A 2010 decision of the Director of Military Prosecutions Brigadier Lyn McDade to charge three Australian special force soldiers over an operation in Afghanistan has been received with surprise, incredulity and outrage.The decision raises important constitutional and legal questions. An enemy does not always play according to the Marquess of Queensberry rules. The terrible experience of our armed forces in saving this country from invasion in the Second World War demonstrates that.
The Taliban do not of course observe international conventions. They do not have rules of engagement which seek to honour their non-existent international obligations. They are well known for using innocent civilians, women and children, their own people, as shields. What is clear in this case is that the soldiers being prosecuted in no way intended to kill those unfortunate civilians. It was an unfortunate accident, possibly compounded deliberately by the Taliban willingness to trade on our soldiers’ decency.
The decision to prosecute must affect morale and therefore the ability of our loyal armed forces to perform their role. Indeed they may well risk their own lives and those of their comrades in the unnecessary hesitation which her decision must cause.This affair flows from Parliament’s attempt to deal with specific complaints relating to military discipline. In legislating to centralise military prosecutions, the Parliament created a far more serious problem and seems unable to reverse it.