The Brereton Inquiry found there was credible information to suggest that a small number of members of the Australian Defence Force were engaged in war crimes in Afghanistan. This has not yet been tested in a criminal proceeding, and anyperson accused of wrongdoing is entitled to the presumption of innocence. Nevertheless, the Report raises important issues regarding the liability, if any, of a superior officer within a Defence structure if someone under their control is shown to have committed a war crime. It also raises questions about the extent, if any, to which a subordinate found to have been engaged in a war crime can explain and/or justify their conduct by arguing they were simply responding to a command from above to do what they did. These questions raise fundamental issues regarding criminal responsibility in our legal system, which this presentation will address.

About Professor Anthony Gray

Professor Anthony Gray is Associate Dean – Research within the Faculty of Law at Bond University.  He has published approximately 150 refereed research articles, most of whichwere sole-authored and has also authored 10 monographs. A study published in 2020 placed him in the top 2 or 3 legal academics in Australia for the number of publications in leading Australian journals.  His research has been cited by the High Court of Australia, Supreme Court of the United Kingdom and Supreme Court of Canada.  His main research interests are in civil obligations, where he has recently published a two-volume monograph on good faith in contracting with Hart Publishing Oxford, and in constitutional and public law, which relate to the topic of this presentation.