from Crikey .....

Rethinking Afghanistan: no place for politics in military prosecution

Angela Priestley, editor of Lawyers Weekly, writes:

ADF, AFGHANISTAN WAR

Australia has an independent process for military justice and a need to comply with international obligations. To suggest that the government should step in, as Tony Abbott did yesterday, is foolish.

When the independent Director of Military Prosecutions, Brigadier Lyn McDade, charged three Australian Defence Force members over an incident last year that resulted in the death of six Afghans, she did so following "careful, deliberate and informed consideration of the available evidence".

She also did so independent of the Australian Defence Force and of the government, just as most Australians would expect to occur in a civilian situation.

Now, she deserves credit that her judgement is sound and that she is acting in the best interests of justice.

She also deserves to be free of political point-scoring, of being the subject of a demeaning internet campaign against her, and of bearing the wrath of ex-servicemen who completed the bulk of their service in an international legal environment that's very different to what we currently face.

Yesterday, Tony Abbott said that he believes the government has not offered the three troops charged the best legal assistance possible.

Abbott, speaking with radio commentator Alan Jones, declared that he would not want to see "soldiers being stabbed in the back by their own government".

But the ADF has already made it clear that it will provide the necessary support to the soldiers in question, including a personal undertaking from the Chief of Army, Lieutenant General Ken Gillespie, that he will ensure the troops are fully supported throughout the legal process.

They will receive representation from senior and highly experienced ADF members. As for the independent prosecutor, she was appointed under the Howard government by the then minister for defence, Brendan Nelson.

Ensuring these soldiers do have their day in court is also vital for Australia to protect its international obligations, especially to the Geneva Conventions, in an international legal environment that has changed significantly over the past couple of decades.

Technically, if Australia does not make attempts to prosecute these three individuals, they could be prosecuted in the International Criminal Court. Indeed, these charges ended investigations by the ICC over the incident.

While such a trial would have been highly unlikely given the ICC is currently busy and completely overwhelmed with other matters (namely human rights abuses in Africa) it would not have been impossible.

If Australia is to boast a legitimate system of military justice, it must allow an independent process of military justice to occur. Our international obligations to the ICC and to the Geneva Conventions require Australia to prove that it has the capacity, and the willingness, to prosecute Australians for actions that occur during armed conflict overseas.

We must also consider the basic purpose behind our mission in Afghanistan in the first place, part of which is to assist in building a capable Afghan National Army, but also to support the Afghan people.

ADF members, via the Status of Forces Agreement (SOFA) they sign before deployment, are immune from Afghan law. Afghan citizens may know that the foreign troops occupying their country can not be subject to Afghan laws. As such, they must be offered faith that justice has the opportunity to be served elsewhere.

According to military justice academics I recently spoke with, ADF members are not ignorant to the legal ramifications that can potentially follow their actions overseas. As well as signing the SOFA, they are also made aware of Australia's international obligations and the Defence Force Discipline Act.

The three soldiers face several military-related offences under the Australian Defence Force Discipline Act, including dangerous conduct and failing to comply with a lawful general order, as well as prejudicial conduct. One soldier has been charged with manslaughter, a charge that is known as a "territory offence" and interpreted and prosecuted under ACT criminal law.

It is still unknown exactly how these charges will be heard, given the Australian Military Court that would have dealt with these charges was found to be unconstitutional earlier this year.

However, again, as military justice academics reiterated with me this week, 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 or, as Abbott put it yesterday, can relate to "acting under fire in the fog of war".

Should a custodial sentence be handed down, we must also consider that it's likely it will be served outside the regular framework of the civilian prison system. ADF members are commonly sent to the Defence Force Correctional Establishment, located at the Holsworthy army based in Sydney. If they are stripped of their rank, it's possible they will be given the opportunity to re-train and be rehabilitated back into regular work within the ADF.

While the facts of the case are largely unknown, and it would be unwise to speculate, the incident resulted in the deaths of six people, some of them children. It goes against every basic principle of justice not to investigate exactly what occurred.

Thus far, McDade has proven her capacity to effectively make the independent decisions that a director of prosecutions should. To request that our government intervenes would be a significant step backwards for a system that is necessary to not only protect our international obligations, but to also maintain the integrity of our armed operations overseas.

Angela Priestley is the editor of Lawyers Weekly.

and this .....

Rethinking Afghanistan: Coalition's zero credibility on military justice

Canberra correspondent Bernard Keane writes:

AFGHANISTAN, MILITARY JUSTICE SYSTEM

Working out exactly what Tony Abbott thinks about Afghanistan is a difficult business.

In the first flush of his victory over Malcolm Turnbull, he declared "I don't think we should rule out an increase in commitment provided that we are confident the strategy is clear and the tactic is likely to work."

That position -- a fair enough one, given the caveats and conditions he placed on it -- held until April 23 this year. In the shadows on Anzac Day, Abbott addressed the Lowy Institute and suggested Australia should take control of Oruzgan province and increase its forces to match the departing Dutch presence. Layered over the top was a sneering suggestion the Rudd government was too slack to do the job properly.

"The government should explain why it's apparently right that NATO countries should commit more troops but not Australia," Abbott said in his speech. "We don't want to be a country that looks like we are shirking our responsibilities," he said at the accompanying press conference.

But during the election campaign Abbott's position changed again. On July 31, at an announcement about health funding for ADF personnel with Defence shadow David Johnston, he refused to restate the commitment to increase our Afghanistan presence, instead saying that he "supported our commitment to Afghanistan."

When pressed, he said "...what I said at the time [of the Lowy Institute speech] was that we would respond appropriately to changing circumstances. Now, circumstances haven't changed, which is why we support our existing commitment."

A week out from the election, Abbott refined the position slightly. "I fully support the existing commitment to Afghanistan and in any future decisions about Afghanistan I would be very much guided by the advice of the Defence chiefs," he said in Perth.

Four days after the election, Abbott was asked about his Lowy Institute call for more troops. "Obviously the circumstances have changed since then," he replied. "The Americans have joined us in Oruzgan province and under the circumstances, yes, I think our commitment is the right one."

It's not clear what specifically happened between July 31, when circumstances "hadn't changed", and August 25, when they "had changed", although that might have been a slip of the tongue.

In any event, that position lasted just over a month, because on September 30 shadow Defence minister David Johnston rose in the Senate to return to the the position of more troops. Johnston called for 300 more personnel to be sent to Afghanistan, including Tiger helicopters, a mortar platoon, more artillery and tanks. Johnston followed that up by saying he trusted troops on the ground more than the chief of the defence force, which appeared to contradict Abbott's own statement on August 14.

The following day Abbott forgot Johnston's name in a radio interview, and said the proposal for increased forces was merely a suggestion.

Yesterday Stuart Robert, who is Opposition defence science, technology and personnel shadow and a former military intelligence officer, said it appeared there wasn't a need for more troops. Robert had accompanied Abbott to Afghanistan and his views reflected his discussions with troops on the ground.

Abbott has been keen to level the charge of politicisation at the Government after the kerfuffle over his comments about jet lag, despite there being clear evidence that the Government did nothing to set Abbott up over his Afghanistan trip. Abbott can blame his own "ill-chosen words", as he himself called the jet lag comment, and the fact that last week was a sepulchrally quiet week for political journalists, rather than any conspiracy against him.

Instead, this week he ramped up the rhetoric, and lowered the already unedifying tone of political discourse in this country by complaining of "low bastardry".

As opposed, presumably, to high bastardry -- perhaps that was what Abbott practised against Pauline Hanson a decade ago.

Johnston's demands for more troops, and attacks on Angus Houston, looked on their face like politicisation, well in advance on any conspiracy to humiliate Abbott that might have been hatched in Julia Gillard's office. I suggested last week that in fact Johnston's statement could be interpreted in a less malicious fashion. But any doubt that the Coalition is politicising the conflict vanished with Abbott's complaints over the past 48 hours about the charging of three ADF personnel, claiming they had been "stabbed in the back" by the Government.

To Abbott's credit, he declined to join the unusually -- even by his standards -- froth-mouthed attack by shock-jock dotard Alan Jones on Brigadier Lyn McDade, who is enduring a sustained onslaught of misogynistic abuse from serving and former ADF personnel. But Abbott's determination to exploit the issue is wholly political.

Let's provide some context here. The Coalition has zero -- zero -- credibility on military justice matters. Its failure to reform the military justice system while in Government was one of the great scandals -- in fact, great tragedies -- of its time in office.

Hell-bent on wrapping itself in the flag, exploiting national security as a wedge issue against Labor and keeping the ADF on side, the Coalition ignored warning after warning after warning after warning to fix the ADF's military justice system before yet another Senate inquiry finally forced that Government into action.

And it promptly bungled that, setting up an unconstitutional military court again the advice of the ADF's own lawyers, Labor and the Coalition's own senators, that the High Court voted 7-0 to dispose of the moment it was challenged.

Meanwhile, dozens of servicemen and women took their own lives as a consequence of bungled investigations, bullying, harassment and sexual assault. Between 1998 and 2006, the ADF has said, 76 personnel had taken their own lives, a deep and abiding shame for our armed forces.

If you apply the same logic that the press gallery and Opposition applied to Peter Garrett over the insulation program, the Coalition has blood on its hands on the issue of military justice.

And as happened when they were in Government, it seems, the proper functioning of military justice appears to be subordinate to the political interests of the Coalition, which seems determined to exploit the controversy over the charging of the three personnel.

All the while, the mainstream consensus over our involvement in Afghanistan is becoming more and more fragile, an issue that should be of deep concern to those of us who believe there remains a sound strategic rationale for our presence there.

There are potentially profound repercussions from this, but Mr Abbott appears not to care.

The efforts of Tony Abbott to try and get a political advantage from his visit to Afghanistan just get more and more pathetic.

This morning comes the story of how he has censored the use of television footage taken by the Defence Department's PR people of Tony Abbott acting the boy with his toy during his recent visit. That he chose to play s0ldiers was pathetic enough. Then being embarrassed about it just makes it worse. And as for the pathetic attempt to blame the Labor Government for not intervening in court martial proceedings, what can we say?

The military brass should be insulted that he is questioning their integrity by suggesting that they are incapable of providing fair and impartial disciplinary proceedings. The man is not fit to be Prime Minister.

The Taliban have ''overwhelmed'' foreign troops and cannot be defeated by military means, one of Australia's top combat soldiers has warned.

Brigadier Mark Smethurst says securing Afghanistan could take decades, but success is uncertain without a fundamental change in strategy.

His critical assessment comes in a report that contrasts sharply with federal government claims of progress in Afghanistan.

While the key role of Australian troops is mentoring local forces, he says the Afghan army cannot operate independently, despite seven years of training, and the police are even worse.

The Afghan government is ineffective and has failed to deal with corruption, human rights abuses and a non-existent justice system. Aid distribution, he says, has been ''wasteful, ineffective and insufficient''.

Brigadier Mark Smethurst implicitly criticises the Howard government's approach, and poses questions about the present government's agenda.

While successive governments have stated we are in Afghanistan to deny al-Qaeda terrorists a base, the brigadier says the key reason is to maintain the US alliance.

In a paper that makes uneasy reading for MPs before this week's parliamentary debate on Afghanistan, he implies that if we haven't achieved our primary aim by 2012 - training Afghan troops - we should pull out.

Troops 'overwhelmed and cannot defeat Taliban'