Commando charges expose complexity of war

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.