Welcome to Eureka Street

back to site

Scapegoats of war


In the context of war crimes, the subordinate minion often takes centre stage, heaped upon with sins like a tribal scapegoat and sent out into the metaphorical, prison wild. For the moment, such a figure is Australian Special Air Service trooper Oliver Jordan Schulz, though there may be others to follow.

In a joint statement between the Office of the Special Investigator and the Australian Federal Police, Schulz is alleged to have murdered an Afghan man during the course of his deployment in Afghanistan with the Australian Defence Force. He is being charged with one count of War Crime, specifically murder under the Criminal Code Act 1995 (Cth).  The ABC reports that the victim was Dad Mohammad, allegedly slain in May 2012 in central Uruzgan province as he lay in a wheat field, unthreatening. 

Speaking in the Downing Centre local court on March 28, magistrate Jennifer Atkinson made a number of remarks to that point. The executed man, according to the prosecution case, ‘was quiet and not resisting.’ Schulz ‘turns towards the Afghan man and shoots towards him three times. The man appears to go limp after the first shot.’

Mohammad, according to the allegations against the defendant, ‘was not taking an active part in the hostilities’. The defendant ‘knew, or was reckless as to the factual circumstances establishing that the person was not taking an active part in the hostilities’.

The OSI was established to pursue the findings of the 2020 Brereton Report, also known by its lengthier title as the Inspector-General of the Australian Defence Force’s Afghanistan Inquiry Report. Sharing joint responsibility with the Australian Federal Police, the office is charged with investigating ‘allegations of criminal offences under Australian law, arising from or related to any breaches of the Laws of Armed Conflict, by members of the Australian Defence Force (ADF) in Afghanistan from 2005 and 2016.’

The prosecution of Schulz and potentially other low-level soldiers, according to a certain school of thought, may be intended to prevent the prying eyes of the International Criminal Court from combing through the record of Australia’s special forces in Afghanistan. As a few legal authorities have written, ‘It seems certain that Australia would not want ICC scrutiny of its conduct in Afghanistan nor the embarrassment of the ICC stepping in to prosecute Australian military personnel.’

The prosecution is already attracting a flurry of international attention. According to Human Rights Watch, it provides ‘an important opportunity for authorities to uphold the rule of law by ensuring respect for the fair trial rights of the accused, including the presumption of innocence of any individual charged with criminal offense, and ensuring accountability for war crimes.’ It also sows the seeds of concern among the armies of other countries deployed to Afghanistan during that same period.


'The defence team could then point to various "chain-of-command deficiencies", including policies that allowed the repeated redeployment of special service soldiers despite concerns about their state of mind. Then, and perhaps only then, can the whole sense of a prosecution be seen in its broader legal and moral context.'


An abiding concern with the prosecution of individual soldiers like Schulz is that military and political superiors risk being given a cleansing exoneration for giving orders and originally deploying such forces in the first place. The individual’s alleged culpability can thereby be isolated and reduced to a culture (the word is used in the Brereton Report no less than 122 times) gone off.

The law will not necessarily be of much help here. Doctrines of command responsibility require an adequate formulation of the ‘guilty mind’, commonly known as mens rea. The pressing point in such a context is assessing what standard of knowledge is relevant in any prosecution: strict liability, constructive knowledge (that the commanders ought to have known about the crimes), or actual knowledge.

As international law specialist Douglas Guilfoyle has observed, both the Rome Statute of the International Criminal Court and Australian law tend to exclude strict liability and actual knowledge in assessing accountability for war crimes, yet ‘contain different formulations of what falls between.’ In a co-authored piece, Guilfoyle also notes that international law generally attaches ‘liability to commanders who, given the circumstances, should have known crimes were being or had been committed.’

The Brereton Report has done much to shield the chain of command in terms of operational awareness. It also makes no mention of the political process that led to the deployment of ADF personnel to Afghanistan in the first place, a theatre notoriously gruelling and, ultimately, defeating.

The report found there was ‘no evidence that there was knowledge of, or reckless indifference to, the commission of war crimes, on the part of commanders at troop/platoon, squadron/company or Task Group Headquarters level, let alone at higher levels such as … Joint Operations Command, or Australian Defence Command.’  Nor was ‘there any failure at any of those levels to take reasonable and practical steps that would have prevented or detected the commission of war crimes.’ 

There is a troubling form of reasoning at play here, given that the report judges reasonableness of conduct in a presumptuous way: ‘few would have imagined some of our elite soldiers would engage in [such] conduct’. This is a curious assertion, given that the Australian Special Operations Commander, Major General Jeff Sengelman, was already aware in 2016 of the ‘growing body of actual anecdotal evidence from the past decade [suggesting] that the personal and professional ethics of some [in the ADF] have been deeply compromised.’

The practice of frequently rotating commanders above the patrol level in the Afghanistan theatre, and the nature of how information was compartmentalised, serve to ignore responsibility for practices in the field of battle.

This is not to say that a number of senior officers are not concerned by what might happen in a war crimes trial like Schulz’s. As The Australian reports, citing a military source, ‘Individuals who were commanding the soldier, right up the chain of command for as high as the defence team can justify, should reasonably expect to be called into court.’ The defence team could then point to various ‘chain-of-command deficiencies’, including policies that allowed the repeated redeployment of special service soldiers despite concerns about their state of mind. Then, and perhaps only then, can the whole sense of a prosecution be seen in its broader legal and moral context.




Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University. 

Main image: Australian soldiers await orders during an Army fire power demonstration at Range Control, High Range in Townsville, Australia. (Ian Hitchcock/Getty Images)

Topic tags: Binoy Kampmark, Australia, War, Afghanistan



submit a comment

Similar Articles

Commemorating the Warsaw ghetto uprising

  • Arnold Zable
  • 19 April 2023

As Holocaust denial and falsehoods spread on social media, we commemorate the 80th anniversary of the Warsaw ghetto uprising, a heroic act of resistance against oppression, with a sense of urgency. Let us remember the lessons of the uprising and stand up against racism and authoritarianism in all its forms.


A little more conversation a little less action

  • Michele Frankeni
  • 17 April 2023

Dutch supermarket chain Jumbo has introduced 'Kletskassa' or 'chat checkouts' for customers who want a little conversation with the cashier. In today's automated world, where human interactions are increasingly impersonal, small moments of human connection can make a big difference in combatting loneliness in our communities.