The Doctrine of Command Responsibility in Australian Military Law

Article

Gray, Anthony. 2022. "The Doctrine of Command Responsibility in Australian Military Law." University of New South Wales Law Journal. 45 (3), pp. 1251-1287.

Authors
Article Title	The Doctrine of Command Responsibility in Australian Military Law
ERA Journal ID	33965
Article Category	Article
Author	Gray, Anthony
Journal Title	University of New South Wales Law Journal
Journal Citation	45 (3), pp. 1251-1287
Number of Pages	37
Year	2022
Publisher	University of New South Wales
Place of Publication	Australia
ISSN	0313-0096
	1447-7297
Web Address (URL)	https://www.unswlawjournal.unsw.edu.au/article/the-doctrine-of-command-responsibility-in-australian-military-law
Abstract	The recently released Brereton Inquiry Report found there was credible evidence to suggest a small number of members of the Australian Defence Force were involved in war crimes in Afghanistan. If the allegations are proven to be true at the required standard of proof, one important legal question is the extent, if any, to which those in command of those who committed the crimes are liable for them. This is the doctrine of command responsibility. The article charts development of the doctrine in international law, explores its controversial and uncertain legal basis, considers its compatibility with fundamental principles of criminal law, and offers some suggestions as to how the relevant statutory provision might be interpreted, in a way that is compatible with international law as well as fundamental aspects of Australian criminal law.
Keywords	command responsibility; military culpability; criminal law
ANZSRC Field of Research 2020	480306. International criminal law
Public Notes	Files associated with this item cannot be displayed due to copyright restrictions.
Byline Affiliations	School of Law and Justice
Institution of Origin	University of Southern Queensland

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A head for business regulation: the corporations power and the federal government's workplace relations reforms

Gray, Anthony. 2006. "A head for business regulation: the corporations power and the federal government's workplace relations reforms." Commercial Law Journal. 1 (1), pp. 56-67.

High court validates federal government's IR reforms

Gray, Anthony. 2006. "High court validates federal government's IR reforms." Commercial Law Journal. 1 (3), pp. 15-23.

High court validates restrictions on lawyer advertising

Gray, Anthony. 2005. "High court validates restrictions on lawyer advertising." Queensland Lawyer. 26 (3), pp. 131-139.

Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments

Gray, Anthony. 2011. "Applying provisions of the Australian Constitution to protect rights from intrusion by state parliaments." Australian Journal of Administrative Law. 18 (4), pp. 229-244.

Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?

Gray, Anthony. 2011. "Religious freedom and Section 116 of the Australian Constitution: would a banning of the hijab or burqa be constitutionally valid?" Forum on Public Policy: a journal of the Oxford Round Table. 2011 (2), pp. 1-33.

Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective

Gray, Anthony. 2011. "Police power to conduct a search without reasonable suspicion in Australia: a comparative perspective." European Public Law. 17 (2), pp. 331-347.

Why vicarious liability must be abandoned

Gray, Anthony. 2011. "Why vicarious liability must be abandoned." Australian Business Law Review. 39 (2), pp. 67-84.

The rule of law and reasonable suspicion

Gray, Anthony. 2011. "The rule of law and reasonable suspicion." Australian Journal of Human Rights. 16 (2), pp. 53-79.

Enforcement of punitive damages awards in the convention on choice of court agreements

Gray, Anthony. 2009. "Enforcement of punitive damages awards in the convention on choice of court agreements." Willamette Journal of International Law and Dispute Resolution. 17 (1), pp. 105-156.

Federal spending power in three federations: Australia, Canada and the United States

Gray, Anthony. 2011. "Federal spending power in three federations: Australia, Canada and the United States." Common Law World Review. 40 (1), pp. 13-39. https://doi.org/10.1350/clwr.2011.40.1.0215

Immunity of the Crown from statute and suit

Gray, Anthony. 2010. "Immunity of the Crown from statute and suit." Canberra Law Review. 2010 (1), pp. 1-35.

The constitutionality of criminal organisation legislation

Gray, Anthony. 2010. "The constitutionality of criminal organisation legislation." Australian Journal of Administrative Law. 17 (4), pp. 213-228.

Sustainable juries: thinking outside peer criminal jury trials

Gray, Anthony and Barnett, Eola. 2010. "Sustainable juries: thinking outside peer criminal jury trials." Journal of Judicial Administration. 20 (1), pp. 18-38.

The common law and the Constitution as protectors of rights in Australia

Gray, Anthony. 2010. "The common law and the Constitution as protectors of rights in Australia." Common Law World Review. 39 (2), pp. 119-156.

Unfair contracts and the Consumer Law Bill

Gray, Anthony. 2009. "Unfair contracts and the Consumer Law Bill." QUT Law Review. 9 (2), pp. 155-175.

Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values

Gray, Anthony. 2010. "Provocation and the homosexual advance defense in Australia and the United States: law out of step with community values." The Crit. 3 (1), pp. 53-72.

Forum non conveniens in Australia: a comparative analysis

Gray, Anthony. 2009. "Forum non conveniens in Australia: a comparative analysis." Common Law World Review. 38 (3), pp. 207-244.

Extending time limits in sexual abuse cases

Gray, Anthony. 2009. "Extending time limits in sexual abuse cases." Common Law World Review. 38 (4), pp. 342-384. https://doi.org/10.1350/clwr.2009.38.4.0199

Reform of rules of private international law in Manitoba: a comparative perspective

Gray, Anthony. 2009. "Reform of rules of private international law in Manitoba: a comparative perspective." Journal of Politics and Law. 2 (4), pp. 26-38.

A guaranteed right to trial by jury at state level?

Gray, Anthony. 2009. "A guaranteed right to trial by jury at state level?" Australian Journal of Human Rights. 15 (1), pp. 97-125.

State-based business licensing in Australia: the Constitution, economics and international perspectives

Gray, Anthony. 2009. "State-based business licensing in Australia: the Constitution, economics and international perspectives." Deakin Law Review. 14 (2), pp. 165-188.

Due process, natural justice, Kable and organisational control legislation

Gray, Anthony. 2009. "Due process, natural justice, Kable and organisational control legislation." Public Law Review. 20 (4), pp. 290-305.

To give and to receive: the Australian government's proposed electoral finance reforms

Gray, Anthony and Jones, Nicky. 2010. "To give and to receive: the Australian government's proposed electoral finance reforms." University of Tasmania Law Review. 28 (2), pp. 182-209.

Australian 'bikie' laws in the absence of an express Bill of Rights

Gray, Anthony. 2009. "Australian 'bikie' laws in the absence of an express Bill of Rights." Journal of International Commercial Law and Technology. 4 (4), pp. 274-286.

Options for the doctrine of Crown immunity in 21st century Australia

Gray, Anthony. 2009. "Options for the doctrine of Crown immunity in 21st century Australia." Australian Journal of Administrative Law. 16 (4), pp. 200-210.

Excise taxation in the Australian federation: a legal and economic perspective

Gray, Anthony. 2009. Excise taxation in the Australian federation: a legal and economic perspective. Berlin, Germany. VDM Verlag Dr. Muller.

Human rights in Australia: looking forward, looking back

Gray, Anthony. 2009. Human rights in Australia: looking forward, looking back. Berlin, Germany. VDM Verlag Dr. Muller.

The regulation of electoral financing

Gray, Anthony. 2009. "The regulation of electoral financing." Oxford University Comparative Law Forum. 2009, pp. 1-21.

Criminal sanctions for cartel behaviour

Gray, Anthony. 2008. "Criminal sanctions for cartel behaviour." QUT Law Review. 8 (2), pp. 364-379.

Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims

Gray, Anthony. 2008. "Time to abolish the rule in Searle v Wallbank for negligence and nuisance claims." Deakin Law Review. 13 (2), pp. 101-130.

Legal studies in action 2: Queensland

Gray, Anthony, Young, Karyl and Kenman, Sandra. 2009. Legal studies in action 2: Queensland. Brisbane, Australia. John Wiley & Sons.

Getting it right: where is the place of the wrong in multinational torts cases?

Gray, Anthony. 2008. "Getting it right: where is the place of the wrong in multinational torts cases?" The Sydney Law Review. 30 (3), pp. 537-550.

Loss distribution issues in multinational torts claims: giving substance to substance

Gray, Anthony. 2008. "Loss distribution issues in multinational torts claims: giving substance to substance." Journal of Private International Law. 4 (2), pp. 279-309.

Choice of law: the presumption in the proof of foreign law

Gray, Anthony. 2008. "Choice of law: the presumption in the proof of foreign law." University of New South Wales Law Journal. 31 (1), pp. 136-157.

Reinterpreting the trade and commerce power

Gray, Anthony. 2008. "Reinterpreting the trade and commerce power." Australian Business Law Review. 36 (1), pp. 29-46.

Policing price fixing in petroleum markets

Gray, Anthony. 2007. "Policing price fixing in petroleum markets." Australian Business Law Review. 35 (6), pp. 398-406.

FOI and the freedom of political communication

Gray, Anthony. 2007. "FOI and the freedom of political communication." Deakin Law Review. 12 (1), pp. 193-217.

The guaranteed right to vote in Australia

Gray, Anthony. 2007. "The guaranteed right to vote in Australia." QUT Law Review. 7 (2), pp. 178-197.

An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes

McDonald, Jacquelin, Birch, Dawn, Gray, Anthony, Gururajan, Raj, Hingst, Raymond D. and Maguire, Michael. 2005. "An exploratory study to determine students' perceptions of the value of interaction in an Australian classroom context and the perceived impact on learning outcomes." CRLL 2005: What a Difference a Pedagogy Makes: Researching Lifelong Learning and Teaching. Glasgow, Scotland 24 - 26 Jun 2005 London, United Kingdom.

Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual)

Gray, Anthony and Herlihy, Gail. 2008. Legal studies in action 1: Queensland (3rd edition) (includes teacher support manual). Brisbane, Australia. John Wiley & Sons.

How Welfare to Work and WorkChoices will change womens' lives

Collins, Pauline and Gray, Anthony. 2006. "How Welfare to Work and WorkChoices will change womens' lives." Bailey, Janis, Broadbent, Kaye, Edwards, Linda, McDonald, Paula and Whitehouse, Gillian (ed.) Our Work .... Our Lives: National Conference on Women & Industrial Relations (2006). Brisbane, Australia 12 - 14 Jul 2006 Brisbane, Australia.