This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.
With the impending retreat of U.S. forces from Afghanistan after two decades of armed conflict, it is time to take stock of the legacy of this seemingly never-ending war. The conflict drove not just U.S. forces into the fray, but also an international coalition of forces under the mandate of the United Nations Security Council, which in 2001 established the International Security Assistance Force to combat global terrorism. Among these forces were Australian troops.
For the past years, the alarming rumours of alleged war crimes committed by Australian Special Forces deployed in Afghanistan, documented originally by Samantha Crompvoets, have been under investigation. The findings of this inquiry resulted in the Brereton Report, an official document released by Australian authorities on 19 December 2020. It was a day of reckoning for Australians, who were confronted with the terrible deeds of some of their most trusted and admired professionals – 39 unlawful killings and instances of cruel treatment between 2005 and 2016. In the words of Major General Brereton, Assistant Inspector-General of the Australian Defence Force and author of the Report: “We embarked on this inquiry with the hope that we would be able to report that the rumours of war crimes were without substance. None of us desired the outcome to which we have come. We are all diminished by it.” (Ch. 1.01, par. 83)
Yet, there are at least two ways in which the findings of the Brereton Report have actually diminished us all as humankind. In a moral sense, each of us will be moved by the compelling words written by the English poet John Donne in 1623: “Any man’s death diminishes me, because I am involved in Mankind.” In a political sense, as already pointed out, Australian and other foreign forces have been deployed in Afghanistan for the past two decades on behalf of the international community, complying with the United Nations mandate to stave off global terrorism. Therefore, the findings of the Brereton Report are arguably not solely the business of Australia, but of the international community as a whole.
As for its contents, the Report raises several significant normative issues, not least from a military professional ethics perspective, as well as from the standpoint of criminal law.
Concerning military professional ethics, the Report is rife with references to adequate standards that are deemed becoming of a member of a Special Forces unit and that were shamefully breached in Afghanistan. Moreover, the Report is unique as an official document in that it attaches an Annex specifically dealing with professional ethics. Indeed, Annex A to Chapter 3.03, titled “Special Operations Command: Leadership and Ethics Review,” was drafted by Prof. David Whetham, Director of the Centre for Military Ethics. King’s College London. Whetham’s conclusions are endorsed in the main body of the Report. In his judgment evidence strongly suggests that war crimes have been committed, and that soldiers who receive effective ethics education and training are less likely to commit such atrocities (par. 5). But training and educating are not enough, just as it is not enough to know the Law of Armed Conflict; according to Whetham: “Military ethics should be considered as a core competency that needs to be updated and refreshed if it is to be maintained” (par. 9).
He also points to a worrisome sense of exceptionalism among Special Forces (par. 22), as well as the development of a deleterious “warrior mentality,” as opposed to military professionalism (par. 29). Staggering behaviour was ultimately normalised as a result of this gradual erosion of professional standards (par. 65). An analogous sustained decline of professionalism has led to other dark passages in military history, such as the My Lai massacre, as pointed out by Philip McCormack.
Whetham’s final recommendations include more ethics education, espousing dissenting narratives among Special Forces that lead to healthy ethics discussions, and accountability for wrongdoing (pars. 68-73). Admittedly, much more research is needed in this area, and specialized literature on ethical standards tailored for Special Forces might ground further critical studies inspired by the findings of the Brereton Report.
As to legal accountability, it is worth mentioning that the released version of the Report is heavily redacted precisely because of potential criminal prosecutions that might ensue in the following years. In that sense, it is certainly salutary that a week before the Report was released, the Australian Prime Minister appointed a special investigator to look into possible criminal prosecutions under Australian law. Admittedly, the ‘culture of silence’ decried throughout the Report promises to pose a formidable challenge to such internal inquiries.
Still, since the misconduct of Australian forces are also the concern of the international community, the applicability of international criminal law is also worth considering. Some preliminary ideas in this regard have already been noted by Prof. Douglass Guilfoyle from the University of New South Wales. In his analysis, Guilfoyle raises a few interesting legal issues, such as the conceptual gap in command responsibility between Australian criminal law and the Rome Statute of the International Criminal Court (ICC). In a word, the standard of conviction for command responsibility is much lower in the Rome Statute than under Australian criminal law. Guilfoyle also flags the problem of the alleged complicity of military lawyers in the covering up of misconduct, a phenomenon that is gaining increasing interest.
There is another issue specifically concerning Australia-ICC relations that is not touched upon by Guilfoyle’s analysis: complementarity. Pursuant to the Rome Statute, the ICC is to operate in a complementary capacity whenever the domestic jurisdiction of states fails to prosecute international crimes (preamble, arts. 1, 17). It is in this subsidiary nature where lies the ultimate strength of the ICC to take root and flourish amidst the dense vegetation of the Westphalian system of sovereign states.
Now, complementarity can be either positive or negative. We talk of positive complementarity when the ICC renders assistance to a state for it to exercise its own criminal jurisdiction. Negative or ‘classical’ complementarity kicks in whenever the state is unwilling or unable to exercise its ius puniendi, under the conditions spelled out in art. 17 of the Rome Statute (for instance, if there is a failed state or mock trials are conducted).
It is worth noting that the Office of the Prosecutor (OTP) of the ICC is already conducting an investigation on possible war crimes and crimes against humanity perpetrated in Afghanistan, albeit at this stage the investigation refers only to actions by US personnel and Afghan nationals, and the Brereton Report styles itself a ‘significant obstacle’ to an ICC inquiry, precisely on complementarity grounds (Ch. 1.12, par. 51). Yet, there is no legal impediment for the OTP to expand the scope of its survey to include conducts detailed in the Brereton Report, as both Afghanistan and Australia are parties to the Rome Statute since 2003 and 2002, respectively.
Indeed, the spectre of international involvement looms large across the text of the Brereton Report, which is adamant in that there will be no need for the ICC to intervene at all since the Australian judiciary will mete out criminal punishment where it is deserved. Although the Report claims to be fulfilling Australia’s obligations as a party to the Rome Statute (Ch. 1.01, par. 80), it confidently states that the ICC “lacks jurisdiction” (Ch. 1.10, par. 43), and that there will be no extradition unless Australia’s Attorney-General deems the state has been unwilling or unable to prosecute (Ch. 1.10, par. 51). It further reads that “the only courts current or former Australian Defence Force members may face are those established by the laws of Australia” (Ch. 1.01, par. 81). One sentence therein strikes as particularly defensive: “The conduct of this Inquiry, and a domestic prosecution, or a considered and bona fide decision by Australian prosecutors not to prosecute, denies the International Criminal Court jurisdiction” (Ch. 1.10, Executive Summary, p. 264, emphasis added). Still, the Report concedes that ‘contested complementarity’ between the ICC and Australia remains a possibility (Ch. 1.10, par. 52), and it concludes on a more conciliatory note that: “so long as Australia can satisfy the ICC Office of the Prosecutor that it is making the requisite inquiries and taking appropriate consequential action, the jurisdiction of the ICC is not enlivened” (Ch. 1.10, par. 53).
To be sure, Australia is a country with a strong tradition in the rule of law, and Major General Brereton, who is a Justice of the New South Wales Court of Appeals, is a towering exemplar of such a laudable legacy. Yet, if Australians have discovered that even their most elite and professional state agents could engage in appalling acts, the logical possibility that its judiciary could also fail must at least be entertained. The ultimate test of negative complementarity should rest with the ICC, an institution envisaged to address injustice not only in Africa, but wherever it is committed.
It remains to be seen how the relationship between Australia and the ICC will unfold hereafter. Given that there is a functional and credible judicial system in place in the Oceanic country, it is conceivable that an ambiguous love-hate relation might develop whereby positive complementarity will be fostered under the threat of the Damocles sword of negative complementarity, as has been the case in Colombia. It is also certainly possible for the OTP to decide not to conduct a full investigation if the Australian legal system is working as expected for a state party to the Rome Statute, just as in the case of the UK regarding alleged crimes committed in Iraq.
Australia finally met its Abu Ghraib, its Baha Mousa, its Airborne Regiment, like the US, the UK, and Canada before it. The disgraceful events recounted in the Brereton Report will arguably damage Australia’s international reputation to an extent that remains to be seen in coming years. They may also deter Australia and other countries from engaging in international peace operations in the future.
This does not mean that war is hell and that there is nothing for it. There are rules that govern even the most brutal and trying of human experiences. This is what Just War thinkers mean by ‘war convention’. The important thing is that, whenever such rules are breached, institutional arrangements need to be in place to mete out justice, including penal measures, as appropriate. And among those arrangements, Australian authorities must not forget, there is a permanent International Criminal Court standing at the ready.
Francisco Lobo
Francisco Lobo is a PhD Candidate in the Department of War Studies at King's College, London.
He is a lawyer graduated from the University of Chile. He holds an LL.M. in International Legal Studies from New York University (sponsored by the Fulbright Commission), and a Master of Laws specializing in International Law from the University of Chile. He is a lecturer of International Law, Human Rights Law, International Criminal Law, and Legal Theory, in Santiago of Chile.
He has worked as an NYU Fellow of International Law and Human Rights at the International Law Commission of the United Nations (2018), where he assisted the Special Rapporteur on Peremptory Norms of General International Law (ius cogens), in New York and Geneva. He has also worked as a legal advisor at the Ministry of Foreign Affairs of the Republic of Chile (2019-2020).
His research interests include International Law, Human Rights, the Law of Armed Conflict and the Just War tradition, and International Criminal Law, as well as a multidisciplinary approach to the phenomenon of violence from the perspective of history, philosophy and ethics.