How Long the Shadow? Command Responsibility for War Crimes in Australian Law

Abstract

From the ashes of the Second World War and motivated by a desire to combat impunity for war crimes, the modern doctrine of command responsibility evolved as a critical norm of international law. With the advent of the Rome Statute of the International Criminal Court (ICC), the international community broadly recognised that primary responsibility for the enforcement of the doctrine rests with national jurisdictions. Australia was commendably quick to recognise the importance of the Rome Statute, but the subsequent manner of implementation of the command responsibility provisions into domestic Australian law raises questions. Further, the extent to which any gaps in implementation may trigger the complementarity provisions of the statute and thus the jurisdiction of the ICC over matters to which Australia might otherwise claim primacy is in question. Moreover, whether Australia’s domestic provisions provide an effective means of ensuring the responsibility of commanders, and thus deter war crimes and combat impunity, is uncertain. This dissertation critically examines the passage of the doctrine of command responsibility into domestic Australian law and analyses its elements in the Rome Statute and Australia’s Commonwealth Criminal Code. By necessity, and in light of the elemental deconstruction provided herein, this dissertation analyses and applies Australia’s military command doctrine and associated degrees of authority through the lens of the principle of command responsibility and the relevant legislative provisions, and overlays such analysis on the major case study of the Inspector-General of the Australian Defence Force Afghanistan Inquiry (‘Brereton Inquiry’). Four inter-related conclusions and an available outcome are offered. Firstly, with the rejection of the mental element of recklessness from the statute, and the jurisprudential determination that the ‘should have known’ standard of fault in the statute is akin to negligence, a clear divergence exists between the statute and code provisions. Second, this divergence establishes differing scopes of criminality which, in turn, adversely impacts the necessary coherence, credibility and legitimacy of the system of international criminal justice. Third, divergence to this extent could prejudice the system of complementarity and trigger the jurisdiction of the ICC over Australians. Fourth, the exculpation of the higher chain of command in the Brereton Inquiry evidences a manifestly flawed interpretation of command responsibility and Australia’s command and control structures and a flawed application of the law of command responsibility to the facts of command and control in Afghanistan. The available outcome flowing from these conclusions is the excision of the command responsibility provisions from the overarching principle of complementarity. Australia then retains primacy over aspects of cases arising from the Brereton Inquiry whilst the ICC assumes jurisdiction over the responsible commanders. This outcome fulfils the intent of the Rome Statute to fill the impunity gap and that of the doctrine to ensure those most responsible are brought to justice. It simultaneously injects into the Australian military operational ethos the deterrent effect which the threat of the prosecution of commanders has on the conduct of subordinates in terms of compliance with the laws of war.