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Is it finally time for a royal commission into the conduct of Australian special forces during operations in Afghanistan? One expert says yes, but understanding the nature of command and responsibility comes first.
Ben Roberts-Smith, for all intents and purposes, is a war criminal. He has been proven to be such, to a civil standard of proof, by not one but two court rulings.
But how far does responsibility for his crimes go? To his immediate superiors? To the most senior officer involved, or even further, to the government of the day?
Where, to coin a phrase, does the buck actually stop?
These are all valid questions, but according to a new paper published by The Australia Institute, a more useful question to answer is not regarding the apportioning of punishment, but about where we move on from here to make sure, as the paper’s author expresses, “that never again do Australian soldiers find themselves accused of war crimes”.
‘Decorations, honours and ribbons’
Allan Behm – special adviser at The Australia Institute and a person intimately familiar with the Australian Defence Force’s rules of engagement – opened his paper, War crimes: Where do responsibility and accountability start and end?, with a story.
In 2023, in the wake of the Brereton report, then Chief of the Australian Defence Force, General Angus Campbell, did his best to return his Distinguished Service Cross, which he received after his stint as commander of Australia’s Middle East operations in 2011. Curiously, Linda Reynolds, then minister of defence, refused the offer, mostly likely influenced by the then prime minister Scott Morrison’s reluctance to see any medal returned, or in fact revoked, which was what General Campbell intended to do with the ADF’s Special Operations Group’s Meritorious Unit Citation for operations during its time in Afghanistan.
It’s an interesting point to open on, especially given that during the writing of this piece, a colleague explained to me that there was some rancour towards General Campbell, given that he, apparently, held on to his citation while it was stripped from others.
General Campbell clearly felt there were, in fact, matters of culpability to be resolved, but the political climate at the time led to him being placed in an invidious position. Taken on face value, Campbell was unable to take the responsibility he felt was his for political reasons, leading to a rupture that persists to this day among observers and those who wear the uniform alike.
According to Behm, the schism regarding Campbell’s actions (or, as some would have it, inactions) was a distraction at best and at worst…
“That allegations of war crimes (Brereton) and their subsequent validation to a civil standard of proof (Besanko) – a stain on the ADF’s integrity and reputation and a direct challenge to Australia’s national advocacy of and support for the rule of law – should be reduced to a brawl over decorations, honours and ribbons is itself a reflection on and an indictment of the nation’s military command ethos,” Behm said.
The question that needed addressing then, and a question that remains to this day, is to define the responsibilities of command and the consequences of failing to live up to those responsibilities.
‘Command has failed because the system has failed’
Ironically, Behm went on to criticise Campbell’s own definition of command.
“To command is to assume responsibility for taking and saving human lives. It is to direct how human beings will conduct themselves towards each other. It demands moral standards be set and obeyed,” General Campbell wrote in a treatise outlining the ADF’s philosophical doctrine of command.
To Behm, this is far too nebulous and ignored what he called the “military purpose” of command, which is “essentially the operation of a military system for the purposes of war”.
“For all the care and attention that a commander might focus on the logistics system, for instance, the fact that an individual piece of equipment becomes unserviceable is well beyond the commander’s control,” Behm said.
“If, however, the logistics system and the many equipment types that it comprises fails, the commander is answerable and accountable. Command has failed because the system has failed. So too has the commander at a personal level.”
But where does this personal and command failure end and when does it become a criminal matter? Both world wars are replete with examples of war crime trials and Behm contended that in nearly every case, they were little more than “politics dressed in the robes of the law”, and not at all related to matters legal. These were show trials where the victor paraded the vanquished; the very legal process turned into a continuation of the war after the fact.
Speaking specifically, Behm brought up the trial of General Tomoyuki Yamashita following Japan’s defeat in World War II. He was found guilty of war crimes based on the activities of troops under his command and subsequently sentenced to death. Yamashita appealed the sentence and the US Supreme Court took the position that – despite many serious flaws – the military-led trial was entirely lawful, and that the commission established to lead the trial was not subject to civil authority.
According to the Supreme Court’s ruling, “the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with personal responsibility for his failure to take such measures when violations result”.
This has become known as the Yamashita Standard; General Yamashita himself was hanged on 23 February 1946.
This standard applies to the heart of the matter of Roberts-Smith and any liability – criminal or otherwise – apportioned to Campbell and his civilian superiors.
“So the question must be asked: if, as the US Supreme Court determined by majority judgment, Yamashita’s conviction was just, would the same principles apply to American, Australian or British commanders accused of similar war crimes by reason of their oversight, neglect or omission?” Behm said.
“By the same standard, should the senior Australian officers exercising higher command functions in Afghanistan on behalf of the CDF – considering that they were physically located in the United Arab Emirates – be held to the same standard for war crimes committed by Australian military personnel as was General Yamashita for war crimes committed by forces over which he was unable to exercise command (and may not even have had command assigned)?”
The answer, Behm contended, is of course not. Such a judgment, in Behm’s words, is merely “the politics of victory dressed in the robes of a confected legality”.
‘Politics by other means’
Behm pointed out that war crimes represent a failure at every level of the chain of command. Such actions are a failure of the personal morality of those directly involved on the ground, their superiors in the first instance, and could perhaps be failures overall of the politicians deploying their armed forces into distant and foreign conflicts.
In the case of the SAS in Afghanistan’s Oruzgan province, that represented a failure of the contingent itself in terms of its secretive and self-accountable operations, a failure of senior officers who found themselves excluded by the behaviour of the SAS, and of senior commanders, such as General Campbell, tucked far away from the action 1,700 kilometres away at an airbase in the United Arab Emirates.
However, the responsibility for the rogue actions of the SAS could be claimed to go further still.
“If ‘war is the continuation of politics by other means,’ as Clausewitz wrote, then politicians are ultimately accountable and responsible for the decision to commit the nation to war,” Behm said.
“Some would argue that Australian governments should be accountable for the decisions to commit forces to Iraq and Afghanistan, and to admit responsibility for the consequences of those decisions.”
Essentially, any individual or group of individuals who may claim responsibility for victory or another positive battlefield outcome should also be liable for any instances when the military system fails. That said, this should not be equated to a moral failure on their part, and any judgment found against them should be based upon their failure in managing the system, not “the criminality that war crimes represent”.
“Now that the full Federal Court has found against the appellant’s claims in the defamation matter, there is now no doubt to a civil standard of proof that the SAS soldier involved did carry out the actions reported by the investigative journalists and reviewed by a senior legally qualified military officer,” Behm said.
“It is now imperative that the ADF address the systemic deficiencies in command to ensure that never again do Australian soldiers find themselves accused of war crimes. A royal commission into command failure in Afghanistan would assist the ADF immeasurably in this task.”
It’s not a big ask.
