Military Justice, a Contradiction in Terms?

The train wreck is not the war crimes alleged in the Brereton Report. The train wreck is the manner in which the government, and Defence in particular, is managing it.

Prior to the release of the report, there was a general, and welcome, consensus among senior politicians, particularly four former PMs, that we need to be very careful about judging the actions of soldiers in the heat of battle against standards that apply in the community in general.   However, Tony Abbott is reported as having ‘urged prosecutors to stay their hand should credible examples of war crimes be uncovered’.  If he did use those words, they were somewhat ill-judged.  He is later, in the same article, quoted as saying “Australians should be very, very slow to judge the SASR, given the work they were asked to do”. The two statements seem to be at odds.  If ‘credible examples of war crimes’ are uncovered, authorities cannot ‘stay their hand’.  They have no choice but to act.  And now that the Brereton Report has been released, regardless of the pain it has caused to serving and former members of the Defence Force and the general public whose support of the ADF is unquestionable, that is what must happen.   And it is worse than we feared.

War is a nasty business and combat soldiers are often faced with difficult choices.  Sometimes their actions might appear to some as barbaric or criminal, and to others as justified by the exigencies of battle.  A good example of this conundrum is the controversy of the ‘severed hands’ in which MP Andrew Hastie was caught up.  An SASR trooper cut the hands off a dead insurgent in Afghanistan so they could be fingerprinted back at base.  Mutilation of enemy corpses is not permitted.   However, in this case the mutilation was not done in a spirit of revenge or barbarity but to identify the insurgent by his fingerprints back at base.   It seems that, in this case, some discretion was exercised and no disciplinary action was taken against the soldier involved.  I would applaud that outcome.  I can attest that in combat operations a certain callousness very quickly develops and it would be no surprise that a young soldier, having deprived another human being of his life, would think it no big deal to also deprive him of his hands, if that act served a useful purpose — especially given the propensity of this particular enemy to indiscriminately dismember innocent men, women and children.

There are Rules of War, Australian soldiers are expected to obey them, and there are, and should be, consequences for failure to do so. The Rules of War, as codified in the Geneva Conventions, govern the way in which enemy combatants can be killed and how they must be treated if captured.

Rules of engagement set out the conditions in which action can be initiated against a potential enemy. They do not supersede the Rules of War. Rules of engagement are specifically designed for each operational situation. For example, they would be different for a peace-keeping mission than  for the deployment in Afghanistan. They are designed precisely to balance operational commitments, security of our own troops and protection of innocent civilians, as required under the Rules of War. If you like, they are a practical Rules of War manual tailored for a particular operational situation.

Without rules of engagement, soldiers would be at great risk of infringing the Rules of War. But, inevitably, there are grey areas when it comes to the decision on whether or not to engage an enemy, or potential enemy, with lethal force. Rules of engagement are not watertight.   In guerrilla war scenarios, such as in Afghanistan, the enemy will seek exploit weaknesses in our rules, not only to obtain a tactical or propaganda advantage but also to inflict damage on our combatants’ morale.  We see instances of the use of women and children being used as shields, even as cannon fodder to extract some sort of propaganda victory.  A commander can decide to ignore the rules in a particular situation that is not black and white, but he’d better be right and able to mount a credible case for his decision. That might seem like a tough call, particularly considering so-called ‘collateral damage’, the death of innocent civilians, is a common occurrence and consequence of air strikes. It causes much consternation and general outcry at the time but rarely, if ever, are the commanders who ordered and planned such strikes called to account.   It doesn’t seem fair, but there it is.  But that is not what we are facing here, as much as some would like it to be.

Clearly, the summary execution of prisoners –  which is alleged in the Brereton Report – is beyond the pale and cannot be tolerated.  That is not covered by rules of engagement but by the Rules of War and there are international consequences for breaking them.  That is why the government had to act, regardless of the reputational damage to the ADF.  In any case, that damage was already done if and when these alleged crimes were committed.  I have discussed that aspect here.

But the handling of this episode has been abysmal.  Prime Minister Morrison’s talk of ‘brutal truths’ seemed to prejudge the issue and dispense with the presumption of innocence. It will certainly be cited in any trial defence.  The only thing that mitigates that indiscretion is the fact that he has also referred to these incidents as ‘alleged’.

Generally, he and his ministers have been content to keep a relatively low profile and leave the media scrutiny up to the Chief of the Defence Force and the Chief of Army, who have shown a remarkable insensitivity to those under their command and to the Australian public in general. 

The Brereton bombshell was always going to be devastating to members of the Defence Force, so the rapid-fire  announcements of the disbandment of 2 Sqn SASR and, more particularly, the revocation of the Meritorious Unit Citation of the Special Operations Task Group, were always going to be ill-received by virtually everybody – and rightly so.   Unit citations are only a recent feature of Australian military honours.  The Meritorious Unit Citation is awarded for ‘sustained outstanding service in warlike operations’.  It is not an individual award but those who served with the unit at the time it was earned are entitled to wear its emblem in perpetuity.  I’m not convinced of the value of a citation of this nature, one recognising sustained service.  Prior to 1991, the only unit citations awarded to Australian units were to the Third Battalion of the Royal Australian Regiment (3RAR) and D Coy, Sixth Battalion RAR,  for their actions at the Battles of Kapyong, in Korea, and Long Tan, in Vietnam. Theses were US Presidential Citations awarded for specific major actions in recognition of the gallantry of all the members of that unit, where it was felt that all members deserved individual gallantry awards but that, in practical terms, not all could be recognised in that way.  It seems to me, if we are to have unit citations, they should be awarded on this basis and then only rarely.  Nonetheless, the citation is valued by those who wear it, and the 99 per cent soldiers who served honourably are rightly aggrieved to have it taken from them.  The excuse given by the Chief of Army – that if they had known then what they know now, the award would never have been made – is both pathetic and an indictment of senior Defence command’s competence.  Why didn’t they know?  One consolation, if this revocation goes ahead, is that these veterans will still have their individual campaign medals, which are, or should be, more highly prized than the unit citation.  It’s still a slap in the face, though. General Angus Campbell is reported to have said he will also review awards made to senior officers. If that is so it should have been done in conjunction with the review of the unit citation, with the decisions announced at the same time. Given the way this matter has been handled, I doubt any soldier will place any faith that senior officers might have their honours withdrawn.

And now we hear that 13 soldiers have been given ‘show cause’ notices as to why they should not be discharged.  That is bound to cause considerable disquiet, the impression being that here is natural justice denied.  But to put this into perspective, just as any private company or even public service department can terminate employees for a variety of reasons, so can the Army.  It’s called an administrative discharge and it is bound by its own rules of procedural fairness.  For example, a soldier who is a repeat offender – drunkenness, repeated going AWOL, or even punching officers, can be administratively discharged.  I suspect some or all of these 13 are witnesses who gave evidence in return for the promise of immunity and an understanding that they would be discharged.  Defence is almost certainly on solid legal ground here.  If my surmise is correct, then the soldiers concerned, on their own admission, have been involved in illegal activity.  If so, they cannot escape scot-free, but the timing is absolutely terrible.  For one thing, it could be seen to prejudice the fair trials of those accused.  General Campbell has flatly rejected any suggestion of reversing his decision on the unit citation. This latest strikes me as an ‘up yours’. 

And if that were not enough, it seems the newly installed Director of the Australian War Memorial has suggested we need to put the Brereton Report on display at the AWM in the spirit of ‘truth telling’.  Is he serious?   The Memorial was established to honour the sacrifice and bravery of those who have defended Australia, not to impose pettifogging qualifications on that proud history. This is not a country whose history requires that it abase itself in this manner.  We are not Germany.  Here, serious as it is, we are talking about an aberration, not the norm. If this display goes ahead I will be boycotting the AWM and urging all others to do the same.

Ironically, perhaps the most insightful inputs into this debate have come from Dr Brendan Nelson, former director of the Australian War Memorial.  I have watched him on TV, heard him speak in person and observed his interactions with veterans and their families, and I have to say, in this role, he might have achieved his destiny.  In my opinion, as far as military ethos and tradition are concerned, he ‘gets it’ as no civilian who has never served in uniform has. According to The Australian:

[Nelson] said that over the past 20 years Defence planners had shown an increasing tendency to present the government of the day with war-fighting options that offered the greatest impact with the least risk. That has fallen largely to the SAS and the Commandos and the supportive elements of the special operations command.’’ 

“If the government of the day had a reasonable thought this would be a decade-long commitment I suspect there would have been scenarios other than the repeated use of the [Special Operations Task Group].”

Bravo, Dr Nelson.

29 thoughts on “Military Justice, a Contradiction in Terms?

  • PT says:

    Well there are plenty of “nationalists” ready to back “Breaker” Morant and his co-defendants who went around killing prisoners – including Jack Thompson (who seems to think that his movie was some eye witness account) and numerous ABC documentaries who smugly give their support to whomever added Hancock’s name to the War memorial and later added “murdered by Kitchener” to the plaque (presumably people also basing their “history” on a 1981 film).

    For some, it seems their “horror” of such things only depends upon whether it fits their political agenda. Why aren’t the commanders (indeed the Ministers of Defence concerned) reviled by these people who so readily attack Kitchener if this was not so? And Morant and co most certainly did kill prisoners in cold blood.

  • Doubting Thomas says:

    Just a couple of quibbles, Peter. Two other Presidential Unit Citations have been awarded to RAAF units.
    See here from Wikipedia:
    “No. 13 Squadron was later awarded the United States Presidential Unit Citation for its operations over Timor during August and September 1942; it is one of only two RAAF squadrons to have received this honour, the other unit being No. 2 Squadron for its performance in the Vietnam War.”
    While I have some reservations about the American system, and believe that we may be tending too far in that direction, the two types of their awards that I support absolutely are the Unit citations that reward the entire unit for their successful operations, not just individuals. These are particularly relevant to Air Force and Naval combat units where the sharp end depends very heavily on the people maintaining and supporting the planes and ships. I also believe that an equivalent to their Purple Heart should be available for the ADF and, properly managed, is the least that should be awarded to combat casualties.

    You are quite correct in that administrative discharges have always been available for the Services. However, in the RAAF at least, the procedural fairness required was quite rigorous. No such action was likely to be approved unless the recalcitrant individuals had been tried and convicted of serious offences, by civil or military tribunals or, in the case of the serious underperformers, unless the individuals had been “formally warned” and given an opportunity to improve. Even then, the procedures are governed by administrative law and the rules of natural justice.

    It is in this latter respect that I believe that the Government’s and the ADF’s reaction to the Brereton Report has been grossly incompetent.

    I hope that the contumely being heaped on the heads of the PM, CDF and CA by the media continues unabated until all three resign in disgrace. Faint hope, unfortunately.

  • Peter OBrien says:

    Doubting Thomas, my sincere apologies for my Army centric mistake. And I certainly see your point regarding RAAF units.
    Administrative discharges in the Army also require a process of warning.

  • Peter Smith says:

    Largely agree with this Peter. But just a few points. Morrison might have now mentioned the word ‘alleged’ but I didn’t pick it up when he was pronouncing on ‘brutal truths’. Too little, too late. I will never again vote for a party he leads. Second, I think we have to be careful when saying something “is worse than we feared.” What is worse than we feared? Maybe, in this case, it should be made clear that the allegations in the Brereton report are worse than we feared. Third, I am sick of this word ‘credible’. It’s thrown around like confetti. Apparently, Christine Blasey Ford was credible. Credible doesn’t mean diddly-squat. The question is always: is it true. The truth is often hard to find. But the process we use is the best available which is to test alleged truths in courts. Before then, the safe thing to do is to avoid giving the impression of jumping to conclusions and thus prejudicing outcomes. Fourth on rules of engagement. Peter you seem to think us civvies know not what they are. Yes, I do. But I looked up the Sanremo handbook on rules of engagement; and in particular Annex A, Appendix 4 dealing with the right to use force to respond to hostile intent. While listing some indicators which may indicate hostile intent, the Appendix says, “There is no check list of indicators that will conclusively determine hostile intent.” Yes, indeed. Is the bloke in the long grass “passing targeting information?” Just how much validation do the troops have to have before shooting him?

  • lbloveday says:

    “They have no choice but to act. ”
    Ok PO’B and I’m in agreement with your thrust, but “to act”covers an enormous range of possibilities and can even, in my opinion, choosing to “hide one’s head in the sand”.

  • lbloveday says:

    ..include choosing..

  • DG says:

    Perhaps with the lack of distinction between combatants and their back line troops and intelligence sources, any apparently non-combatant caught in a guerilla war should be a POW until proved otherwise. Means a big train of prisoners, but that appears to be the game.

  • DG says:

    And ad hoc knee-jerk removal of unit citations is a disgusting show of virtue signalling by the Army. All those who conducted themselves meritoriously are now tarred with the same brush as a handful of others. More cowering PC from the Army. The top brass keep giving reasons not to join.

  • Peter OBrien says:

    Peter Smith, can we agree that I accept that these are allegations as I have been at pains to emphasize. I’m not sure the point you are making re rules of engagement.

  • Peter OBrien says:

    Peter Smith, re credibility. Are you alleging that the Left has captured the word ‘credible’, in the same way they have others such as ‘racist’, ‘sexist’ , to render it meaningless? I suspect that in the context of military law the words ‘unsubstantiated’ and ‘credible’ would have precise definitions but I don’t have the time nor inclination to pursue this. In place of ‘credible’ what term would you have Brereton use. Prima facie?
    The video at the top of this post looks credible to me. A soldier allegedly shoots an allegedly unarmed man, allegedly cowering on the ground. He didn’t do it because he feared this man. He allegedly did it because he allegedly asked his patrol commander ‘Do you want me to drop this c..t?

  • Peter Smith says:

    At the start of his report, Brereton put the term “credible information” inside inverted commas. So maybe he worked with a definition more precise than can be found in the dictionary. I don’t know. But my concern is less with him using the term – though it would help if he defined what he meant by it, if it is more precise than its common or garden meaning – as it is with the way observers use and interpret it; as though it is conclusive. Peter, you recall that the choirboy in the Pell case was repeatedly described as credible. And, of course, he was so credible that two learned judges on the Victorian appeal court believed him. Lies can be credible. Distortions can be credible. Deceit can be credible. Half-truths can be credible. Swindlers are by definition credible. Quite simply, it’s a dangerous word to bandy about. It’s fuel for lynch mobs
    On the video, the evidence is not all in. And you give the impression by using the word “credible” and by making a play of “alledgedly” that the alleged unlawful act is cut and dry. I reject that. Do you know that the man shot was not spotting for the enemy? It looks bad. Yes, it does, on the surface, but not nearly enough is known about the circumstances. The soldiers concerned – who we put in harms way and therefore deserve our utmost consideration – are entitled to due process and their day in court. For our part, we should resist drawing conclusions based on incomplete evidence. As should the pathetic top brass. Let’s hope if we ever get into another existential war that the petticoat brigade are replaced by warriors.

  • Alistair says:

    It troubles me that in some wars one side can be unconstrained by any requirement to operate inside the Geneva Convention while the other side is. That situation is just not going to work. Perhaps Im thinking of aspects of the Kokoda Trail fighting where the Geneva Convention was put to one side.by the troops on the ground in response to atrocities witnessed. Are these really War Crimes when it is the troops (of both sides) themselves that determine the rules of engagement, rather than some diplomat in a cosy conference centre in Geneva? It concerns me that a Nation faced with an insurgency against a group who are not bound by the Geneva Convention might decide that it is better to outsource the fighting to unaccountable mercenaries or another group who is similarly unconstrained. Maybe Syria is an example? Is that really where we are heading?

  • Wayne says:

    Peter O’Brien

    “Do you want me to drop this c..t?”

    Why was he a c…t? Was he a goat herder, a farmhand, someone simply in the wrong place? Seems unlikely.

    I would like to know the circumstances of this man being targeted before making a final judgement.

  • Peter OBrien says:

    Peter Smith, your quibbles about the meaning of words are just semantics. And your comment proves that not only do you not understand rules of engagement, but you don’t even understand the rules of war. In fact I’m staggered you made it. It would not matter if the man shot was a spotter or even an armed insurgent, he appears to have been captured. And unless he subsequently poses a threat to the soldier covering him, he is a prisoner and cannot be killed. I accept that this must go before a court but you can bet that video will form a major part of the prosecution case. The defendant may have a perfectly valid reason for doing what he did but as even you say, it looks bad. Again you are clutching at straws but I will say that if I ever find myself in the trenches, I hope I find you next to me.

  • Peter OBrien says:

    And I should add that, if the man shot was a spotter, then the squad blew any chance they might have got some useful information from him through interrogation.

  • Peter Smith says:

    Peter, I will remain civil despite your tedious and repeated insistence that I don’t understand the rules of war or engagement, and now you adding that I am engaging in semantics, when you yourself queried whether Brereton might be using a particular/ precise definition of “credible”.
    Do you think you are alone in understanding the Geneva Convention or rules of engagement? I, we, all of us who haven’t been reclusive for the days of our lives understand that there are rules of war. In particular you don’t kill or harm non-combatants (if you can help it) or captured (helpless) combatants. That does not mean that circumstances don’t count and have to be fully taken into account. And you have to do more than look at indistinct amateur video footage. You don’t mutilate dead combatants but suppose you desperately need finger prints as a way of saving lives? Suppose you are in position where you can’t take a prisoner with you or pass him on, and have no way of keeping him from revealing you position or trying to kill you if you let him go. Yes, the rules forbid killing him. I know that! But circumstances matter. That’s why killing is sometimes murder first or second degree, or sometimes manslaughter or, lesser still, negligent homicide or justifiable homicide. Need to get all of the facts – so far as we are able – before passing judgement. And I will say no more. I need to write my own stuff.

  • Peter OBrien says:

    There is one mitigating circumstance that I can think of and that is that the man shot had a concealed IED and was just about to blow himself and the SAS trooper away. But if that were the case why ask the patrol commander if he wanted the man killed?

  • Doubting Thomas says:

    This just in via Facebook. The good old ABC doing it’s best to stir up trouble.


  • Peter OBrien says:

    Peter Smith, so in other words we are no longer talking about guilt or innocence but degree of guilt. I have no problem with that.

  • Peter OBrien says:

    But that is not to say I am pre-judging guilt – that’s for a court to decide.

  • Lewis P Buckingham says:

    Watching this all develop has been a slow motion train wreck.
    First there were the allegations, subject to defamation.
    Then articles discussing allegations.
    Then the report with its alleged meticulous analysis.
    Then the prime ministerial statement agonising to watch, clearly a man in great shame and conflict.
    Then the usual, ‘If you have a problem with this we’re here to help’ and a phone number.
    The last time this approach was tried in the Wood Royal Commission, into police corruption in NSW, as people were called to appear, they simply suicided.
    Since the mental health state of Afghanistan War veterans is said to be parlous, best have this series of cases in camera with hot and cold running support.
    The Commonwealth is funding a buddy system for the mentally ill. More than phone numbers, these unit members need that now, so they may be preserved from such a mental health outcome.
    The commonwealth must fund the best defense, no more Pell type show trials, as evidenced in the Victorian Justice System.
    Otherwise those on the frontline will be picked off, just like in a war zone, but by friendly fire.
    This trial will be feted as about the Defense Force itself.
    No doubt the ABC is preparing a suitable book launch.
    Except in this case, those they describe, may not be prepared to ‘turn the other cheek’.

  • Doubting Thomas says:

    I agree that the Commonwealth should fund the defence of anyone charged. Unfortunately, however, our bureaucrats being what they are, they will seek to limit any such expenditure, so the choice of counsel available will be restricted to the cheapest rather than the best. Serving members being charged before courts martial, if any, will probably be limited to reservist.

  • Occidental says:

    Like all contentious matters these events have thrown up for me a number of points of interest. The most obvious is the widespread insouciance to the accusations of blooding, and this worldly “well its war” attitude. It shows what being brought up on a diet of movies and the internet can do. I am hopeful that most people don’t lose sight of where the bar is for killing in civilian life.
    Another interesting thing is this “those we send in harms way to keep us safe”. Really?I don’t care what your argument, you can not send soldiers to fight in other countries for the purpose of defence. Perhaps for paying the price for protection, but hardly for keeping us safe. They might also be defending others you believe should be defended, ie a neutral Belgium, or maybe the Hazari of Afghanistan, but I don’t rely on the armed forces (or the police or any other arm of government for that matter) to keep me safe. Lets be honest extra territorial use of armed forces is an extension of foreign policy, and in peace time ie when not under territorial threat, if anything their use probably endangers us to some extent.
    Another interesting aspect is this reliance on a court verdict to establish the truth. I mean I welcome this new found respect for our justice system, particularly in this country, as the average Australian has never realised just how good our system generally was. But even at its best it was a long way from perfect and is less so every day, so don’t put too much store in it, as you will find it has feet of clay.

  • Peter OBrien says:

    Occidental, ‘The most obvious is the widespread insouciance to the accusations of blooding, and this worldly “well its war” attitude.’
    You have nailed it – that, in essence, was the point of my first article.
    Thank you

  • Peter Smith says:

    Sorry, couldn’t help but add another comment. “I don’t care what your argument, you can not send soldiers to fight in other countries for the purpose of defence.” Heard of WWII Occidental?

  • Occidental says:

    Peter Smith@
    I have heard of that one, but what is your point?
    The only overseas deployment, ie outside our territory (New Guinea was our territory) during that conflict that could possibly be described as an act of defense would be the deployment elements of the 8th Division to Malaya. That deployment was made at the request of the Great Britain, and the fact that it was complied with shows how little fear Australia had for self defence. It was not until the fall of Singapore that the penny dropped that Australia itself could be threatened, and the rest as they say is history.

  • Doubting Thomas says:

    Peter, it’s amazing how often I come across people prepared to argue that same line. We should never have become involved in World War I, II, Korea, Vietnam, or any other foreign squabble, none of which, they argue, ever posed any threat to Australia. The concept of forward defence, mutual treaty obligations, and other aspects of self-interest never trouble them. Some are completely unaware that Germany’s extensive territorial domain in the South-west Pacific into the 1940s even existed.
    We can certainly debate the relevance to our national interests of any particular deployment, but Occidental’s general idea that commitment of troops to fight in other countries is never an essential aspect of our defence is very naive.

  • Occidental says:

    Doubting Thomas

    The deployment of force away from one’s own territory has been a regular aspect of warfare since atleast the Old Kingdom of ancient Egypt. It has a long history. Perhaps the best examples in ancient times of deployments for the purpose of defence can be found in the Peloponnesian war, (Scippios foray into North Africa was more punitive then defensive). The problem is and remains that for purposes of military as opposed to political strategy, the benefits of deployments of force away from ones territory rarely provides the dividends advertised. You are obviously a student of warfare and therefore there seems little benefit in pointing out the many expeditionary failures during times of war. Obviously the states which engage in the practice most often tend to be as the Romans would describe them the “insulani”, and then, the Imperial states and their clients. My view is that one of the great shibboleths of our time is the forward defence strategy, and its hand maiden in crime “keeping open the sea lanes”. I am not as uncomfortable with a “forward political” strategy, but I would prefer that political leaders be honest about the real purpose of deployments and their benefits. I am happy for you to point out either from Australias record or those of any other nation in recent times where deployments of force far from ones territory for the “purpose of defence” has yielded a strategic (militarily) benefit worth the cost. This is far from an arid intellectual exercise as many young Australians have died in some of these foreign forago’s

  • Doubting Thomas says:

    Occidental, forgive my idiotic brain fart about the duration of the German territorial holdings in SW Pacific. Their defeat in World War I ended that.
    However, in my opinion, the outcome of previous foreign interventions has little relevance in the question of whether we should intervene in future. It obviously does have considerable bearing on when, where, and how we should intervene. The “if” is a matter of whether our national interests are seen to be sufficiently compelling. That will always be a political decision. Our problem has always been that our Governments have never been willing, again for inevitable political reasons, to maintain a level of military preparedness commensurate with foreseeable needs. So, when they feel compelled to intervene, it is with “penny packet” forces aimed at meeting political objectives but with only limited capacity to meet what are likely to be some other nations’ military objectives.
    So, essentially the problem is not so much that we intervene, but how we intervene. And that’s the lesson that the Afghanistan intervention should have driven home to the dullest Australian political and military brains.

Leave a Reply