Australia has an independent process for military justice and a need to comply with international obligations. To suggest that the government should step in, as Tony Abbott did yesterday, is foolish
When the independent Director of Military Prosecutions, Brigadier Lyn McDade, charged three Australian Defence Force members over an incident last year that resulted in the death of six Afghans, she did so following “careful, deliberate and informed consideration of the available evidence”.
She also did so independent of the Australian Defence Force and of the government, just as most Australians would expect to occur in a civilian situation.
Now, she deserves credit that her judgement is sound and that she is acting in the best interests of justice.
She also deserves to be free of political point-scoring, of being the subject of a demeaning internet campaign against her, and of bearing the wrath of ex-servicemen who completed the bulk of their service in an international legal environment that’s very different to what we currently face.
Yesterday, Tony Abbott said that he believes the government has not offered the three troops charged the best legal assistance possible.
Abbott, speaking with radio commentator Alan Jones, declared that he would not want to see “soldiers being stabbed in the back by their own government”.
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But the ADF has already made it clear that it will provide the necessary support to the soldiers in question, including a personal undertaking from the Chief of Army, Lieutenant General Ken Gillespie, that he will ensure the troops are fully supported throughout the legal process.
They will receive representation from senior and highly experienced ADF members. As for the independent prosecutor, she was appointed under the Howard government by the then minister for defence, Brendan Nelson.
Ensuring these soldiers do have their day in court is also vital for Australia to protect its international obligations, especially to the Geneva Conventions, in an international legal environment that has changed significantly over the past couple of decades.
Technically, if Australia does not make attempts to prosecute these three individuals, they could be prosecuted in the International Criminal Court. Indeed, these charges ended investigations by the ICC over the incident.
While such a trial would have been highly unlikely given the ICC is currently busy and completely overwhelmed with other matters (namely human rights abuses in Africa) it would not have been impossible.
If Australia is to boast a legitimate system of military justice, it must allow an independent process of military justice to occur. Our international obligations to the ICC and to the Geneva Conventions require Australia to prove that it has the capacity, and the willingness, to prosecute Australians for actions that occur during armed conflict overseas.
We must also consider the basic purpose behind our mission in Afghanistan in the first place, part of which is to assist in building a capable Afghan National Army, but also to support the Afghan people.
ADF members, via the Status of Forces Agreement (SOFA) they sign before deployment, are immune from Afghan law. Afghan citizens may know that the foreign troops occupying their country can not be subject to Afghan laws. As such, they must be offered faith that justice has the opportunity to be served elsewhere.
According to military justice academics I recently spoke with, ADF members are not ignorant to the legal ramifications that can potentially follow their actions overseas. As well as signing the SOFA, they are also made aware of Australia’s international obligations and the Defence Force Discipline Act.
The three soldiers face several military-related offences under the Australian Defence Force Discipline Act, including dangerous conduct and failing to comply with a lawful general order, as well as prejudicial conduct. One soldier has been charged with manslaughter, a charge that is known as a “territory offence” and interpreted and prosecuted under ACT criminal law.
It is still unknown exactly how these charges will be heard, given the Australian Military Court that would have dealt with these charges was found to be unconstitutional earlier this year.
However, again, as military justice academics reiterated with me this week, the priority will be to ensure that the balance between an independent, fair, civilian-like process can be justified against the desire to ensure the charges are adjudicated by military peers — individuals who can relate to the context of armed conflict or, as Abbott put it yesterday, can relate to “acting under fire in the fog of war”.
Should a custodial sentence be handed down, we must also consider that it’s likely it will be served outside the regular framework of the civilian prison system. ADF members are commonly sent to the Defence Force Correctional Establishment, located at the Holsworthy army based in Sydney. If they are stripped of their rank, it’s possible they will be given the opportunity to re-train and be rehabilitated back into regular work within the ADF.
While the facts of the case are largely unknown, and it would be unwise to speculate, the incident resulted in the deaths of six people, some of them children. It goes against every basic principle of justice not to investigate exactly what occurred.
Thus far, McDade has proven her capacity to effectively make the independent decisions that a director of prosecutions should. To request that our government intervenes would be a significant step backwards for a system that is necessary to not only protect our international obligations, but to also maintain the integrity of our armed operations overseas.
Angela Priestley is the editor of Lawyers Weekly.