Commando charges expose complexity of war

Australia, not just our defence force, is at war in Afghanistan but most Australians ignore or forget this on a day-to-day basis, partly because our governments mostly do too.

When our diggers are killed, wounded or buried, there is momentary sympathy or interest but apathy soon returns. Especially as our wars are now fought by small groups of professionals (including reservists), not by larger forces including conscripts drawn from Australian society more widely.

Monday's announcement of manslaughter and lesser charges against three Afghanistan veterans has jolted many Australians out of their customary lethargy about defence and strategic issues, just as the Australia Defence Association has been warning the Minister for Defence and senior Australian Defence Force commanders since mid-2009.

We have also regularly protested that the time being taken to decide whether charges were warranted or not was increasingly unfair to the diggers concerned.

What has perhaps been underestimated is that so few Australians now have enough personal, or even family, understanding of military service or war to discuss such charges in the context of the law applying, its moral basis and the salient facts. We are all also proud of our diggers and there is a natural tendency to stick up for them, come what may.

At one extreme are those who ask how any digger can face a manslaughter charge "because such things happen in every war". At the opposite extreme are those incorrectly describing the incident as a war crime.

The truth, as ever, lies towards the middle ground, particularly in matters involving national, unit and individual accountability, in an incident involving the inherent complexity of confused, close-quarter, night-time combat among non-combatant civilians during multi-nuanced counter-insurgency warfare.

One general and two specific facts are central to objectively discussing the incident and possible charges:

• in every war every digger has had their use of lethal force constrained by international and Australian law, chiefly the Hague and Geneva conventions;
• some civilian non-combatants were killed by the ADF; and
• the killings were accidental, not deliberate.

How this battlefield accident occurred has entailed detailed operational and military police investigations, and lengthy deliberations by the Director of Military Prosecutions (a statutory office independent of defence force commanders and political interference).

Was it one of those unavoidable tragedies that occur in battle? Or did it result, to whatever degree, from actions contrary to rules of engagement, orders for opening fire or other command orders? These are, for all concerned, matters now best tested in court.

The soldiers charged are entitled to the presumption of innocence, and to all the legal and moral support they deserve as men who have been prepared to die on the nation's behalf. They must be given the opportunity to clear their names in court, rather than be scapegoated or suffer scurrilous allegations for the rest of their lives.

Fortunately their chances of a fair trial have been maximised because the High Court invalidated the previous Australian Military Court in August 2009. Traditional courts martial were reinstituted as an interim measure before the new Military Court of Australia is established.

Even more fortunately, the bill establishing the seriously flawed MCA lapsed when the election was called.

In a court martial, decisions on guilt or innocence will be taken by professional peers with an understanding of military service and the nuanced and difficult moral and operational quandaries of warfare. Any punishment awarded, similarly, will be decided or mitigated by the same professional peers, just as numerous Australian courts martial for more than a century have successfully balanced the rights of those charged with the interests of justice, and the need for discipline and accountability in the defence force of any democracy ruled by law.

Despite lip service by governments of both political persuasions about the unique nature of military service and how they “stand behind our diggers”, the proposed new MCA encapsulates the opposite of both principles.

Civilian federal court judges, sitting alone with no jury, and with no requirement for experience of military service or war beyond an undefined "knowledge of the Services", could try soldiers for serious offences committed in war zones. And for offences that would automatically require jury trials for civilian offenders here in Australia.

Finally, the big-picture truth involved is that holding the ADF accountable, individually and collectively, underlines the moral, legal and accountability differences between Australia and our enemies and between the causes for which we fight.

The Taliban and its Islamist allies reject international humanitarian law and its associated accountabilities.

They also treat our difficult adherence to such law, at increased risk to our troops, as not something to be reciprocated (as civilised peoples do and international law requires) but as somehow just a vulnerability to exploit illegally.