June 29

Afghan prosecutions-only Royal Commissioners who have known combat will do


On the cold, dark night of February 12, 2009, Sgt J came out of a room where he and his small team had quietly cleared a space containing a man, civilians and a weapon, writes Keith Wolahan  in The Australian (25/6) about the incident which was the subject of that inexplicable prosecution by the Director of Military Prosecutions, Brigadier McDade.

This was  thrown out in May by a military judge.

It was like countless other nights,” Mr. Wolahan continued. “Except on this occasion, when Sgt J exited (a room with he and his small team had quietly cleared a space containing a man, civilians and a weapon), he was confronted with automatic bursts of AK47 rounds flying through a window and punching through the walls into the courtyard from the only room his team had not cleared. The rounds peppered the only way in or out.

“His men were exposed and he was in charge, and uncertain of how many threats his team could be up against. This was what mission planners call ‘enemy most dangerous’.”

…what alternative was there?…

As a professional soldier and a proven leader, Sgt J followed his drills and ordered a grenade into the room where the fire was coming from. It didn't work, with bursts of automatic fire again exploding back towards the team. Sgt J ordered a second grenade. This time it worked, and it was only then that his team made entry and discovered the horror of the civilians in the room. Faced with a lose-lose scenario, he had made a combat decision.”

The Canberra-based Director of Military Prosecutions ("DMP”) decided that Sgt J was negligent. So what should he have done? Consulted an international law manual?  Offered to counsel the enemy?

 Mr. Wolahan says these men were trained soldiers who  made a decision in close combat. “The fact the outcome was tragic does not make it a crime. No trained soldier in the same situation would have done anything different. Even the prosecution refused to offer any alternative throughout the court martial.”

Mr Wolohan who was a defending officer for Sgt J, should know. Now a barrister, he served in Afghanistan twice, and was as a platoon commander.

…a prosecutor must understand close combat…

What is clear, he says, is that the original inquiry and subsequent prosecution decision-makers do not understand close combat.  He says that those who served in Afghanistan  have experienced the danger and horror of modern counterinsurgency warfare. While “most threats have come from improvised explosive devices or sniper fire from a distance, few have been put directly in the terrifying position of facing automatic fire from less than a metre away.

”If you ask those who have been in that position what got them through what got them through, he says they will tell you two things: “training and decisive leadership.”

“Despite all the modern tools of warfare, the keys to combat haven't changed in centuries. When the bullets are flying and people are screaming, your vision narrows and things go fuzzy."

" Any normal person would revert to what is known as fight or flight. Professional soldiers are trained to move beyond this primal instinct and instead draw on the subconscious of all they have rehearsed and been taught. The only tools that a handful of men in the cold and the dark really rely on are belief in their training and the unwavering trust that their commander has the guts to make a split-second decision.”

…and  his conclusion?

" Those continuing to put their lives on the line deserve to be judged by inquiry officers, investigators and prosecutors who are aware of the pitfalls of hindsight bias. They deserve a system that is run by people who have been properly trained in the nuances of combat training, decision-making and psychology. They don't need to have been in combat, they just need to try to understand it. Our soldiers need to trust their training and rules of engagement. This trial has risked breaking that bond and serious questions need to be asked."

…Alan Jones….. 

One of the few commentators to follow this issue, Alan Jones delivered a hard hitting editorial on 23 June though the Macquarie Radio Network from Sydney radio station 2GB.


…Parliament's solution is the problem…  

Parliament had found a problem with the military justice system but the solution it offered by consensus in 2005 was worse than the problem. If the system they concocted had existed in the Second World War, the morale of the Armed Forces would have been destroyed and we might well have become a Japanese colony run under the same regime  that applied in Changi.

The armed forces must always be able to function in the preparation for and in actual combat. This necessarily involves a certain separation from civilian life, of which there is no better demonstration than that while they are under ministerial direction, the armed forces owe their loyalty to the Australian Crown and not the politicians.

The constitutional intention is that the armed forces be subject to a command structure including a power to subject its members to penalties for breaches of discipline.

….Royal Commissioners who know…

In an attempt to deal with specific complaints relating to military discipline, the Parliament created a far more serious problem and seems unable to reverse it. 

The centralised system of military prosecutions was a serious error. It was fortunate in this case that the military judge was courageous enough to convert the pre-trial hearing into  de facto committal proceedings. This should surely tell Parliament that they were at fault in not making specific provision for this

A significant part of Parliament's "reform" has already been found unconstitutional by the High Court.  This was  the creation of the military court. Successive governments  have indicated they believe they can establish a military court which complies with the Constitution. The necessity for this is doubtful; why not stay with the existing system of courts martial which have worked well in peace and in war.

The politicians seem singularly lacking in admitting they were in error and in correcting this. Yet they never slow in showing themselves at the funerals of those soldiers who have lost their lives.


…Royal Commissioners…


What the government should do now is not establish a political enquiry – the politicians have already shown that they are not suited to this task. Nor should it be a behind-the-scenes powerless bureaucratic waste of time.

What is needed now is a Royal commission that a Royal commission under a Royal Commissioners judge who understand the issues.

Two such persons spring immediately to mind. One is the courageous judge advocate who understood immediately what is wrong – Judge Advocate Ian Westwood. The other is Mr Keith Wolohan. And if he were not available he would know which eminent lawyers have the requisite combat experience to understand what is necessary.   



Afghan Court Martial

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