Yesterday it was confirmed in the Brereton report that there’s ‘credible information’ to substantiate the unlawful killing of 39 people by Australian special forces personnel in Afghanistan. These shocking allegations led Prime Minister Scott Morrison to announce last week that a special investigator’s office will be established to assist the Australian Federal Police to investigate these alleged crimes. The information contained in the Brereton report will now serve as a guide for the special investigator’s office, which will focus on gathering evidence that will be admissible in criminal prosecutions.

If a decision is made to implement the recommendations of the Brereton report and prosecute members of the Australian Defence Force, where can they be tried and under what law?

There are two main options—one involving criminal trial in the civilian court system, and the other court martial via Australia’s military justice system. The Brereton report recommends that any criminal investigation and prosecution of alleged war crimes follow the civilian route, with the involvement of the AFP and the Commonwealth Director of Public Prosecutions. Given the availability of the military justice system, why has the report recommended this course of action?

The civilian route invokes the CDPP’s jurisdiction to prosecute serious international crimes—including war crimes—under the Commonwealth Criminal Code. The commencement of such proceedings requires the federal attorney-general’s written consent. War crimes are acts of atrocity committed during an armed conflict and are considered violations of the laws of war. Such acts include murder (the killing of persons not taking part in hostilities), torture, cruel treatment and mutilation. Those alleged to have been killed by special forces include prisoners and civilians. In addition to the unlawful killings are two allegations of cruel treatment that could amount to war crimes. The report also raises the possibility of commanders being criminally liable for failing to exercise proper control over their subordinates under the doctrine of command responsibility.

Any trials would likely take place in a state or territory supreme court before a judge and a jury. If ADF members are charged with such offences, it would be the first time that Australian soldiers have been prosecuted for war crimes in a civilian court.

The alternative option for dealing with the allegations is via the military justice system. Under the Defence Force Discipline Act, the independent office of the Director of Military Prosecutions has jurisdiction over ADF members for disciplinary offences, such as negligence in performance of a duty. ADF chief Angus Campbell has indicated that individuals accused of such disciplinary offences will be dealt with through military justice processes.

The DMP also has jurisdiction to prosecute ‘ordinary’ crimes under against Australian law no matter where they were committed. Special forces soldiers alleged to have unlawfully killed prisoners or civilians could, for example, be charged and tried with the crime of murder or manslaughter. And, like the CDPP, the DMP has jurisdiction to prosecute ADF personnel for war crimes. A criminal trial in the military system is via court martial.

Courts martial are heard before a president and panel of ADF members and are generally held in public unless the court is closed for reasons of security or defence. They can impose a range of punishments, including imprisonment for life or dismissal from the defence force.

Trial by court martial has the advantage of alleviating concerns that a civilian court won’t understand battlefield decisions or military culture. However, it may be viewed as failing to account for the very real public concern about special forces’ behaviour and a desire for a civilian court trial that is fully independent of the ADF.

The Brereton report’s recommendation that allegations of war crimes be tried in the civilian justice system reflects several different legal and policy issues. A memorandum of understanding between the CDPP and the DMP acknowledges that in the case of alleged war crimes, the public interest may be ‘best served’ by prosecution in a civilian court. The report’s recommendation also takes into account the fact that some individuals who could be prosecuted are no longer serving ADF members and therefore don’t fall under military jurisdiction. There’s also the perception that civilian investigations and prosecutions for war crimes would be more likely to prevent the International Criminal Court from asserting its jurisdiction in this matter.

The ICC is currently pursuing an investigation into international crimes committed in Afghanistan. While the ICC prosecutor’s investigations into this situation have focused on allegations against Afghan and US forces, it will likely keep an eye on the Brereton report and Australia’s response. The ICC is a ‘court of last resort’, which means that it will only investigate or prosecute if a state with jurisdiction is unwilling or unable to do so. Australia’s robust civilian and military justice systems mean that it is more than capable of investigating and prosecuting war crimes.

The Brereton report and the establishment of a special investigator’s office indicate that Australia is already taking these allegations seriously and that it is ready and willing to prosecute.