Criticism of military charges a shameless political attack Ben Saul | The Sydney Morning Herald | 15th October, 2010 The military prosecutor's decision to charge three Australian soldiers for an operation that killed five children in Afghanistan has met ferocious criticism. Tony Abbott said the soldiers had been ''stabbed in the back'' and ''thrown to the wolves'' by the government. An online petition signed by almost 20,000 Australians claims the prosecutions will ''paralyse'' troops in the field. The petition includes vicious and sexist attacks on the prosecutor, Brigadier Lyn McDade. Commentators such as Alan Jones and Piers Akerman have fuelled the backlash. Advertisement: Story continues below The attacks on the integrity and independence of the military justice process are a national disgrace and reveal a deep ignorance among some, including the Opposition Leader, about fighting in war. As professional soldiers, Australian forces are highly trained to follow orders, to fight within their rules of engagement, to distinguish between military targets and civilians, and to carefully minimise civilian casualties. If something goes wrong, the system of military justice kicks in to sort it out. In this case, Brigadier McDade, as the independent military prosecutor, reviewed all the available evidence and concluded it supported the laying of charges, which include manslaughter, dangerous conduct, failing to comply with a lawful general order, and prejudicial conduct. Her decision came after a long and comprehensive military investigation into the incident. The prosecutor is a respected and experienced military officer, appointed by the Howard government, with impressive legal experience as a barrister, deputy coroner and civilian prosecutor. Unlike her critics, the prosecutor has seen all the evidence, including witness statements from Australian and Afghan forces, their military commanders, and Afghan civilians. It is simply extraordinary that anyone else - especially those who have not seen the evidence or been trained in military law - can presume to comment on the propriety of laying charges, or mindlessly believe one side of the story over the other before a trial has taken place. The soldiers concerned are entitled to the presumption of innocence until proved guilty. But the hysterical opposition to the use of the military justice system is deeply worrying because it suggests that dangerous beliefs about war fighting are all too common. First, the failure of any soldier to obey lawful orders is a serious break-down of military discipline and is a particularly grave form of misconduct during hostilities. Obedience to orders is fundamental to the effectiveness of our forces. If soldiers cannot be trusted to follow orders, the success of operations and the lives of fellow soldiers are imperilled. Nothing is more paralysing or demoralising for our forces than lawlessness in the ranks. That is reason enough to maintain a robust system of military justice. Second, if civilians are unlawfully killed as a result of soldiers disobeying orders or violating their rules of engagement and their training, soldiers must be held accountable. Civilian life is precious, even in war, and even where it involves the lives of foreigners. Unlawfully killing civilians is a serious crime in war. If our forces are not held accountable, it will inflame sentiment against us in Afghanistan and endanger our soldiers. Third, like every other country, Australia is required to respect the international law of armed conflict. That requires our forces to balance their military needs against the importance of protecting civilians. Fighting within limits is a sign of civilisation and sets us apart from unscrupulous outfits such as al-Qaeda. That is why the suggestion in the online petition that we too should not fight with one hand tied behind our back is so appalling, since ultimately it is a call for moral convergence with terrorists. If our forces act carelessly, they may expose themselves to war crime prosecutions in other countries or even before the International Criminal Court. Australians should remember that after World War II, Australia executed hundreds of Japanese war criminals for crimes against Australians. We can hardly demand the right to judge others if we insist on impunity for our crimes. We also cannot expect others not to commit crimes against us if we commit them against others with impunity. Australia must take the law of armed conflict seriously, even when it means prosecuting our own. Our Prime Minister, Defence Minister and the Chief of Defence must publicly defend the military prosecutor from shameless political attacks and contemptuous interference in the legal process, particularly when they masquerade as patriotism, in this case shabby and misplaced. Respect for the legal process is the only thing that safeguards Australia against impunity for crimes in war. Impunity paralyses our fighting effectiveness and destroys the moral authority of our democracy in war. Above all, impunity dishonours the legacy of those many fine Australians who have fought lawfully and with restraint. Associate Professor Ben Saul is co-director of the Sydney centre for international law at the University of Sydney. He has provided legal training to several national militaries and, as a barrister worked on the Balibo coronial inquest and at the International Criminal Tribunal for the former Yugoslavia. .