The Military Law debate continues
Chief of Army gets up me for commenting on the soldiers being charged for actions in Afhganistan. Well not me exactly but those of us commenting publically. In an unclassified email to the military he says;
Many will have views about whether or not charges should have been brought. Many may hope that those who have been charged will be cleared. Some, armed with ill-informed opinions and good intentions, have made public comment in response to the media and public interest. • We must not be party to the pressures being applied by individuals external to our organisation, or by the vocal individuals within our organisation. The Army is simply not above the law.Full text here General Gillespie mentions the petition I link to over on the right of this page and it may well be that it’s initiation was ill-formed and that it has no legal basis but I’m not a lawyer and in my humble opinion the petition indicates 20,000 plus votes of support for the diggers. It offers moral support and they may deduce from that the people are thinking of them. The General is, of course correct but he is playing with the cards he has been dealt and it could be argued that the Howard government dealt him a disparate hand of cards. Removing military command from the legal chain was always going to initiate debate and I for one have always been uneasy giving power to people who understand the rule of law but have little experience in battle. We do, after all, train our soldiers to deliberately kill others and this is contrary to civilian law. Being a RAAF lawyer, Kathryn Cochrane might not have read General Gillespsies’ email as she argues for the troops to be charged by their commanders and not by a lawyer.
Troops expect to be charged by those in the military who have field experience and campaign medals; those who know first-hand how military operations are conducted. The troops expect to be charged by “command”; they may not like it but they will respect it. Command only works through mutual trust. The troops do not expect to be charged by a lawyer – military or otherwise – who has never executed a military mission in a dangerous place, let alone faced live fire in the circumstances such as those of the three diggers. I agree with the troops.So do I for what it’s worth. But with lawyers seemingly breeding faster than soldiers I feel sorry for the current diggers as they ply their trade with a legal sword of Damocles hanging over their heads and careers. Officers plan for proportionality; they consider civilians and do their utmost to protect them but it is common knowledge amongst the profession that no plan survives contact with the enemy. After all the planning, after all the training, when the digger is fired on he commences an “immediate-action” drill. If he sees civilian in that part of a second that leads up to returning fire then he can stop but if there is nothing visible to trigger a caution he is trained to return fire. But the debate is now turning to who charges and who hears the case. The General is obviously correct and the Director of Military Prosecution is simply doing her job but that is only pertinent while we accept the current regulations as being the best available to maintain military discipline and the rule of law to the satisfaction of Government, the Military and the people. There are some who suggest that isn’t the case and that can be only a positive in a democracy. Let the debate run it’s course.