Military Justice

28 Sep

Over the past day, debate has erupted concerning the prosecution of three soldiers for various crimes, including manslaughter, dangerous conduct, failing to comply with a lawful general order and prejudicial conduct. The charges relate to an incident in which six civilians died in an operation conducted by the Australian Defence Force in Orūzgān province in January 2009. Two of the soldiers have announced that they will contest the allegations when they go to trial next year:

“We will strenuously defend the charges and we look forward to the opportunity of publicly clearing our reputations, as well as the reputation of the ADF.”

Some participants, in particular those affiliated with the military, claim that the charges are inimical to the morale and utility of the troops in Afghanistan. It is disturbing to read reports of commentators who believe that soldiers should be above the rule of law or – in the case of Felix Sher, a father of a deceased soldier – that we should abandon the Geneva Convention:

“It makes life difficult [for Australian soldiers]. It’s all very well going by the Geneva Convention, but these insurgents don’t operate under the Geneva Convention.”

Apart from the issue of morale, others have claimed that the charges would endanger the lives of Australian soldiers. The alternative to instituting appropriate legal action in response to such incidents is turning a blind eye to soldiers committing acts akin to those of this US Corporal, who shot Afghani civilians as a sport, mutilated their corpses, posed for photos with them, then did the best he could to make the incident look like a sad necessity. In any case, not charging the soldiers could allow for proceedings to be commenced in the International Criminal Court, which could only be worse for Australia and the ADF than using the soldier-friendly domestic system.

Another interesting aspect of the announcement is that the charges would be heard by a court martial. It is the first time Australian soldiers have been subject to a court martial in connection with civilian deaths during combat operations. The Australian Military Court was declared unconstitutional last year after a strange tea bagging incident on the part of one soldier who decided to challenge the Court’s jurisdiction, and so courts martial have replaced said Court until the similarly named Military Court of Australia is established in 2011. The High Court’s judgment was fascinating, albeit inconvenient for the government, and one can only hope that Parliament establishes a court without the legal faults of the short-lived AMC.

The reporting of this issue has been substandard at best. Nine and The Courier Mail have reported that five children were killed in the incident, while the ABC claims it was four. Some sources quote the Director of Military Prosecutions in her assertion that the accused are “former soldiers”, while The Australian claims that they are still soldiers. Astonishingly, another story filed by The Australian on the same day by a different journalist contradicts the aforementioned report from the same newspaper in regards to whether the soldiers have left the ADF or not. ABC News 24 aired a comment by Neil James of independent think-tank the Australian Defence Association claiming that no Australian soldier had ever been charged with manslaughter, a claim that stands in direct contrast to an Adelaide Now (i.e. The Adelaide Advertiser) report that read:

“Military experts said the last time manslaughter charges were laid against Australian Diggers was in the Vietnam War – involving a soldier and an officer.”

The faults didn’t stop there. Some sources claimed that the incident was at Tarin Kowt, other said that it was 12 kilometres away. Some claimed the incident had not been predicted, but the Sydney Morning Herald predicted it three months ago. Much of this is just poor journalism, but it’s also possible that it’s at least partly due to the ADF’s irrational aversion to journalists that they don’t control and its dangerous habit of keeping information from the public. But that’s for Media Watch to decide.


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