|Prof. Ben Saul|
The reported killings by special forces in Afghanistan may constitute the war crime of murder of a person known not to be taking an active part in hostilities. This applies to the execution of both civilian and insurgent detainees, since once detained, neither is involved in fighting.
The mistreatment of detainees prior to their killings could involve further war crimes charges. One detainee was allegedly kicked off a high wall, seriously injuring him. This could amount to the war crimes of inhumane treatment (involving the infliction of severe physical or mental pain or suffering) and outrages upon person dignity. So-called "mercy killings" are illegal. An injured person must be given medical assistance and not be summarily executed.
Soldiers who are still serving are also governed by defence force discipline law. The Director of Military Prosecutions could prosecute special forces for possible military law offences such as failure to comply with orders, unlawful discharge of a weapon, or negligence in the performance of duty.
One of the executions allegedly involved senior officers pressuring subordinates to kill a detainee. This may constitute the military offence of ordering an offence to be committed. Those giving such orders would also be responsible for the war crime of murder.