A lingering question hanging over what comes next must be: can it really be the case that no officer will face a criminal trial? General Campbell’s press conference conceded the moral responsibility of those in command and foreshadowed disciplinary and administrative consequences for some (including but not limited to the stripping of military honours). However, the view appears to have been taken in the report that the evidence does not rise to the level of supporting the necessary legal findings beyond reasonable doubt. Part of the conclusion appears to be that SAS units operated in small groups with considerable autonomy in the field, in the words of, highly dispersed “with limited supervision and minimal support, for extended periods … n some of the most demanding mountain terrain on the planet” (quoting David Killcullen). Under such conditions, real power lies with sergeants and not commissioned officers. Simply: such units, if a toxic culture takes hold, are uniquely well placed to conceal information about what occurred on a mission from the commissioned ranks.
However, a subtle but important legal distinction may also play a significant role. Most of Australia’s war crimes provisions track very closely the language of the International Criminal Court’s Rome Statute. The command responsibility provisions, as Mel O’Brien has drawn to my attention, do not.
The core of military command responsibility under the International Criminal Court Rome Statute is that such a commander “shall be criminally responsible for crimes within the jurisdiction of the Court job seekers database committed by forces under his or her effective command and control … as a result of his or her failure to exercise control properly over such forces, where: [t]hat military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” (Art 28(a)(i)).
The mode of liability as rendered in the Commonwealth Criminal Code provides (s. 286.115(2)(a)): “A military commander … is criminally responsible for offences under this Division committed by forces under his or her effective command and control … as a result of his or her failure to exercise control properly over those forces, where: the military commander … either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences”.
The consequence as a matter of Australian law is that one would be attempting to prove beyond reasonable doubt (likely on the evidence of convicted war criminals) that officers had awareness of a substantial risk that war crimes had been, or were about to be, committed. As Jeremy Gans has observed, this will be a “hard road” for an Australian prosecutor. (Still, as some veterans have already pointed out, there are hard questions to be asked of ostensibly ignorant commanding officers who drank with SAS troops at their “secret” bar which was allowed to operate on a dry base.) Whether the Australian standard of command responsibility is different from what would be required in an ICC prosecution remains to be explored (particularly after the hash made of command responsibility by the slew of contradictory individual judgements both at first instance and on appeal in Bemba at the ICC), as does whether that difference makes any practical difference in Australian-ICC relations.