Military prosecutions: Another view
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.

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 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..      (Updated 10 October 2010)

Charges against ADF personnel relating to the February 2009 incident in Afghanistan 

Again, recent media and public commentary concerning charges being preferred against some ADF personnel for their alleged actions in Afghanistan in February 2009 has tended to miss the point ― and to misunderstand the complex legal background involved (discussed below).

As the Australia Defence Association has long noted, this was always going to be a controversial case, not least because so few Australians now have the personal (or indeed even family) military experience to understand the operational, legal and moral principles and procedures involved.
 Inaccurate, one-sided and in some cases sensationalist media coverage of the charges has not helped.

Especially commentary advancing the notions that either the defence force personnel involved in the incident should and could not ever be charged because "things like this happen in every war", or conversely that they must be charged because "they committed a war crime", "crimes against humanity", an "atrocity" or a "massacre".

Neither of these extreme opinions are factually or legally correct. Both also ignore what international and Australian law (and their moral basis) actually say and have always said in previous wars.

Again it would be worthwhile for such commentators to read up on the legal background actually applying.
 Several points about international humanitarian law (IHL), Australian law and the facts are worth noting in any discussion of this or similar incidents.

Moreover, the subset of IHL known as the Laws of Armed Conflict (LOAC), primarily based on the Hague and Geneva Conventions, apply to this matter ― as they do in every war. Where LOAC might appear to clash with other provisions of IHL, then LOAC applies under the principle of lex specialis (the most relevant law applies).

Contrary to popular belief, the use of force by soldiers in war has not and never can be totally unlimited. Every Australian soldier, in every war Australia has fought, has been constrained in their use of lethal force by the need to comply with LOAC.

 First, all wars are morally, legally and operationally complex and the Afghanistan war also involves significant cultural, religious, social and political complexities. This is the inescapable and enduring nature of war. 

Second, the enduring nature of war means that the conduct of military operations, and the protection of non-combatant civilians during war, are covered by IHL in some detail, particularly by the Hague and Geneva Conventions respectively. As in all Australia's wars, the ADF's actions in Afghanistan are rightly constrained by IHL, particularly LOAC based on such conventions and customary international law. 

Third, no-one denies that Afghan civilians were killed by the ADF in this incident and that most and perhaps all these Afghans were non-combatants (as defined in the Fourth Geneva Convention).

 Fourth, as discussed  below, no cover-up was suggested by anyone and none occurred. The self-correcting mechanisms of the professional defence force of a country ruled by law have been followed. The original operational investigation of the incident recommended a further (police) investigation by the ADF Investigation Service (ADFIS) be conducted. The results of this ADFIS investigation were then passed to the statutorily independent Director of Military Prosecutions for consideration. She ordered a further ADFIS investigation before deciding to prefer charges. The suggestion in some quarters that the DMP has somehow acted improperly, or without detailed knowledge of the facts and circumstances of the incident, is simply not true. Similarly, the operational investigation and the two ADFIS investigations were undertaken by experienced and professional personnel with personal experience of war ― not by lawyers or people who do not know what they are talking about. 
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Fifth, on the publicly available evidence the deaths were clearly accidental (not necessarily illegal under IHL however tragic) rather than deliberate (which is generally but not always illegal under IHL). No one, except Taliban propaganda, has claimed otherwise. 

Sixth, even where accidental killing during combat might be illegal under LOAC this does not constitute a "war crime" or a "crime against humanity". These terms are reserved for deliberate and serious offences against IHL such as genocide or ethnic cleansing. Some emotive and subjective critics of Australian participation in the UN-endorsed international force in Afghanistan too often forget, or deliberately omit, this important distinction in their polemical rhetoric. 

Seventh, the soldiers involved are entitled to and must be given the presumption of innocence when facing any disciplinary or criminal charges. And to the nature and severity of those charges, and their trial, taking full recognisance of the difficult and dangerous conditions of applying military force in battle during complex counter-insurgency wars. In particular, the split-second decision-making required in combat must be taken into account when such incidents are later dissected in court or out of it.

 Eighth it is better that such allegations or charges, and the facts actually involved, are aired, answered, tested and dealt with in court. As Australian history shows with previous wars, the alternative is that the individuals concerned, or the ADF collectively, would remain the subject of unproven allegations, untrue public memories, popular mythology or scurrilous media sensationalism for decades ― or indeed for ever. In the long run, all involved (including Australia's national reputation as a country ruled by law and a good international citizen) benefit from open investigatory processes and fair trials to answer allegations of LOAC breaches.

 Ninth, the actions of ADF personnel in combat are also now subject to the jurisdiction of the International Criminal Court (ICC) if Australia does not handle alleged LOAC breaches properly in an Australian court. Whatever your views on the propriety or effectiveness of the ICC having such jurisdiction (Australia having signed up to the relevant treaty with insufficient care for our military), ADF personnel will get a much fairer and far more timely hearing in an Australian court martial. The potential involvement of the ICC is clearly not a major reason in the preferring of charges, not least because the ICC mainly concerns itself with war crimes, not battlefield accidents, and only then if the country concerned refuses to investigate or conducts subsequent trials improperly. The chances of the ICC getting involved in this particular matter are minimal to nil.

 Tenth, where ADF personnel are charged they will also get a much fairer trial, and the interests of justice will be much better served, if they are tried by a traditional court martial rather than by the proposed Military Court of Australia (MCA). In a court martial their guilt or innocence can be appropriately decided by their professional peers who understand the difficult and nuanced circumstances of war. As would be the punishment necessary, including the appropriate weight to put upon the mitigating circumstances of combat.

In the proposed MCA, in stark contrast, the trial would be by a civilian judge, sitting alone, with those charged having no right to trial by a jury, a court martial board of peers or other safeguards generally assumed to be the right of any Australian citizen facing serious criminal charges. Nor would such an MCA judge necessarily have any experience of military service, war or the complex and nuanced situations applying in battle.

The numerous deficiencies in the MCA bill tabled in the last parliament are discussed below. This situation needs to be brought to the attention of every parliamentarian, particularly those fixated on inappropriately and unfairly applying peacetime, civilian law, norms to military service (but oddly minus many of the safeguards of such civilian law).
 

Eleventh, the matters of fact and law involved in this incident are mainly very specific to this particular incident. Once this is known and understood, there will probably be little or no effect on diggers applying lethal force in combat more generally. This aspect has unfortunately not been appreciated by many commentators in media and wider public debate, including veterans of previous wars, who have based their comments on general and specific assumptions about the incident that are simply matters of opinion, or are not correct, not known or not proven. Several of these matters are now best tested in court. 

Twelfth, the claim by some that the investigations into the February incident, and the consequent charges, are the result of rivalry between the regular Army and the Army Reserve is a red herring and is not true. Two of the three personnel charged are reservists (who were serving on continuous full-time duty when deployed in Afghanistan). The other member is a regular Army officer. Given the nature of the battlefield accident involved, any unit (regular or reserve) would have been investigated in the same way and for the same reasons.

The sub-unit involved was also the same one that was the subject of the July 2009 CDF Inquiry by Vice Admiral Chris Ritchie, a retired Chief of Navy, into its preparation and certification for deployment to Afghanistan.

An unclassified and redacted version of Admiral Ritchie's report is on the Department of Defence website at http://www.defence.gov.au/coi/reports/RitchieReview.pdf.

 Finally, as the Australia Defence Association has made clear from the beginning of public discussion of these matters in mid 2009, if ADF personnel are to be charged over this incident then this should not be confined to the soldiers directly involved in the accidental killing of the civilians. The possible liability of those planning the operation and commanding the element involved (at various levels of command) must also be examined and they too must be charged if, for example, professional recklessness or negligence contributed to the incident. The potential liability of those further up the chain of command responsible for preparing the unit concerned for war service, and assessing it as qualified for such service, should also be examined and, if necessary, be subject to legal action.

 This is a difficult issue. Like all difficult issues about war, discussions often become unduly emotive and subjective. This is why we need to focus on the key moral principles involved and the consequent legal and operational practices that apply.  In particular, there is the big-picture truth that holding the ADF accountable is an issue that again underlines the moral, legal and accountability differences between us and our enemies ― and between the causes for which we fight.

 There is a chasm between the motivations, responsibilities and actions involved with our lawful participation in the UN-endorsed International Security Assistance Force in Afghanistan, compared to the rejection of international humanitarian law and the associated accountabilities by the Taliban and its Islamist allies. And indeed to the barbaric (and illegal) Taliban view that our difficult adherence to international humanitarian law ― at increased risk to our troops ― is not something to be reciprocated (as civilised peoples do and international law requires) but is somehow just a vulnerability for the Taliban and its Islamist allies to exploit illegally. 



(Updated 02 October 2010)