Investigation of war crimes and the recommendations of the Inspector-General of the ADF
The Inspector General of the ADF Afghanistan Inquiry Report was released following a lengthy investigation by Major General Brereton.
The Report made a number of recommendations for further investigation and in particular, the report recommended that 36 matters be referred to the Australian Federal Police for criminal investigation.
The inquiry had broad powers to investigate these matters. The inquiry is not a criminal trial and cannot find guilt in any individual case. Any matters where the Inquiry Report recommends an investigation by the AFP must then be independently investigated by the federal police and a decision made as to whether or not to prosecute the matter.
It is important that in the context of any criminal investigation by the AFP, the individuals the subject of any investigation are reminded of their rights to remain silent and to obtain legal advice before answering any question put to them.
War crimes and the Commonwealth Criminal Code
Division 268 of the Commonwealth Criminal Code sets out a number of offences against humanity including genocide, crimes against humanity and war crimes. Of importance in considering the recommendations made by the Major Brereton, is the war crime – murder which appears at section 268.70. A person accused of the war crime of murder commits an offence if:
(a) the accused causes the death of one or more persons; and
(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the accused knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(d) the accused person’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
In addition to the war crime of murder, the report made recommendations around investigation of cruel treatment and torture both of which are also offences under the Commonwealth Criminal Code.
A person accused of cruel treatment, pursuant to section 268.72, commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment
Similarly in relation to the war crime of torture, pursuant to section 268.25, a person commits that offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Beyond reasonable doubt
In Australia the criminal standard of proof, beyond reasonable doubt, applies to war crimes prosecuted under the Commonwealth Criminal Code. The nature of the evidence collected by the inquiry throws up a number of questions concerning the admissibility of some of that evidence ultimately in criminal proceedings.
There are a number of defences available to individuals charged with the war crime of murder. Specifically to section 268.70 of the Criminal Code, the person will not be guilty of the offence if it can be demonstrated that:
(a) the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b) at the time the attack was launched:
- the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
- it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Many persons who are affected by the recommendations within this report would feel that the nature of the inquiry and their role within the ADF impacted greatly on their decisions and process. The report noted the potential for accused persons to raise mental health defenses and disorders as relevant to culpability and abnormal mental functioning. In each case of a recommendation for prosecution by the AFP, the mental health of the individual at the time of the alleged incident will be relevant not only to the exercise of the prosecutorial discretion but also ultimately to any potential defences or excuses which might be available to the accused person.
What to take away
There are a number of matters which should be taken away from this report:
- Firstly, the inquiry is not a criminal trial and recommendations are not charges.
- Secondly, the process for the individuals the subject of the report will be a long an arduous once and it is important that appropriate legal advice is obtained at the earliest opportunity.
- Thirdly, the investigation to be conducted by the AFP will involve different rules and rights for individuals;
- Fourthly, the process of proceeding to trial involves a number of strategic decisions best made by individuals with lawyers who understand the criminal process and are able to develop a strategy for their individual situation.
If you or a family member require any advice about matters arising from this report, please contact Dan Rogers, a specialist in international criminal law.
A redacted copy of the report can be found here. If you require support, The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036.