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Oct 13, 2010

Rethinking Afghanistan: no place for politics in military prosecution

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, writes Angela Priestley, editor of Lawyers Weekly.


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”.

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.





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29 thoughts on “Rethinking Afghanistan: no place for politics in military prosecution

  1. The Pav

    Yet again Abbott demonstrates his unfitness for any leadership role and sinks to a new low

    He is wrong on so many counts

    He is either incredibly ignorant or so desperate to score poltical points he will say & do anything. Hang he’s already admitted that he would do this so perhaps we shouldn’t be surprised just saddened.

    As for not stabbing the troops in the back he could quite as easily have prejudiced their case.

    I sincerely hope they are found not guilty as this would mean that it was established that in an incredibly demanding situation they acted to the highest standard.

    BTW isn’t Brigadier McDade a soldier so by impugning her character & competence is Mr Abbot stabbing her in the back?

  2. Paul Kenna

    Breaker Morant again

    A decision of another female prosecutor to stir up the debate about the administration of our prosecutorial services.

    Un-named “military academics” are more focussed in process than justice. There are many terrible outcomes of war, these circumstances are not the least. But by following these politically correct approaches we will sacrifice our troops rather than support them.

    Anyone who is stitched up in charges like these needs all the help they can get, even Tony Abbot’s.

    And what’s this attribution about being editor of Lawyers Weekly? Lawyers weekly is a major law firm gossip rag filled with legal headhunters and executive search ads. To promote it as a serious legal journal belies the facts.

  3. Julie

    Thanks for this intelligence on the matter.

  4. michaelwholohan1

    Abbott’s help certainly is needed Paul Kenna but believe me this is not help it is a gratuitous ignaorance based political spray which fittingly was delivered on Alan Jones’s “show”. Any responsible journalist would have questioned the sensibility of this rant.
    There are people following due process in this matter ; it’s their job. Tony abbott is hoping for a job & is not doing the one he presently holds very well. In any thinking circles he woluld be a laughing stock based on these remarks.

  5. John Bennetts

    @ Paul Kenna:

    What’s up, Paul? Run out of argument points but still unable to keep your opinion to yourself?

    Your opening attack on the prosecutor on the basis of gender is really poor form, but you then attacked “military academics” on the supposed basis that they are not focussed on justice (and you are?). What gives you that idea?

    Use of emotional cliches such as “stitched up charges” adds no strength to your accusations.

    To criticise “Lawyers’ Weekly” on the basis that it has a business to run and thus accepts advertising is odd, to say the least. Nobody said that the article was peer-reviewed research, or that it was other than the author’s opinion, prepared for an audience consisting mainly of lawyers. Such an audience would be well-informed on the subjects raised and the principles at foot.

    To attempt to found an argument on stereotyping and obviously uninformed bias says a lot about the commentator and nothing at all about the supposed shortcomings of the original article.

    Your whole contribution is thus worse than no contribution at all to this issue.

  6. Harvey Tarvydas

    Dr Harvey M Tarvydas

    Great work Angela Priestley. The horror of it all is that this basic intelligence education needs to be taught so consistently to the Australia population. But thank you for taking on the challenge.
    It’s that ghastly trickle down effect from the great intellectual leader RS Tony Abbott to the common man. From the budgie smuggling socio-intellectual Neanderthal that’s making an effort in technology by working on the latest bicycle. He has busted the decency limits by declaring to the world that HIS Prime Minister is a bitch and a bastard. He is turning common decency into a budgie smuggling game to assist his stroking fetish quite probably. It would be almost impossible to find a sensible psychological explanation for his weirdness. Maybe there’s a psychological scientific ‘discovery in waiting’ attached to this man who would be PM. Or it may be his diet or even the Pell effect.

  7. kennethrobinson2

    I would like to put it to “Lawyers Weekly”, if these three soldiers are being charged, over the incident, why are not, John Howard, Julia Gillard, and Angus Houston, and the relevant Defense Ministers on trial, after all they are guilty of invading another country, and intentionally killing many thousands of people, who have or had no intention, of invading us.
    It certainly smacks of Breaker Morant revisited, but we cant blame the Poms for this one, its home grown, the whole war is a crime.
    We are not going to FIX Afghanistan, its their problem let them fix it, just like we should fix our own problems, if the Yanks are bent on conquest, leave them to it, Do you really think that if we were attacked, they would rush to our aid, because of a treaty, they would only come if it was beneficial to them.

  8. John

    Justice needs to be done. Military justice, via Brig McDade needs to be supported, as do the diggers. Due process.

    What is Abbott complaining about?…they poodle-faked around with the military justice system and destroyed it’s credibility.

  9. shepherdmarilyn

    Well, our “troops” murdered hundreds of “talibs” in the first weeks and Robert Hill gloated about it. Too bad he didn’t have an ounce of sympathy for the AFghan refugees our navy had just transported to Nauru for daring to escape.

    They have gunned down governors, cops, kids, whoever. They don’t get charged, they pay bribes. They watch the poppies grow, they train corrupt cops and pretend they are building things.

    They claim they built one school in Oruzgan, yet 360 Afghan kids are jailed here for months without being allowed to go to school.

    Hypocrisy if the name of the game here in OZ in Wonderland.

  10. Barbara Boyle

    A silly rabbit, even if a desperate one.

  11. Paul Kenna

    Mr. Bennetts

    My reference to gender refers to the current Victorian controversy where many in the legal profession (including apparently the deputy DPP) consider that affirmative action rather than merit is behind Hulls prosecutorial appointments. I would trust that the Brigadier has not been promoted to her position due to merit.

    Feel free to attack critics but just remember there are deep feelings across our forces that these charges are being pursued for reasons other than justice.

  12. John Bruce

    It is very easy for lawyers whether military or not to make judgements about proceedings which occurred in the dark in ultra dangerous Afghanistan from the safety of safe Australia. This is not a boys own battle where each side stops for tea or to remove the dead after a major firefight as at Gallipoli, this is dirty nasty war where every person and building is potentially lethal. If our troops were fired at!!!

  13. The Pav

    Dear John Bruce,

    The point is valid however just as valid is that the decision was made after extensive review and consideration of the facts. A highly educated , trained & resourced person in possession of a huge amount information has made a considered decsion. AS the the Brigadier is a volunteer one would imagine that she is a supporter of the ADF & thus if she has come to the conclusion that she has then is is reasonable & appropriate.

    If this sort of action is not taken then carte blanche will be given to troops from any nation with the ironclad defence ” It was a difficult circumstance”

    And if you think Gallipoli was a nice clean fight I would suggest you check your history.

    On this review it was determined that there was a case to answer not that they are guilty.

    The trial process will ensure circumstances will be taken into account.They will have an active and competent defence.

    The alternative is not to make these considerations, lay ourselves open to accusation of cover up etc and behave as our enemies do. I’d like to think that we are better than that.

    This way the rule of law is seen to prevail.

    If they have acted appropriately in the extraordinarily difficult circumstances then they will be exonnerated (& that is my fervent hope & reasonable expecation) which will show that our values & sytems are based on integrity, whatever the cost.

    This is the only way we can survive as a society & defeat the darkness that is terrorism.

    As a previous writer has noted. It is a shame that those responsible for placing our troops in what must be a nearly impossible position are not beiong called to account.

    If Alexander the Great, the British Army, the Red Army and any number of others couldn’t pacify the country why would any rational person believe it was possible.

  14. SBH

    Paul Kenna not one but two ignorant misogynistic slurs. Well done.

    Something you and your ilk have forgotten is that these soldiers have been accused in the media of throwing a grenade into a room with children. How do you clear your name without a rigorous independent legal process?

    The idiocy of your characterization of Hull appointments is beyond belief. You know nothing about the appointments and care nothing about systemic prejudice against women. And what controversy? I must have missed it (too busy daubing feminist slogans on the shrine probably) I haven’t seen or heard anything that could be portrayed in that way.

    Unless of course you mean the baseless attack on Jeremy Rapke (it was he, not Hulls who recommended the appointment of – Oh My God – a woman)

    And you dill this article is not about how justice is being administered but about the dangerous, ill informed interference that is this country’s alternative prime minister is indulging in,

  15. zut alors

    I’m perplexed. Are we discussing the same Tony Abbott here? Is it the same Leader of the Opposition who has, of late, been obsessed with independence in everything? Independent of Treasury costings et al.

    And now he doesn’t want independence in a legal process – have I got that right?

  16. The Pav

    Spot on Zut,

    His ……? Words fail me he’s so bad. Probably the worst political leader in the western world and certainly Australia.

    Calling him Phony Tony is a compliment he’s so bad.

    He’s enough to make one wish for JWH to return

  17. rael162

    What we are witnessing here is just another salvo in a campaign being waged against our democracy by the NeoCon, news candidate- currently Abbott – hell bent upon distorting reason for the purpose of subverting the manner in which this country is run. In the absence of reason, people make voting decisions on emotional sentiments rather than factually informed reason ( those being absent from public dialogue ) which is how we succeed in become conned to support policies that are against our collective national interests.
    Thank you Angela Priestley for informing the debate factually ……… to the benefit of our ability to engage our reason in forming our views ……… and voting intentions.

  18. Broggly

    Amazing the petition was started by an ex-officer. You’d think officers would be all for punishing soldiers who “[fail] to comply with a lawful general order”, after all if soldiers don’t follow orders then you have a heavily armed mob instead of an army. For some reason he sees the 18 months spent on investigations as evidence that they clearly made a mistake, rather than showing just how seriously they took the case.

  19. j-boy57

    accountability isn”t that the prebends mantra.

  20. John Bennetts


    Thanks for your comment re PK.

  21. Tom Jones

    What is even more disturbing about this interference is that Tony Abbott appears to believe that the government should be able to direct the judicial system – just as they do in places like China. Good one Tone. Undermining the basic tenets of democracy again.

  22. zut alors

    Tom Jones,

    Jeepers, now you’ve really put the cat amongst the pigeons – is Tony Abbott now espousing Communist practices? Hold the front page…!

    The Leader of the Opposition is a man of many dimensions, none of them attractive.

  23. The Pav


    You may be on to something there.

    Tony Abbott says he will do & say anything to get into govt. Confess that he is a windvane & cracks under pressure.

    He then acts exactly as he says he will and we’re all surprised.

    Mein Kampf. Hitler announces he intent to conquor the world. Sets out to do it and everybody acts surprised.

    George Bush Junior gets confused about the principal of the separation of powers.

    Tony Abbott clearly doesn’t understand it.

    Uncle Joe Stalin uses the state to crush political enemies

    Tony Abbott…………? ( News group perhaps?)

    Note I didn’t even mention the Inquistion

  24. SBH

    Hitler also talk about the army being stabbed in the back etc etc. But this sotr of use of the army goes back a long way.

    Picture Abbot in the smugglers emerging from the city side of the Rubicon

  25. fitter

    Australia clearly dodged a bullet (excuse the pun) with the recent election.
    Its just another example of Big Tony loudly and ignorantly commenting on a subject he has no understanding of. So the government is meant to direct judicial process now?
    I’m not suprised he was on the Alan Jones program when he said it, any other journo may have had the integrity to question him, but not the parrott.
    Now that the election is over, how does this buffoon keep getting so much air time? Isn’t there a boat somewhere he needs to stop?

  26. Elan

    Excellent article. And a necessary one.

    I’m fully aware of the ‘war is hell’ rationale, it has the potential to cloud the waters of appropriate combat conduct-or otherwise, and it is certainly happening in this matter.

    The issue however is NOT clouded. Given ALL the evidence, and consideration of same, it has been established that there is a case to hear.

    And one other thing: ALL combat personnel know damn well when they have crossed the line. They know. They are trained to know;-or they should have been trained to know.

    Frankly, it comes down to whether ‘inappropriate’ combat behaviour comes to light.

  27. GJB42

    Front line soldiers in Afghanistan did not personally choose to be there . They made a decision to join the military and place themselves under orders.
    Those who ordered them into harm’s way also bear huge responsibility – check the post WW2 Nuremburg precedents.
    So in any court martial it is vital to gather all those whose decisions and commands led to the incident – like Prime ministers and supportive loyal members of the opposition to say nothing of presidents.
    Horrific incidents happen in modern wars and wars do horrific things to participants
    It would be good if we made it a prior condition for prime ministers that before taking office he or she should have to spent six months either at the front line with troops or in conversation listening to veterans from Viet Nam, Iraq or Afghanistan (or better still the people of countries we invaded) share their experiences and what war has done to them.

  28. Tom McLoughlin

    I have mixed feelings about all this.

    1. Several children were killed. If that’s no cause for legal investigation then nothing is. Accident or sinister.

    2. Abbott will do what ever a desperado politician will do – granted.

    3. My hearing of the Alan Jones rant was the pre hearing reps on charges stage. Now I actually know something about this in the civil context. Really. If strong reps were indeed made on the legal criteria, and agreed facts, to drop or reduce charges, then Jones and Abbott are naked. If no LEGAL reps or week legal reps were made re specific charges then Abbott and the defendants may (only may) have substance to their complaints.

    4. Worse case scenario from point 3, it would not be the prosecutor’s fault to proceed with charges, for weak reps made. It would be the ‘fault’ of legal defence and/or resourcing for the military defence.

    5. It may be relevant some quotes on AM show last week I vaguely heard (Peter Cave actually read out mid story?), quoting defence official presser that the content of reps re final charges were not particularly focused on the legals and facts of the case but more the appropriate military legal process.

    6. If point 5 is true. Then defence counsel have EITHER (a) failed in strong reps to avoid domestic charges or (b) deliberately avoided strong reps as to final charges (eg being dropped) because as the main crikey article says, the freight train behind internationally is that a bigger and badder freight train will replace the domestic trial, so better to bring on the strong defence arguments post charges in a domestic legal process where a best defence will run it’s course.

    7. In other words Abbott may be again effectively arguing like with refugees that Australia should abrogate it’s participation in the UN and International Criminal Court. And look where that Aussie unilateralism got us in the Iraq War, and on climate change. Poor judgment plain and simple. Perhaps there are three main conclusions – war is hell for the innocent, Abbott is a determined isolationist who doesn’t give a fig for a vigorous international criminal legal system, the solidier’s legal team are actively exercising their tactical judgment as they must.


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