Afghanistan/Australia — Paper presented by the Minister for Defence on casualties, procedural issues etc.

Recent media reports of alle­ga­tions of pre-med­i­tat­ed mur­der of Afghan civil­ians by a small num­ber of US sol­diers are deeply disturbing. 

The alle­ga­tions were first report­ed last year at which time the Unit­ed States launched a crim­i­nal inves­ti­ga­tion into the allegations. 

Crim­i­nal charges were laid fol­low­ing the inves­ti­ga­tion and are now the sub­ject of US court mar­tial proceedings. 

The US Army has apol­o­gised for the dis­tress the ter­ri­ble inci­dent has caused, say­ing they stand “in stark con­trast to the dis­ci­pline, pro­fes­sion­al­ism and respect that have char­ac­ter­ized our Sol­diers’ per­for­mance dur­ing near­ly 10 years of sus­tained oper­a­tions [in Afghanistan]”. 

In this con­text, the Unit­ed States Army has restat­ed its com­mit­ment to the “adher­ence to the Law of War and the humane and respect­ful treat­ment of com­bat­ants, non­com­bat­ants, and the dead” and acknowl­edged that “[w]hen alle­ga­tions of wrong­do­ing by Sol­diers sur­face, to include the inap­pro­pri­ate treat­ment of the dead, they are ful­ly inves­ti­gat­ed. Sol­diers who com­mit offens­es will be held account­able as appropriate”. 

Aus­tralia believes that strict adher­ence to rules of engage­ment is essen­tial on the battlefield. 

Rule of Law and the pro­tec­tion of civil­ians

The rule of law is an essen­tial basis for inter­na­tion­al rela­tions and for nation­al secu­ri­ty policy. 

The force of inter­na­tion­al law, and the pro­tec­tion it offers the Afghan peo­ple, clear­ly dis­tin­guish­es the inter­na­tion­al effort in Afghanistan from the actions of the Tal­iban and its associates. 

On the ground, inter­na­tion­al human­i­tar­i­an law – includ­ing the prin­ci­ples of mil­i­tary neces­si­ty, pro­por­tion­al­i­ty, dis­tinc­tion and dis­crim­i­na­tion – pro­vides the frame­work for Aus­tralia and ISAF’s rules of engagement. 

The Aus­tralian Defence Force (ADF) has built a rep­u­ta­tion over the years for pro­fes­sion­al­ism and com­pli­ance with such rules of engagement. 

Aus­tralian forces take all pos­si­ble steps to ensure their oper­a­tions do not endan­ger the lives of civilians. 

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

When, for exam­ple, there are inci­dents involv­ing civil­ians, they are always investigated. 

In that con­text, the Reg­is­trar of Mil­i­tary Jus­tice has con­vened a Gen­er­al Court Mar­tial to try charges against two of the three Aus­tralian Defence Force mem­bers relat­ing to an inci­dent in Afghanistan on 12 Feb­ru­ary 2009. 

Pre-Tri­al Direc­tions Hear­ings for the Court Mar­tial are sched­uled to com­mence soon in Syd­ney and the tri­al has been set down for 11 July 2011. 

It is antic­i­pat­ed that the Reg­is­trar of Mil­i­tary Jus­tice will con­vene a Gen­er­al Court Mar­tial to hear the charges against the third Aus­tralian Defence Force mem­ber fol­low­ing the con­clu­sion of the first court martial. 

The ADF is con­tin­u­ing to ensure that the best pos­si­ble sup­port dur­ing this legal process is being made avail­able to these three members. 

The sup­port mea­sures include legal, admin­is­tra­tive, med­ical and wel­fare assistance. 

On this occa­sion the charges were laid by the Inde­pen­dent Direc­tor of Mil­i­tary Pros­e­cu­tions. His­tor­i­cal­ly such a deci­sion has been made by con­ven­ing author­i­ties who were a part of the mil­i­tary command. 

In 2005 the Par­lia­ment resolved, with the sup­port of both sides of the Par­lia­ment, that these deci­sions should be made inde­pen­dent­ly by a Direc­tor of Mil­i­tary Prosecutions.