Military prosecutions: Parliament must act now

Military justice ...

Military justice must necessarily differ from civilian process. For most of the life of our armed forces, prosecutions were conducted before courts martial.

But after a Senate Report which was highly critical of the process, an Australian Military Court was created in 2007. This was found to be unconstitutional in 2009, so courts martial were reinstated temporarily until a constitutionally valid military court under the Federal Court could be established.

But what remained of the 2007 bundle of changes was a separate and independent Director of Military Prosecutions (DMP), one so designed that it is more powerful than the high command. It is being said that the reason for the prosecutions has been to pre-empt a threat a prosecution before an international tribunal, the International Criminal Court (ICC).

If this is so, there would be a good argument to withdraw from the Rome Convention which established the ICC. Indeed many people were strongly opposed to subscribing to the Convention as it was designed for fear that political prosecutions would be launched against Western soldiers and also leaders. The US refuses to join. It is unlikely to do so.

The problem ...

The sense of outrage about this case demonstrates that, in the ultimate analysis, no prosecution should be launched unless this course is approved by the soldiers’ peers -those who have combat experience.

It is completely unacceptable that the DMP should have the sole discretion to launch a prosecution.

Just imagine if such a position had existed in World War II. Had prosecutions been launched whenever civilians were inadvertently killed, the AIF, the RAN and the RAAF would have been rendered impotent.

The Menzies and Curtin governments would never have proposed such a position over the armed forces as the DMP. United in their allegiance to King and Country, acknowledging the terrible sacrifices that the soldiers, sailors, airmen and nurses were making, they also had more common sense.

If there is to be a central Office of Military Prosecutions, and not a personal supremo, any proposed prosecution should have the support of the relevant commanding officer. This could be reviewable at the next level and/or by a committee of serving officers.

It is equally important that the question of guilt should also only be determined by the soldiers’ peers - those who have served or are serving in fighting units.

The soldiers charged are at least fortunate that their cases will be heard before courts martial.

In the meantime the Parliament should immediately reform or abolish the office of the DMP before more damage is done. A petition concerning the prosecutions can be signed here.

This time they must exercise extreme caution in creating a replacement to courts martial. They made a mess of it on the last occasion. Indeed with some changes, why not let the courts martial continue?

But if there must be a replacement court, it should not in any way reduce the obvious requirement that service personnel must be judged by their peers.

For the sake of the morale ability of the armed forces, Parliament must immediately correct its error in ceding absolute power to its creation, the Director of Military Prosecutions.