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Shining the spotlight: Why we reported that Ben Roberts-Smith was under investigation

Rules of engagement distinguish professional soldiers from criminals. They are central to military honour, the maintenance of morale and operational efficiency. They are also essential to the mission achieving its goals. Ensuring the Australian Defence Force’s conduct is legal helps foster local support for counter-insurgency and peace-building missions, like those in Afghanistan.

Breaches of the rules of engagement, especially conduct that could amount to a criminal offence, must be properly investigated and prosecuted where appropriate to ensure those rules of engagement are not undermined.

Corporal Benjamin Roberts-Smith with the Special Operations Task Group in Afghanistan.

Corporal Benjamin Roberts-Smith with the Special Operations Task Group in Afghanistan.Credit:Sergeant Paul Evans

“You don’t earn a VC being soft or helping old ladies across the road!” – Mike Williams (Oz) on Twitter. “It is war, not play school.” – ConservativeVoice on Twitter

You don’t earn a Victoria Cross for lawless killing, or otherwise abusing the privileges of a combatant. The VC for Australia is awarded to a person who, in the presence of the enemy, displays the most conspicuous gallantry or daring or pre-eminent act of valour or self-sacrifice or extreme devotion to duty. This by definition requires a recipient to comply with the laws of armed conflict.

Even wars have laws. These laws were drafted in contemplation of the bloodiest battles imaginable. They offer essential protections to civilians and provide parameters as to what is, and is not, acceptable on the battlefield. The Australian Defence Force’s respect for the laws of armed conflict has always been central to Australia’s proud military tradition.

“Do you think the Taliban are conducting investigations into how ethical their killing of Aussie troops was?Peter on Twitter

The people of Afghanistan have suffered egregious war crimes and crimes against humanity committed by the Taliban. Australia has consistently maintained that those responsible for such crimes should be investigated and prosecuted.

The ADF is not the Taliban. The ADF has always recognised that compliance with international humanitarian law is critical to its military success. It is important to recall that the allegations concern the activity of a few, which should not undermine the efforts of the ADF more broadly in Afghanistan.

“AFP don’t have jurisdiction to prosecute events in other countries without conspiracy to commit commit crimes in Australia.” – Noleftturn on Twitter

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The Commonwealth Defence Force Discipline Act 1982 and the Criminal Code 1995 apply to all Australian Defence Force members in times of peace and war, whether in Australia or overseas. These laws contain a range of offences (for example, disobeying a lawful order) that are unique to the ADF.

Under these laws ADF personnel are also subject to ordinary criminal offences, as well as war crimes, crimes against humanity and genocide.

Normally, service discipline offences are prosecuted within the military justice system. Criminal offences can be referred to the Australian Federal Police for investigation. The AFP relies on the cooperation of foreign states, in this case Afghanistan, when conducting investigations overseas.

“I don’t doubt that … bad things have happened. But as far as I’m concerned, unless there have been the most egregious breaches of laws of armed conflict, we should leave it all alone. War is a messy business.” – War memorial director and former defence minister Brendan Nelson

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In the “fog of war” a civilian protected under international humanitarian law could mistakenly be identified as a combatant. The killing of an individual reasonably believed in the circumstances to be a lawful military target would not be a criminal act.

The investigations by the Inspector-General of the Australian Defence Force and the Australian Federal Police are aimed at determining whether any ordinary criminal offences or war crimes – which represent the worst breaches of the laws of armed conflict – were in fact committed.

If they were, the individuals responsible should be held to account, consistent with Australia’s commitment to the rule of law.

“I question whether the national interest is in trying to tear down our heroes.” – Brendan Nelson.

We should recognise the bravery of military heroes who defend Australian interests overseas. We must also thoroughly investigate all allegations that an ADF member has violated international humanitarian law.

The Director of the Australian War Memorial Brendan Nelson (right) hugs Ben Roberts-Smith.

The Director of the Australian War Memorial Brendan Nelson (right) hugs Ben Roberts-Smith.Credit:AAP

Australia has a strong national interest in ensuring that the ADF strictly complies with our legal obligations under international humanitarian law because compliance is crucial to the effectiveness of our military.

It also ensures that our international military operations are perceived to be legitimate, which is critical to Australian domestic, as well as international, support.

“I am concerned that tonight’s story and the previous publications by the SMH/Age are an attempt to improperly influence the outcome of the IGADF Inquiry.” – Ben Roberts-Smith statement

There is no suggestion that the IGADF is not independent or impartial or would be improperly influenced by media reporting in relation to the ongoing inquiry.

Ben Roberts-Smith at Remembrance Day at the Australian War Memorial last year.

Ben Roberts-Smith at Remembrance Day at the Australian War Memorial last year.Credit:AAP

On September 16, the Geneva Academy of International Humanitarian Law and Human Rights and the International Committee of the Red Cross published Guidelines on the Investigation of Violations of International Humanitarian Law, reflecting the law and best practice.

The guidelines underscore the importance of transparency, including the provision of information in relation to ongoing criminal investigative processes to the public to make those investigations accountable. This enhances confidence in the justice system.

You are reporting these allegations before they are proven; before they are examined and a decision has been made … Do you think it’s justifiable to air these sorts of allegations at this stage? – Waleed Aly, The Project

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On one day this week, Australian newspapers carried reports about an ongoing Royal Commission into the actions of a police informer, Nicola Gobbo; an ICAC investigation into alleged corrupt donations to the Labor Party; an equestrian competitor Callum Edward Buczak due to face court on a rape charge; a teacher Timothy Baker suspended from his job after being charged with child sex abuse and grooming; tax office fears that Huang Xiangmo has hidden his wealth to avoid tax; and four teens arrested and charged over a carjacking.

Reporting investigations underway, whether or not they have resulted in charges, is the bread and butter of journalism, and crucial to keeping the system, including the justice system, honest.

Should the media have waited for the burglers in Watergate to have been jailed before they reported the story? Should we not report the proceedings of Royal Commissions? On this logic our newspapers would be considerably thinner, and the public significantly less well informed.

Question: What punishments are available from this investigation? 

Under the Defence Act 1903, the military Inspector-General’s job is to review the military justice system independent of the military chain of command. He reports directly to the Defence Minister. If the current military inquiry into rumours of possible beaches of the laws of armed conflict by members of the ADF in Afghanistan between 2005 and 2016 identifies any failures, the Inspector-General could make recommendations to improve the system. He could also report to the Director of Military Prosecutions or the Australian Federal Police.

If an AFP investigation concludes that one or more ADF members committed a criminal offence in Afghanistan, they could be prosecuted in the civilian system.

SAS soldiers on patrol in Afghanistan.

SAS soldiers on patrol in Afghanistan.Credit:Simon O\’Dwyer

Not all violations of international humanitarian law amount to war crimes. The purpose of this inquiry and investigation are to determine whether a war crime has been committed in this instance.

Question: Does the International Criminal Court come into it?

Both Australia and Afghanistan are parties to the Rome Statute of the International Criminal Court. This means that the ICC has jurisdiction over Australian nationals and crimes committed on the territory of Afghanistan.

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But the ICC’s jurisdiction is restricted to situations where war crimes have been committed as part of a plan or policy or as part of a large-scale commission of such crimes. The allegations made against the ADF are unlikely to satisfy this threshold. Also, the ICC is a court of last resort. A case is not admissible where it has been genuinely investigated (and if appropriate, prosecuted) by a State with jurisdiction. As such, it is highly unlikely that there is any role for the ICC in relation to the allegations made against the ADF.

The ICC Prosecutor has sought authorisation to conduct an investigation into the situation in Afghanistan. On the basis of her preliminary examination, the Prosecutor’s request refers to war crimes and crimes against humanity committed by the Taliban, the Afghan National Security Forces, the US Armed Forces and the CIA. In a highly controversial decision, while finding that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, the Pre-Trial Chamber refused to authorise the investigation on the basis that it would not be in the interests of justice. This decision is currently on appeal.

Dr Carrie McDougall is an international lawyer at the Melbourne Law School.

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