The final question is whether this would make a difference for the purposes of complementarity. Could superior officers who are not prosecuted by Australian courts, in theory, be prosecuted by the ICC? The answer is not obvious.
This might seem obtuse: if Australia has brought the “wrong” standard into its domestic law, making it impossible to prosecute a crime – doesn’t that render Australia “unable” to prosecute? The first test of admissibility before the ICC is, however, not the “unable or unwilling” test. Rather the starting point is whether the case is being prosecuted by national authorities, or whether national authorities have investigated and bona fide decided not to prosecute (Article 17(1)-(2)). It is significant here that superior responsibility is not a freestanding crime but a mode of participation in crimes perpetrated by others. In deciding admissibility cases, the ICC has applied a “same person” and “substantially the same conduct” test focussing on the person accused and the underlying incidents that form the basis of charges (see further Kevin Jon Heller’s classic piece). A strict focus on the underlying crimes or incidents might suggest the mode of liability is irrelevant to admissibility decisions. If this is correct, an Australian decision not to prosecute based on the crime being too difficult to prove because the relevant mode of liability is defined more stringently in Australian law might be a bar to admissibility before the ICC. The point is, however, untested.
Conclusions
Command responsibility does not entail strict liability. Proving who knew what, when and the degree of effective control they exercised over front-line operations will be crucial. There is good evidence that junior SAS officers on job seekers database may have had limited control over what happened on patrol. This was fuelled by a culture where sergeants with substantial operational experience were treated as unquestionable demigods and where junior officers who tried to assert command were often ostracised or pushed out of the SAS. This does not necessarily firewall everyone higher up the chain from consequences. Higher levels of command were receiving disturbing reports which should have prompted further inquiries faster than occurred.
As Mitchell and others have observed, constructing any doctrine of command responsibility involves setting an appropriate mens rea: should the standard be strict liability, constructive knowledge, or actual knowledge? The difficulty is that both the ICC Statute and Australian law exclude strict liability and include actual knowledge. But they contain different formulations of what falls between. Further, there remains uncertainty as to how the ICC standard will be interpreted. Any effort by Australian courts to interpret – for the first time – the Commonwealth Criminal Code formulation will be able to only draw only limited assistance from ICC jurisprudence. Whether this divergence has, in turn, any implications for complementarity remains to be seen. It is certainly conceivable that it could, but it would involve exploring a novel scenario for complementarity – where the same person is charged in relation to the same underlying incidents (and these are characterised as international crimes), but involving a substantially different definition of the relevant mode of liability. Those expecting the ICC to exercise a high degree of deference to national prosecutions in its case law would do best not to hold their breath. However, as noted in this interview with Robert Petit, the next ICC Prosecutor has a lot of house-clearing and consolidation to do. Intervening in an independent (and hopefully effective and well-resourced) set of national war crimes prosecutions conducted by a usually reliable friend of the Court is thus unlikely to be high on his or her agenda.