| Afghanistan: prosecution of three soldiers |
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| Written by Professor David Flint AM | |
| Saturday, 11 December 2010 | |
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The prosecution of three soldiers in relation to an incident which took place almost two years ago in Afghanistan raises important issues which have been the subject of comment and interviews on 2GB and other stations on the the Macquarie Radio Network by the nation’s leading radio commentator, Alan Jones. (The latest was on 8 December) 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. Invited to write for The Spectator Australia on 4 December, I said: We should always be wary whenever the politicians agree. They did so in 2005, which is why three of our finest soldiers are being prosecuted over an incident in Afghanistan 18 months before where they were fired on and, believe it or not, returned the fire. Discussing strategy at the conference I mentioned my understanding from national service that the aim of the army is to kill the enemy.Major General ‘Digger’ James, the Korean War hero, confirmed this. I asked if it now is ‘to counsel the enemy in a non-discriminatory, non-racist way to find a mutually acceptable solution’.We are now treating the most hardened criminals better than we do our soldiers, who are ready to sacrifice their lives for our country, as are incidentally our two brave princes, William and Harry. Before a case goes to trial a hardened criminal enjoys the luxury of a committal hearing and learns the case against him. He can argue to an independent magistrate that there should not be a trial. Under the ‘reforms’, all this is done behind closed doors by the official whose role is to prosecute, the Director of Military Justice. If this policy continues, it will destroy morale in the armed forces.Last Friday the Australian published my second piece arguing this. If Curtin and Menzies had done this in the second world war, we would now be a Japanese colony.It’s time for the politicians to correct their mistake. ....radio interveiw... This was a subject of an interview by Alan Jones on 8 December on the Macquarie Radio Network which can be heard by clicking here. A paper published in The Australian “Soldiers denied their basic rights in military prosecution” on 26 November seeks to answer criticisms of opposition to the prosecutions by Justice Paul Brereton of the NSW Supreme Court. and Associate Professor Ben Saul of the University of Sydney. This follows below.  The DMP was established as one the two radical changes to the military justice system adopted by the Parliament in 2005 and 2006. ...no to the military court... Apart from a strong support of the DMP and an argument that some of the criticism could well constitute a contempt, Justice Brereton criticises the other principal reform of the military justice system. This was to replace courts martial with a separate court. But in 2009 in Lane v Morrison the High Court found the separate court, the Australian Military Court, to be unconstitutional. The Rudd Government then announced that it would legislate to establish a Military Court of Australia which would conform with the Constitution. There is a risk, Justice Brereton point out, in such a court. This would involve cold analysis over many days, and years later, of incidents that had required immediate decision and response by soldiers in, as he elegantly puts it, “the urgency, danger and fog of battle”. This was to prosecute three soldiers: one for manslaughter and alternatively, dangerous conduct, with a second count of dangerous conduct; the second for failure to comply with a lawful general order and alternatively prejudicial conduct; and that a third, who was overseas, would be charged upon his return.
Justice Brereton observes that: “Our ability to bring these charges is the mark of a mature society in which the rule of law is well established. We operate within constraints; that is what separates us from the terrorists." He is correct in this, as was Associate Professor Ben Saul (The Sydney Morning Herald 15/10) in arguing that unlawfully killing civilians is a serious crime in war. ...criticising the "reform".. This is all true. But this does not preclude a criticism of the 2005 changes to the military justice system. These introduced a model which is unfair and unjust, and which will, I believe, prove unworkable. The rationale for the creation of the DMP is that it is no more than the military equivalent of the Directors of Public Prosecutions.It is not. The office combines the power to prosecute breaches of military discipline hitherto vested in commanding officers, and the powers of a magistrate in a committal hearing, all without any of the safeguards. ...the US model... In the United States – which a model of military justice which could well be emulated here - these powers are shared by at least four officers. In addition there are substantial safeguards for the soldiers, ones which are scandalously absent in the Australian model.Unlike their American counterparts, Australian soldiers (and sailors and airmen) are denied three fundamental pre-trial rights. These are rights which are accorded to the most hardened criminal. The first is the right to examine the DMP's witnesses before the trial. The second is the right to know what the DMP's case is against them before the trial. In the present case, have the three soldiers received copies of all reports, supporting documents and representations, as well as the reasons for the DMP’s decisions? The third is the right to argue and to make submissions to an impartial person that the DMP's case is inadequate and should not proceed to trial.Is it not extraordinary that one class of Australians, those who are prepared to put their lives on the line for their country, are the only ones in the nation to be denied elementary justice? ...effect on morale... Now that this is common knowledge in the armed forces, we can imagine the impact on the morale of those in service and in due course the impact it will have on recruiting.And that is not all. The creation of this office undermines the chain of command. It neutralises an important part of the authority commanding officers must have.This is militarily incoherent.Had this system been in operation in the Second World War with similar prosecutions being ordered from some Canberra office operating behind closed doors, months or years after the alleged offence , the AIF, the RAN and the RAAF would have been rendered impotent. The Menzies and Curtin governments did not and would never have proposed such an office. The Americans would be astounded if a similar office were proposed there. In the highly unlikely event that legislation to establish a US DMP were passed, the Supreme Court would surely find grounds to invalidate it, if not in the express terms of the constitution, at least in gazing into its penumbrae, or shadows. ...Parliament must act... It has only now become evident that Parliament was seriously in error in approving the changes made to the military justice system in 2005 and 2006. Until Brigadier McDade’s announcement parliamentarians were no doubt ignorant of its flaws. To ignore these now and hope the immediate problem will go away by, say, an acquittal by the courts martial will only delay the day when real reform must take place. It is the duty of each and every MP and Senator to take steps to correct it. That duty is greater than appearing on such occasions as ANZAC day ceremonies to eulogise the armed forces. Without action, these will only be seen by members of the armed forces as empty gestures. [ Earlier in this column on 4 October (“Military prosecutions: Parliament must act now”) we criticised the legislation under which the prosecution of three soldiers concerning an incident in Afghanistan was recently announced by the Director of Military Prosecutions. This was followed on 23 Ocotober Military Prosecutions: Parliament must act , The Military Justice System and 27 Ocotober Military Justice; station 2GB Alan Jones. An earlier comment was published in The Australian 22/10 “Denial of rights for our brave Diggers”. ]
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