After nearly three decades practising as a garden-variety civil lawyer, steering well clear of international law and anything to do with the law of armed conflict, I have found my recent foray into this area a genuinely mind-bending exercise. It was not until Ben Roberts-Smith was charged by the Australian Federal Police that I had any reason to look at Australian war crimes laws. When I found them in our domestic Criminal Code, what triggered me was the sheer sweep of what had been incorporated. A dense catalogue of what are described as war crimes, many of them highly particularised, sitting within a domestic criminal framework, substantially detached from the context in which they arise.

It took all of about two minutes to discover that academic commentary stretching back more than two decades has identified negative implications of the Statute of Rome and the gradual ‘civilianisation’ of the law of war. From here, it became easier to understand at an institutional level why the troops are so angry and why so many Australians are so troubled by the entire exercise.

There is a long way to go as the Roberts-Smith and Oliver Schulz matters move, inexorably, through the civilian court system. The news cycle will move on. But before it does, there is a case for a final bite at the cherry. Because in my view the Brereton Inquiry itself is likely to be studied by future military historians as a case study in how not to approach a system-wide problem and then funnel it into the forum of civilian criminal justice.

Do not blame Brereton. He was doing a lawyer’s job. The former soldiers I speak with say responsibility lies elsewhere, at the very top, with Angus Campbell, who did not initiate the inquiry as Chief of the Defence Force, but ultimately became its custodian, and ultimately its public face, at the very point at which its consequences began to unfold.

The report is clear enough about what it found at the operational level. There was credible evidence of unlawful killings at patrol level, including multiple incidents involving a significant number of deaths. There were practices that should trouble any professional military: throwdowns, sanitised reporting, and, by the later years of the Afghanistan deployment, at least suspicion within parts of the chain of command that something was amiss.

What is less commented upon, is what the report says about the conditions in which those practices arose. This was a system under strain, where the fault could not be said to lie neatly with any individual soldier.

Five issues stand out.

First, tempo. The same relatively small cohort of highly trained special forces soldiers was deployed repeatedly, rotation after rotation, over many years. They were exceptionally effective in precisely the kind of war Australia chose to fight. But repeated deployment carries a cost, and the report refers to the cumulative effects of sustained exposure without sufficient downtime between ‘tours’.

Second, concentration. Over time, the cohort narrowed. Experience became concentrated in a relatively small group. That was efficient, but it also created insularity.

Third, autonomy. This was a patrol-level war with no front line. Small teams operated at distance from higher command, making rapid decisions in conditions of uncertainty. Oversight was necessarily limited.

Fourth, ambiguity. This was not a conventional conflict with identifiable enemy forces. The distinction between combatant and civilian was often unclear. That does not excuse unlawful conduct, but it shapes the environment in which decisions are made.

Fifth, organisational tolerance. As I have said above, there were signs that things were amiss and it seems no one stepped in to investigate potential wrongdoing.

Taken together, these are not the ingredients of a single aberration. They are the conditions in which a system can begin to generate its own internal norms which generate poor conduct.

It is in that context that the Brereton report turns to what it describes negatively as a development of  ‘warrior culture’, and to the outward expressions of cohesion within those units: informal identities, sub-groups, and unauthorised insignia. In other words, the unofficial patches and symbols worn or adopted within small SAS patrols to mark belonging to particular teams, experiences or informal ‘clubs’ at the coalface but not authorised by Defence.

This is where the analysis begins to falter, and where the troops get angry.

No serious observer can defend practices that cross legal lines. But the leap from those practices to a suspicion of the internal cultures and symbols of elite fighting units is much less convincing.

All small, intense groupings develop strong internal identities. They form bonds, hierarchies and, yes, symbols. These are not merely decorative. They are part of what enables small groups to operate under pressure.

The legal profession knows all about this. Barristers and judges quite literally clothe themselves in their own insignia, robes and wigs that signal status and authority, and serve protective as well as symbolic purposes. No one suggests that this undermines professionalism.

It is therefore difficult to see why the instinct that draws members of the legal and defence establishment into wearing identifiable garb or joining private gentlemen’s clubs is tolerated, while the instinct that leads small groups of soldiers, operating under unfathomable conditions, to form their own internal identities is treated as suspect. If anything, the latter is easier to understand.

In the conversations I have had over recent weeks, this question of insignia and the report’s criticism of a ‘warrior ethos’ has been raised repeatedly. It is seen as the clearest example of a total lack of understanding by the top brass as to how war – and this kind of war in particular – was and is fought on the ground.

That perception has only been sharpened by what followed. The decision by Angus Campbell to move against unauthorised insignia and ban them publicly, has come to stand, for many, as the ultimate symbol of something larger: decisions taken at the top show a complete misunderstanding of the realities on the ground. The state trains soldiers to kill but their superiors denounce the development of a warrior culture in war?

There is no surprise that the public reaction has been so visceral, and that figures such as Jeff Kennett have called for the charges to be withdrawn. However, the die is cast. The prosecutions will proceed, and the spectacle will continue.

At a time when Australia may be closer to serious conflict than at any point in living memory, is this really the best way to have learned the lessons of Afghanistan?