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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.






Military prosecutions: Another view Print E-mail
Written by Professor David Flint AM   
Tuesday, 12 October 2010
Mr. Neil James, the widely respected Executive Director of the Australia Defence Association has written to point out that the the ADA does not agree with the view expressed here that that the problem concerning the prosecutions of three military soldiers was caused by the DMP.

This office, he says, functions in much the same way as a DPP. It should not be subject to ministerial or defence force command direction just as a DPP is necessarily independent of political or police direction.

 Image 

 In this case, the DMP’s decision to prefer charges is clearly based on the evidence from the three investigations undertaken. Several assumptions and claimed “facts” about the incident that are current in popular discourse need to be tested in a court.


I disagree for reasons which are in our earlier comment.  A comment explaining this will follow. 

The ADA comment on the case is below..     
Read more...
 
Chief of Army Message Print E-mail
Written by ACM   
Tuesday, 12 October 2010

12 October 2010

Chief of Army Message to Command Teams

  • There has recently been widespread discussion of the charging of Army personnel, in connection with an incident in Afghanistan. Some of our people have been contacted by a range of media and other interests, and by service associations seeking support, including by signing a petition.

  • The Director of Military Prosecutions has acted in accordance with her duty to prosecute service offences, taking action after considerable deliberation and incorporating the opinions of senior Defence officers. In this regard, the Director of Military Prosecutions has acted in an independent and deliberative way as she is required to do by law. This is no different from how her civilian Commonwealth and State/Territory Directors of Public Prosecutions function. To undertake any course of action that is disrespectful, and not supportive, of this process would be to undermine the integrity of the military justice system.

  • Many will have views about whether or not charges should have been brought. Many may hope that those who have been charged will be cleared. Some, armed with ill-informed opinions and good intentions, have made public comment in response to the media and public interest.

  • We must not be party to the pressures being applied by individuals external to our organisation, or by the vocal individuals within our organisation. The Army is simply not above the law.

  • In executing your responsibilities, I ask you to be mindful of several important matters.

  • First and foremost, it is completely inappropriate, and more importantly, unlawful, to engage in any conduct that might influence the outcome of the charges. This includes public comment, in any capacity, about the merits of the charges; or by vilifying the prosecutor; or by otherwise influencing, directly or indirectly, the course of the prosecution including by joining in petitions.

  • This is not about going outside the chain of command or making public comment about an issue; it is about undermining the integrity of our military justice system and potentially about denying proper legal process to our soldiers.

  • By publicly discussing the merits or vilifying either party for bringing or defending the proceedings, such conduct may prejudice the discipline of, or bring discredit on, the Defence Force, which may amount to an offence under section 60 of the Defence Force Discipline Act 1982 and which carries a maximum punishment of three months imprisonment. Certainly, once a service tribunal is convened, such conduct may amount to contempt of that service tribunal. Under section 89 of the Defence Act 1903 and section 53 of the Defence Force Discipline Act 1982 this is a serious offence punishable by up to six months imprisonment.

  • I reiterate that these are not novel provisions and do not herald any new reality in law. They are no different from provisions covering contempt of court for conduct that might influence the outcome of pending prosecutions in the civil courts.

  • Secondly, at this stage, whatever views we may hold can only be based on a very imperfect understanding of the evidence. None of us, including me, know all of of the evidence that the Director of Military Prosecutions has considered in deciding to lay the charges.

  • We must respect the legal process and its independence from the chain of command. This level of legal independence was agreed and enacted by our Parliament after a number of inquiries including a Senate Inquiry with public submissions.

  • Thirdly, the fact that charges have been preferred does not mean that the members will be convicted. The charges will be heard by Courts Martial, constituted by service personnel who understand the exigencies of the circumstances with which soldiers on operations can be confronted. If the Courts Martial Panel finds that there is a reasonable doubt with respect to a charge, the soldier will be acquitted of that charge.

  • The soldiers are being fully supported by Army, as they have been throughout this process.

  • I ask that you remain acutely aware of these matters in exercising your Command responsibilities. Army has a responsibility to protect the integrity and professionalism and to respect the legal obligations inherent in our service.

K.J. GILLESPIE AO, DSC, CSM
Lieutenant General
Chief of Army

12 October 2010


 
Military prosecutions: Parliament must act now Print E-mail
Written by Professor David Flint AM   
Monday, 04 October 2010

[Note: A petition on this can be accessed here]

There can be no more important duty for the government than the defence of the realm.  This means ensuring the Army, the Royal Australian Navy and the Royal Australian Air Force are able to do their duty. This of course includes financing and equipping them – a matter of some debate at the moment.

Image
[ Pericles' Funeral Oration: Phillip von Foltz ]

It also involves ensuring a structure which allows them 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.



...true patriotism...




It is timely now for the government, and indeed the nation, to recognize once more the extraordinary degree of patriotism demonstrated by the armed forces. This is not the easy patriotism of words or flag waving.

It is an overwhelming love of country, a love of country as it has been understood from the age of Athenian democracy down to our involvement in the world wars.

In Pericles words in his celebrated Funeral Oration, soldiers have “joyfully determined to accept the risk”.  Australians have recognized this in the memorials to those who made the supreme sacrifice.


.In all of this the purpose of the armed forces must never be lost sight of. I recall that in my brief experience of the army, the aim was made clear.  It is brutal, and necessarily so. It is to kill the enemy.


It is a sad fact of life that in doing his duty a soldier may well unintentionally injure or kill civilians.





...prosecutions...



It is hardly surprising then that the decision of the Director of Military Prosecutions Brigadier Lyn McDade to charge three Australian special force soldiers has been received with surprise, incredulity and outrage.

It is assumed that the DMP understands that 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.

Surely the DMP understands that her decision 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.




...military justice....



Military justice must necessarily differ from civilian process. For most of the life of our armed forces, prosecutions were conducted before courts martial.

But after a Senate Report which was highly critical of the process, an Australian Military Court was created in 2007. This was found to be unconstitutional in 2009, so courts martial were reinstated temporarily until a constitutionally valid military court under the Federal Court could be established.

But what remained of the 2007 bundle of changes was a separate and independent Director of Military Prosecutions (DMP), one so designed that it is more powerful than the high command.  It is being said that the reason for the prosecutions has been to pre-empt a threat a prosecution before an international tribunal, the International Criminal Court (ICC). 

 

                                                                     [Continued below, click on Read More]

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