While the Brereton Report found that there was credible information that Australian soldiers committed numerous war crimes, it stated that no commander above patrol level should bear criminal responsibility. The wide spectrum of standards adopted for command responsibility in international law means that there is some basis to argue that applying the Brereton Report’s standard would comply with Australia’s international obligations. However, this standard does not offer the best balance of upholding high criminal justice standards and ensuring convictions are ‘deserved’, while deterring serious violations of rights during armed conflicts, such as the right to life and freedom from torture. In addition, a failure to address the scepticism that no Australian commander above patrol level is legally accountable raises questions of adherence to the rule of law. It may impact on Australia’s standing and its perceived commitment to international criminal justice.

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(2024) 47(2) UNSWLJ 519: https://doi.org/10.53637/HJAL2460