QED

The One Word We’re Not Hearing: ‘Alleged’

To put it mildly, “alleged” is an all-important word and concept in Australian jurisprudence, as is its companion phrase, “the presumption of innocence.” Together they safeguard our very freedom. When those alleged to have committed a crime are presumed guilty, when complainants become victims, and when the atmosphere is poisoned against those accused by the high and mighty, then justice is put in jeopardy and no one is safe from lynch mobs.

I don’t know what happened in Afghanistan and neither does the Prime Minister. We were not there, putting our lives at risk in the most awful of circumstances. We need to reserve judgment until evidence is put before a court; the court weighs the evidence and reaches a verdict. And even then, we need to wait until avenues of appeal have been exhausted.

Alistair Pope: Yamashita’s shadow falls on the ADF brass

Surely, the experience of Cardinal Pell — persecuted by the mob, damned by the ABC, yet innocent and, thankfully, if belatedly, exonerated — taught even the most prematurely censorious a lesson. Apparently not. “Brereton report on Australian war crimes,” read the ABC  headline.

Even the more balanced leapt to conclusions.

I watched Andrew Bolt when the Brereton report first came out. It took him roughly fifteen minutes of treating the report as gospel before he uttered the word “alleged”. At least he uttered it, which is more than most I saw and read. And did I miss the prime minister injecting that caveat into his national-flagellation performances? Maybe. Let me know, if anyone spotted it.

I can do no better than to quote from paragraphs 22 and 23 of the Brereton report. I have underlined three telling passages for the edification of those rushing to judgment from their comfortable armchairs.

From paragraph 22:

Consistently with the terms of reference and legal principles which define the Inquiry’s jurisdiction, in respect of potential criminal conduct, the highest the Inquiry’s findings rise in respect of potential criminal conduct of an individual is that there is credible information that a person has committed a certain identified war crime or disciplinary offence. This is not a finding of guilt, nor a finding (to any standard) that the crime has in fact been committed. A finding that there is ‘credible information’ of a matter – for example, that a particular person has committed a particular war crime – is not a finding, on balance of probability let alone to a higher standard, that the person has committed that crime.

From paragraph 23:

A finding that there is credible information of a matter is not a finding that the matter is proved, to any particular standard. It is entirely consistent with such a finding that ultimately there may not be admissible evidence to prove the matter, beyond reasonable doubt, in a court of law.

The Inquiry is not a criminal trial. The Inquiry is not confined to evidence that would be admissible in a court of law, but can inform itself as it sees fit, and has done so, as is appropriate for an inquiry of this nature. Witnesses who have given evidence to the Inquiry under compulsion may not be willing to give it to prosecutorial authorities. Witnesses on whose evidence the Inquiry has relied have, while tested by the Inquiry, not been cross-examined by an opposing party.

For all these reasons, as is common experience with commissions of inquiry, it does not follow from a finding in this Report that there is credible information of a war crime, that there will be a prosecution, let alone a conviction.

In passing, I note that the Inquiry seemed to ignore its own expressed limitations (in paragraph 77) by concluding there had been a “disgraceful and a profound betrayal of the Australian Defence Force’s professional standards and expectations,” and by recommending a collective revocation of the Meritorious Unit Citation. Go figure, presumed innocent but guilty, I suppose.

I want to branch off a bit and go to a couple of fairly recent movies. In one, Saving Private Ryan, a small group of American soldiers operating in enemy territory capture a German soldier who had been part of a machine gun nest, which they had wiped out at the cost of one their own. They simply can’t take him with them so their choice is to kill him or let him go. Luckily for him, the captain (Tom Hanks) decides, against the wishes of most his men, to let him go. Later on, re-joined with his comrades, he kills one of the American soldiers. And the moral?

In Fury, Wardaddy (Brad Pitt) leads a tank platoon inside Germany near the end of WWII. Norman is a raw recruit unused to the idea of killing. After one deadly battle, Norman is challenged by one of his tank crew: “Why didn’t you shoot that shithead when you had the chance?”

“It happened so fast. He was just a kid,” Norman replies.

Wardaddy gestures at Lt. Parker’s burning tank. “See what a kid can do? That’s your fault. Next f*****g German with a weapon you see, rake the dogshit out of him. I don’t care if it’s a baby with a butter knife in one hand and mama’s left titty in the other. You chop him up.”

It is a bloody movie. However, a WWII veteran was reported as saying that it was “very realistic, but it can’t show the full horror of war.” And my purpose is not to pass off fiction as real life. As the veteran says, real life is far grislier than anything the screen can depict. How can the screen depict the full horror of a soldier having his legs blown off with an IED made by a “civilian.” Make-believe blood and screams don’t come close.  But maybe the screen can provide at least a sanitized insight into the moral dilemmas that war inevitably throws up. 

We, who aren’t soldiers in a theatre of war, must try to put ourselves in their place; day in and day out, facing the risk of grisly death. Australian soldiers in Afghanistan face potential enemies all around them; they might be evidently Taliban, but they might also be ostensibly comrades-in-arms, dressed as Afghan soldiers; and they might be civilians, young or old, male or female. I want their side of the story told before any rush to judgment on ‘rough men’ (warriors), who are prepared to risk their lives and kill the enemy, so that we can sleep peacefully in our beds. We owe them that.

24 comments
  • Lawrie Ayres

    Very well said. I served for 28 years and never faced an angry bullet but I will always remember the admonition on the first day of recruit course “to see without being seen, to kill without being killed”. If you have the chance watch a film called “The Lone Survivor” based on an actual event in Afghanistan. A patrol of American soldiers are sprung by a shepherd boy of 10 or 12 years old. Do they let him go or kill him? They let him go, he tells the Taliban, they eventually kill all the soldiers bar one who is the lone survivor. What should they have done? What would Brereton or Morrison have done?

  • Occidental

    Peter a few points. I agree that the word alleged should be used if for no other reason to remind people that we are subject to the rule of law, and that we should not rush to judgement (of an accused). Brereton is free to make the findings he has as a matter of belief, for as he quite plainly states he is not constrained in making findings by any evidentiary standard.
    I believe however that many people have watched the disturbing video of the Australian soldier “allegedly” executing a cowering individual, and yes what we see with our eyes even in this day and age of doctored images still tends to be powerful.
    As to your examples of the movies, and your suggestion that we should place ourselves in the soldiers position before rushing to judgement can I say this. I judge (as do you) every day. We pass judgement about the efficacy of lockdowns, the honesty of historians, the values of those we oppose. I am not judging any individual as none has been named, but if what Brereton has described is factually correct it would be impossible in our domestic law to raise a defence to the killing of an unarmed captured Taliban, as it should be. If what he says took place you and all right minded individuals should be appalled. You should not suspend your human values when looking at the deeds of soldiers, particularly those soldiers that we sent into harms way.
    To be clear there should not be varying standards as to what constitutes acceptable human conduct war or no war.

  • en passant

    Occidental,
    From the comfort of your armchair, what would you say if the ‘murdered’ Afghan was a suspected bomb-maker?
    In a remarkable piece of sang froid three CDF’s have issued a joint statement declaring their innocence!
    Admiral Barrie (a warrior who never saw combat, but who sees climate change as the most serious threat to Oz),
    Air Marshall Angus Houston (who flew his desk all the way to the top) & of course,
    Lt. General Angus Campbell (who was awarded a Distinguished Service Cross and an Infantry Combat Badge for leadership in action, but who now claims he was ‘too remote from the operations to know what was going on’)

    One tiny maggot in . In fact, in a paradoxical twist, their declaration their declaration does not matter as they accept war crimes were committed while they were in charge. This means their ‘I knew nuthink’ while I was in command’ is not a defence, but an confession of guilt. You can delegate ‘responsibility’ to your operational teams, but you cannot delegate ‘accountability’. Hence their spurious defence that collectively they were unaware of what was going on among a few hundred soldiers in the only war we had, or that Australia is a signatory to the Yamashita Standard – to which they are subject – is no defence at all.
    Let’s joyfully sacrifice one soldier from the time of each of their commands and then apply an equal sentence to each of them.
    Lest we forget the key words tat cost Yamashita his life:
    ‘The highest ranking officer is accountable for, and should be prosecuted and convicted of the crimes of every officer and soldier under his command, even if he/she is unaware of that the crime, or was aware and actually gave orders to stop it. Ignorance of the actions of his/her subordinates and failed attempts to stop them are not a defence.’
    Perhaps they will have to apply he tried a true ‘Double Standards’ Defence.

  • Bwana Neusi

    An excellent article Peter. The rules of engagement render our SAS soldier handicapped, a bit like taking a knife to a gunfight, if you will pardon the metaphor. Catch and release exactly mirrors in many ways the two examples you put forward, and whilst we hold our soldiers to the Marquis of Queensbury riles, the enemy has no such constraint. But to then in the clinical environment of a court room to virtue signal how righteous we are is sick, more so than the Minister claims.
    As for alleged – Whilst I totally agree with your point, I am heartily sick of the MSM punctuating every event with “alleged stolen car” or “alleged knife wielding” or “alleged Jihadist” who was “allegedly screaming Allahu akbar” when it is blatantly obvious what the facts are. I appreciate that there is potential to compromise legal process, but we have now reached the state where nothing is the truth unless the courts so ordain it. Though this doesn’t stop the ABC smears, like the Pell case.

  • Peter Marriott

    Good piece Peter. Suffice to say I support our military completely, particularly our SAS, fighting a fanatical, cruel, merciless adversary, who couldn’t care less about any rules of war, are armed or own arms, or supporting those who are, and not wearing a uniform or have a serial number.

  • Wayne

    The video is disturbing but doesn’t give context. Why were they chasing the man in the first place? They must have had some reason to consider him a threat.

    The actions of the government and Defence ripping off medals and offering compensation before the matters are proved is reprehensible.

  • Occidental

    EnPassant, from the comfort of my armchair I already assumed the Afghan was a bomb maker, so what? I can assure you when war is fought there are plenty of bomb makers and bomb droppers on all sides. Put another way, to accept that a captured adversary, insurgent or not, should be executed, also endorses similar treatment toward Australian servicemen and women captured by the enemy, now, and into the future. Is that what we want? Australia should not be a nation the descends to the depths of nihilistic barbarity the moment it encounters barbarity, for then what does that make us? And what if the Afghan is a harmless goat herder – what then? What many who seem to excuse these crimes by allusion to the rigours of war fail to deal with is the many fine soldiers subject to the same circumstances who refuse to descend into this type of behaviour, and who in fact are providing the evidence against the accused. Moreover it seems many believe this enquiry has its origins in investigative journalism and media reports. As is obvious from Brereton’s report the army was investigating these reports (which were emanating from soldiers themselves, and from within the SAS) as far back as 2015. Rather than defend the indefensible ie excuse this behaviour of which the inquiry found credible evidence, Australians should rejoice that our army (almost uniquely) is not sweeping these actions under the rug, but trying to clean up a cancer that has taken hold in a proud army, a justifiably proud army.

  • McRoss

    Our boys didn’t murder anyone. If the stories are true, they were defeated (morally, the biggest defeat of all). Soldiers should not be punished for getting defeated. We offer them our commiserations, thank them for their service, and retire them asap, and then hope that their replacements are better able to stand up to that kind of pressure. That’s IF the stories are true. Better still, keep out of guerrilla wars.

  • W L & K M Ranken

    Thank you. Absolutely spot on. The Army and political leaders apparent lack of willingness to defend one of our fundamental principles that we all are innocent until proven guilty might even be seen as the greater betrayal of our values? The power of the Sate when used against individuals is one of the greatest threats to our freedom.

  • Daintree

    Fine article and excellent commentary from readers. I particularly admired ‘en passant’ – what a super message! My father was a serviceman and always insisted that when a ship sinks the captain is always responsible, even if off-duty and in his bunk. He commands his officers and men. He is responsible for the assignment of all duties. But when it comes to alleged war crimes in Wester countries, it’s always the little guys, the privates and corporals, maybe even the occasional sergeant, who gets disgraced and stripped of his honours. Sometimes the platoon commanders get caught up too, but seldom the captains and rarely the colonels and generals! The primary responsibility for these alleged crimes must lie with the senior Australian field commander at the time.
    I’m also outraged by our rush to apologise to the good peace-loving people of Afghanistan. Perhaps we should. But we should also demand an apology from the President of Afghanistan for his ingratitude in accepting our assistance in his filthy war.

  • Quilter

    I note that Brereton somehow feels that collective responsibility should apply for the 99.99% of troops who are not alleged to have committed any war crimes by removal of the Meritorious Unit citation. I wonder how the families of the troops who died in Afghanistan feel about that when their kids were killed by IEDs or blue on blue attacks. And if collective responsibility should apply, then Angus Campbell needs to be moved out of that big office in Defence if he does not have the conscience to resign himself. If it is OK for him to run the Sergeant Schultz defence “I know nothing”, then surely that is also valid for all those troops who were not there when the alleged crimes occurred?

  • jvernau

    We can always rely on the ABC to pre-judge legal cases, and that Walkley Awards will follow. It now seems that the imbecility involved is contagious.

    I’ve been to Afghanistan. It was long ago but the harsh terrain and climate are unlikely to have improved. Hard conditions, tough people. In this case very tough.
    Kipling was well aware of that, in the late 19th Century:
    “When you’re wounded and left on Afghanistan’s plains,
    And the women come out to cut up what remains,
    Jest roll to your rifle and blow out your brains
    An’ go to your Gawd like a soldier.”

  • Les Kovari

    Peter, there is a huge difference between the Australian mindset and the way the Afghan brain works. We tend to be civilized, whereas the Afghans are less so. We treasure life, they are, at the least, ambivalent about killing. Has anybody ever heard of any reports of Afghans committing atrocities? What our soldiers are accused of, Afghans are probably praised for, we must rethink the logic behind our humane mindset. What I am trying to say is, if we go to war in another man’s country we fight it on his terms. If we cannot do that then we should not be there in the first place.

  • talldad

    Thank you, Peter and all commenters.

    This is some of the hardest moral thinking we have to do in the era of total war, when even apparent civilians may be the enemy.

    I wonder how much of our thinking has been influenced by films such as “Breaker Morant” and “A Few Good Men”?

  • Doubting Thomas

    Why does the Department of Defence always seem to call on Reservist lawyers to conduct “investigations” in these allegations of war crimes? A few years ago, it was a female Brigadier who ran some troops through the courts martial for returning fire from gunmen in a house which resulted in the deaths of women and children. As was almost self-evidently guaranteed by the circumstances, the troops were acquitted. Now, they’ve called on the very model of a modern major general to do much the same thing. Perhaps they hope a more senior officer will succeed where a mere Brigadier failed.
    I have absolutely no argument against alleged war crimes being investigated with the alleged perpetrators facing the full force of the law. I have absolutely no argument with the Prime Minister making it clear to the world at large that we are taking these matters seriously, and that there is no need for the International Criminal Court to intervene. I am pretty sure that this is the real reason that Morrison has been so vocal on the subject in recent days.
    However, what disgusts me is way Brereton’s report appears not only to have gone beyond merely investigating the who, what, where and how of particular alleged offences, and recommending what charges should be laid, but also into making recommendations about what action should be taken against the SAS and its alleged “warrior culture”. The first is surely within a lawyer’s competence, but even with his rank and uniform, the latter is beyond his competence, and none of his business. That the CDF seems to have concurred and gone so far as to have formally apologised to the Afghan nation shows he has no more sense of propriety than Brereton.
    Let the tumbrils roll, but make sure the chain of command is well represented among their cargo.

  • Les Kovari

    I had spent three years of my life in a communist army, I was trained to shoot, stab with a bayonet, throw hand grenades but not once was I told that I had to make a snap decision before I pull the trigger to make sure that I don’t kill an innocent civilian.

  • Max Rawnsley

    Some very insightful comments thus far. Somewhere we need to find a balance between defending our way of life and allowing others to have theirs. No one I am aware of seems to endorse war yet we seem anxious to intervene in distant affairs. This particular episode was in support of the US alliance. I do not have a dissenting view when it comes to our US alliance although there must be concern as the Biden era dawns.

    Afghanistan has long been the butt of interventionists, our men went there at our direction and more than a few seem to be now at risk for their actions. We cannot reasonably endorse gratuitous killing of either combatants or civilians. Its inconsistent with the basis of our engagement and our way of life, as has been my experience at least, let the matter take its lawful course. However we are again witnessing, as we saw with Pell, a certain footballer and numerous others the popular media reporting the matter as a public trial by media. In the instance of far too many criminal matters there is no recognition of innocence until proven otherwise in a properly convened court. The allegations are reported, anyone arrested etc is widely publicised but never a mention of the accuser.

    Somewhere is this breathless rush to blame by such reporting lies the proper freedom of the press. Not the righteous, accusatory examples we see on a near daily basis.

  • Necessityofchoice

    The Afghanistan War. 19 years and counting. Multiple rotations of personnel and their contribution? 41 killed, 261 wounded,
    The Taliban Government fell on 17 December 2001 . THE WAR WAS WON IN 3 MONTHS.
    My point ? We should have departed there and then on the understanding that should Al Qaeda or similar set up shop, we would be back.
    This whole disaster ( if the courts so find ), is down to the politicians desire to establish a representative democracy, rights for wonen,

  • Necessityofchoice

    Gays, etc. etc.
    My heart goes out to the men tasked with carrying out the pollies wish list.

  • Wyndham Dix

    We train men, and increasingly women, to kill and conquer, send them into wars, some asymmetric, others not so, then become squeamish when they do what they were trained to do.

    If on a battlefield they behave in ways that are alleged to breach the service’s code of conduct, let the facts be assembled there and then, courts-martial convened, guilt or innocence determined, and when necessary, capital punishment meted out by those paid to command and lead their troops. Pour encourager les autres.

    If there be the slightest doubt, the accused must be given the benefit of it and the matter put to rest – in the field. There can be no cause for late recriminations. I make no case for giving command of troops to weak leaders who are afraid to shed blood.

    Keep armchair lawyers in Canberra out of it. They are remote from the battlefield, cannot months or years afterwards reproduce all of its conditions, including freshness or weariness of the troops. In some cases they have too many axes to grind, not least justifying their own well-paid existence.

    Let all be aware of the consequences of their actions, including politicians whose rush to judgment risks undermining hard-won morale of our fighting forces. Once lost it is not easily regained.

  • Nezysquared

  • whitelaughter

    why would ‘alleged’ be used? Most of the media condemned the military decades ago. On the flip side, knowing that our troops get indoctrinated in drivel about ‘respecting other cultures’ when those cultures proudly commit atrocities is going to undermine the high standards that our military maintained for a century; so while these claims are likely bogus it is inevitable that sooner or later our military will decay until such atrocities are normal.

  • DG

    I like the term ‘innocent civilian’ like we’re talking about crime. In war, we are all at war. Our taxes fund it. We elected the government that prosecuted it We are civilians, but far from innocent. Perhaps more so in Afghanistan. If you are in enemy territory, everyone is enemy. That’s the way ancients fought and for good reason. It only takes one hole for a bucket to leak A 12 year old can provide information to destroy a squad.
    War is bloody business. Get used to it.

  • Occidental

    I have already expressed my views here and was not going to contribute again but unfortunately some of the comments have enticed me out of my reticence. When I was a kid growing up in Mount Isa in the early 70’s you would get to meet all manner of individuals as the town then was mainly made up of Europeans who had emigrated after the war. My old man who was a corporal in New Guinea in the WWII (and who’s father was in the 17th Battalion in WWI) would introduce me to some of these characters. One guy, old Fugolin would always turn up to march on ANZAC day, and all the old diggers would humour him and let him march even though he was a submariner in the Italian navy. He spoke almost impenetrable English, but he would always made everyone laugh with his stories. He would brag that he went to sea 4 times and got sunk 5! But I remember one night, I was a teenager by then, when at a function at the Verona motel or Concordia club where some of these guys were trading stories a german Maxy Druitschman was talking about civilians on the Eastern front, and why they were shot. He would talk about the support they gave partisans, guns they would hide, information they would provide. I remember the table falling silent as he spoke. There was a spaniard who had been in Russia nodding tentative agreement, but almost everyone else knew Max was defending himself or his comrades. You see Max had been through the entire war in the 1st SS Panzer division (eventually known as Leibstandarte SS Adolf Hitler ),- he of course never mentioned Malmedy. A friend of the family Hans Borgar (a Finn ) was probably the only one there who argued, (and he no love for Russians ), but I hadn’t heard anyone before or since articulate that type of argument until now. Coming from a guy who had a lot of reasons to defend the practice I could understand why he expressed those views. But if any of you warriors want to I am sure you can find grainy videos and photographs on the internet of the handiwork of Max’s division. I remember asking my father (who had told me about a Japanese prisoner he had seen executed because he wouldn’t come with his captors) and he thought Max’s arguments were a cop out. But it is funny how during a period of relative peace we get Australian civilians advocating the killing of foreign civilians, or better still classifying all individuals as combatants and therefore a target. I am not sure what it says about Australians but I know it says something. I am also beginning to like the idea of anonymity as a poster as you get see what people really think. It’s quite edifying.

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