Media and public confusion about the charges against three commandos concerning the February 2009 incident in Afghanistan

It is nothing short of appalling that inaccurate and often sensationalist media coverage of the February 2009 incident in Afghanistan is causing so much public confusion and even ill-informed political comment. Even many war veterans, who were assumed to have a better understanding of the laws and accountabilities involved, seem confused. Much media reporting and especially commentary is grossly misleading about the legal and operational contexts, and nature of the charges, and indeed concerning the most basic facts about the incident they stem from.

The ADA has been advising all its military and civilian members not to sign either of the two petitions against the charges being circulated on the World-Wide-Web. Based on erroneous media reporting and perhaps on ill-informed partisan comment, both petitions at best are based on assumptions that are either not true or that need to be tested in court to find out if they are true. Both petitions also seriously misunderstand and misquote the law applying and indeed the history of the ADF in previous wars. 

Even more importantly, the poor media coverage, and especially the confused and inflammatory nature of the petitions, will not actually help the three personnel facing charges. Indeed, they risk making their trial a political and emotional travesty, rather than the fair and objective court martial they need to clear their names once and for all. 

Noting all that is involved, any bottom line analysis of the whole issue surely needs to include consideration of the following:

  • The February 2009 incident was a battlefield accident committed by ADF personnel, but that it was an accident is undisputed by everyone (except Taliban propaganda and even they probably do not believe it).
  • No “war crime” or “atrocity” or "massacre" was involved. Those using such terms to describe it, in any context, are wrong in fact, law, general decency, appropriate citizenship values and specific respect for the soldiers concerned.
  • The law applying to the conduct of the soldiers involved in this incident is essentially no different to that which has applied to every Australian digger in all our previous wars back to and including World War I (chiefly the Hague and Geneva Conventions). It is surprising that so many Australians, including some war veterans, seem unaware of this.
  • The ADF is not the SS or the Japanese in World War II and no Australian soldier has ever been allowed to apply unlimited force in battle. That is why the ADF uses rules-of-engagement and orders-for-opening-fire.
  • It is also why our diggers, and those who command them and those politicians who send them to war, must always remain accountable for their actions.
  • Just as importantly, it is also why we are different to the Taliban and its Islamist allies now. Just as in our previous wars we were different to the Nazis, Japanese militarists, Chinese, North Korean and North Vietnamese communists, and Baathist Iraqis, etc.
  • The charges were only preferred after three separate investigations, one operational (by an infantry colonel) and two by military police, into the accident — and after the Director of Military Prosecutions (DMP) had requested and received formal advice from the CDF and the Service Chiefs (as the Defence Force Discipline Act requires) about the implications of charges.
  • The charges did not somehow result from some whim by the DMP. Nor because of supposed deficiencies some are claiming in her being a female, a lawyer, a former reservist (at one stage) or an officer who has seen no combat personally (although it should be noted that her staff includes several combat veterans).
  • The 2005 reform that created the DMP and made the institution independent of the ADF chain of command and political direction was a much needed reform to improve fairness for defence force personnel facing disciplinary or criminal charges. The DMP functions (as it should) just like the independent civilian Directors of Public Prosecutions in each state and federally.
  • Recent vituperative personal criticism of the DMP has been disgraceful, and often cowardly as well as ignorant. Such critics ought to be ashamed of themselves.
  • Such inflammatory and uninformed criticism also risks prejudicing the fair trial the charged diggers need and deserve. It certainly risks prejudicing public opinion against them.
  • It might be valid to criticise the threshold of proof the DMP has used to decide on charges but this is best sorted out in court. It eventually may require amendment of the statute requiring her to act — but she is governed by the existing law.
  • No soldier is being charged with manslaughter for killing an enemy in combat during this incident (as many wrongly believe).
  • No soldier is facing “war crimes” or “atrocity” charges over this incident (as many carelessly, callously and wrongly allege).
  • Many of the facts involved in how this battlefield accident occurred are simply not known, or not confirmed, and need to be established or tested in court.
  • This includes confirming whether the Afghan man shooting at our diggers was a member of the Taliban or not — and what might have caused any briefings, etc, given to our troops that seem to have led them to believe he was.
  • We believe that the one digger charged with manslaughter (of the four children and the youth) is likely to be acquitted of this charge once the facts are tested in court. At the very least, such facts are likely to be of such a mitigating nature that any punishment would be minimal if he was found guilty.
  • We also firmly believe that the diggers involved are better off clearing their names in court. Otherwise, just like with regular allegations from the Vietnam War, unprofessional journalists are likely to run sensationalist, fact-free, context-free “atrocity” stories every few years for ever.
  •  Those charged will fortunately get a far fairer trial by court martial than they would in the proposed new Military Court of Australia (MCA) being foisted on the ADF by out-of-touch politicians and civilian lawyers (and largely ignored by the very same media who purport to be “outraged” by the charges).
  • This is because a court martial will mean decisions on guilt and innocence, and on any aggravating or mitigating factors, will not be made by a civilian judge sitting alone with no jury. Instead they will be made, appropriately, by professional peers of those charged — a court martial board of fellow defence force members who understand the operational complexities and moral nuances of military service and war.
  • The particular circumstances of this battlefield accident, even the ones known now, are so specific to the planning, command and conduct of this particular commando raid that their application to wider combat is probably minimal to nil.
  • This is why such charges are so rare, even among comparable and accountable allies with similar constitutional and military legal systems such as the UK, Canada, NZ and the US.
  • Our diggers in Afghanistan understand all this (after some initial concern). It has not been grasped sufficiently by many ADF personnel back here in Australia. Nor it seems by many veterans of previous wars, who are not up on the facts and have forgotten the law applying (even though it applied to them).
  • The Vietnam War examples that have been cited in the media as the same or similar to this particular battlefield accident in Afghanistan are in fact different in circumstances, nature and in law.
  • Allegations that the charges stem from rivalries between the regular Army and the Army Reserve, or between the mainstream Army and the Special Forces, or between the regular Special Forces and the reservist 1st Commando Regiment, are largely all incorrect and irrelevant.
  • Beliefs that the charges were the result of pressure from the International Criminal Court, or due to fear of that court, also appear thoroughly unfounded. This aspect is discussed further in our previous comment on the incident.
  • Beliefs that the charges stem from the current crop of Service Chiefs not being combat veterans are also incorrect and irrelevant. This will no doubt be shown when the facts come out in court, including the Chief's submission on the implications of the charges to the ADF.