Prosecution of war crimes by Australian special forces – a crisis of confidence?

 

On 19 November 2020 Australia’s Chief of Defence Force, General Angus Campbell, announced that a high-level inquiry into allegations of offending by special forces soldiers of the Australian Special Air Service Regiment (SAS) in Afghanistan had found “credible information” that 25 current or former soldiers were involved in serious crimes, either as perpetrators or accessories. The report recommends that a total of 36 incidents be referred to the Australian Federal Police for criminal investigation, including allegations that 19 soldiers murdered 39 Afghan prisoners or civilians. The report suggests a criminal culture in the relevant unit. As an immediate consequence, General Campbell has announced that 2 Squadron Australian SAS “would be struck off the Army’s order of battle”, with a view to raising a new squadron with a new name and culture.

Shocking as these allegations and revelations are in and of themselves, the process which has now been put in train raises interesting questions for observers of Australian military justice and military justice systems in general. A clear signal has been given that the soldiers who stand accused of murder will not face a general court martial under Australia’s Defence Force Discipline Act 1982 (Cth) (“the DFDA”), but will be tried by jury in the ordinary criminal courts. This is in stark contrast to the approach taken by the British Army, which prosecuted seven soldiers for various alleged war crimes, including the murder of Baha Mousa, in the UK’s Court Martial in 2006. What, if anything, can we take from the differing approach?

Murder is an offence cognizable under Australian military law. Australia is a federal State – federal jurisdiction is held by the Commonwealth of Australia (“Cth” for short) under Australia’s written constitution. However, criminal law is ordinarily a matter within the jurisdiction of the constituent states, eg New South Wales. So this raises the question of how to deal with “garden variety” criminal offences committed by Australian forces (which are of course federal in nature) outside Australia. The solution is section 61(3) of the DFDA, which provides that an Australian soldier commits a “Territory offence” if he or she engages in conduct anywhere in the world which would be an offence if committed in Australia’s Jervis Bay Territory. The Jervis Bay Territory is a small territory under federal jurisdiction, about 200 km south of Sydney. Territory offences includes offences under the criminal law of the Australian Capital Territory (not part of the Commonwealth), eg the Crimes Act 1900 (ACT) as well as federal offences under the Commonwealth’s Criminal Code Act 1995 (Cth) (“the Criminal Code”).

Under section 12 of the Crimes Act 1900 (ACT), a person commits murder if he or she causes the death of another person, intending to cause death or serious harm. The punishment is life imprisonment. It follows that murder is a Territory offence, and therefore a service offence which can be tried under military law. It is also an offence under section 62 of the DFDA to order or command an Australian soldier to commit a service offence, eg an order to murder a prisoner.

Under section 87 of the DFDA, if the Director of Military Prosecutions “believes, on reasonable grounds, that a person has committed a service offence”, he or she may request the Registrar of Military Justice to convene a general court martial. A general court martial consists of a president holding the rank of colonel (or equivalent) and four officers with prescribed experience who are senior to the accused. The court martial is directed on the law by a judge advocate, nominated by the Judge Advocate General (JAG). Under the DFDA, the JAG must be a Judge of a federal court or a state supreme court. The present incumbent is Rear Admiral the Honourable Justice Michael Slattery. Under section 68 and Schedule 2 of the DFDA, a general court martial has jurisdiction to impose a sentence of imprisonment, including imprisonment for life. It follows that, in principle, the war crimes alleged against the Australian special forces soldiers are within the jurisdictional competence of a general court martial, just as they were in the British cases mentioned above. The military jurisdiction offers the distinct advantage of permitting “garden variety” murder charges to be laid. If the prosecution were able to prove intentional killing, it would be for the accused soldier to raise a defence based on, for example, Act of State doctrine or self defence.

The decision to opt for civilian jury trial adds certain complications to the matrix. It is not possible to allege “garden variety” murder outside the military justice context, given the extraterritorial nature of the allegations. The Commonwealth Director of Public Prosecutions (DPP) will need to rely on Chapter 8 Division 268 of the Criminal Code, which was inserted by the Commonwealth Parliament by the International Criminal Court (Consequential Amendments) Act 2002 (Cth) at the time Australia ratified the Rome Statute, to ensure that any Australian soldiers accused of war crimes could be tried in Australia, thus diminishing the prospect of a prosecution by the ICC due to the international criminal law principle of complementarity.

Given the Afghan context, the killings alleged to have been carried out by Australian special forces will need to be charged under section 268.70 of the Criminal Code. This provision creates the federal offence of war crime – murder in the context of a non-international armed conflict. It will be possible for the Commonwealth DPP to bring a charge alleging such an offence before a jury in, for example, the Supreme Court of New South Wales, because a federal offence which is not committed in any state or territory can nevertheless be tried in a state or territory court under section 70A of the Judiciary Act 1903 (Cth). The prosecution will need to prove that:

(a)         the soldier intentionally caused the victim’s death.

(b)         the victim was neither taking an active part in the hostilities nor was a member of an organised armed group. This includes anyone who was hors de combat at the relevant time. Under the Criminal Code, a victim is hors de combat if he or she is a prisoner or detainee and is either incapacitated by wounds or has clearly surrendered and is not resisting.

(c)          the soldier knew of, or was reckless as to, the factual circumstances establishing that the victim met the criteria mentioned above.

(d)         the soldier was taking part in a non-international armed conflict and knew that or was reckless as to that fact.

It can immediately be observed that these elements place a heavy burden on the prosecution. Furthermore, they are matters on which the civilian jurors, randomly selected from the relevant panel and undoubtedly lacking any understanding of military operations, will need to be satisfied beyond reasonable doubt. By way of contrast, a prosecution in a general court martial could rely on “garden variety” murder and the evidence would be heard by officers (independent of the accused’s chain of command) who have a much better chance of understanding the legal and factual context, given their training (including training in the law of armed conflict) and military experience. From a purely commonsense perspective, this inevitably raises the question as to why the Australian authorities would choose to pursue this matter as a jury trial under the Criminal Code, rather than convene a general court martial.

The answer of course is likely to have a great deal to do with politics and public perception. A genuine question can be raised as to whether offences of the nature of those alleged against Australia’s special forces are properly a matter for trial by a military court. Principle 9 of the Yale Draft of the Principles Governing the Administration of Justice Through Military Tribunals refers to this viewpoint as a “growing tendency” in the international community and suggests that:

With the exception of circumstances permitted by international humanitarian law, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.

The concern at the root of this “growing tendency”, of course, is based on whether the armed forces can be trusted to try their own in these most egregious of cases, where the offending brings shame on the institution itself and the inevitable penalty for a soldier who is convicted involves a substantial period of imprisonment.

On the other hand, it can be argued that the trial of offences such as those alleged is a fundamental aspect of the raison d’être for general courts martial. Why do we have such courts if they cannot deal with offences of this nature? Certainly they would need to be able to do so in wartime conditions. Does the apparent decision to sidestep the military justice system in Australia point to a crisis of confidence in the legitimacy of that system? If that is the case, would it not be better to fix the system rather than avoid using it in a case which seems to warrant its use? These are all questions which the relevant Australian decision-makers might wish to ponder before committing to the jury trial pathway.