Military prosecutions: Parliament must act now

There can be no more important duty for the government than the defence of the realm. This means ensuring the Army, the Royal Australian Navy and the Royal Australian Air Force are able to do their duty. This of course includes financing and equipping them - a matter of some debate at the moment.

It also involves ensuring a structure which allows them to function in the preparation for and in actual combat. This necessarily involves a certain separation from civilian life, of which there is no better demonstration than that while they are under ministerial direction, the armed forces owe their loyalty to the Australian Crown and not the politicians.

True patriotism ...

It is timely now for the government, and indeed the nation, to recognise once more the extraordinary degree of patriotism demonstrated by the armed forces. This is not the easy patriotism of words or flag waving.

It is an overwhelming love of country, a love of country as it has been understood from the age of Athenian democracy down to our involvement in the world wars.

In Pericles words in his celebrated Funeral Oration, soldiers have “joyfully determined to accept the risk”. Australians have recognised this in the memorials to those who made the supreme sacrifice.

In all of this the purpose of the armed forces must never be lost sight of. I recall that in my brief experience of the army, the aim was made clear. It is brutal, and necessarily so. It is to kill the enemy.

It is a sad fact of life that in doing his duty a soldier may well unintentionally injure or kill civilians.

Prosecutions ...

It is hardly surprising, then, that the decision of the Director of Military Prosecutions Brigadier Lyn McDade to charge three Australian special force soldiers has been received with surprise, incredulity and outrage.

It is assumed that the DMP understands that an enemy does not always play according to the Marquess of Queensbury rules. The terrible experience of our armed forces in saving this country from invasion in World War II demonstrates that. The Taliban do not of course observe international conventions.

They do not have rules of engagement which seek to honour their non-existent international obligations. They are well known for using innocent civilians, women and children, their own people, as shields. What is clear in this case is that the soldiers being prosecuted in no way intended to kill those unfortunate civilians.

It was an unfortunate accident, possibly compounded deliberately by the Taliban willingness to trade on our soldiers’ decency.

Surely the DMP understands that her decision must affect morale and therefore the ability of our loyal armed forces to perform their role. Indeed they may well risk their own lives and those of their comrades in the unnecessary hesitation which her decision must cause.

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.