Notes for remarks by President Michael Cope to The Persecution of the Truth 2 - David McBride held 8 November 2024

Thanks on behalf of QCCL and acknowledge traditional owners.

The theme of tonight’s discussion is whistleblowing.

I want to discuss the decision in the McBride case in the context of the international jurisprudence concerning command responsibility as it has developed since WW2 and in particular Nuremberg.

And don't worry there is a connection with whistleblowing that will become clear soon.

To start with many have framed the issue in the McBride case in terms of the defence of superior orders which the Nuremberg trials are most famous for rejecting. However, that understanding is not entirely accurate

The defence of superior orders is of course that if an act is done in obedience to a superior's orders, that fact may exonerate the soldier who carried the order out.

Since Nuremberg the position has developed that a subordinate will face criminal liability for a crime committed pursuant to an order, except where it is shown that that order was not manifestly illegal. Thus, it may indeed be open to a soldier to plead a successful defence to a criminal charge where the legality of the order is in question but is not manifestly illegal.

McBride argued something different, that as an officer of the armed forces he had a duty not only to obey orders but to the public interest, which in this case was the public interest in the exposure of possible crimes by members of the armed services

I want to suggest that the part of the international jurisprudence that the Court ignored in that case is not that about superior orders but the duty on commanders to prevent war crimes, generally referred to as the duty to prevent. This duty has been formulated differently by different international tribunals. But before i discuss the duty in more detail i want set out 3 caveats on what i am about to say.

Caveats

1 I am not an expert in this area of the law

2 There are some aspects of the duty to prevent that cause concerns for civil libertarians - some versions of the duty make commanders criminally liable for mere negligence;  all versions makes one person liable for actions or omissions of another. The third is that it, in effect, imposes a duty on a person to do something. Under the command responsibility doctrine, a person can be criminally liable, for failing to act – an omission can be the basis of criminal liability. This is not usually the case in criminal law.

Of course some would argue that the military is different in that a military commander is in a position of enormous power. It is a criminal offence for subordinates to fail to comply with orders made by the commander. They are literally in a position to make life or death decisions, and to order the killing of individuals. They voluntarily accept this responsibility,

3 it will be said that McBride was not in the relevant position of command, but I want to suggest that if the arguments which justify an obligation on a direct commander to prevent war crimes apply they must also apply to others who become aware of such conduct. 

I turn now to the decision in the McBride case. That case was decided by Justice Mossop in the ACT Supreme Court

The gist of Mossop’s views can be found in 2 statement he quotes from an 1869 book by Clode called Military Forces of the Crown where the author said:

“In the first place, he is bound to obey and to give his personal service to the Crown under the punishments imposed upon him for disobedience by the Mutiny Act and Articles of War. No other obligation must be put in competition with this; neither parental authority nor religious scruples, nor personal safety, nor pecuniary advantages from other service. All the duties of his life are, according to the theory of Military obedience, absorbed in that one duty of obeying the command of the Officers set over him.”

And also

“Obedience must be implicitly exacted by each responsible officer, “for nothing (even in Civil affairs) can be more dangerous than to allow the obligations to obey a law to depend on the opinion entertained by individuals of its propriety and in military affairs it would be intolerable.”

The judge also accepted as justification for his decision the Commonwealth's concerns that a soldier disclosing information would damage Australia's standing with ‘foreign partners', making them less inclined to share information on delicate subjects. However, such claims are impossible to verify and ignore the constancy of diplomatic and security relations between allies.

Contrary to Clode and despite concerns about foreign relations, international law has concluded that there are times when a public duty trumps the narrow dictates of a lawful command, notably when it comes to the commission or concealment of crimes.

International courts and tribunals have recognised that the fact that a commander fails to address earlier known misconduct may be seen as acceptance or encouragement, and may serve to increase the risk of future crimes. And it is in that logic that the duty is partly based.

But it is also justified in more pragmatic considerations - the maintenance of discipline amongst the troops.

When a leader fails to punish bad deeds, that inaction can serve to encourage other subordinates to behave badly.

Unaddressed misconduct can nurture an atmosphere of lawlessness, negatively affecting the behaviour of other unit members.

Compounding the problem, service members may come to believe that the bad behaviour is what leads to success in battle.

Although usually couched in terms of battlefield success, this duty to prevent is also essential to ensuring that soldiers uphold high standards of conduct and obey humanitarian precepts.

Accordingly, States involved in armed conflict and their commanders have duties under international law to prevent, suppress, and punish crimes by their subordinates, and to monitor and properly supervise and control their troops. If commanders fail to fulfil this duty then serious crimes and violations of fundamental rights and freedoms can result.

This duty is stated in Article 86(2) of Additional Protocol I to the 1949 Geneva Conventions:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

The International Criminal Tribunal for the Former Yugoslavia has held that under this article:

It is sufficient to make a commander liable, if the commander has received general information that would put the commander on notice that further inquiry or additional investigation is required to determine whether offences were being committed or about to be committed by their subordinates.

Rome Statute establishing the International Criminal Court also provides for this duty.

A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

It has been held that the Rome Statute may set a lower threshold for command liability as it requires only a subjective awareness that ‘something is going on' as opposed to possessing actual, albeit general, information that ‘puts the commander on notice' of the need to investigate further.

These principles are in Australian Law. The doctrine is reflected in section 268.115 of the Criminal Code Act 1995 (Cth)

An argument was put to the Brereton Inquiry, which was set up following McBride’s revelations, that SAS commanders should have been prosecuted under this law. The Brereton Report acknowledges that there was some information regarding potential crimes, namely: local Afghans had told Australian forces that unlawful killings were occurring, there were persistent rumours of unlawful conduct, there was a prevalent use of suspicious ‘boilerplate' language in operational reports, and there was suspicion if not knowledge at troop and possibly squadron level of the unlawful practice of carrying throwdowns. Throwdowns are foreign weapons or equipment, such as pistols or radios, and they were placed with the bodies of those allegedly killed in action' in order to portray that the unarmed person who was killed was a legitimate target.

The Brereton Report accepted alternative explantations – such as a belief that local Afghan complaints were insurgent propaganda or motivated by a desire to claim  compensation or that the use of throwdowns was for avoiding questions rather than concealing unlawful killings.

However, many commentators were not impressed by these finding. These commentators, and it seems to me with justification argue that if a commander knew of some or all of this information, then they may have been liable because they “must have known something was going on”.

In our view we must reform Australia’s whistleblower law.

AJ Brown will be discussing the proposals in Queensland for a revamp of our whistleblower laws.

I want to discuss one way that Australian law can recognise the public interest in the disclosure of wrongdoing by the military, particularly war crimes.

All whistleblower laws contain an official process for disclosure. One of the purposes of those schemes is to reduce the harm that might occur by the release of information to the public. But QCCL is of the view that provision should be made for those who do not use the scheme as not everyone wants to use the offical process for entirely legitimate reasons. And in the context of an organisation like the military with its emphasis on hierarchy, control, conformity and mutual support whistleblowing must be particularly difficult both from the point of view of its chances of success in an internal process and the adverse consequences likely to flow for the whistleblower.

In our view a level of incentive to use a whistleblower scheme could and should be maintained by providing that anyone who makes a disclosure outside it could be subject to ordinary disciplinary processes including dismissal except where the disclosure reveals illegality. In addition those who disclose outside the scheme will not obtain the benefit of the other protections under most whistleblower laws

However, the government must meet a higher threshold when it seeks to impose criminal or civil penalties on those who disclose outside any legislation process for whistleblowing. When the government seeks to impose severe sanctions such as prison or serious monetary penalties, the government should be required to prove that the discloser lacked a reasonable basis for believing that the public interest in disclosure outweighed identifiable harms to the public interest that might flow from the disclosure. In the case of less serious penalties, a lesser standard is proposed being that the government must show that the disclosure lacked an objectively substantial basis for believing the public interest in disclosure outweighed any identifiable harms to the public interest that might flow from the disclosure.

This type of law should be available to all, not just the military. We cannot permit a system to stand which allows people to be sent to jail for years for exposing killings and other gross violations of human rights.

Thanks