“Reason to Know” in the Law of Command Responsibility
During the U.S.-led invasion and occupation of Afghanistan, the Australian Defence Force (ADF) collaborated with coalition forces to overcome the Taliban, secure peace in large portions of Afghanistan, train Afghan National Army soldiers and officers, complete engineering projects on Afghanistan’s infrastructure, and conduct counterinsurgency operations. The ADF withdrew most of its personnel from Afghanistan in 2013. In its wake, troubling allegations of war crimes and other serious misconduct began to emerge in the Australian media. These reports ultimately led to an investigation undertaken in May 2016, by the Inspector-General of the ADF and a Justice of the New South Wales Supreme Court, Major General Paul Brereton.
The Brereton Report
The findings of that investigation were published in November 2020 as the Afghanistan Inquiry Report, also known as the Brereton Report. The Report found credible evidence to support claims that, from 2005 until 2013, some members of the Australian special forces had engaged in a pattern of war crimes, including the murders of dozens of prisoners of war and civilians and a subsequent cover-up. As part of the investigation, the Report uncovered a practice with the Special Air Service (SAS) of carrying “throwdowns”—foreign weapons or equipment to be placed with the bodies of an ostensible “enemy killed in action” for the purposes of site exploitation photography, in order to portray that the person killed had been carrying the weapon or other military equipment when engaged and was, therefore, a legitimate target. The Report also uncovered a practice of after-action reports being phrased in “boilerplate terms” that did not accurately reflect the facts of the engagement, even if such engagements were lawful and in compliance with the international law of armed conflict (LOAC). The Report stated that this was done “in order proactively to demonstrate apparent compliance with rules of engagement, and to minimise the risk of attracting the interest of higher headquarters.”
The Brereton Report ultimately concluded that the actions of the SAS were “disgraceful and a profound betrayal” of the ADF’s “professional standards and expectations,” but largely dismissed these practices as the errant behavior of a few lower-ranked soldiers rather than evidence of an accepted culture of criminality throughout the SAS. The Report essentially attributed the behavior to part of a culture of insularity and exceptionalism that was typical of (and generally desirable for) special forces and concluded that the “close-holding of information—frequently referred to as ‘compartmentalisation’—is a necessary feature of military units” in general and special forces in particular, and was justifiably considered necessary for unit cohesion: “[t]he security of the nation and the lives of individuals can depend on it.”
The evidence of the commission of war crimes is troubling enough, however, the Report came to additional problematic conclusions regarding the culpability of SAS higher command. The Report found evidence that the command was aware of these practices and had been told of claims by Afghans that SAS soldiers and junior officers were committing war crimes. But they chose neither to investigate the claims nor to alert high command, because they were found to have a bias toward disbelieving complaints. The Report justifies a refusal to investigate allegations of war crimes because “few would have imagined some of our elite soldiers would” commit them. The Report ultimately dismisses such practices as not indicative of premeditation for the commission of war crimes, but rather characterizes them as acts done to avoid unnecessary scrutiny for what could theoretically have been lawful activities.
In his findings, Brereton misunderstood and misapplied the law of command responsibility – the law that makes a commander criminally responsible for crimes committed by forces under his or her effective authority and control if the commander knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, yet failed to take all necessary and reasonable measures to prevent or repress the commission of the acts.
The law of command responsibility has historically caused deep confusion in tribunals and in the scholarly literature. Perhaps the point of greatest confusion in this seemingly straightforward doctrine lies in its vagueness about the mental element of the offense. In particular, the circumstances under which a commander will be deemed to have constructive knowledge of the war crimes of subordinates has occasioned recurrent debates among international criminal tribunals and scholars alike, with inconsistent and sometimes contradictory results. Nearly all jurists addressing the issue propose a clear demarcation between a commander’s intentional participation in or endorsement of a subordinate’s war crime, which is thought to trigger either direct or command responsibility, and a commander’s mere negligent supervision of subordinates who commit war crimes, resulting in either the exoneration of the commander or his or her referral to disciplinary sanctions for neglect of duty.
Refining “Reason to Know”
In our article for the International Review of the Red Cross, we challenge the assumed dichotomy between participation or endorsement on one hand, and neglect on the other, as both an oversimplification of human methods of communication and a misapprehension of the dynamics of military organizations. Part of the problem regarding the law of command responsibility is that there are inconsistencies and contradictions in treaties and statutes, international criminal jurisprudence, and custom defining command responsibility doctrine. These problems open a wide door to confining responsibility for war crimes to the direct actors while exonerating officers who may have subtly pressured subordinates to commit war crimes, intentionally or negligently communicated tolerance of war crimes, or simply shown no interest in preventing or punishing war crimes.
The doctrinal points on which consistency is most elusive, and which appear to have most confused Brereton in particular, are the extent of the commander’s obligations: (1) to investigate any partial information actually presented to the commander that suggests that subordinates are planning or committing, or have committed, war crimes; and (2) to pre-empt war crimes by subordinates through training and the implementation of systems and procedures to detect, prevent, and punish war crimes. The first calls for an interpretation of the “reason to know” prong of the commander’s scienter. The second asks the more fundamental question of whether a military commander satisfies their legal obligations by relying on colleagues, subordinates, the media, or other sources to bring war crimes to their attention, or, more broadly, whether the commander has any affirmative duty to train and supervise their subordinates to ensure that they are not committing war crimes and have not committed war crimes with impunity.
The military institutional environment adds additional complications and nuance to a determination of command responsibility and knowledge. The hierarchical military relationship mirrors any human relationship in rarely confining itself to explicit communications without subtext or secondary meaning. As a result, a sharp line cannot always reliably be drawn between active and passive failures of a commander, or between negligent and reckless encouragement of war crimes. Ignoring the unique nature of the relationship between commander and subordinate in military organizations, and the equally unique nature of the situations in which war crimes occur, tends to result in oversimplification of the ways in which a commander can contribute to war crimes by subordinates, either purposely or unwittingly.
The distinction between reckless toleration of a war crime committed by subordinates and failure to adequately supervise subordinates is defensible on the conceptual level, at least. The respective consequences of each offense would seem to follow logically as well; in the case of toleration, the commander’s punishment should be on par with the subordinate’s due to their equivalent intentions and the commander’s ability to prevent the crime by taking appropriate action. In contrast, the commander’s mere failure to supervise subordinates is a dereliction of duty that may have tragic but presumably unforeseeable results, and the commander’s punishment should be accordingly less severe, if it should be criminal at all.
Yet, the dichotomy between conscious toleration and neglect of duty is often a false one. It distorts the dynamics of military command, and indeed of human communication and interaction in general, in the service of a simplistic legal doctrine. Human beings use a wide variety of techniques of signaling with each other to communicate beliefs and intentions indirectly and often indistinctly.
The doctrine of command responsibility, as it currently stands, overlooks that a commander who “does nothing” can clearly signal a message to subordinates. Omission can contribute to causing a subordinate’s war crime as effectively as committing an act of complicity. The ICTY alluded to this possibility in Blaškić, where it observed that the failure to prevent or punish a subordinate’s war crime “conveys some tolerance or even approval on the part of the commander towards the commission of crimes by his subordinates and thus contributes to encouraging the commission of new crimes.” Yet, in practice, war crimes jurisprudence fails to account for the role of indirect or implicit communication in the command relationship.
Compounding the problem is that most scholarly literature on the subject ignores the specific context of military organizations in defining the commander’s responsibility for war crimes committed by subordinates. In striving to analogize command responsibility to various doctrines of municipal criminal law, this literature overlooks the rigorous training in obedience to orders, rigid command hierarchy, and insularity in military organizations, which allows commanders to communicate toleration of war crimes indirectly with enhanced effectiveness.
It certainly does not follow that a general rule should be recognized presuming that commanders are aware of war crimes by subordinates. However, what our analysis does suggest is that a commander who fosters a culture of disregard for the LOAC, or who implicitly communicates tolerance of war crimes by a failure to train and supervise subordinates under his or her direct command, contributes substantially and concretely to the commission of war crimes by subordinates and should be held responsible as well.
Aaron Fellmeth is the Dennis S. Karjala Professor of Law, Science, and Technology at the Sandra Day O’Connor College of Law.
Emily Crawford is an Associate Professor at the University of Sydney Law School and a co-editor of the Journal of International Humanitarian Studies.
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