‘Stop firing’ screamed the Afghan interpreter metres away from a suspected Taliban leader as he emptied his magazine towards a small band of Australian commandos. As the walls exploded, the insurgent responded by clipping on a fresh magazine and unloading it at them. The Australians returned fire and lobbed a grenade into the dark room. The firing ceased. As they crept into the room they noticed a sight that will haunt them forever. The suspected Taliban leader lay dead amongst a human shield comprising women and children.
Three of the commandos in the raid, doing what they were sent to do by the Australian government, now face charges of manslaughter. These young men have been double-crossed by our political leaders who have exposed them to the jurisdiction of the International Criminal Court in The Hague.
Membership of the world court is a gold plated pass to the finer things in life for the international legal fraternity. First class travel, five-star hotels, fine cuisine and vintage wine are standard fare for the elite in the justice system. The court provides a forum for eminent legal minds from Australia, Albania, Botswana, the Central African Republic, Romania, Serbia, Sierra Leone, Bangladesh, Mongolia, Tajikistan and others to discuss a new world order for law and justice.
Our major ally, the United States, is not a signatory to the world court. Neither are China, India or any of the major Middle Eastern nations. The conventions of the court are not recognised by the Taliban in Afghanistan.
The United States has enacted an American Service-Members’ Protection Act to protect their troops against criminal prosecution by an international criminal court. Australia has failed to offer the same protection to our troops. We have also failed to provide them with a system of justice that recognises and respects the unique nature of their role in combat i.e. to close with and kill the enemy. The enemy has a similar role. This was reflected in General George Patton’s address to his troops in Europe in Word War II. ‘You don’t win wars by dying for your country,’ he urged. ‘You win wars by making the other bastard die for his country!’
Combat is not about group hugs and counselling sessions with your opponents. It’s about training, discipline, fear, courage, sacrifice, mateship and leadership. Only those who have experienced combat understand these human complexities. Strategies to prepare soldiers for combat operations have evolved over the centuries. Soldiers also understand, better than most, that modern wars are not won on the battlefield. They are won within the hearts and minds of civilian populations.
The historic decision to charge our commandos with manslaughter as the result of a night combat operation in Afghanistan is a shameless act of betrayal by the Australian government. The decision will have far-reaching consequences on the command and control of combat operations which require split-second decisions to meet changing or unforeseen circumstances. Soldier’s lives will be at risk if commanders hesitate as they weigh up the implications of their decisions against the laws of the International Criminal Court or the prejudice of an all-powerful Director of Military Prosecutions.
The traditional system of conducting military prosecutions by courts martial allowed for servicemen and women to be judged by peers with an understanding of the complexities of combat in a hostile environment. This system was replaced by a botched Australian Military Court in 2007.
The botched system sought to institutionalise the betrayal of our servicemen and women by our political leaders who would have been subject to trial by a civilian judge without a jury. The decision to prosecute was delegated to a new supremo, the Director of Military Prosecutions, who is not answerable to either the military high command or Parliament.
Whilst the Australian Military Court was found to be unconstitutional in 2009 the Director of Military Prosecutions, Brigadier Lyn McDade remains as a supreme independent authority. While McDade was awarded the title of ‘Brigadier’ and gets to wear a uniform, she has never had to earn the rank and has no experience in combat.
Her military-political sympathies were revealed in an interview where she believed David Hicks had been badly treated because he trained with terrorists in Afghanistan.
Uniform and rank are an integral part of the military system. Both have to be earned and respected. Soldiers are comfortable with specialist officers such as medical doctors, nurses and padres wearing the uniform because they enlist to save lives and souls. They are more sceptical of the legal profession who often use their association with the military to enhance their status within their own fraternity.
They have forfeited their right to wear the Australian military uniform with the decision to charge our combat soldiers with manslaughter.
The Australian government should move swiftly to disband the Office of Military Prosecutions and withdraw from the International Criminal Court to protect the integrity of our command and control system. If our political leaders do not have the will or the fortitude to do this they should be banned from attending military funerals and not bother with meaningless motions of condolence in parliament.
Vietnam Veteran Charlie Lynn retired as a major from the Australian Army after 21 years service. He later served in the NSW Parliament for almost 20 years. A veteran of 84 Kokoda Trail crossings he was inducted as an Officer of the Order of Logohu in the 2015 PNG New Years Honours List.