Australian War Crimes in Afghanistan: National Mechanisms, Positive Complementarity and Command Responsibility

Following persistent rumours of criminal misconduct by some Australian Special Forces personnel in Afghanistan, an administrative inquiry was launched in 2016 by the Inspector-General of the Australian Defence Force. That inquiry's report revealed shocking evidence of 23 incidents involving 25 Australian personnel and resulting in 39 killings of persons hors de combat or under Australian control, as well as other misconduct. The inquiry recommended these incidents be prosecuted before ordinary civilian courts under Australia's war crimes legislation, which largely mirrors provisions of the Rome Statute of the International Criminal Court. A new investigative mechanism, the Office of the Special Investigator, has been established to this end. However, the report also suggested that military leaders above the patrol commander level bore only moral or professional responsibility and there should be no prosecutions based on command responsibility. These developments raise questions about the scope of command responsibility under international and Australian law, and the relationship between national investigative mechanisms and the International Criminal Court. Douglas Guilfoyle is Associate Professor of International and Security Law at the School of Humanities and Social Sciences, University of New South Wales Canberra. His principal areas of research are maritime security, the international law of the sea, and international and transnational criminal law. He was previously a Professor of Law at Monash University, Reader in Law at University College London, and has acted as a consultant to various governments and international organisations. In 2019-2020 he was a Visiting Legal Fellow at the Australian Department of Foreign Affairs and Trade. He is a regular contributor to the blog EJILTalk!