INTERNATIONAL obligations may be compelling the prosecution of Aussie troops.
ON February 12 last year, three of the best-trained soldiers in the Australian Defence Force embarked on a mission in Afghanistan that would be familiar to veterans of all wars.
Their goal was to kill their enemy. These commandos had been chosen to launch a night attack aimed at eliminating an insurgent who was considered to be a prime target.
When the Australians came under fire from this man, they killed him. They threw a grenade into a building, silencing an opponent who was trying to kill them. For a brief moment, it looked like another small victory in the war that the Australian government had ordered these soldiers to undertake.
But the taste of
success quickly soured when they realised their grenade had accidentally killed or injured non-combatants, including women and children, who were in the same room as their attacker. Twenty months later, more doubts are emerging. Their target was an insurgent,
but was the dead man their target?
There has even been talk that the Australians
might have gone to the wrong house and the dead man could have opened fire in the belief he was fending off intruders.
Despite the passage of time and the difficulty of assembling sufficient admissible evidence, the military justice system has decided to investigate what took place that night.
A military prosecutor will try to piece together what happened almost two years ago during a battle in Central Asia in which the prime witness is dead.
Independent Director of Military Prosecutions Lyn McDade has triggered a ferocious debate by deciding to prosecute the three soldiers on charges including manslaughter and dangerous and prejudicial conduct.
McDade is a senior army legal officer who is not part of the normal chain of command. The position of the DMP has been described as being the Australian equivalent of the judge advocate general in the US military.
Even if the three soldiers are exonerated, concerns have begun to emerge about the effect the proceedings will have on the way Australian troops respond to future attacks by insurgents.
The question now is:
why did McDade decide to haul these soldiers before a tribunal over an incident that, on their version of what happened, amounts to a tragic battlefield accident?
There has been no suggestion that this incident has anything in common with prosecutions by the US military involving allegations that some US soldiers intentionally killed Afghan civilians.
A statement issued by law firm Kennedy's on behalf of two of the Australians - known as Soldier A and Soldier B - drives home
their view that this incident is best characterised as an accident.
"Words will never express our regret that women and children were killed and injured during the incident," the soldiers have said in a statement.
"These were people we were risking our lives to protect.
"However,
it should not be forgotten that the casualties were ultimately caused by the callous and reckless act of an insurgent who chose to repeatedly fire upon us at extreme close range from within a room he knew contained women and children.
"This forced us to make split-second decisions, under fire, which almost certainly saved the lives of our fellow Australian and Afghan soldiers.
"We believe that when all the facts of this incident are made known to the public, it will be clear to everyone that we made the correct decision under truly awful circumstances."
When confronted with such a statement, it should come as no surprise that there has been a strong community reaction over the decision to prosecute the soldiers. But there could be an explanation - one that raises questions about whether this prosecution was launched under duress.
Opposition defence spokesman David Johnston is among those who have expressed disappointment that the soldiers have been charged.
Johnston's spokesman says that the opposition has been told by a well-placed source that the
real reason the prosecution was launched was to prevent an even worse outcome: having Australian troops prosecuted before the International Criminal Court.
"We've been told that the ICC got in touch and said, 'Unless you charge them, we will'," says the spokesman.
Defence Minister Stephen Smith, through his spokeswoman, declines to say whether the federal government has received any approach from the ICC about the three soldiers.
But Smith makes it clear that he intends being very careful about what he says about this affair, because it is now primarily, if not exclusively, a legal matter.
"The three concerned will now be the subject of a judicial process and I don't want to say anything which reflects either on the incident or on the forthcoming legal processes," Smith told Sky News yesterday.
"But in general terms, Australian forces have always been subject to very high standards so far as rules of engagement and conduct [are] concerned.
"They have a very well-earned reputation, both in terms of domestic reputation and international reputation, of having very high standards when it comes to these matters."
But while the government will not say whether it has been approached by the ICC, there seems little doubt that in theory Australian soldiers could be charged and prosecuted before that international tribunal.
Someone who is familiar with the ICC's procedures says a domestic prosecution would exclude the ICC from further involvement because of its rule against double jeopardy.
Legal academic Anthony Casimatis, of the University of Queensland, says the ICC works on the principle of complementarity, under which those countries that have acceded to the court's jurisdiction - which excludes the US - are given the first chance to run prosecutions.
If a domestic jurisdiction fails to act or is incapable of running a prosecution, the ICC will then launch proceedings of its own, says Casimatis, who is executive director of the university's Centre for Public International and Comparative Law.
"But the bottom line is that it is the ICC that decides if a signatory is unable or unwilling to prosecute," he says.
Casimatis says the ICC has also been known to issue warnings.
He gives the example of an incident in which a prosecutor from the ICC made statements about mining companies in African war zones that were interpreted as a warning that mining executives could be prosecuted by the court.
Neil James, the executive director of the Australia Defence Association, has no doubt that the decision to accede to the jurisdiction of the ICC has made it possible for Australian soldiers to be prosecuted at the court's headquarters in The Hague.
"The bottom line is yes, that could occur," James says.
"Under the Rome statute if you don't prosecute, then the ICC can, and we're a signatory to the Rome statute.
"The chances of it occurring are minimal, but they are not so minimal that they can be excluded from consideration."
If it came to a choice, he would prefer to see the three soldiers prosecuted in Australia rather than forced to face an international tribunal.
"They'll get a far fairer trial in an Australian court martial where their guilt or innocence will be judged by professional peers who understand the situation in Afghanistan, rather than by the ICC, where it's trial by judge alone, with no combat experience."
While the soldiers may not be aware of it, James believes they are actually better off being allowed to clear their names in Australia.
But how real is the prospect of a prosecution by the ICC?
Last year's incident does seem out of step with the type of matters that have made up the ICC's caseload.
But the mere fact that Australia has acceded to the court's jurisdiction could be acting as an incentive to prosecute the three soldiers. And this incentive could be operating without the necessity of a phone call from The Hague.
"The criminal court has jurisdiction to deal with grave breaches of the Geneva Conventions and additional protocols," says Don Rothwell of the Australian National University.
The term "grave breaches" has been interpreted as the most serious of breaches, which would extend to widespread atrocities and mass civilian deaths.
"Clearly, this incident as reported wouldn't meet that threshold," he says.
Nevertheless, Australia does have obligations under the Geneva Conventions to prosecute Australians who are members of the defence forces who may have committed war crimes during an armed conflict.
Rothwell says those obligations are reinforced by Australian participation in the Rome statute provisions and have been reinforced in Australian law.
"While it's most unlikely on the basis of the facts as they've been reported that this is a matter that would go before the ICC, it nevertheless creates an additional incentive for Australia to ensure that it is complying with its international obligations to ensure that these incidents are fully investigated and, where appropriate, prosecutions are launched," Rothwell says.
Even if there were no phone call from the ICC,
the need to close off the possibility of Australian soldiers being prosecuted in The Hague could have been a factor in the decision-making process.
This forms a sharp contrast with the different ground rules in the US, which does not accept the jurisdiction of the ICC.
In America, that country's decisions are final.
There is one other factor that could tilt the balance against the possibility of direct intervention by the ICC.
Rothwell points out that the DMP - the officeholder who decided that the three soldiers should face a court martial -
is independent and beyond political control.
The charges have been brought against the three soldiers at a time when the military justice system is in a state of flux.
In May last year, the High Court declared that the old Australian Military Court was unconstitutional. Legislation establishing a new military court, to be administered by the Federal Court, is expected this year but the new court will not begin hearing cases until late next year.
Until then, the court martial system will remain in place and this is likely to be the forum that will hear the case against the soldiers. And that could work to their advantage.
Rothwell is ambivalent about the relative merits of military justice compared with its civilian counterpart.
But he says one line of thought is that it is preferable to have these matters determined by the military instead of leaving them to the courts, where judges may have varying degrees of understanding about the circumstances in which soldiers are called on to operate.
http://www.theaustralian.com.au/news/fe ... 5931975906
