On 20 March 2023, the Australian Federal Police (‘AFP’) and Office of the Special Investigator (‘OSI’) issued a press release announcing that a New South Wales man had been arrest and charged with one count of War Crime—Murder under subsection 268.70(1) of the Criminal Code Act 1995 (Cth). It is alleged that the man, later identified as former SAS trooper Oliver Schulz, shot and murdered an Afghan man in a wheat field in Uruzgan Province while deployed to Afghanistan with the Australian Defence Force (‘ADF’). This incident was the subject of an ABC Four Corners program in March 2020.
Division 268 of the Commonwealth Criminal Code was inserted to create offences of ‘international concern’ and to incorporate the complementarity principles of the Rome Statute, per section 268.1(1) and (2). Section 268.70 falls within Subdivision F of this Division, which specifically focuses on war crimes which are serious violations of Common Article 3 of the Geneva Conventions committed in non-international armed conflicts, of which murder is one.
This is the first war crime charge of murder to be laid against a serving or former Australian Defence Force member under Australian law. This article examines the background of this prosecution and its implications for Australia, its allies and the road ahead for domestic prosecution of war crimes.
The OSI was established in January 2021 as part of the Australian Government’s response to the Inspector-General of the Australian Defence Force’s Afghanistan Inquiry Report (‘the Brereton Report’). The Brereton Report was focused on allegations that elite Australian special forces soldiers deployed in Afghanistan had been involved in killing or mistreatment of non-combatants or persons hors de combat (‘out of the fight’, and thus entitled to protection from attack), in contravention of the law of armed conflict (Brereton Report, p. 264).
The Brereton Report recommended that the Chief of the Defence Force refer ‘36 matters to the Australian Federal Police for criminal investigation. Those matters relate[d] to 23 incidents and involve a total of 19 individuals’ (Brereton Report, p. 29), of which the events for which Schulz is charged forms one. The announcement of charges for Schulz was welcomed by human rights groups in Australia and the national chairman of the SAS Association.
The prosecution of war crimes domestically, while a new experience in Australia, is one which is supported by the corpus of international law. The principle of complementarity is central to the administration of international criminal justice: for example, the Rome Statute provides that the International Criminal Court ‘shall be complementary to national criminal jurisdictions’ (Preamble and Article 1) and shall have jurisdiction ‘limited to the most serious crimes of international concern’ (Article 5). This means, in practice, that States, not the ICC, have ‘priority in proceeding with cases within their jurisdiction’ (Carter, p. 167) and that the ICC will only act ‘when national courts are “unable or unwilling” to perform their tasks’ (Lee, p. 27).
While Schulz was the first individual to be charged in a criminal trial with war crimes, this is not the first time that Australian courts have dealt with allegations of war crimes. The same media reporting which led to the Brereton Report was recently the subject of a defamation claim brought by former SAS officer Ben Roberts-Smith against The Age, Sydney Morning Herald, and The Canberra Times for news coverage alleging Mr Roberts-Smith’s involvement in unlawful killings in Afghanistan.
After a long trial involving witness testimony from a large number of individuals (including three Afghan nationals testifying from Kabul), on 1 June 2023, Justice Anthony Besanko of the Federal Court of Australia delivered judgment in favour of the newspapers (at ), finding that the newspapers had established the defence of substantial truth in relation to several of the allegations (including four of the six killings he was alleged to have been involved in). Mr Roberts-Smith is said to be the subject of criminal investigation by the AFP and OSI in relation to the events, but any such trial will, of course, be subject to the higher criminal standard than the civil standard applicable in the defamation proceedings. This was noted by Besanko J (judgment, at paras. 95-116) where His Honour explained the impact of Briginshaw and noted Roberts-Smith’s submissions concerning the lack of resources provided to, and therefore evidence brought by, the respondent newspapers. It can be anticipated that defence counsel may raise issues of this kind again at a criminal trial. The AFP, OSI and CDPP do not possess the same deep expertise in war crimes investigation that the ICC and other predecessor and sister institutions hold and, more seriously, marshalling the resources to challenge the Prosecution’s evidence may pose significant equality of arms issues for defence counsel.
Predictions for the trial
The starting point is that Mr Schulz, like all defendants in criminal proceedings, is presumed not guilty. The burden will be on the Prosecution to prove Mr Schulz’s guilt beyond reasonable doubt. It will be likely that as in the Roberts-Smith defamation trial, witnesses who were present in Uruzgan Province at the time will be called upon to testify. These sorts of practicalities mean that any trial will be long and complicated.
Aside from the logistics of the trial, scholars have noted the ‘peculiar difficulties’ of prosecuting international crimes in a domestic context (at p. 267). For example, many international crimes are loosely defined, perhaps due to the fact that the intention of instruments such as the Rome Statute was to deter whole categories of behaviour rather than dictate specific parameters which actors would use to guide their actions (see Wible, p. 268). However, this rationale does not cure the potential issue of this imprecision affecting fair trial standards (see Wible, pp. 270-276). The prosecution will likely be carried out by the Commonwealth Director of Public Prosecution’s Organised Crime and National Security Practice Group (see CDPP Report, p. 10).
Other domestic prosecutions of war crimes have occurred in recent years, in multiple cases in the Democratic Republic of the Congo, and most recently, the successful prosecution of Syrian nationals and former members of Syria’s General Intelligence Directorate Anwar Raslan (convicted in January 2022, sentenced to life imprisonment) and Eyad Al-Gharib (convicted in February 2021, sentenced to 4.5 years’ imprisonment, appeal pending) before the Higher Regional Court in Koblenz, Germany.
These prosecutions concerned serious allegations concerning the treatment of detainees at the General Intelligence Directorate’s al-Khatib detention facility in Damascus, and were much more complex and far reaching than the single murder charge against Schulz: for example, Raslan was found guilty of being an accomplice to 27 murders, 4,000 acts of torture and severe deprivation of liberty and three counts of sexual violence. The Al-Gharib judgment is available in an English translation provided by the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.
It remains to be seen what the impact of the jurisprudence contained therein will have on other judge-determined trials for crime against humanity. This author assumes that the charges concerning Schulz will be determined by a jury. There will, however, be considerable factors at play with jury selection to avoid any taint from the press coverage concerning the initial Four Corners reporting or the Roberts-Smith defamation case, and potential suppression orders to preserve a fair trial.
At trial, Schulz may choose to invoke the collateral damage or superior orders defences under sections 268.70(1A) and 268.116(3) of the Commonwealth Criminal Code, respectively. The first of these defences, specially inserted in a 2016 amendment bill, incorporates the proportionality principle as described in ICTY cases like Prosecutor v. Kupreskic. The second reflects Article 33 of the Rome Statute, and focuses on the perceived lawfulness of an order from a superior to carry out the offending conduct. As with other defences, the defendant holds the evidential burden of establishing the elements of these defences.
These more specialised defences are the only defences available to Schulz: the usual defences available at a murder trial (including provocation and self-defence) are not available in proceedings under this Division. This may be part of the reason why the AFP and OSI have sought to prosecute Schulz under the war crimes charge (essentially making this a test case) rather than a conventional murder trial.
The Brereton Report did not only cause action domestically, but it also had implications for Australia’s relationships with its allies. In March 2021, the United States defence attaché sent a letter to the Australian Government indicating that the Brereton Report may trigger provisions of the ‘Leahy law’ due to there being ‘credible information implicating that unit in the commission of gross violations of human rights’.
The ‘Leahy Law’ is a term used to describe section 620M of the Foreign Assistance Act of 1961 and its twin provision of the yearly renewed National Defense Authorization Act). If triggered, the Leahy Law prohibits the US Government from furnishing any funds ‘to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights’ (see section 620M(a) of the Foreign Assistance Act of 1961, as amended). In February 2022, further correspondence was sent indicating that if a specific individual was not removed from a specific unit that the Leahy Law would be invoked, and that person was subsequently redeployed to another unit.
As noted above, the Brereton Report recommended the referral of 36 matters, being 23 incidents concerning 19 individuals (Brereton Report, p. 29). The OSI has since been investigating the suggested referrals and early indications are that there could be a number of prosecutions. In February 2023, the head of the OSI Chris Moraitis informed Senate estimates that the OSI was looking at ‘between 40 and 50’ alleged offences. As recently as April, ADF Chief Gen. Angus Campbell has warned of some ‘very, very uncomfortable days’ ahead for Australia’s special forces and indicated there may be further prosecutions coming.
The continued investigation, and potential prosecution, of Australian military personnel may lead to further invocations of the Leahy Law. More broadly, this could lead to other action by Australian allies aiming to safeguard their States’ compliance with all aspects of the international law governing peremptory norms. Article 41(1) of the Articles on State Responsibility provides that ‘States shall cooperate to bring to an end through lawful means any serious breach of [a peremptory norm]’ so if Australia is engaged in serious breaches of the laws of warfare, it would be in the interests of third States to act to bring such breaches to an end, in addition to its political expediency.
The domestic proceedings will also be accompanied by the continuation of the ICC Office of the Prosecutor’s investigation into the Afghan Situation, as resumption of same was authorised on 31 October 2022 based on findings that Afghanistan was not presently carrying out genuine investigations under its domestic system.
The path ahead will be complex, but important steps have now been taken to addressing the impunity gap which has long existed for the severe human rights violations alleged to have occurred in Afghanistan.
Molly Thomas is the Co-Editor-in-Chief of the ILA Reporter and is Legal Counsel (Investigation & Litigation) at Global Diligence Alliance. She holds a Bachelor of Arts (majoring in French and Spanish) and a Bachelor of Laws (Hons I) from The University of Queensland and previously worked as a Defence Legal Consultant at the International Criminal Court. This article represents the author’s personal views and does not necessarily reflect the views of the author’s employers (past or present), institutions or other associated parties.