The recommendations also cover a broad range of measures aimed at ensuring war crimes are not committed again. Implementing these broader recommendations will require significant change within the ADF. Cultural change is notoriously difficult to achieve, particularly in large organisations steeped in tradition. This said, there are at least four reasons to believe the necessary changes will be made.
First, the report was clearly no whitewashing exercise: it is unflinching in its findings and unhesitating in its recommendations. While credit for this is largely due to Justice Paul Brereton, who led the inquiry, it also reflects well on the Department of Defence, which commissioned it.
Second, we have every reason to be confident that the criminal justice process that was launched (separately to Brereton’s final report) with the referral of allegations concerning Ben Roberts-Smith and “Soldier C” to the Australian Federal Police, and which will now be widened under the Office of the Special Investigator, will be independent and impartial.
While the Attorney-General, Christian Porter, would have to consent to any war crimes prosecution, it is widely understood that a refusal of consent is reserved for cases such as one reliant on universal jurisdiction where there is no real nexus to Australia, and where a prosecution could cause serious harm to Australia’s international relations.
In the current context, it is implausible that the Attorney-General would prevent justice being served. Assuming that admissible evidence can be assembled to establish guilt beyond a reasonable doubt, one or more criminal prosecutions will serve as a powerful deterrent to future wrongdoing.
Third, the Chief of the Defence Force has announced that he has accepted all of the report’s findings and that its recommendations will be comprehensively implemented. A panel has been set up to monitor this and has been mandated to report on any additional action needed. Together these measures demonstrate an acceptance that there was a systemic organisational failure that indirectly gave rise to the wrongdoing and that failure needs to be addressed. They recognise that the credibility of the ADF will be best served by independent evaluation.
Fourth, and most importantly, the ADF and the government have a vested interest in getting this right. Adherence to the laws of war is central to military honour and the maintenance of morale. It is also critical to mission success. Unless the ADF obeys the laws of war it risks losing local support for counter-insurgency and peace-building missions such as those in Afghanistan – and the ADF well knows that such an operation cannot succeed without this support.
Moreover, the objects of Australia’s international military operations frequently include helping to halt mass atrocities, protect civilians and rebuild fragile states. When those tasked with helping to restore the rule of law breach the rules, it threatens the legitimacy of such operations, which could have significant geopolitical implications.
We can speculate about whether the response would have been as robust in the absence of the media spotlight. We might also query whether the very public and comprehensive response has been partly motivated by a desire to ensure that the International Criminal Court cannot exercise jurisdiction over Australian nationals. However, regardless of any mixed motivations, the substance of the response to the report is to be commended.
Those who remain sceptical would do well to consider that at this moment our closest military allies are retreating from their respective commitments to accountability.
The British government is championing the Overseas Operations (Service Personnel and Veterans) Bill, which would make it considerably harder to prosecute members of the British armed forces.
In the United States, President Donald Trump has issued a series of pardons of armed forces members either accused, or convicted, of serious violations of the laws of war. He has also issued a series of executive orders that enact retaliatory measures, including sanctions, in response to the ICC’s authorisation of an investigation into the situation in Afghanistan, the scope of which includes crimes allegedly committed by US nationals.
These examples demonstrate that a commitment to accountability cannot be taken for granted. One can criticise Australia’s response for being a long time coming and for being too long shrouded in secrecy. But to focus exclusively on such matters ignores the fact that our political and military leaders have made a very public commitment to accountability that would be exceedingly difficult to walk away from.
For that reason, we should welcome the inspector-general’s report and the ADF and government’s response to it, and be confident that comprehensive steps are being taken to ensure that this blight on our proud military record is not repeated.
Dr Carrie McDougall is a senior lecturer at Melbourne Law School. She has previously advised the Australian government on its operations in Syria, Iraq and Afghanistan.