In dismissing Ben Roberts-Smith's appeal against the judgement in his defamation action against the Nine network and two journalists, the full court of the Federal Court has confirmed Justice Besanko's findings that the allegations against him were proven to a civil standard of proof.
But more than that, the full court has cleared the air. The government and the Australian Defence Force can now get on with addressing the systemic issues that surrounded the alleged crimes in the first place.
The government can now rouse the Office of the Special Investigator from its hibernation to pursue its inquiries into events that occurred one and a half decades ago and into Major General Brereton's 2020 report (almost half a decade ago) with determination and energy.
As importantly, it can push the Defence force to address the fundamental command failures that allowed the alleged criminal acts to occur in the first place, and to continue for so long.
"No one knew" just does not wash. And Brereton's gratuitous exoneration of senior commanders (paragraph 28 of his report, which he demolishes in the immediately following paragraph) fails to answer the question "how did these events occur?"
Today, The Australia Institute has released a report: War Crimes: Where do Responsibility and Accountability Start and End? Are Senior Military Commanders Liable and Culpable?
The report argues that senior commanders are accountable, responsible, liable and culpable for crimes committed by their troops, not criminally but administratively. Commanders are responsible for the systems that constitute the "war machine" that supports the conduct of armed conflict.
"Just as company directors are responsible for financial and management failure in the companies they oversee, so commanders are responsible for failures within the military system", said Allan Behm, Special Advisor at The Australia Institute and author of the report.
"Criminal responsibility on the part of commanders is a red herring: the real issue is whether there are fail-safe systems, and whether they work. In the case of special forces in Afghanistan, they didn't.
"When the system fails, those in charge fail. Their failure should be acknowledged. And if they have been rewarded and honoured for success, the rewards and honours are based on falsehood. Rewards and honour should be rescinded, otherwise they undermine the integrity of the system and the value of recognition."
