Historic betrayal of our diggers in Afghanistan

‘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, 5-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 have 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 WW11.  ‘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 commando’s 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. Whilst 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.

Comments

  1. Matt Eacott says:

    Wow
    I wish to make a comment, war is the last resort, war is not fun or is it going to end well what ever the circumstances, we have Australian’s doing a job that we wish they didn’t have to do in a country we wished they didn’t have to visit, against an enemy that follows no engagement rules. Bad things are happening and will continue to happen while we fight an enemy like this. This event is tragic and a waste of human life, but not manslaughter, we didn’t send our soldiers there to die it’s kill or be killed. support them to manage doing this mission not procecute them for trageties out of their control Matt

  2. Stuart Bryce says:

    Dear Charlie,

    Couldn’t agree more with your sentiments. The effect on morale of our combat troops of this legal action will cost lives, as they ponder the rights and wrongs of engaging the enemy. And who is the enemy? Specialist US advisor Killcullen describes the Afghani accidental terrorist. What is an accidental terrorist? A civilian who takes up arms against the coalition. So what happens when he is engaged by the coalition – a civilian death?

    Time to get the troops home, Charlie. This is a dirty war and it isn’t our war. C’mon, Angus (Houston), time to explain to our non-informed government (and opposition) that our troops have no place in this un-winnable war. I doubt that there is a single member of the Taliban who knows was 9-11 means.

    Stuart Bryce
    WgCdr Retd

  3. Allan Pickering says:

    Dear Charlie,

    As an ex chopper pilot with 9 sqn RAAF it would be all too easy to adopt an emotional response and scream “betrayal”. Sure lets ensure that our troops receive the proper support for their task from government and voters, but also let us recognise that in any conflict some soldiers make understandable mistakes, some soldiers step over the line, and for others a conflict is the chance to become a violent criminal.

    Anyone who has ever been the subject of todays media scrutiny knows that the subject of such scrutiny is simply headline fodder to increase circulation and advertising revenue, sadly today’s journalist rarely care enough about the facts.

    What is needed is calm objective assessment of the facts, and, as only those who were involved know what those facts are we should avoid adding to the hysteria.

    I am confident something way out of the ordinary happened here and if you believe the comments in the press, having our troops subject to our military investigation negates a war crimes prosecution from the Hague.

    Could this be a legal tactical manouvre to protect our lads from a Hague prosecution? Charge them with manslaughter and clear them of all charges? End of debate!

    Regarding the U.S and its protection of U.S troops from international courts, perhaps some of the actions of U.S armed forces individuals should be prosecuted as War crimes and having such protections in place shields the guilty from proper scrutiny by objective assessors.

    I served with Angus Houston and have absolute faith in his ability to have this dealt with in the proper manner.

    This fight against the taliban is many things if not a moral objection to the brutality of idealogy. If you believe in human rights you surely cannot abandon the Afghans to the extremes of religion and tribal politics, especially the women.

    The bully in any school yard needs a punch in the nose, the international schoolyard is no different.

    Stay the course and fight for those who cannot fight for themselves.

  4. john bland says:

    agree entirely with u charlie. Charging these diggers is an absolute disgrace. Whomever is responsible for creating the legal situtation which the diggers now find themselves in should hang their heads in shame. My guess is if these 3 are found guilty of this ‘crime’ there will or should be marching on the streets to support these three and all our diggers whom are doing a fine job.

  5. Ron Beattie says:

    Charlie,

    Perhaps all respondees to your blog would like to sign the petition at:

    http://www.gopetition.com/petition/39006.html

    there are over 8000 signatures already in less than 5 days (incl a holiday weekend).

  6. Following is an onlinhe petition from Mr Alan Price:

    It is imperative that the charges against the three 1 Cdo Regt soldiers charged with a variety of offences in Afghanistan be withdrawn. These charges are simplistic in the extreme and are being pursued by the same Government and Army that ordered them into Afghanistan in response to the Twin Towers attack in New York on 11 September 2001 in which people of all nationalities and religion were murdered. Our soldiers by being ordered into Afghanistan are retaliating against a fanatical, extremist religious system that intentionally killed and maimed innocent civilians in an area where no soldiers were evident or visible. Where were the Rules of Engagement employed by them in this instance.

    To charge these soldiers for reactions in the heat of battle when being fired upon is obscene. If the Government and the Army are going to prefer charges against every soldier for his actions on the battlefield then the core of Army discipline will fail. A soldier being fired upon on the battlefield and his commanders may hesitate before retaliating, that hesitation may cost him his life. Will the female Brigadier proffering the charges be the one to carry his body from then battlefield, will she be the one to inform his family that he will not be coming home, because of a precedence that she imposed? I very much doubt it. She will say that she is only following orders but it was she who decided to prosecute based on the evidence before her; evidence that must be considered circumstantial and totally unsupported.

    An SASR soldier in East Timor who, in the heat of battle kicked an opposing soldier to make sure that he was no longer a threat as his fellow warriors continued the assault, was subjected to a courts martial and found not guilty. His actions and those of the three warriors on the battlefield in Afghanistan are Standing Operational Procedure under Rule 5.56 of warfare. (It used to be Rule 3.03 but times change.)

    This decision to prosecute is wrong. It is the Army now attempting to appease a family who lost lives at the instigation of actions and tactics initiated by and deliberately employed by the Taliban and by which Australians soldiers were forced to retaliate to defend themselves on the battlefield. It is the Taliban leaders who should be charged with war crimes, that of deliberately exposing and using innocent civilians as human shields.

    In war nobody wins; people get killed and injured on both sides that is a fact of life that must be accepted when we send our warriors to defend our nation or our allies. In more simplistic terms, one must expect a bloody nose when confronting bullies. The Taliban do not care who they kill. Our Australian soldiers do their best to ensure that civilians are not injured and are prepared to accept a bloody nose in doing so!!!! They are however not expected to die when civilians are being used as human shields to allow the enemy to attempt to kill them.

    If it was discovered after the firefight from after action reports that the three soldiers had broken the Rules of Engagement and deliberately killed civilians, why were they not arrested on the spot and confined? Why has it taken some 18 months of investigation to determine to proceed with charges and why were they allowed to remain on the battlefield to continue serving honorably as soldiers. ? Why? Probably because the episode of “JAG” referring to similar cases had not been aired on TV and the Army had no idea of what direction to take until our legal team had seen the show, perhaps they should have stayed awake to watch the end of the show when the accused were found not guilty. A ridiculous statement I know, but no more ridiculous than proceeding to charge these warriors with war crimes.

    They will be found not guilty, as those previously charged with battlefield” incidents” have been in the past, we know that, as we know the integrity of the Australian soldier but when they are found not guilty it presupposes that someone other than these warriors, someone from the other side, are guilty. Will the government and the Army pursue the others to trial? Today I saw a pig fly.

    Our soldiers will be found not guilty but in the meantime, they are asking, “Why are we to be placed in this predicament, when all that we did was to attempt to protect the innocent on the orders of the Australian Government and by succession at the behest of the Australian people? ” I ask the same question, why, why, why?

    Will future appreciations, plans and orders for military operations in a war zone include a “What If” addressing possible court martial proceedings for retaliatory actions. We had better believe it. We have tied the hands of the Australian soldier behind his back and more families will possibly lose a son, brother or father because of it. Stop this nonsense now and release these soldiers without prejudice. God knows they will forever be tainted by the threat of a courts martial. They have been hurt enough by the people they swore to protect!!! Keep in mind that it is also the responsibility of our Commander in Chief, the Governor General and her generals to, protect our soldiers.

    Please sign the petition below and hope that the Government will take notice.
    Alan Price

    Click on the link below, read the petition concerning our troops charged for manslaughter in Afghanistan and if you feel as strongly as I do about this issue, please sign it.

    http://www.gopetition.com/petition/39006.html

  7. Derek Cameron says:

    Charlie,

    I concur with your concerns re the manslaughter charges. An act such as throwing a grenade while under fire cannot be – must not be – judged according to the same standards as are traditionally adopted by courts in “civilian” hearings.

    To do so is to construct a totally unrealistic framework of rationality and normal behaviour which – by definition – cannot be present in a combat situation.

    Secondly, as you so rightly point out, the whole “command and control” system which is vital to the efficiency and survival of the infantry is potentially called into question, were this prosecution to be successful.

    The entire situation, including what appears to be a legal procedure and structure which misses excellence, seems fraught with dangers, trials and snares. Those we are sending in harm’s way deserve much better than we appear to be giving them.

    Regards,

    Derek.

  8. Our soldiers, sent to do a job, have had a job done on them.

    Congratulations Canberra for putting the fear of God into the very soul of our national defenses. Job well done! What sort of government sends a man or woman to war and conflict then creates a situation where they can be charged with murder and manslaughter????

    Stand up and be very proud of yourself….these men and women risk their lives on a daily basis so you may make such monumentally magnificent decisions. Amazing. Go figure!?

  9. Dear Charlie

    They should leave our soldiers alone. They are just doing their job.

  10. Dear Charlie

    Our soldiers are in the thick of it and do not deserve adverse press, lets look to a time when the boys and women can come home.

  11. PAul Kearney says:

    I try no to comment in the absence of all the facts, but feel compelled to offer a comment. I don’t wish to diminsh the tragedy of the loss of innocent lives, but I find it an anathema to hold soldiers to account for the consequences of their presumably legitimate actions when under attack.

    Although not a legal eagle, I understand manslaughter to be warranted as a charge if the accused committed an unlawful dangerous act resulting in death, criminal negligence resulting in death, or the intentional infliction of harm by battery resulting in death. Not sure of the rules of engagement in Afghanistan, but would hope that they don’t limit actions when under attack – hence hope they could not be an unlawful act, nor criminal neglicence. The third form of manslaughter presumably would be discounted as apparently no battery was involved.

    Presumably also, mission rehearsals would have covered the contingency faced by these soldiers and presumably, they followed the IA prescribed in those circumstances. If so, then their actions have been sanctioned in effect.

    Hence my view, given that charges have been laid would be that either the rules of engagement are limiting to the extent that on the face of it some criminality or unlawfulness can be ascribed to these soldiers actions – in which case, why on earth are we exposing our troops to such potential harm?

    Presumably there is room to bring charges of abetting the crime against the chain of command, the trainers, the orgainization delivering the wepons, purchasing the weapons etc.

    Alexander the Great is said to have observed about Afghanistan “I am involved in the land of a leonine and brave people, where every foot of the ground is like a wall of steel, confronting my soldiers.” Not much has changed since 330BC.

  12. Mark Waldron says:

    Dear Charlie,
    No doubt the mental stresses that a soldier has to bear is immense. This applies to when they face action, immediately afterwards and in the decades after the battle has been fought. In denying support to these soldiers, the process that is in place currently, is already sentencing these men to mental anguish which they and their families may struggle to cope with.
    It would seem appropriate to have an enquiry process that allows for screening of these situations before it reaches court. If this is in the precinct of one person currently it lends itself to abuse. A panel of people from legal, army, and the lay community would in my view be an appropriate filter for these sort of cases where the civilian population get dragged into the conflict.

    Regards Mark Waldron

  13. Barry Shepherd says:

    This is a rediculous situation. These diggers representing this proud country deserve better treatment from both the Defence Department, Government and Labor Politicians, the last mentioned who have all been silent. A system where a Director of Military Prosecutions sitting in an ivory tower in Canberra or some other isolated cocoon far removed from the war environment is able to form opinions and assess the situation as warranting charges against active military personnel is flawed and indeed improper. This is an unfortunate incident but our troops are against a very incipid enemy who resort to fighting amongst civilians. In these situations there will be civilian casualties despite cautious return fire by our troops in defence of themselves or their position. This is unfortunate but a product of both the enemy and their tactics and the environment in which fighting occurs. Lets not focus on one incident and the unfortunate outcome but the overall benefit which is now becomming a reality of an improved life and future in a country suppressed by a creeping insiduous enemy who have little regard for human life and lack any principles of fair play. Surely we could have assessed this incident in an active military review with some independence added. This would have found that given the troops were under fire in difficult circumstances they acted reasonably under fire and while responding to hostile action from the enemy in a contained building. The court action should not proceed and the matter should be reviewed by a High powered military review forthwith. and the charges dismissed – bring in independents from outside Australia – say the Brits or USA or Canadian to satisfy any claim of any cover up in Australia.

  14. Jacquie Strudwick says:

    Dear Charlie

    What next? It seems that every action taken in life to today that is perceived as offensive, unpleasant, not politically correct, is reason for a criminal offense.

    Correct me if I am wrong, Soldiers carry guns and on occasion shoot to kill or be killed it is in the job description. So we lay charges against them for doing their jobs. Too stupid for words.

    Enough is enough, we spend way too much time giving power to the thoughts and feelings of the Taliban who lets face it are not on the same planet as us!

    Thanks and regards
    Jacquie Strudwick

  15. Grant Anderson says:

    These brave soldiers need to know that they are being supported by every Australian, from the Prime Minister to Joe public on the street.
    Our brave men and woman who at the direction of the government are sent oversees to go to war but the government refuses to come out and support these soldiers.
    Again our government has failed to show leadership and it is now up to Joe public to right a wrong.
    There are no winners in war and as we know the truth is the first casualty, lets not have these soldiers fighting on two fronts, let them get back to what they have been trained to do and that is to protect Australians not defending their actions to Australians.
    JFK said ”don’t ask what your country can do for you but what can you do for your country”
    These men are protecting our way of life in our country, our country now needs to protect them.
    Would there be any inquiry if our country had an event like 9/11? I think not.
    We have lost brave soldiers to an enemy who are faceless cowards who will accept our help for food, medical assistance and technical support but will not hesitate to kill our soldiers.
    Drop all charges now, the death of the innocent was and will continue because the Taliban will use whatever means to kill Australian soldiers and if the Taliban put their own people at risk they don’t care as we have already witnessed the carnage of suicide bombers and the number of innocent people killed in these attacks.

    Sincerely
    Grant Anderson

  16. Philip McNamara (Brigadier Rtd) says:

    Charlie,
    Thanks for your thoughtful piece. I, like you, am outraged by the decision to charge these commandos. As the Honorary Colonel of the 1st Commando Regiment, a vietnam veteran, a former Commander Special Forces, a soldier of 35 years experience, and the father of a Special Forces soldier who has completed three tours in Afghanistan, I cannot believe that the Defence Force is allowing this to happen. They are really letting all our fine young soldiers down and causing considerable concern to all who are deployed, or will deploy on operations in Afghanistan because these charges will make all commanders and soldiers hesitate as they confront enemy gunmen instead of following their training and instinct to take the correct operational decisions as these young commandos did on that fateful night. This hesitation or a wrong decision to try and go through doors without the use of a grenade will cause loss of life as it did in 2007 when a commando was shot as he entered a room.

    It is very sad that civilian lives including children were lost in the incident and very rightly there was an investigation. My understanding is that it was conducted by an officer with no operational experience and this is regrettable. The officer receiving the investigation Brig McDade also had no operational experience. I understand that Brig McDade did seek the views of some senior army officers who had operational experience and they advised her that the charges should not proceed. She did not take this advice and has decided to charge the soldiers involved. In my view there is something dreadfully wrong with a legal system that does not accept the advice of senior operational commanders. Soldiers should be able to trust their leaders to support thier actions on the battlefield provided they follow the extant rules of engagement as these soldiers did. I believe it is now time for the Minister for Defence or the Governor General to to take control of this situation and inform Brig McDade that the charges be dropped.

    If the Court Martials do proceed the Army must ensure that the officers sitting in judgement do have operational experience so they can properly understand what it is like to be in this type of operational situation. Sorry for the length of my response but I do feel very strongly about this travesty of justice that is being perpetrated aginst these fine commandos.

    Regards
    Philip McNamara

  17. Dear Charlie, With no military or legal background I am unqualified to comment other than as an Australian citizen. The concept of natural justice strikes me as central to this issue. Australian service men & women in a war zone are required to make quick, tough decisions when their lives are threatened. There must be instances when these decisions are later shown to have been wrong. These cases should be reviewed by senior Australian officers for many cogent reasons. The paramount, in my view, is to assess the circumstances & then decide what would have been a reasonable course of action. Punishment may be warranted but this should surely be in situations where the decisions & actions were patently wrong, without any extenuating circumstances. The review should be fair & “transparent” and conducted by appropriate Australian authorities. To do otherwise would betray the trust of Australian troops in their commanders while serving their country. It would also betray the trust of the Australian people who give their support to their service men & women in combat (no matter what their personal & political views of the particular conflict). I support your stand, Leslie Glen

  18. Ron Ladner says:

    Charlie,
    I think its a disgrace to charge these blokes over what happened. It makes me wonder where our country is heading!

    I did National Service in the fifties and I can imagine the public outcry if these charges had been made then.

    Nowdays most Australians are so far removed from the use of weapons and the reality of wars that its hard to accept these situations occur and particularly
    in dealing with a ruthless and fanatical enemy.

    Our defence forces need our fullest support!

    Regards to you Charlie

    Ron Ladner

  19. Dear friends, given the refusal of Network Ten to dismiss Yumi Stynes, and George Negus, please encourage everybody within your networks to sign this petition. Please also approach your local RSL, and request their, and their individual members support. Please share with any ADF member you know, and any Veteran you know. Share with your friends, family, and work colleagues, and encourage them to get their networks to sign this petition. Please also post a copy of this petition to your wall, and post to any other social media profile (ie. twitter, myspace, stumbleupon, digg, reddit, etc.) Thank you for your ongoing support! Together, we can make a difference!
    https://www.change.org/petitions/network-ten-holdings-limited-abn-14-081-327-068-dismiss-yumi-stynes-and-george-negus

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