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ACM Home arrow Afghan Court Martial

Afghan Court Martial

ImageA 2010 decision of the Director of Military Prosecutions Brigadier Lyn McDade to charge three Australian special force soldiers over an operation in Afghanistan has been received with surprise, incredulity and outrage.

The decision raises important constitutional and legal questions.

An enemy does not always play according to the Marquess of Queensberry rules. The terrible experience of our armed forces in saving this country from invasion in the Second World War demonstrates that.

The Taliban do not of course observe international conventions.

They do not have rules of engagement which seek to honour their non-existent international obligations. They are well known for using innocent civilians, women and children, their own people, as shields. What is clear in this case is that the soldiers being prosecuted in no way intended to kill those unfortunate civilians.

It was an unfortunate accident, possibly compounded deliberately by the Taliban willingness to trade on our soldiers’ decency.

The decision to prosecute must affect morale and therefore the ability of our loyal armed forces to perform their role. Indeed they may well risk their own lives and those of their comrades in the unnecessary hesitation which her decision must cause.

This affair flows from Parliament's attempt to deal with specific complaints relating to military discipline. In legislating to centralise military prosecutions, the Parliament created a far more serious problem and seems unable to reverse it.






Prosecutions abandoned - Royal Commission needed Print E-mail
Written by Professor David Flint AM   
Tuesday, 13 September 2011
The Director of Military Prosecutions will not proceed with charges against a Special Forces officer in connection with a 2009 raid in which five Afghan children were accidentally killed.

Defence Minister Stephen Smith said on 29 August that  the Director of Military Prosecutions, Brigadier Lyn McDade, had told him she was not going to present evidence against the unnamed officer at a directions hearing scheduled for August 29.


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This brings to an end a highly contentious chapter in Australian military justice.  In May, the chief judge advocate ordered manslaughter charges dropped against two non-commissioned officers, members of the 1st Commando Regiment, in relation to the same incident.

As Australia's leading broadcaster Alan Jones said on 1 September:

This was all from a raid conducted by members of the special operations task group in Afghanistan on February 12, 2009.

“The troops came under fire as they conducted a clearance operation.

“They responded with gunfire and hand grenades which you do in war, although the Director of Military Prosecutions didn't seem to understand that.”




...living under the strain of a prosecution...  




Apart from the stress and strain of war, these men have had to live with these criminal military prosecutions over them until they were finally abandoned.

This resulted from the federal parliament seeing that there was a problem with military justice and taking a solution far worse than the problem, creating a centralised system of military prosecutions completely out of the hands of those who have themselves experinced military combat. 

We argued here on 29 June that if the system the Parliament concocted had existed in the Second World War, the morale of the Armed Forces would have been destroyed and we might well have become a Japanese colony run under the same regime  that applied at Changi.

The armed forces must always be able to function in the preparation for and in actual combat. This necessarily involves a certain separation from civilian life, of which there is no better demonstration than that while they are under ministerial direction, the armed forces owe their loyalty to the Australian Crown and not the politicians.

The constitutional intention is that the armed forces be subject to a command structure, including a power to subject its members to penalties for breaches of discipline.





...Parliament created the problem...




In an attempt to deal with specific complaints relating to military discipline, the Parliament created a far more serious problem and seems unable to reverse it. 


(Continued below)
  

Read more...
 
Afghan prosecutions-only Royal Commissioners who have known combat will do Print E-mail
Written by Professor David Flint AM   
Tuesday, 28 June 2011

On the cold, dark night of February 12, 2009, Sgt J came out of a room where he and his small team had quietly cleared a space containing a man, civilians and a weapon, writes Keith Wolahan  in The Australian (25/6) about the incident which was the subject of that inexplicable prosecution by the Director of Military Prosecutions, Brigadier McDade.

This was  thrown out in May by a military judge.

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It was like countless other nights,” Mr. Wolahan continued. “Except on this occasion, when Sgt J exited (a room with he and his small team had quietly cleared a space containing a man, civilians and a weapon), he was confronted with automatic bursts of AK47 rounds flying through a window and punching through the walls into the courtyard from the only room his team had not cleared. The rounds peppered the only way in or out.

“His men were exposed and he was in charge, and uncertain of how many threats his team could be up against. This was what mission planners call ‘enemy most dangerous’.”




...what alternative was there?...



As a professional soldier and a proven leader, Sgt J followed his drills and ordered a grenade into the room where the fire was coming from. It didn't work, with bursts of automatic fire again exploding back towards the team. Sgt J ordered a second grenade. This time it worked, and it was only then that his team made entry and discovered the horror of the civilians in the room. Faced with a lose-lose scenario, he had made a combat decision.”

The Canberra-based Director of Military Prosecutions ("DMP”) decided that Sgt J was negligent. So what should he have done? Consulted an international law manual?  Offered to counsel the enemy?

 Mr. Wolahan says these men were trained soldiers who  made a decision in close combat. “The fact the outcome was tragic does not make it a crime. No trained soldier in the same situation would have done anything different. Even the prosecution refused to offer any alternative throughout the court martial.”

Mr Wolohan who was a defending officer for Sgt J, should know. Now a barrister, he served in Afghanistan twice, and was as a platoon commander.




...a prosecutor must understand close combat...




What is clear, he says, is that the original inquiry and subsequent prosecution decision-makers do not understand close combat.  He says that those who served in Afghanistan  have experienced the danger and horror of modern counterinsurgency warfare. While “most threats have come from improvised explosive devices or sniper fire from a distance, few have been put directly in the terrifying position of facing automatic fire from less than a metre away.

”If you ask those who have been in that position what got them through what got them through, he says they will tell you two things: “training and decisive leadership.”

“Despite all the modern tools of warfare, the keys to combat haven't changed in centuries. When the bullets are flying and people are screaming, your vision narrows and things go fuzzy."

" Any normal person would revert to what is known as fight or flight. Professional soldiers are trained to move beyond this primal instinct and instead draw on the subconscious of all they have rehearsed and been taught. The only tools that a handful of men in the cold and the dark really rely on are belief in their training and the unwavering trust that their commander has the guts to make a split-second decision.”





...and  his conclusion?




" Those continuing to put their lives on the line deserve to be judged by inquiry officers, investigators and prosecutors who are aware of the pitfalls of hindsight bias. They deserve a system that is run by people who have been properly trained in the nuances of combat training, decision-making and psychology. They don't need to have been in combat, they just need to try to understand it. Our soldiers need to trust their training and rules of engagement. This trial has risked breaking that bond and serious questions need to be asked."




...Alan Jones..... 




ImageOne of the few commentators to follow this issue, Alan Jones delivered a hard hitting editorial on 23 June though the Macquarie Radio Network from Sydney radio station 2GB.


 

...Parliament's solution is the problem...  



Parliament had found a problem with the military justice system but the solution it offered by consensus in 2005 was worse than the problem. If the system they concocted had existed in the Second World War, the morale of the Armed Forces would have been destroyed and we might well have become a Japanese colony run under the same regime  that applied in Changi.

Read more...
 
No further charges against two of the three soldiers Print E-mail
Written by Professor David Flint AM   
Thursday, 23 June 2011
After manslaughter charges were thrown out in May, the Director of Military Prosecutions, Brigadier Lyn McDade, has finally indicated that  no further charges would be laid against two commandos in connection with a deadly 2009 raid in Afghanistan that left five children dead, reports Mark Dodd in The Australian (“Aussie soldiers cleared over child deaths in Afghanistan “ 23/6)


Image


Apart from a reform of the law which appears to go against the constitutional intention (a reform we have  proposed here), the one outstanding matter of process is the case against  their commander, a Lieutenant Colonel.

The soldiers, both from the prestigious 1st Commando Regiment, issued a joint statement. Identified as Sergeant J and Lance Corporal D, they said:

"We need no reminding that our actions contributed to the death of five innocent children.

"We will carry that burden for the rest of our lives. However, we would like people to understand two things: firstly, we did not choose to fight the Afghan male in proximity to the children.


"He forced his callous and reckless choice upon all of us."






...DMP reappointed...



 

According to Dan Oakes and Rafael Epstein writing in The Age (23/6) revealed that the controversial DMP has been reappointed but for two years only, instead of the  five-year term permitted under the law.

The Age understands there was deep resentment within the senior ranks of the Australian Defence Force over Brigadier McDade's reappointment, because of her decision to prosecute the commandos.

Whether such a centralised and powerful position should exists is one matter the Parliament should urgently consider. it is only beacuse the military judge was prepared to consider the pre-trial hearing as the equivalent of a committal proceeding that the men are not on trial.

ImageHear leading brodcaster Alan Jones editorial on the prosecutions broadcast on 23 June on the Macquarie Radio Network from Sydney  radio station 2GB. 

 
Two of three prosecutions halted Print E-mail
Written by Professor David Flint AM   
Sunday, 22 May 2011

A court martial convened for 11 July of two Australian commandos will not now proceed.

Judge Advocate Ian Westwood has thrown out the manslaughter charges brought by the Director of Military Prosecutions ( “DMP”), Brigadier Lyn McDade.



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This related to civilian deaths which apparently occurred when the soldiers reacted to what they assumed was a Taliban attack on their unit.



...the DMP....



The office of the DMP is what remains after Parliament’s  failed 2007 attempt to replace courts martial with an Australian Military Court. This was declared unconstitutional by the High Court in 2009.
The concentration of the prosecuting power in one office and the absence of committal proceedings has been criticised in part on constitutional grounds.

New legislation is under preparation. It is important that parliament review the role and function of the office of the DMP and the place for committal proceedings in courts martial.



...options open to DMP...




 The decision by the judge advocate may not be the end of the matter.

The Director of Military Prosecutions can still launch prosecutions for other alleged breached of the law, she may seek a review in the Federal Court and she still has to decide on whether to proceed with the prosecution of the men’s Commanding Officer.




...soldiers 'vindicated'...





The soldiers' barrister, Major David McClure, said his clients had been vindicated, according to   Brendan Nicholson and Mark Dodd in The Australian (21/5).  Their report continued:

The two had not had an opportunity to cope properly with an event ''they did on behalf of all of us, and they deserve better treatment than what they got", Major McClure said.

''In combat there is no time to pause and think, 'How will I take reasonable care', because if you were going to be taking reasonable care you wouldn't be doing it at all," he said.

A University of Melbourne military law professor, Tim McCormack, an adviser to the soldiers' legal team, told The Australian that  the prosecutor had made the mistake of trying to impose domestic criminal law on the battlefield.

''The error of judgment was to assume they could establish a higher standard of conduct than that required by the laws of armed conflict'', he said.

Judge Advocate Westwood said there must be a duty of care in order to determine negligence. But in considering the case, he found there was an "absence of plain words" in relation to a duty of care to non-combatants in the Defence Force Discipline Act.

 

 
Afghan Court Martials 11 July Print E-mail
Written by ACM   
Saturday, 26 March 2011

The Afghan Court Martials will begin on 11 July 2011.

 

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[ Frontpage icon to access ACM's new section on the prosecutions]


The Registrar of Military Justice has convened a general court martial to try charges against two of the three Australian Defence Force members relating to an incident in Afghanistan on 12 February 2009.”

This brief notice was included in a Ministerial Statement on Afghanistan to the Parliament on 23 March 2011 by the Minister for Defence, the Hon. Stephen Smith.


Pretrial directions hearings for the court martial are scheduled to commence soon in Sydney and the trial has been set down for 11 July 2011,” he added.

The third soldier will be tried later. 

The three commandos were members of the Special Operations Task Group sent to raid a residential compound in Afghanistan's Oruzgan province, report Brendan Nicholson and Mark Dodd in The Australian (24/3).

The soldiers, searching for a Taliban leader, were fired on and threw two hand grenades into a house. When they entered the house, they found that six civilians, including five children, had been killed.



...the prosecution ....



A 2010 decision of the Director of Military Prosecutions Brigadier Lyn McDade to charge three Australian special force soldiers over an operation in Afghanistan has been received with surprise, incredulity and outrage. The decision raises important constitutional and legal questions, which have been discussed in this column.



...new section...



 We have established a new section on this site so that visitors can easily access this information. It does included an alternative view, and a Message from the Chief of the Army Lieutenant General K.J. Gillespie AO, DSC, CSM




...our view follow below...just click on read more

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