Australian Special Forces War Crimes Prosecutions: Crucial but Just One Aspect When It Comes to Respect for the Laws of War

[Eve Massingham is a Senior Research Fellow with the School of Law at The University of Queensland.]

Over the coming months there will be considerable attention, both in Australia and internationally, on the findings of the Brereton Inquiry into crimes alleged to have been committed by Australian special forces operating in Afghanistan between 2005 and 2016. The report specifically identifies 19 soldiers and 23 instances which resulted in the killing of 39 civilians and the cruel treatment of 2 others. It recommends charges for violations of Division 268 of the Australian Federal Criminal Code (Cth), which imports international law of war protections into domestic Australian law. The government has announced the Office of the Special Investigator to address these criminal matters. Further, Chief of the Defence Force General Campbell has indicated during his press conference on 19 November 2020 that more cases may as yet come to light. Much of the attention should rightly focus on this criminal process going forward. As signatories to the Geneva Conventions of August 1949 and their Additional Protocols, Australia has international legal obligations to investigate and, where appropriate, prosecute those who have violated the laws of armed conflict. As a party to the International Criminal Court, Australia owes the soldiers involved, as well as the international community, a fair trial in duly comprised court of law. Hopefully, the prosecution decision making process (which I will leave to the criminal lawyers to consider in more detail) will be appropriate to the nature of any alleged crime committed by the special forces soldiers.

However, this is not the full story.

Australia’s response to this investigation is very important from an international law perspective. Australia’s international standing, as well as its legal obligations, requires that appropriate measures are taken.

Protecting those impacted by armed conflict must be about more than prosecution. It must be also be about prevention through respect for the laws of war. In addition to the criminal conduct, the report identifies that administrative and disciplinary failures within the Australian Defence Force (ADF) have allowed this to happen over a significant period of time. These are the subject of many of the recommendations in the report. General Campbell has indicated his commitment, and that of the Chief of Army, to following up on this.

The notion of respect for the laws of war has attracted some attention from governments in recent years. The first clause of the Geneva Conventions requires that countries respect and ensure respect for the law of war in all circumstances. This obligation applies both in times of war, but also in times of peace. Indeed, much of the work in respecting the law of war is not on the battlefield itself. It is in the training pre-deployment, in the policies embedded, and ultimately, in the culture of the armed forces – but also of the nation those forces represent.

There are many measures that governments can, and do, take to respect and ensure respect for the laws of war. Many of the actions required to be undertaken by countries to respect the law are set out in law itself. These including ensuring the women and men who serve know the laws and are well trained in them. However, the allegations uncovered in the report of the planting of weapons and equipment on those civilians killed by those alleged to have committed the crimes suggest that knowledge of the laws of war is not what was at issue here. Indeed, as the report finds that those who committed the crimes knew, before they did so, that they were violating the laws of war. This means that the answer is not just more training – although continual training on the laws of war is important. ADF members must know the law, know that they will be held to account under the law, and that the structure of the ADF, in everything it does, is underpinned by respect for the law of war. This means that aspects of Australia’s military culture need practical responses to prevent this occurring again.

Any legal system will only be effective where there is accountability for violations and so making sure that ADF personnel know that they will be held to account is key. The isolation and elite culture of the special forces is noted in the report to have worked against this. General Campbell stressed a number of times in his press conference his appreciation for those who came forward and spoke up about these events and his commitment to protecting them. It will not be possible for Australia to ensure respect for the law of war if investigations are hampered by a culture of secrecy and knowing that coming forward will be detrimental. Military personnel at all levels must have it ingrained in them that speaking up is not career ending. This can only be the case if it is, in fact, not career ending. The recommendation of the Inquiry that those who ‘acted with propriety and probity, be seen to prosper and that they be promoted at the earliest opportunity’ is vital to respect for the law of war going forward.

Policy is also key. For example, the Inquiry calls into question the frequency at which personnel served in Afghanistan and the limited time between deployments as a factor, although not a significant factor, in the conduct of these soldiers. The Inquiry’s recommendation to determine the science around the appropriate time between operational deployments is important. Further, the use of the special forces as the default ‘force of first choice’ must be abandoned. Getting Australian policy right around issues like this is an example of how Australian policy can contribute to respect for the law of war.

Respect for the law of war is cultivated when all aspects of military life come together to give effect to this end. The Prime Minister’s announcement includes the establishment of an independent panel of experts ‘to provide oversight and assurance of Defence’s broader response to the Inquiry relating to cultural, organisational and leadership change’. The oversight panel’s role is focused on what has happened and Australia’s response, but it includes scope for a look at ‘systemic issues’ including ‘review of the role of Command element…and related policies associated with deployment of both regular and special forces’.  

Changes have already been made within the Australian Defence Force in recent years addressing governance and culture. These efforts have been ongoing since 2015. The Panel will be looking at whether these changes go far enough. General Campbell’s comments on the release of the report suggest that disbanding the special forces is not the direction in which the ADF is heading. The dissolution and stripping of the group meritorious citation for the 2^nd Squadron of the Special Air Service Regiment, as an example and a record of the collective accountability for these horrendous events, is however taking place.

As the Australian Prime Minister has indicated, ‘the report will be difficult and hard news for Australians’.  Australia’s international reputation as a country where compliance of the rules of law is part of the military culture is on the line here. If Australia wants to be seen as a nation that can promote respect for the law of laws by others, it must demonstrate respect for the law of war at home.

The future war crimes prosecutions will no doubt continue to make headlines. But the Oversight Panel’s work looking at the systematic changes to culture, organisation and leadership within the ADF should be followed just as closely. How the ADF responds to the recommendations of the Inquiry and the work of the Panel, and what the government does with the recommendations will have long running ramifications. Not just for the victims. Not just for Australia’s reputation. But also for the women and men who serve in Australia’s defence forces, the vast majority of whom serve with distinction and compliance with the law of war.