The recent discussion of the Ben Roberts-Smith case in Top Brasso, particularly the analysis attributed to Clegg (link below), raises a point that is both uncomfortable and necessary: war crimes cannot be properly understood without taking the chain of command seriously. This is not a matter of institutional defensiveness or military culture. It is a matter of legal structure.
Modern societies instinctively approach wrongdoing through the lens of civilian criminal law. Responsibility is framed in terms of individual acts, intention, and proof beyond reasonable doubt. That framework works well in ordinary contexts. But war is not an ordinary context. It is collective, hierarchical, and structured through systems of command in which action is rarely independent of instruction, expectation, and environment.
The chain of command is therefore not incidental; it is constitutive. Orders flow downward, but responsibility, at least in principle, flows upward. This dual structure has long been recognised in law, most famously in Yamashita v. Styer 327 U.S. 1 (1946), where a commander was held responsible for the conduct of troops under his authority despite limited evidence of direct orders. The principle was later refined in international jurisprudence, including Prosecutor v. Delalić et al. (Čelebići case) IT-96-21-T (ICTY Trial Chamber, 1998), which established that liability may arise where a commander knew, or had reason to know, of unlawful acts and failed to prevent or punish them.
These doctrines were not developed in abstraction. They reflect a recognition that war is a system, and that responsibility attaches not only to those who act, but to those who shape the conditions under which action becomes possible. That insight is carried forward in Article 28 of the Rome Statute of the International Criminal Court, which imposes responsibility where a commander "knew or, owing to the circumstances at the time, should have known" of crimes committed by subordinates.
Yet in contemporary application, this broader understanding often contracts. Courts and inquiries tend to demand increasingly specific proof of knowledge at higher levels of command, while applying more direct standards to those on the ground. The result is a structural asymmetry. Those closest to the immediate pressures of combat — the soldiers operating under conditions of danger, ambiguity, and rapid decision-making — become the primary focus of prosecution. Meanwhile, those who define operational culture, interpret intelligence, and shape reporting structures are more likely to fall outside the threshold of provable liability.
This tension is not hypothetical. It is reflected in Australia's own experience through the Brereton Report (Inspector-General of the Australian Defence Force. (2020). Afghanistan Inquiry Report), which documented credible evidence of unlawful killings by special forces while also identifying broader cultural and command failures. The report did not conclude that senior commanders directly ordered such acts, but it did point to systemic issues, normalisation of certain behaviours, breakdowns in reporting, and failures of oversight, that cannot be meaningfully understood without reference to the chain of command.
Clegg's analysis in the Spectator piece captures precisely this difficulty. The question is not simply whether individuals committed unlawful acts, but how responsibility is distributed across the system that produced them. A narrow focus on individual perpetrators risks presenting a distorted picture, one in which responsibility appears to terminate at the lowest visible level, rather than extending upward into the structures that enabled or failed to prevent the conduct.
There is also a deeper institutional dimension. Military organisations operate on an implicit covenant: that those sent into complex and dangerous environments will act within lawful constraints, and that responsibility will be borne in a manner proportionate to authority. Rules of engagement exist, but they are interpreted in real time, often under extreme pressure and against adversaries who do not observe them. If, after the fact, accountability is seen to flow only downward, that covenant is strained. The message, whether intended or not, is that responsibility diminishes with rank.
None of this is to deny that war crimes occur, or that individuals who commit them should be held accountable. The rule of law must extend to the battlefield. But its application must reflect the reality of war as a structured, hierarchical activity. To treat conduct within that structure as though it were equivalent to isolated civilian wrongdoing is to risk misunderstanding both the acts themselves and the conditions under which they occurred.
The chain of command is not a shield against accountability. It is the framework within which accountability must be understood. To follow that chain only part of the way, stopping where proof becomes difficult or politically uncomfortable, is not to complete the task of justice, but to truncate it.
The enduring lesson, reflected both in established case law and in contemporary commentary such as Clegg (2026), is that responsibility in war is neither singular nor easily contained. It is distributed, layered, and often obscured by the very structures that make organised military action possible. Any legal framework that fails to engage with that reality risks producing outcomes that are formally correct yet substantively incomplete.
In the end, the question is not whether accountability should exist, but whether we are prepared to pursue it consistently. If responsibility truly flows through the chain of command, then it cannot stop at the point where it becomes inconvenient to follow.
https://www.spectator.com.au/2026/04/top-brasso/