement, in their own way, their superior commander’s intent. That is all the more so in a Special Forces context where high levels of responsibility and independence are entrusted at relatively low levels, in particular to patrol commanders.

Several concerns arise. The first is the proposition that no commissioned officer bears any legal (as opposed to moral) responsibility. I return to this below. Second, the idea that it was unimaginable war crimes would be committed by well-trained soldiers is belied by the report itself. A substantial section (Chapter 1.08) is dedicated to a history of Australian war crimes, including cases during the Vietnam war of liberal targeting of Vietnamese citizens and use of “throwdowns”. The suggestion is not that such crimes are common. However, history shows such crimes are plainly imaginable. Second, it is no answer to the legal requirements of command responsibility – found also in Articles 85-87 of Additional Protocol I to the Geneva Conventions – to say “our theory of mission command makes compliance difficult”. We would not countenance other professions entrusted with matters of life and death, surgeons for example, making such claims. Accepted professional working methods may be a relevant consideration but they cannot override the law. In any event, the law of command responsibility does not require micro-management of subordinates.

Command responsibility in Australian law

The key question, then, is did anyone in command (above the level of patrol commander) know enough to engage superior responsibility? The critical step for the present analysis is less the existence of a superior-subordinate relationship, or the action which should have been taken to suppress and punish war crimes, but rather the relevant mental state (mens rea). The two possibilities under Article 28 of the International Criminal Court Statute are:

• officers up the chain of command had actual knowledge of crimes; or
• “owing to the circumstances at the time, [they] should have known that the forces were committing or about to commit such crimes”.

As noted elsewhere, a wrinkle is that in Australian law the second concept is rendered as “[were] reckless as to whether the forces were committing or about to commit such offences” (s. 286.115, Commonwealth Criminal Code).

Let’s examine the known facts. There is a reasonable case to make that the difficult operational environment (among other factors) enabled patrol commanders operating ‘outside the wire’ to control the information received by junior officers who often remained in an ‘overwatch’ role on base. Nonetheless, the Brereton Report notes:

• “persistent rumours of criminal or unlawful conduct”;
• actual knowledge among officers of the practice of using throwdowns;
• operational reports which used “boilerplate” language (to indicate or fabricate compliance with rules of engagement) so frequently that a new Directive or reporting was issued so higher command could understand the actual basis on which targeting decisions had been made; and
• that local complaints by Afghan nationals of unlawful killings were received but dismissed as insurgent propaganda or compensation-seeking.

The Report takes a salami-slicing approach to this evidence. ‘Throwdowns’ and suspiciously ‘boilerplate’ reports are presented not as potential evidence of unlawful killing, but as misconduct aimed at defeating overzealous scrutiny from higher command. The dismissal of local complaints is explained as subordination of internal inquiry and legal processes by a desire to ‘protect’ frontline operators. No pattern is discerned.

However, if a higher-level commander possessed all these facts, should they have known such crimes were possible and made further enquiries? Were they reckless to the possibility of such outcomes if they did not? Inevitably, the answer is: it depends.

The difficulty in construing the meaning of the “should have known” standard in the ICC Statute is that we have only one ICC command responsibility case: Bemba. It is of limited assistance. The Pre-Trial Chamber set out a legal test for “should have known”, but the Trial Chamber found it did not need to consider the issue (finding Mr Bemba had actual knowledge of subordinates’ crimes), and the Appeals Chamber majority acquitted on the separate question of whether Mr Bemba had taken “all necessary and reasonable measures” to prevent subordinates’ crimes. The separate and dissenting opinions do comment on the “should have known question” in passing (but only on the bizarre controversy as to whether Article 28 contains two alternate mental elements, or one which can be proved in two ways).

In any event, the Pre-Trial Chamber in Bemba set a stringent standard of due diligence holding that superiors are under an active duty to “take the necessary measures to secure knowledge of the conduct of his troops” (para 433). While it doesn’t elaborate much further, this may be consistent with the idea in ICTY cases such as Delalic that it is enough to satisfy the mens rea that a commander possessed sufficient information to put him on notice of the risk of such offences and the need for additional inquiries (Appeals Chamber, 2001, paras. 238-9). Thus, if the standard to be applied is Article 28 and the Bemba PTC decision is correct, a case could be made that a hypothetical commander possessed of all these facts knew enough to incur responsibility if he or she made no further inquiries.

The separate opinion of two majority members in the Bemba Appeals Chamber (Judges Van Den Wyngaert and Morrison) might, however, be seen as sympathetic to the Brereton Report approach. They note that superior responsibility is underpinned by “effective control” (original emphasis) and thus “[t]he primary obligation to prevent/repress/refer criminal behaviour rests upon the immediate commander of the physical perpetrator (that is, the platoon or section commander)” (para 33). They further note (paras 33-34):

In principle, higher-level commanders are thus entitled to rely on lower level commanders to keep their troops in check … It is not the task of the higher-level commander to micro-manage all lower level commanders or to do their jobs for them.

There is not space here to consider how well this reflects established law. Nonetheless, it usefully emphasises that the content of superior responsibility is contextually dependent: superiors are not required to do the impossible, and the extent of their effective control (and what they can therefore do in practice) is a factual matter.

Could Australian law follow the Bemba PTC approach? Recklessness as to a consequence in Australian law is more than mere negligence. Under the Commonwealth Criminal Code “[a] person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk” (s. 5.4(2)). A difficulty here will be if the result is construed as being the war crime actually charged (not any war crime). If so, much of the evidence pointed not to murder of those hors de combat but rather use of “throwdowns” to cover-up potential breaches of ROE surrounding “squirters”. These would be harder incidents to prosecute. Nonetheless, a pattern of complaints of unlawful killings from local citizens could perhaps generate awareness of a “substantial risk” murder were occurring. This would require an officer had adequate oversight of all such reports.

The implications for complementarity

The final question is whether this would make a difference for the purposes of complementarity. Could superior officers who are not prosecuted by Australian courts, in theory, be prosecuted by the ICC? The answer is not obvious.

This might seem obtuse: if Australia has brought the “wrong” standard into its domestic law, making it impossible to prosecute a crime – doesn’t that render Australia “unable” to prosecute? The first test of admissibility before the ICC is, however, not the “unable or unwilling” test. Rather the starting point is whether the case is being prosecuted by national authorities, or whether national authorities have investigated and bona fide decided not to prosecute (Article 17(1)-(2)). It is significant here that superior responsibility is not a freestanding crime but a mode of participation in crimes perpetrated by others. In deciding admissibility cases, the ICC has applied a “same person” and “substantially the same conduct” test focussing on the person accused and the underlying incidents that form the basis of charges (see further Kevin Jon Heller’s classic piece). A strict focus on the underlying crimes or incidents might suggest the mode of liability is irrelevant to admissibility decisions. If this is correct, an Australian decision not to prosecute based on the crime being too difficult to prove because the relevant mode of liability is defined more stringently in Australian law might be a bar to admissibility before the ICC. The point is, however, untested.

Conclusions

Command responsibility does not entail strict liability. Proving who knew what, when and the degree of effective control they exercised over front-line operations will be crucial. There is good evidence that junior SAS officers on base may have had limited control over what happened on patrol. This was fuelled by a culture where sergeants with substantial operational experience were treated as unquestionable demigods and where junior officers who tried to assert command were often ostracised or pushed out of the SAS. This does not necessarily firewall everyone higher up the chain from consequences. Higher levels of command were receiving disturbing reports which should have prompted further inquiries faster than occurred.

As Mitchell and others have observed, constructing any doctrine of command responsibility involves setting an appropriate mens rea: should the standard be strict liability, constructive knowledge, or actual knowledge? The difficulty is that both the ICC Statute and Australian law exclude strict liability and include actual knowledge. But they contain different formulations of what falls between. Further, there remains uncertainty as to how the ICC standard will be interpreted. Any effort by Australian courts to interpret – for the first time – the Commonwealth Criminal Code formulation will be able to only draw only limited assistance from ICC jurisprudence. Whether this divergence has, in turn, any implications for complementarity remains to be seen. It is certainly conceivable that it could, but it would involve exploring a novel scenario for complementarity – where the same person is charged in relation to the same underlying incidents (and these are characterised as international crimes), but involving a substantially different definition of the relevant mode of liability. Those expecting the ICC to exercise a high degree of deference to national prosecutions in its case law would do best not to hold their breath. However, as noted in this interview with Robert Petit, the next ICC Prosecutor has a lot of house-clearing and consolidation to do. Intervening in an independent (and hopefully effective and well-resourced) set of national war crimes prosecutions conducted by a usually reliable friend of the Court is thus unlikely to be high on his or her agenda.