The key question, then, is did anyone in command (above the level of patrol commander) know enough to engage superior responsibility? The critical step for the present analysis is less the existence of a superior-subordinate relationship, or the action which should have been taken to suppress and punish war crimes, but rather the relevant mental state (mens rea). The two possibilities under Article 28 of the International Criminal Court Statute are:
officers up the chain of command had actual knowledge of crimes; or
“owing to the circumstances at the time, [they] should have known that the forces were committing or about to commit such crimes”.
As noted elsewhere, a wrinkle is that in Australian law the second concept is rendered as “[were] reckless as to whether the forces were committing or about to commit such offences” (s. 286.115, Commonwealth Criminal Code).
Let’s examine the known facts. There is a reasonable case to make that the difficult operational environment (among other factors) enabled patrol commanders operating ‘outside the wire’ to control the information received by junior officers who often remained in an ‘overwatch’ role on base. Nonetheless, the Brereton Report notes:
“persistent rumours of criminal or unlawful conduct”;
actual knowledge among officers of the practice of using throwdowns;
operational reports which used “boilerplate” language (to indicate or fabricate compliance with rules of engagement) so frequently that a new Directive or reporting was issued so higher command could understand the actual basis on which targeting decisions had been made; and
that local complaints by Afghan nationals of unlawful killings were received but dismissed as insurgent propaganda or compensation-seeking.
The Report takes a salami-slicing approach to this evidence. ‘Throwdowns’ and suspiciously ‘boilerplate’ reports are presented not as potential evidence of unlawful killing, but as misconduct aimed at defeating overzealous scrutiny from higher command. The dismissal of local complaints is explained as subordination of internal inquiry and legal processes by a desire to ‘protect’ frontline operators. No pattern is discerned.
However, if a higher-level commander possessed all these facts, should they have known such crimes were possible and made further enquiries? Were they reckless to the possibility of such outcomes if they did not? Inevitably, the answer is: it depends.
The difficulty in construing the meaning of the “should have known” standard in the ICC Statute is that we have only one ICC command responsibility case: Bemba. It is of limited assistance. The Pre-Trial Chamber set out a legal test for “should have known”, but the Trial Chamber found it did not need to consider the issue (finding Mr Bemba had job seekers database actual knowledge of subordinates’ crimes), and the Appeals Chamber majority acquitted on the separate question of whether Mr Bemba had taken “all necessary and reasonable measures” to prevent subordinates’ crimes. The separate and dissenting opinions do comment on the “should have known question” in passing (but only on the bizarre controversy as to whether Article 28 contains two alternate mental elements, or one which can be proved in two ways).
In any event, the Pre-Trial Chamber in Bemba set a stringent standard of due diligence holding that superiors are under an active duty to “take the necessary measures to secure knowledge of the conduct of his troops” (para 433). While it doesn’t elaborate much further, this may be consistent with the idea in ICTY cases such as Delalic that it is enough to satisfy the mens rea that a commander possessed sufficient information to put him on notice of the risk of such offences and the need for additional inquiries (Appeals Chamber, 2001, paras. 238-9). Thus, if the standard to be applied is Article 28 and the Bemba PTC decision is correct, a case could be made that a hypothetical commander possessed of all these facts knew enough to incur responsibility if he or she made no further inquiries.
The separate opinion of two majority members in the Bemba Appeals Chamber (Judges Van Den Wyngaert and Morrison) might, however, be seen as sympathetic to the Brereton Report approach. They note that superior responsibility is underpinned by “effective control” (original emphasis) and thus “[t]he primary obligation to prevent/repress/refer criminal behaviour rests upon the immediate commander of the physical perpetrator (that is, the platoon or section commander)” (para 33). They further note (paras 33-34):