Command Responsibility, Australian War Crimes in Afghanistan, and the Brereton Report   [open pdf - 909KB]

From the Introduction: "November 2020 Australia faced a reckoning with its recent past in Afghanistan. There had been growing disquiet for some time regarding rumored war crimes committed in Afghanistan by Australian special forces, corroborated by shocking footage screened on national television in 2017. On 19 November 2020 General Angus Campbell, Chief of the Australian Defence Force (ADF), released the summary of the final report of a long-running inquiry into those accusations. That report had been commissioned by the Inspector-General of the Australian Defence Force, an independent office outside the military chain of command. It is now widely known as the 'Brereton Report' after the head of the inquiry: Paul Brereton, a Justice of the New South Wales Court of Appeal and a major general in the Australian Army Reserves. Much of the report will remain redacted pending criminal proceedings before civilian courts. Its key finding is the identification of twenty-three incidents involving twenty-five Australian personnel resulting in thirty-nine killings which will be referred for prosecution. Critically, the report finds none of these killings occurred in heat of battle, nor 'in circumstances in which the intent of the perpetrator was unclear, confused or mistaken,' and that all persons involved understood the relevant law of armed conflict and rules of engagement. These were deliberate killings of unarmed persons, either 'hors de combat' or under Australian control, in circumstances where there could be no confusion as to their legal status or targetability. [...] This article examines the question of command responsibility for such crimes under international and Australian law, and how far such responsibility extends."

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U.S. Naval War College Digital Commons: https://digital-commons.usnwc.edu/
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International Law Studies (2022), v.99, Issue 1, p.220-283
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