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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.