Show the will to prosecute elite soldiers or risk shame

Normally a country’s criminal law applies only in its own territory. In contrast, war crimes are subject to universal jurisdiction, designed to prevent impunity for serious crimes. This means that every country has a right to prosecute them wherever they occur. This is why war crimes in Afghanistan are covered by Australian law.

A special forces solider kicks an Afghan prisoner.

A special forces solider kicks an Afghan prisoner.

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The reported killings by special forces in Afghanistan may constitute the war crime of murder of a person known not to be taking an active part in hostilities. This applies to the execution of both civilian and insurgent detainees, since once detained, neither is involved in fighting.

The mistreatment of detainees prior to their killings could involve further war crimes charges. One detainee was allegedly kicked off a high wall, seriously injuring him. This could amount to the war crimes of inhumane treatment (involving the infliction of severe physical or mental pain or suffering) and outrages upon person dignity. So-called “mercy killings” are illegal. An injured person must be given medical assistance and not be summarily executed.

Soldiers who are still serving are also governed by defence force discipline law. The Director of Military Prosecutions could prosecute special forces for possible military law offences such as failure to comply with orders, unlawful discharge of a weapon, or negligence in the performance of duty.

One of the executions allegedly involved senior officers pressuring subordinates to kill a detainee. This may constitute the military offence of ordering an offence to be committed. Those giving such orders would also be responsible for the war crime of murder.

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The process for initiating prosecutions begins with the Director of Military Prosecutions, who should refer to the war crimes charges to the Australian Federal Police and Commonwealth Director of Public Prosecutions. The military justice system deals with the discipline offences.

Police and prosecutors have to decide whether the evidence would support a reasonable prospect of conviction. Prosecuting offences in foreign conflict areas is challenging because witnesses and evidence are overseas, and the crime scenes may be insecure due to the conflict. Any plausible explanations for the killings must also be considered, such as whether special forces were acting in self-defence or a weapon accidentally discharged.

The long delays in investigating these offences – committed between six and nine years ago – may adversely affect evidence gathering. The various challenges are not, however, insurmountable if sufficient resources are committed and there is the will to do justice. Any special forces members are entitled to the presumption of innocence and a fair trial.

The federal Attorney-General’s consent is also necessary for war crimes prosecutions. This is a complete discretion, and can be a safeguard against abusive prosecutions. It should not, however, allow political considerations to interfere with accountability.

Beyond Australian law, both Australia and Afghanistan have agreed to the jurisdiction of the International Criminal Court. The Court “complements” national courts, which have the primary responsibility to prosecute. The Court can only prosecute crimes where a country is unable or unwilling to genuinely prosecute. Given its limited resources, it selectively focuses on the gravest crimes.

In November last year, the Court’s prosecutor initiated an investigation into alleged war crimes in Afghanistan since May 2003. This could include crimes by Australian forces. Australia must demonstrate that it is willing to genuinely prosecute its own soldiers, to avoid bringing the shame on our defence forces, and our country, of an international war crimes trial.

Ben Saul is Challis Chair of International Law at the University of Sydney.

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