One of the key differences between the Australian Defence Force and the rag-bag of contractors, mercenaries and private militias that have been involved in the wars in Iraq and Afghanistan is that the ADF is a disciplined force, trained in and subject to the rule of law, including international humanitarian law and the international law of armed conflict.
The requirements of Australian military law and applicable international law are normally embodied in the rules of engagement under which our soldiers enter into military operations.
It is quite typical for our military personnel to be indemnified against local law while they are deployed into the relevant theatre of operations. This is the case with the ADF’s deployment in Afghanistan; the Status of Forces Agreement (SOFA) indemnifies our soldiers from prosecution under local law. This means that the only law to which our soldiers are subject is Australian military law. If they commit a crime against Afghan citizens those people have no expectation of justice except through the Australian military justice system.
A corollary of the ADF being a disciplined force subject to the rule of law is that when there is reason to suppose that there has been a breach of law or of discipline, that alleged breach must be investigated, and if an investigation by the competent authority finds that there is a case to answer, then that matter must be referred to the Australian Military Prosecutor for consideration as to whether charges should be laid. The Australian Military Prosecutor is an independent prosecutorial authority for the Australian Defence Force, and makes her decisions outside the chain of command in order to remove any suggestion of command influence.
The charges against three Australian soldiers to which Opposition Leader Tony Abbott has referred in recent press commentary arise from a compound clearance undertaken by the Special Operations Task Group in Oruzgan Province on 12 February 2009. The matter, which involved the deaths of six Afghan civilians, including several children, was investigated by the ADF Investigative Service, which referred the matter to the Director of Military Prosecutions for consideration of charges. The Director of Military Prosecutions decided that three ADF members were to be charged in relation to the incident, with offences including failure to comply with a lawful general order, manslaughter and dangerous conduct.
This is of course an acutely sensitive matter – the soldiers concerned were undertaking a dangerous operation on active military service. Nevertheless, the competent military authorities have found that there is a case to be answered, and there is no alternative to the matter being tested before a properly constituted military tribunal – otherwise our soldiers are in effect subject to no law when they are on military operations in Afghanistan.
What the soldiers are entitled to in these circumstances, and have been assured that they will receive, is a presumption of innocence, proper legal representation, and other forms of support. The Chief of the Defence Force, Air Chief Marshall Angus Houston, has stated, “Consistent with the presumption of innocence, these members will receive the full support of the Australian Defence Force”. This support will include, but not be limited to, medical, psychological, legal, chaplaincy and welfare support.
The Chief of Army, Lieutenant General Ken Gillespie, has stated, “I give the members facing these charges a firm, personal undertaking that I will ensure that they are thoroughly supported throughout the legal process”.
Tony Abbott must know, or ought to know, all of the above. It is therefore the height of populist irresponsibility for him to be using inflammatory language like his suggestion to talk-back radio host Alan Jones that our soldiers are being “stabbed in the back by their own government” and that the Government is failing “to provide these soldiers with the defence that they are entitled to”. Jones of course was delighted to go along with this; he was beside himself to assert that the problem was the supposedly untrammelled powers conferred on “this woman” (the DMP) by the Rudd Government, whereas it was in fact the Howard Government in 2006, but Jones is clearly not going to let the facts get in the way of a good story.
Unfortunately this is yet another episode in which Tony Abbott seems neither to know nor to care how key systems in the Australian polity work, or the legal frameworks within which they operate, and is heedless of the potential consequences of his populist comments. His approach to asylum seekers is another obvious example.
For further informed commentary on this issue see opinion piece Soldiers’ work is life or death, but they are not above the law by Gideon Boas, former senior legal officer at the International Criminal Tribunal for the former Yugoslavia in today’s edition of The Age (accessible here), and the contribution to today’s edition of Crikey by Angela Priestly, editor of Lawyers Weekly (accessible here).