War Crimes: Where does ultimate responsibility lie? Only a Royal Commission will determine the answer

Dec 21, 2020

The Brereton report has major deficiencies around where ultimate responsibility lies for war crimes in Afghanistan. To understand this and to eradicate the cultural and systemic causes of the alleged crimes, we need a Royal Commission.

War crimes are perhaps the worst manifestation of a ‘victory at all costs’ culture that persuades individuals, whether political leaders or combatants, to abandon their moral compass and cross the boundary between legality (however moot that might be) and criminality.

They are tantamount to crimes against humanity since the unsanctioned use of armed force against protected classes of persons – civilians, non-combatants, captives, detainees and prisoners – is an assault on the dignity of the person and the notion of innocence. War crimes offend the core ideas on which the rule of law rests. War crimes are fundamentally inconsistent with any notion of democracy.

For some years, media reports and intra-ADF rumours circulated alleging criminal acts against people detained ‘at the point of capture’ by Australian forces on deployment in Afghanistan. So, in early 2016, then Chief of Army, Lt Gen Angus Campbell (currently the Chief of the Defence Force) commissioned a scoping inquiry into these rumours, appointing Maj Gen Paul Brereton, at the time a judge of the NSW Supreme Court, to conduct an inquiry, on which he worked part-time.

Justice Brereton’s inquiry established questions of fact. His terms of reference were narrow, directing his investigation towards determining the substance of the allegations and the circumstances in which they occurred. The terms of reference did not extend to accountability within the higher Australian Defence Force (ADF) command structure, or to the more critical issue of the responsibilities of the ADF in executing the directions of the government, or to the accountability of government for the ADF’s execution of its directives.

Justice Brereton’s report, even heavily redacted, is shocking in its detail and in its implications. Its findings do not reflect well on the integrity and professionalism of the special forces, their leaders or the government that in the first place committed them to a long and ultimately pointless conflict in Afghanistan that at no time served any identifiable Australian strategic purpose.

It raises serious questions about the ‘who dares wins’ culture of the Special Air Services Regiment (SASR) and the special forces. It also raises serious questions about the quality of leadership in the army and the ADF more broadly, about the accountability and responsibility of the Executive of government, and particularly about the accountability of the Prime Minister and the Minister for Defence. In a democracy, the Parliament must always hold the government to account, and the government must always take responsibility for its decisions and their execution.

In exonerating senior commanders and the government, the report may be premature and/or unsafe in its conclusions and judgements regarding matters that were beyond the scope of its terms of reference.

The unqualified statement that “there is no credible information (Justice Brereton’s emphasis, p. 103) that troop, squadron and task group commanders either knew or suspected that these things were happening”, without any indication of a deep analysis of intelligence reports and summaries, post-operation debriefings, post-operation evaluations, post-operation intelligence reviews and fully triangulated mission audits, is prima facie incredible.

The ADF knew what was expected of it. Australia’s military commanders have long ensured that all members of the armed services, especially those who conduct operations involving lethal force, are fully conversant with the requirements of the Laws of Armed Conflict. It is a responsibility that the leaders of the ADF take seriously.

But for all the ADF’s claims to professional mastery and expertise in the military art – many of them justified – it is hard to retain focus and purpose when armed conflict itself becomes purposeless. The retention of an ethical and moral compass becomes more difficult when soldiers do not know what they are fighting for, or why. And for special forces, whose fundamental purpose was intelligence gathering, surveillance and reconnaissance, to have had their raison d’être gradually transform into the conduct of ‘kill and capture’ missions, the momentum of operations appears to have obliterated ethical and moral sensibility.

The imbalance between the fast-moving dynamics of warfare and the always stretched forces available for the conduct of operations generates additional pressure to deliver tactical effects rather than strategic results. Whereas ‘manoeuvre’ has long been central to land force doctrine, some now advocate ‘targeting’ as providing a more immediate means of generating tactical effects. So we have a new, rather Orwellian, term of military art, the ‘kill chain’, which eliminates individual threats while reducing risk to one’s own forces. It is not simply kinetic, however. It is terminal – killing is the consequence.

The emphasis on tactical efficiency, however, may well render its devotees blind to the fact that armed conflict, especially ambiguous conflict such as the war in Afghanistan, is always political. ‘Kill and capture’, as mandated by the ‘kill chain’, oblivious to the collateral political effects generated by the killing of non-combatants and prisoners, is symptomatic of a vacuum at the strategic level. It is a guaranteed way of losing a counter-insurgency war.

At several points, the report adverts to external factors that might have blurred responsibilities diluted national command and introduced external doctrinal and operational factors for which the Australian special forces were not prepared. It notes that Australian special forces were assigned under the operational command of ISAF Special Operations Forces, subject to overall US command since 2007. And while they were under NATO ISAF direction, their ‘gung-ho’ operating style channelled that of the US special forces.

Special forces have long seen themselves as members of an international special force elite. As ‘unconventional’ or ‘irregular’ forces, they identify with the special forces of allied or friendly nations rather than with the regular forces of their own nation.

Australian special forces have tended to model themselves on their US counterparts, the Green Berets and the Navy Seals, and to have come progressively under the influence of special force doctrine developed at Fort Bragg (NC). This reinforces the cultural separation between the Australian Army’s conventional and special forces. Although the report does not specifically refer to the ‘Americanisation’ of Australia’s special forces as contributing to their unique cultural identity, it hints at it.

This culture of violence and unnecessary force in the SASR came to notice previously. In 2014, a group of protesters entered prohibited Commonwealth property at Swan Island, Victoria. They were apprehended by military personnel believed to be members of the SASR. The protesters were hooded, stripped and their hands cable-tied.

The suggestion that any members of the ADF are ‘exceptional’ and entitled to behave in their dealings with the Australian community in ways that do not conform with socially acceptable norms is inconsistent with the role of an all-volunteer force in a democratic society. Whether it’s in the hands of a corporal, a captain or a colonel, the decision to “leave sleeping dogs lie” and not establish the truth or otherwise of crimes is a failure of leadership.

Anyone familiar with the Royal Commission into Institutional Responses to Child Sexual Abuse will know of the catastrophic and systemic leadership failure in institutions responsible for the care of children. Similarly, former High Court Justice Kenneth Hayne’s Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry found a similar systemic failure in institutional leadership, even more than greed, to be the main reason for the gross and persistent failure of Australia’s financial services sector in protecting the interests of its customers.

Perhaps the former Chief of the Defence Force, Governor of NSW and current Governor-General, General David Hurley, has best summed up the problem when he said “the standard you walk past is the standard you accept”. For the inescapable fact is that to ignore rumours of war crimes is to accept the possibility of their veracity and to adopt plausible deniability as one’s defence.

Justice Brereton would be familiar with the legal axiom ignorantia legis non excusat – ignorance of the law is no defence. The same applies to organisational accountability: leaders’ lack of knowledge of events and misdemeanours does not excuse their inaction. To place responsibility for the alleged crimes committed on the shoulders of the alleged perpetrators is to overturn a long tradition of command responsibility for the deeds and misdeeds of troops. It exculpates higher levels of command and senior commanders of responsibility for the moral consequences of their command.

Quite extraordinarily, Justice Brereton completely absolves government, which in the
Westminster system should be accountable for the consequences of its decisions, from any responsibility at all.

The doctrine of Ministerial and Government accountability remains a central tenet of the Westminster tradition of parliamentary government. It goes to the trust that must exist between electors and the elected. During the past two decades in Australia, Ministerial accountability has been more honoured in its absence than in its practice: ‘ducking and weaving;’ has been more characteristic of successive Commonwealth governments than Ministers ‘falling on their swords’.

At issue here is the accountability and responsibility of the Executive and Ministers. It is not about the theatre of accusation and defence in the Parliament. Nor is it about resignation. And least of all is it about the ‘gotcha’ moment that precedes disgrace. It is about transparency, the reasons for decisions (especially decisions that bear on life and death), the reasons for success and equally the reasons for failure.

To rebuild the trust that is at the heart of the Australian democratic enterprise, Justice Brereton’s report demands a Royal Commission if we are to discover how and why war crimes were committed and put in place fail-safe procedures that will prevent their re-occurrence.

This article is an excerpt from the Research Paper with The Australia Institute. To view the full paper click here.

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