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Lessons from history: Comparing Australia’s response to war crimes with the United States

The fallout from the Ben Roberts-Smith case is only the beginning of a reckoning about justice in war.

Newspaper front pages in Australia on 2 June reporting the outcome of the Ben Roberts-Smith defamation trial
Newspaper front pages in Australia on 2 June reporting the outcome of the Ben Roberts-Smith defamation trial

“It is only recently that this country has given serious attention to the issue of war crimes allegedly committed by our forces,” Special Investigator and former judge Mark Weinberg told a Melbourne audience in March this year.

“So far as I am aware, few if any Australian servicemen have ever been convicted by an Australian court, or military tribunal of any kind, of any offence that could conceivably be characterised as a serious war crime.”

And those words remain true, even after a ruling last week in the Ben Roberts-Smith case, which saw the words “murderer” and “war criminal” splashed across newspaper frontpages. This was a decision in a civil defamation trial, not a criminal proceeding. A judge ruled “substantial truth” had been established in a number of allegations about Roberts-Smith’s conduct in Afghanistan from media reports in 2018. Roberts-Smith’s reputation is stained, although no criminal charges have been laid against him. His legal team has indicated they are examining the ruling for a potential appeal.

But the case appears unlikely to be the last time claims of murder and abuse by Australian troops will be aired in Australian courts. The focus now swings to the international ramifications, both for Australia’s reputation and questions of justice in war.

In March, shortly before Weinberg’s speech, a separate criminal prosecution had been launched involving another Australian soldier accused of a “war crime – murder” in Afghanistan. A life sentence could result.

Already, the United States has warned Australia it could be prevented from working with the elite Special Air Service regiment, which is a focus of the allegations. The issues have been a long time coming. A searing report released in 2020 by the Inspector-General of the Australian Defence Force into the conduct of Australian troops in Afghanistan between 2005–16 found substance in claims a small number of soldiers may have committed war crimes. The Office of the Special Investigator (OSI), where Weinberg serves, was later set up to decide what legal action could be taken.

The 2020 Inspector-General report said “few would have imagined” the credibility of the allegations against Australian troops. Perhaps given the US experience, it should not have come as such a surprise.

Weinberg’s speech back in March makes for intriguing reading in light of recent developments. A former Commonwealth Director of Public Prosecutions and a judge in the Federal Court and Victorian Court of Appeal, Weinberg delivered the Sir Zelman Cowen Oration to the Australian Institute of International Affairs shortly after the criminal charge was revealed. The speech was careful, given sensitivities involved with legal proceedings afoot, and mostly a history of international efforts to apply justice during times of war.

But a copy of the speech subsequently posted to the OSI website contains important details buried in the footnotes, which were not read out on the night. “Having regard to the historical material,” Weinberg said in his remarks, “the United States has a better record of prosecuting its own soldiers for war crimes committed overseas than does Australia”. The footnotes then list the instances.

The “Mỹ Lai massacre” in Vietnam, which saw US Army Lieutenant William Calley prosecuted for the murder of 22 South Vietnamese civilians.

The Abu Ghraib prison abuses in 2003, with US soldiers Charles Graner, Lynndie England and others convicted.

A prosecution of US troops for the rape and murder of a 14-year-old Iraqi girl and the murder of her family in 2006.

The killing of 17 Iraqi civilians by four US Blackwater private military contractors in 2007. American troops convicted for the murders of three Afghan civilians in 2010. The prosecution of US Army sniper Robert Bales for the murder of 16 Afghan civilians in 2012, in what became known as the “Kandahar massacre”. And other instances.

None of this makes the United States a leading example of accountability in war. The prosecutions listed relate to the laws of war in conflict and conspicuously do not extend to related legal questions about political leaders responsible for aggression – members of the George W. Bush administration for the invasion of Iraq, for example. The United States has also refused to join the International Criminal Court.

But what action the United States has taken makes it more remarkable that Australia has not been forced before now to similar reckonings. Australian leaders regularly boast of the close working relationship with the United States military. The 2020 Inspector-General report said “few would have imagined” the credibility of the allegations against Australian troops. Perhaps given the US experience, it should not have come as such a surprise.

Another footnote from Weinberg’s speech pointed to 2010 charges of manslaughter brought against two Australian commandos for throwing two fragmentation grenades into a compound containing five children, only for the charges to be dismissed as wrong in law by a court-martial on the basis “that members of the ADF do not owe a common law duty of care to private individuals in the course of armed conflict”.

The renewed push to ensure accountability for actions in Afghanistan also shows the value of international mechanisms for justice. Australia might have been slow to act, but without developments in recent decades, including the establishment of the International Criminal Court, such allegations might never have been fully investigated.

Under the ICC statute, all countries have the sovereign right to investigate and prosecute crimes in the first place. But the prospect of international court action creates an added incentive. Again, in Weinberg’s footnotes, he observed that the existence of the ICC “certainly contributed to the creation of bodies like the OSI” in Australia, as well as the decision in the United Kingdom last December to establish an “Independent inquiry into alleged unlawful activity by British Armed Forces during deliberate detention operations in Afghanistan”. And following its ratification of the ICC treaty, Australia has strengthened war crimes provisions in the domestic criminal code. This sought to address definitional challenges in international humanitarian law with the vagaries of modern conflict, later extending to legal questions around targeting enemy combatants.

As is said, the wheels of justice often turn slowly, but grind exceedingly fine.

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