Dr Melanie O’Brien from the UWA Law School looks at a new report released on alleged war crimes of SAS soldiers in Afghanistan and what this means for the future of Australia’s Special Forces.
On 19 November 2020, a damning report released by Justice Paul Brereton revealed allegations of war crimes committed by Australian Special Forces soldiers whilst serving in Afghanistan.
The report outlined information that shocked the Australian public including allegations of 39 unlawful killings of civilians or prisoners, and two cases of cruel treatment. Although specific details were not made available, as much of the report is redacted, it was clear that a pervasive ‘warrior culture’ within the Special Forces contributed to the commission of the alleged war crimes.
The contents of the report are shocking, although not entirely unexpected, after an ABC report aired earlier in 2020 showing footage of crimes committed by Special Forces.
War crimes are crimes that are violations of international humanitarian law – the legal term for the laws of war or laws of armed conflict. This body of law regulates the way military and armed groups fight wars and the weapons they use. It includes the well-known international conventions, the Geneva Conventions.
Australia is a party to the Geneva Conventions, which means that Australian soldiers are obligated to follow the laws in those treaties. Under the Geneva Conventions, it is prohibited to commit violence, including murder and cruel treatment, against a person who is not participating in hostilities, such as a civilian or a detained combatant.
The allegations in the report relate to crimes committed against civilians or detained combatants: people who are protected under the Geneva Conventions and other parts of international humanitarian law, and therefore are not allowed to be attacked.
The crimes presented in the report are crimes that are categorised as war crimes under Australian federal law. They are war crimes because they were committed in the context of armed conflict - they are serious crimes with significant penalties. Crimes presented in the report amount to the war crime of murder, which attracts life imprisonment, and cruel treatment, which has a 25 years’ imprisonment penalty.
Justice Brereton’s report also examines the responsibility of commanders, finding that patrol commanders should be held accountable, but commanders higher up in the military structure only bear moral command responsibility for the actions of their subordinates. This is problematic, as it is crucial to military culture, structure and functionality that commanders properly supervise and control their subordinates at all times.
The concept of ‘command responsibility’ is common in international criminal justice, and many commanders have been held accountable through international criminal courts. It is vital to hold commanders accountable for failure to properly supervise their subordinates, because such failures create an atmosphere in which soldiers commit crimes because they know they will get away with it.
The Defence Force has responded with open regret and acknowledgement that such criminal conduct is unacceptable for Australian soldiers. General Angus Campbell, Chief of the Defence Force, has committed to implement all of the report’s recommendations, including asking the Governor-General to revoke the Meritorious Unit Citation from the Special Operations Task Groups who served in Afghanistan from 2007 to 2013. General Campbell, along with the Chief of Army, Lieutenant General Rick Burr, has also committed to changing the culture of Special Forces regiments, to eliminate the toxic ‘kill count’ culture found to exist within Special Forces.
It is significant that these allegations have been made public, and it is clear that the Defence Force and the government intend to genuinely pursue investigation and prosecution of the alleged war crimes, although certainly challenges lie ahead in that process.
This positions Australia as a global leader in ensuring accountability for war crimes committed by Australian troops. Sending the message to Australian soldiers that if they commit war crimes, they will be prosecuted and punished, is a clear deterrent to future crimes.
However, we also need to ensure that we follow international law and hold commanders responsible for their failures, too. Over the years to come, it remains to be seen who will be prosecuted for these atrocities.