Discussion paper

War crimes: where does ultimate responsibility lie?

Only a Royal Commission will determine the answer
War crimes Australian Defence Force Defence force personnel Military operations Australia

Justice Brereton’s Afghanistan Inquiry report on allegations of criminal misconduct by Australian special forces members in Afghanistan is confronting for the Australian community in general and the Australian Defence Force (ADF) in particular. His findings do not reflect well on the integrity and professionalism of the special forces, their leaders or the government that in the first place committed them to a long and ultimately pointless conflict in Afghanistan that at no time served any identifiable Australian strategic purpose.

It is impossible for armed forces to retain focus and purpose when armed conflict itself becomes purposeless. The retention of an ethical and moral compass also becomes impossible when soldiers do not know what they are fighting for, or why. This lack of clarity appears to have obliterated ethical and moral sensibility.

As confronting as the Afghanistan Inquiry report is, it has manifest shortcomings. The inquiry was intended to establish questions of fact, with narrow terms of reference to establish the substance of the alleged criminal acts and the circumstances in which they occurred.

Key findings:

  • Justice Brereton was given narrow terms of reference to establish matters of fact, not to assign or excuse responsibility or blame.
  • The finding that no information on potential war crimes had been given to “any government, of any persuasion” is not credible, or suggests major failings at the highest levels of the Australian Defence Force (ADF).
  • It is not credible that no senior military leaders were aware of rumours of war crimes and other criminal acts until 2015.


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