The legalities of conflict have changed significantly over the last couple of decades, writes Angela Priestley, and for three Australian soldiers facing criminal charges regarding an incident in Afghanistan, modern international obligations must be considered.
Last month, the Director of Military Prosecutions, Brigadier Lyn McDade, sparked a national debate when she declared that three Australian Defence Force (ADF) members would face criminal charges regarding their involvement in an incident during a deployment last year.
The incident, which occurred on 12 February 2009 in the Uruzgan Province of Afghanistan, resulted in the deaths of six people, including a number of children, with a further four people sustaining injuries.
McDade said she pressed charges following "careful, deliberate and informed consideration of the available evidence, some of which was only received recently, and the representations to me made pursuant to s5A of the Defence Force Discipline Act (DFDA)1982". She refused to comment further.
The three soldiers have been charged with a range of military-related offences, including dangerous conduct and failing to comply with a lawful general order, as well as prejudicial conduct. One soldier has been charged with manslaughter.
While the facts of exactly what occurred on that February day are largely unknown, these charges have drawn much debate from the general community, including from a retired ex-military serviceman who believes they will affect the morale of ADF members.
Whether of not this is true remains to be seen, but according to Don Rothwell, associate director at the Australian Centre for Military Law and Justice, McDade's decision to press charges must be considered in light of the fact that the legal parameters surrounding armed conflict have changed in recent decades. Australia has significant responsibilities under its international obligations to fully explore matters such as what is alleged to have occurred that day in Afghanistan and ADF members are not ignorant to the legal ramifications that can potentially follow their actions.
Such international considerations must begin with our reasons for being in Afghanistan in the first place, according to Rothwell, a large part of which is to appeal to the "hearts and minds" of Afghans. To that end, we must also consider that ADF members enjoy immunity from Afghan law while they're in Afghanistan (ADF members enter into a Status of Forces Agreement covering off such immunity before deployment).
"There's no question here about them being subject to Afghan law because they're immune to Afghan law," says Rothwell. "The only law they can be subject to, from a national perspective, is predominantly, of course, Australian law."
That means if Afghanis are aware that foreign troops can still be subject to their law back home, they can potentially take solace in the idea that justice, theoretically, may elsewhere be served. This is important, as Australia's mission is not only to achieve success in training Afghan security forces, but to collaborate with Afghani civilians.
Rothwell believes ADF members are also made well aware of Australia's international obligations - in particular the DFDA - and the potential for charges to be brought against them in the International Criminal Court (ICC). Still, over the last couple of years, things have changed dramatically. "We are very much working with a new legal environment when it comes to the criminal responsibility of ADF members," he says.
While it's highly unlikely that ADF members would appear before the ICC, it's not technically impossible. In order to respect the integrity of the ICC and the Geneva Conventions, Australia must prove its capacity, and its willingness, to prosecute disciplinary and criminal matters that occur while ADF members are engaged in armed conflict overseas.
In Australia it's clear that further debate must be had regarding just how military discipline is carried out.
The charges are complex and come under the DFDA. The manslaughter charge is what's known as a "territory offence" forming part of the law of the Jervis Bay Territory. These offences are from civilian ACT criminal law and follow ADF members around Australia and overseas. This means that for the ADF member charged with manslaughter, the charge will be interpreted and prosecuted under ACT manslaughter law, while the remaining charges fall under the DFDA. Just how and where such crimes will be prosecuted has still not been determined.
Earlier this year, the proposed Australian Military Court that would have dealt with these charges was found to be unconstitutional. The subsequent Military Court of Australia Bill 2010 reached the Senate's Legal and Constitutional Committee, the bill and enquiry lapsed once the Federal Election was called. It has not yet been re-introduced into the House of Representatives.
As such, there are no certainties regarding how the charges will be heard. According to Dr Mark Nolan, a criminal lawyer and academic at the Australian National University who also teaches military discipline law, the options may include a general court martial - which would include a president and four ADF members who outrank the accused - a restricted court martial and a defence force magistrate which, he says, is like a trial by judge alone.
But no matter what the process, Nolan believes the priority will be to ensure that the balance between an independent, fair civilian-like process can be justified against the desire to ensure the charges are adjudicated by military peers - individuals who can relate to the context of armed conflict.
There will also be plenty of debate regarding any possible punishment should the accused be found guilty. However, should a custodial sentence be handed down, it is likely to be far different to what a civilian might face. ADF members sentenced to detention can be sent to the Defence Force Correctional Establishment, located at the Holsworthy Army base in Sydney, which is a prison modelled along a rehabilitation and retraining philosophy. "It becomes a chance for them to re-train in light of their offences with the view to them being able to be deployed or work in their area of the ADF again," says Nolan.
There will be much said about military justice in the coming few months regarding these three ADF members, but Rothwell is confident that our system of dealing appropriately with such matters is good. "Given we have a robust legal system, given we have an office of the director of military prosecutions which is at arms length from the military and the government, and provided there's no complete breakdown in processes, it's difficult to see that the prosecution of the military personnel would be questioned as being a legitimate bona fide process," he says.