Stop prosecution of ADF personnel in Force Element Charlie

[1938 Observer]

Stop prosecution of ADF personnel in Force Element Charlie

Published by Paul Thomas Harrison on Sep 10, 2010
Category: JusticeRegion: AustraliaTarget: Commander in Chief of the Australian Defence Force

Background (Preamble):
A number of soldiers serving in Afghanistan are threatened with prosecution after a brief fire fight in which it is alleged a number of Afghan children were killed.

If this prosecution goes ahead it will paralyse troops in the field when faced with the same dilemma, possibly preventing them from properly defending themselves and their colleagues.


More information at the link ALL support appreciated

http://www.gopetition.com/petition/39006.html

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

The great betrayal of our diggers in Afghanistan :angry:

The great betrayal of our diggers in Afghanistan
‘Stop firing’ screamed the Afghan interpreter metres away from a suspected Taliban leader as he emptied his magazine towards a small band of Australian commandos. As the walls exploded the insurgent responded by clipping on a fresh magazine and unloading it at them. The Australians returned fire and lobbed a grenade into the dark room. The firing ceased. As they crept into the room they noticed a sight that will haunt them forever. The suspected Taliban leader lay dead amongst a human shield comprising women and children.

Three of the commandos in the raid, doing what they were sent to do by the Australian government, now face charges of manslaughter. These young men have been double-crossed by our political leaders who have exposed them to the jurisdiction of the International Criminal Court in the Hague.

Membership of the world court is a gold plated pass to the finer things in life for the international legal fraternity. First class travel, 5-star hotels, fine cuisine and vintage wine are standard fare for the elite in the justice system. The court provides a forum for eminent legal minds from Australia, Albania, Botswana, the Central African Republic, Romania, Serbia, Sierra Leone, Bangladesh, Mongolia, Tajikistan and others to discuss a new world order for law and justice.
Our major ally, the United States, is not a signatory to the world court. Neither are China, India or any of the major Middle Eastern nations. The conventions of the court are not recognised by the Taliban in Afghanistan.

The United States has enacted an American Service-Members’ Protection Act to protect their troops against criminal prosecution by an international criminal court. Australia has failed to offer the same protection to our troops.

We have also failed to provide them with a system of justice that recognises and respects the unique nature of their role in combat i.e. to close with and kill the enemy. The enemy has a similar role. This was reflected in General George Patton’s address to his troops in Europe in WW11. ‘You don’t win wars by dying for your country,’ he urged. ‘You win wars by making the other bastard die for his country!’

Combat is not about group hugs and counselling sessions with your opponents. It’s about training, discipline, fear, courage, sacrifice, mateship and leadership. Only those who have experienced combat understand these human complexities. Strategies to prepare soldiers for combat operations have evolved over the centuries.

Soldiers also understand, better than most, that modern wars are not won on the battlefield. They are won within the hearts and minds of civilian populations.

The historic decision to charge our commando’s with manslaughter as the result of a night combat operation in Afghanistan is a shameless act of betrayal by the Australian government. The decision will have far reaching consequences on the command and control of combat operations which require split-second decisions to meet changing or unforeseen circumstances. Soldier’s lives will be at risk if commanders hesitate as they weigh up the implications of their decisions against the laws of the International Criminal Court or the prejudice of an all-powerful Director of Military Prosecutions.

The traditional system of conducting military prosecutions by courts martial allowed for servicemen and women to be judged by peers with an understanding of the complexities of combat in a hostile environment. This system was replaced by a botched Australian Military Court in 2007.

The botched system sought to institutionalise the betrayal of our servicemen and women by our political leaders who would have been subject to trial by a civilian judge without a jury. The decision to prosecute was delegated to a new supremo, the Director of Military Prosecutions, who is not answerable to either the military high command or Parliament.

Whilst the Australian Military Court was found to be unconstitutional in 2009 the Director of Military Prosecutions, Brigadier Lyn McDade remains as a supreme independent authority. Whilst McDade was awarded the title of ‘Brigadier’ and gets to wear a uniform she has never had to earn the rank and has no experience in combat.

Her military-political sympathies were revealed in an interview where she believed David Hicks had been badly treated because he trained with terrorists in Afghanistan.

Uniform and rank are an integral part of the military system. Both have to be earned and respected. Soldiers are comfortable with specialist officers such as medical doctors, nurses and padres wearing the uniform because they enlist to save lives and souls. They are more sceptical of the legal profession who often use their association with the military to enhance their status within their own fraternity.

They have forfeited their right to wear the Australian military uniform with the decision to charge our combat soldiers with manslaughter.

The Australian government should move swiftly to disband the Office of Military Prosecutions and withdraw from the International Criminal Court to protect the integrity of our command and control system. If our political leaders do not have the will or the fortitude to do this they should be banned from attending military funerals and not bother with meaningless motions of condolence in Parliament
Read more plus the comments at the link

http://www.charlielynn.com.au/2010/1...n-afghanistan/

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

the "civilian in uniform' prosecuting this unwarranted case

Top brass breaks ranks on Hicks (David Hicks trained with al Quaida :angry:)

Cynthia Banham Defence Reporter
January 2, 2007


THE woman appointed the nation's first director of military prosecutions to the new Australian Military Court has described the treatment of David Hicks as abominable.

Brigadier Lyn McDade was made director of military prosecutions in July. She is a former Northern Territory deputy coroner with a defence force career spanning 23 years.

The establishment of her job was one of the key reforms made by the Federal Government to the military justice system following the damning 2005 Senate inquiry. It means for the first time the responsibility for determining whether to prosecute military personnel will be concentrated in the one office, and will be completely separate to the chain of command.

In her first interview as director, Brigadier McDade told the Herald her independence as the country's top military prosecutor was "something that I hold quite sacred".
More to read at the link http://www.smh.com.au/news/national/...500061864.html

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

MP wants clear rules of engagement for soldiers

Posted Wed Sep 29, 2010 6:39pm AEST

Queensland Federal MP Jane Prentice says there needs to be clear rules of engagement for Australian soldiers.

Three soldiers were charged this week with a series of service offences after a raid in Afghanistan last year resulted in the death of six people, including children.

During her maiden speech to Parliament, Ms Prentice, a Liberal-National Party MP, revealed she had a son serving in the Defence Force.

She says soldiers in the heat of battle cannot be expected to be split-second lawyers as well.

"I'm not commenting about any current matter because I do not have all the facts at my disposal," she said.

"However, we must recognise that our troops go to war on the instructions of our government.

"They must be able to do their job in accordance with the rules of engagement without having to worry about whether those rules might be interpreted differently at a later time."


http://www.abc.net.au/news/stories/2...section=justin

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Army decisions under fire Rafael Epstein, Nick McKenzie and Sophie McNeill
March 27, 2010

SENSES heightened and with sweaty hands gripping their automatic rifles, the Australian commandos crept through the dark near the village of Surkh Morghab, in southern Afghanistan. Arriving at a mud-walled home, they looked through their night vision goggles for any signs of the local Taliban leader Mullah Noorullah. Intelligence had indicated he might be here, but after conducting a search the troops turned up nothing - in Defence speak, the house was ''dry''.

On that cold February night last year, with whispered commands, they then moved on to another nearby compound. It was to be a fateful decision. Within minutes the surreptitious operation was interrupted by bursts of gunfire, shouted orders and the explosive thump of grenades. Six innocent people were killed, including two babies.

Now, more than a year later, this operation is at the centre of one of the most serious war crimes investigations faced in decades by the Australian Defence Force.
go to the link for full article
http://www.theage.com.au/world/army-...0326-r33j.html

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Military prosecutions: Parliament must act now


Prof. David Flint There can be no more important duty for the government than the defence of the realm. This means ensuring the Army, the Royal Australian Navy and the Royal Australian Air Force are able to do their duty. This of course includes financing and equipping them – a matter of some debate at the moment.


It also involves ensuring a structure which allows them 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.

More of the article at the link

http://australianconservative.com/20...-must-act-now/

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

So just who is this Brigadier Lyn McDade?

She is a former civilian lawyer who has no previous military experience (and certainly no Australian infantry combat action badge), but who was brought into the new military justice system to aid in efficiency and effectiveness. Has she accomplished this? “There has been widespread discontent with the take-no-prisoners approach of the Director of Military Prosecutions, Brigadier Lyn McDade. Military lawyers have told The Australian they believed minor offences that were previously subject to prejudicial conduct hearings had been endlessly moved into the court.”

It doesn’t bode well when the very chief of the military justice system is taking what would previously have been between a Non Commissioned Officer and his enlisted men – what in the U.S. is called non-judicial punishment – and placing it in formal military courts. It would quite literally bring military justice to a halt in the U.S., cause undermanned units, and bring with it an atmosphere of dishonesty and suspicion.


Australian minority coalition government,to prosecute Australian soldiers for fighting terrorism in Afghanistan.
TWO former Australian commandos facing charges over an incident in Afghanistan that left five children dead say they will strenuously defend themselves.
"We will strenuously defend the charges and we look forward to the opportunity of publicly clearing our reputations, as well as the reputation of the Australian Defence Force,"

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Thousands rally behind commandos facing court
IAN McPHEDRAN From: The Advertiser November 26, 2010 12:01AM
http://www.adelaidenow.com.au/news/n...-1225961127691

MORE than 32,000 people, many of them former and serving soldiers, have joined an online petition in protest against the charging of three soldiers over the deaths of five children in Afghanistan.

The overwhelming response in just one month has surprised organisers and military top brass who had ordered soldiers not to join the campaign, warning they could risk contempt charges.

Veterans have also reminded Governor-General Quentin Bryce that as Commander-in-Chief she has a responsibility to protect Australian soldiers.

President of the Queensland branch of the 4th Battalion Association and Vietnam veteran Alan Price said responses had poured in from around Australia as well as from the US, UK, Belgium and Canada..

"There has only been one comment against the petition in more than 32,000 posts," Mr Price said.

He has also been bombarded by phone calls from serving soldiers from the rank of colonel down to private.

Mr Price said most petitioners had expressed dismay at the charges and disbelief at the 18 months it had taken Director of Military Prosecutions Brigadier Lyn McDade to bring them.

"I have been in combat and I know what the rules are," Mr Price said. "Split-second decisions are made and if these men did something wrong they should have been charged on the spot by their commanding officer."

Mr Price, who spent 34 years in the army, wrote to Ms Bryce on September 30 asking for her support.

"In war nobody wins, people get killed and injured on both sides; that is a fact of life that must be accepted when we send our warriors to defend our nation or our allies," he wrote.

"If it was discovered after the firefight, from after-action reports, that the three soldiers had broken the rules of engagement and deliberately killed civilians, why were they not arrested on the spot and confined?

"Why has it taken some 18 months of investigation to determine to proceed with charges and why were they allowed to remain on the battlefield to continue serving honourably as soldiers?"

A spokeswoman for Ms Bryce said Mr Price's letter was received on October 12 and forwarded to Defence Minister Stephen Smith for a response. Mr Smith had not responded by yesterday - more than six weeks later.

The the commandos face charges of manslaughter, dangerous conduct and disobeying a lawful order.

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Third Australian charged over Afghan incident. November 27, 2010 - 2:14AM
Sydney Morning Herald.

A third Australian soldier has been charged with manslaughter over an operation in Afghanistan in which six civilians were killed.

The Director of Military Prosecutions announced on September 27 that she had decided to charge three former members of the Australian Defence Force's Special Operations Task Group with offences arising from an operation on February 12.

Two members were served with charges at that time. A third was travelling overseas in a personal capacity and could not be served until he returned to Australia.

Advertisement: Story continues below The third member was charged yesterday with manslaughter and dangerous conduct.

The Australian Defence Force says it is ensuring that all three members and their families are provided with the best possible support during the legal process.

The matters will be heard before one or more service tribunals, which are not expected to be convened before early 2011.

http://www.smh.com.au/world/third-au...127-18ayo.html

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Court-martial date set for commandos

March 23, 2011 6:55PM "The Australian"
************************

A DATE has been set for the court-martial of two Australian soldiers over a night-time operation that left six Afghan civilians dead.
Defence Minister Stephen Smith said pre-trial directions for two of three soldiers charged over the matter would be held in Sydney soon, ahead of a court-martial on July 11.

A third soldier will face a general court-martial.

Charges against the three commandos range from manslaughter to a failure to follow orders on February 12, 2009 in Oruzgan province.

The night raid on a residential compound in the country's south left six people dead, including five children.

Director of Military Prosecutions Brigadier Lyn McDade made the unprecedented decision to charge the three soldiers, provoking an outcry in defence circles.

Historically, any such decision was made by authorities who are part of the military command.

But in 2005 the parliament voted to appoint an independent director of military prosecutions to decide.

The Gillard government has rejected opposition calls to intervene in the matter and the Department of Defence has been questioned about the level of legal support given to the soldiers.

The best possible legal, administrative, medical and welfare support was being made available to all three soldiers, Mr Smith said.

He said the Australian Defence Force had built a reputation over years of professionalism and compliance with rules of engagement.

"Australian forces take all possible steps to ensure that operations do not endanger the lives of civilians," he told parliament.

"We have prided ourselves on our high standards and we have a well-regarded international reputation for doing so."

Instances involving civilians would always be investigated, he said.

http://www.theaustralian.com.au/news...-1226026952965

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Afghan veterans face manslaughter pre-trial hearing


A pre-trial hearing of two special forces commandos has resumed in Sydney in their court martial over the deaths of six Afghan civilians.

The two commandos were reservists serving part-time.

They face manslaughter in dangerous conduct charges after six locals, including five children, were killed by Australian troops in Afghanistan's Uruzgan Province.

Another two adults and two children were injured in the night raid in February 2009.

In today's hearing lawyer David McLaw, who is representing one of the accused, said the prosecution has failed to define its exact case against the men.

Major McLaw said the case was also too abstract in its use of the term "duty of care".

The defence lawyer went on to say international law has never used negligence when determining the criminal responsibility of killing civilians in armed conflict.

The hearing continues.

http://www.abc.net.au/news/stories/2...section=justin


If useless governments wish to prosecute soldiers heavily engaged risking their lives in a "Firefight", why do they not insist that their erstwhile allies prosecute those "Pilot" the 'Reaper' and other drones which take out civilians on a regular basis?????---------- ALSO--why do they still use cluster munitions????:angry:

In reference to "Cluster Munitions" read below..................... Personally I would not trust the Australian or US administration to wash my socks !!

********************************************


Canberra lobbied secretly to dilute cluster bomb ban



Philip Dorling
May 2, 2011


AUSTRALIA secretly worked with the United States to weaken a key international treaty to ban cluster bombs, leaked US diplomatic cables show.

Despite taking a high-profile stance against cluster munitions - condemned as the cause of large numbers of civilian casualties - Australia was privately prepared to pull out of international negotiations on a global ban of the weapons if this threatened ties with US forces.

The US continues to use cluster munitions as ''a legitimate and useful weapon'', including in Afghanistan, and has affirmed that it will not sign the treaty to ban them. The disclosure comes as Federal Parliament prepares to consider a bill to ratify Australia's signature of the Convention on Cluster Munitions.




The draft legislation has attracted sharp criticism from non-government organisations for not matching the spirit of the treaty. One US group complained the legislation could be interpreted to ''allow Australian military personnel to load and aim the gun, so long as they did not pull the trigger''.

Diplomatic cables from the US embassy in Canberra - leaked to WikiLeaks and provided exclusively to the Herald - reveal Kevin Rudd's newly elected government in 2007 immediately told the US it was prepared to withdraw from the negotiations if key ''red line'' issues were not addressed - especially the inclusion of a loophole to allow signatories to the convention to co-operate with military forces using cluster bombs.

Opened for signature in Oslo in December 2008, the convention prohibits the use, transfer and stockpile of cluster bombs - weapons that deliver numerous smaller bombs into a target area. Cluster munitions have been condemned by humanitarian groups for remaining as explosive hazards for decades after the end of military conflicts.

The US embassy in Canberra expressed appreciation in February 2008 for Labor's position, which was considered critical to efforts to defeat ''hardline'' countries and non-government organisations which were seeking a comprehensive ban.

The US diplomatic reports show Australia secretly lobbied Asian countries, including Indonesia, the Philippines and Vietnam, on the issue and Canberra sought advice from Washington regarding which African countries engaged in military co-operation with the US might be recruited to vote with Australia on key parts of the treaty text.

In December 2007, the US embassy reported that the then foreign affairs minister, Stephen Smith, and the defence minister, Joel Fitzgibbon, had agreed to such a negotiating position.

In April 2008, a Foreign Affairs arms control expert, Dr Ada Chueng, told the US embassy that Australia ''shared US frustration and concern with Germany's obstinacy'' on the issue of defence co-operation, and that Australia would make formal representations to Berlin once the US had provided Canberra with ''specific'' points to raise.

Along with Britain, Canada and Japan, Australia was ultimately successful in securing the desired loophole on defence co-operation.


Foreign Affairs officials informed US diplomats that while Australian troops would not be permitted to use cluster munitions, personnel would be free to participate in ''tactical planning'' for the deployment of such weapons.



http://www.smh.com.au/national/canbe...501-1e37t.html

[miolchu]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Soldiers very seldom engage in behavior that is a gross violation of their country's rules of war. When they are put on trial, such as this case, it is usually for political purposes and to create a smoke screen to protect decision makers. The Americans have had their share of scandals. The young soldiers who were prosecuted for abusing Iraqi prisoners were following 'vague' orders of their commanders who where given even more 'vague' instructions by the CIA. The decision makers were never in the spotlight. After the first gulf war the Air Force tried to prosecute a young Japanese-American Captain manning an AWACs communication console after the the Airforce shot down an Army helicopter entering Iraq from Turkey. The fact that DOD had neglected to give him communications frequencies and transponder codes that the Army was using was deemed irrelevant. During the Vietanam War soldiers intentially did not discriminate between combatants and noncombatants in Mei Lai and were prosecuted for following 'vague' orders. The decisions makers were never put in the spotlight. During the war in the Pacific, the United States illegally rounded up and incarcerated Americans of Japanese ancestry while, curiously they did not do the same to Americans of German or Italian ancestry.

As far as things are going for the ADF personnel, not much has changed since the British Army executed Breaker Morant during the Boer War. I hope Australians can raise enough hell that the government will rethink throwing them to the Lions.

[sandyc]

Re: Stop prosecution of ADF personnel in Force Element Charlie

I have to admit I had not been following this thread. But now that I have read it and the associated material I am amazed that this has got this far.
How the hell are these young men and women supposed to act as "soldiers" in situations just like this. This is yet another case of the PC brigade trying to apply "rules" that are counter to all common sense.
We certainly do not want civilians deliberately attacked etc. But the decisions to use force under such circumstances must be field decisions and "blame" cannot be laid at the feet of the armed personnel.

SUPPORT ALL OF OUR FORCES. They do a very difficult job in extreme circumstances. They do not need the potential for "frivolous" prosecution hanging over them. We train them to fight (when needed). What else do we expect them to do.
It is the same with people such as the Archbishop of Canterbury "questioning" why Bin Laden was killed...

Give us a break.
Sandy

[1938 Observer]

Re: Stop prosecution of ADF personnel in Force Element Charlie

Soldiers' manslaughter court martial called off


By court reporter Jamelle Wells and staff

Updated 1 hour 39 minutes ago



The case against two Army Reserve soldiers charged with manslaughter in Afghanistan will not go to court martial.



The soldiers, identified only as Sergeant J and Lance Corporal D by order of the judge advocate, had been charged with manslaughter and, in the alternative, two counts of dangerous conduct, with negligence as to consequence.

The charges related to an incident in which six locals, including five children, were killed by Australian troops in Uruzgan Province in February 2009.

Another two adults and two children were injured in the night raid involving members of the Special Operations Task Group (SOTG) undertaking a compound-clearance operation.

Judge Advocate Brigadier Ian Westwood, who presided over a pre-trial hearing for two of the three soldiers charged over the incident, has dismissed the court martial set down for July.

The matter will be referred back to the Director of Military Prosecutions, Brigadier Lyn McDade, to decide whether to bring further charges against the men.

A third soldier is yet to face a general court martial.

An operational investigation into the incident was referred to Brigadier McDade, who made the unprecedented decision to charge the three soldiers.

The move provoked an outcry in defence circles, with Australia Defence Association spokesman Neil James saying the Director of Military Prosecutions operated outside the Australian Defence Force chain of command

Former Defence chief General Peter Cosgrove says the two soldiers now "have their lives back" and he feels relief for them.

"They had to stand up straight and let the legal system work itself out," he told Macquarie Radio.

"It must have been terrible for them and their loved ones and their mates while they went through this process. But in the end, it seems to me a decision has been reached that gives them their lives back.

General Cosgrove says the men "were always going to have a strong defence on the manslaughter issue".

He cited "the terrible complexity of what happens in Afghanistan" as well as "the stark matter that they would have no doubt have felt that their lives were in danger".

"[They] were fundamentally defending themselves while they were carrying out their mission," he said.



http://www.abc.net.au/news/stories/2...20/3222526.htm

[miolchu]

Re: Stop prosecution of ADF personnel in Force Element Charlie

I hope that common sense prevails. Even if no further action is taken I am concerned about the harm done these young men. If avoiding all collateral injuries is the primary focus of senior commanders in the ADF, then they will need to return all their young men and women home. There are too many accounts of insurgents using unarmed collaterals as shields. Going into a building at night with what passes as available intelligence is dicey at best. If the military is going to plan operations under these circumstances, they need to expect that they will not always achieve surgical outcomes.