War Crimes Prosecution of the Century: Australian Accountability

This terrific essay by two experienced  and thoughtful Army judge advocates outlines the myriad issues involved in what truly may be the war crimes prosecution of the century -- not only for Australia, but for the world. While the erudite lawyers' essay focuses on evidentiary and other trial-related challenges in Australia's prosecution of Ben Roberts-Smith, it appropriately brings to fore the the political, social and cultural obstacles to trying Australia's most decorated living military veteran for multiple counts of murder on the battlefield.

Such dynamics are present in many if not most war crimes trials, and they are on steroids here given that Roberts-Smith is a national war hero who had been awarded the nation's highest military honor.  If the U.S. military community thought Navy SEAL Eddie Gallagher's court-martial for alleged war crimes several years ago was a made-for-TV show, fraught with political baggage -- tune in to what's happening on the other side of the world in this Aussie prosecution. 

Interestingly while Australia does the hard and required thing to comply with its legal obligations to ensure fair accountability for alleged war crimes, Israel recently witnessed seemingly the exact opposite with its shameful handling of the criminal case against IDF soldiers for their "alleged" (captured on video, hence the quotation marks) brutalization of Palestinian detainees during the Gaza War. For more on that episode of a severe lack of accountability for war crimes and the immense political and social pressure that led to such impunity, see this piece by two leading experts in the field. 

Moral legitimacy is hard to come by, and Australia sure seems to be working on building its own while other nations -- including the U.S., given its military serial murder campaign (crimes against humanity) in the Caribbean and threatened war crimes in Iran -- sadly move in the opposite direction.

Not military justice, but . . .

Prof. Michael Schmitt has posted this extraordinary (and extraordinarily timely) essay on Just Security, titled A Primer on Just War Theory and the Iran War. Read the whole thing; here are his Concluding Reflections:

While States must be guided by extant international law when considering whether and how to use force, its rules set only the legal boundaries that they may not cross, whether through action or omission. The decisions our leaders make must equally be informed by moral considerations, which seem in short supply in the ongoing conflicts. Just war doctrine helps calibrate the moral compass that should inform such decisions and serves as a useful framework for balancing military and humanitarian considerations when interpreting international law rules that may not offer clear guidance in the attendant circumstances. Despite the Vice President’s pontification on the matter, I will stick with the views of the Pontiff on the interpretation of the doctrine.

As to the broader dispute between the Trump administration and the Holy See, it is worth remembering that Popes have been instrumental in advancing positive political change. The obvious example is Pope John Paul II, who, by championing human rights, self-determination, and religious freedom, played a pivotal role in undermining autocratic communist regimes and fostering democracy in the former Soviet Union, Eastern Europe, and beyond. Pope Leo is following in this proud tradition in speaking out on issues of war and peace.

Lastly, with regard to the ongoing conflict between the United States and Iran, David Brooks insightfully observed on the PBS NewsHour Friday that we are seeing a “contrast between the way Trump has gone into this war, which is cavalier in the extreme, and Catholic just war theory, which traces back to Augustine and Aquinas, [and] which is intellectually rigorous.” This leads him to conclude, rightly so in my opinion, that the Pope is “trying to put [in place] an intellectual, rigorous process on how you evaluate a very deadly policy. And the Trump administration is completely incapable of thinking in these terms.”

It seems appropriate to close this essay on the Trump administration and the Catholic Church with an extract from the Catechism itself (¶ 2317):

Injustice, excessive economic or social inequalities, envy, distrust, and pride raging among men and nations constantly threaten peace and cause wars. Everything done to overcome these disorders contributes to building up peace and avoiding war.

You don’t need to be Catholic to grasp the wisdom of the observation.

Shany and Cohen on the end of the Sde Teiman case

Lawfare has published this sober (and sobering) review by Professors Yuval Shany and Amichai Cohen of the Sde Teiman affair in Israel. Excerpt:

While the MAG’s decision to withdraw the charges against the accused soldiers can perhaps be justified by the combined effect of the case’s evidentiary problems and the potential procedural consequences of the parallel prosecutorial misconduct investigation, the overall outcome of the case raises serious concerns. First, the withdrawal of the case, notwithstanding the extreme seriousness of the charges, creates a risk of impunity and indirectly endorsing the right-wing narrative of the “framing” of the Sde Teiman Five. The soft language in the decision concerning a “grave and troubling” sequence of events does not amount to a clear acknowledgment of unlawfulness of the soldiers’ conduct, nor an effective repudiation of the claim that the military legal system had wrongly framed them. The celebratory manner in which right-wing politicians and the right-wing media have received the decision is likely to reaffirm their “Israel-can-do-no-wrong” narrative, which, in turn, delegitimizes efforts to hold IDF service members accountable for crimes committed against Palestinians.

Second, although the decision refers to professional considerations, it’s impossible to ignore the severe political pressures surrounding the case—including political efforts to discredit the MAG Corps. The leak and cover-up scandal, which was an unwise and allegedly unlawful reaction to the political pressure, further weakened the corps, in a manner that calls into question their ability to conduct high-profile prosecutions against IDF service members. The underwhelming record, so far, of criminal investigations in connection with the Israel-Hamas war (according to IDF statistics published in May 2025, about 1,500 operational investigations and some 60 criminal investigations were opened—excluding investigations of looting—and two criminal prosecutions were filed) raises concerns as to whether the MAG is willing and able to conduct criminal cases in the face of an increasingly hostile political climate. Unless corrected through robust action in other pending investigations, this impression is likely to greatly complicate Israel’s efforts to claim complementary or subsidiarity before international and foreign criminal courts.

Finally, the decision confirms long-standing concerns about the contagious effects of rule-of-law deficiencies in the military justice system and the broader Israeli legal system. The Sde Teiman scandal started with a misuse of a detention facility because the minister of national security had intervened politically in the policy of detainee incarceration. It continued with the Supreme Court dragging its feet to hear the case, and with the Israeli government’s failure to facilitate international visits by the International Committee of the Red Cross to the detention center.

The serious abuse of detainees in Sde Teiman was initially handled strongly by the military police, but the strong political backlash has pushed the military legal system into a tailspin, resulting in professional misconduct and a thwarted prosecution. Cumulatively, the whole affair marks a low point for the rule of law in Israel. In order to bounce back, the legal system, including the military legal system, should find a way to assert its authority vis-a-vis the political environment—a development that appears unlikely in today’s climate of increased hostility between the legal and political universes in Israel.

The tank top case

Last day of active duty? Don't wear a tank top or short skirt. The Times of Israel has the story here. Excerpt:

Another of the soldiers’ mothers suggested on Facebook that her daughter’s “show trial” was a case study in misogyny.

“What was the point? To educate? To make an example of them? To stop them from repeating the horrible act of wearing jeans and a tank top?” wrote the mother, an attorney, on Facebook. “I wonder if male soldiers being discharged while wearing a tank top would have also been court-martialed. For some reason, I think not.”

In wartime? 

Ad hoc military judges?

It sounds like the not-so-good -old-days of military justice, but it's a proposal being floagted now in Indonesia. Consider this Kompas.id report:

The proposal to involve ad hoc judges in handling the acid attack case against KontraS activist Andri Yunus, as conveyed by Vice President Gibran Rakabuming, is considered difficult to realize.

The placement of ad hoc judges in the military justice system must be accompanied by fundamental legal steps, such as issuing a Government Regulation in Lieu of Law (Perppu) or revising Law Number 31 of 1997 concerning Military Justice. Normatively, current military justice procedural law does not recognize ad hoc judges.

The proposal has met opposition, with some saying it's more important to enact a revised Military Justice Law.