On 12 February 2009 members of the Australian Defence Force were engaged in a joint operation with Afghan National Army forces in Uruzgan Province in Afghanistan. They were attempting to capture a known Taliban belligerent and, on the basis of intelligence that no-one suggests was unreliable, they raided a compound at Sorkh Morghab. A firefight ensued between an adult male firing through a porthole in a room in the walled compound, and Australian forces exposed and vulnerable in an open courtyard. A fragmentation grenade was inserted through the porthole into the room that, for reasons that are not clear, did not have the desired effect. The adult male kept firing at the soldiers and so, a second fragmentation grenade was inserted. The explosion of this grenade brought the firefight to an end. No-one who was there doubts that this conduct prevented the death of Australian and Afghan National Army soldiers. Nor does anyone doubt the tragedy that was subsequently revealed: as well as the adult male bunkered in that room, 5 civilians also died as a result of that action.
Sergeant J who ordered the fragmentation grenade, and Lance-Corporal D who delivered it, live with the knowledge that their actions resulted in the loss of life of those civilians. Perhaps they draw comfort in the knowledge that their actions saved the lives of their fellow soldiers. There is no doubt that their fellow soldiers owe them a debt of gratitude.
There is also no doubt that the decision of the Director of Military Prosecutions to charge them with manslaughter, and with dangerous conduct with negligence as to consequences, will be rightly regarded as one of the most unfortunate episodes in Australian military justice history.
I am prompted to write this blogpost because of an editorial that suggested the soldiers had “got off” on a “technicality”. Let there be no doubt, Sergeant J and Lance-Corporal D do not consider that they “got off”. They have not had the opportunity to defend their actions and, given the sensitive nature of much of the detail of the operation, will be unable to do so in any public forum. More importantly, to the extent that the charges have been dismissed, it was not because of a “technicality”.
Every criminal offence has certain elements that need to be proved by the prosecutor. In the case of the charges of manslaughter, or dangerous conduct with negligence as to consequences, one of those elements is the need to demonstrate the existence of a duty of care owed by the soldiers to the civilians who lost their lives. This duty of care is a substantive, and not a merely “technical” requirement of the offence charged. It is an essential element of the very serious charges leveled at the soldiers.
It has been the law, since at least the Second World War, that soldiers do not owe a duty of care to anyone for their actions in combat. I pre-empt an objection to the breadth of this principle by saying that this does not mean soldiers have carte blanche in the conduct of their operations. Indeed, there are very specific, closely prescribed, and well-understood principles of international law governing that conduct. Those principles form part of the domestic law of Australia governing the conduct of members of the ADF. But the existence of the principle itself cannot be doubted. It exists for good reason. As Dixon J said in Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 344:
“It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such noncombatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No-one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy.”
The military prosecutor had considerable difficulty in articulating the source of the supposed duty of care. Attempts to ground it in principles of international law could never succeed, the most cursory analysis of that jurisprudence revealing that criminal liability for contravention of the international law of armed conflict arises only where there is actual intent or recklessness. Negligence has never been considered sufficient. It would seem strange if, by negligence, a member of the ADF could be criminally responsible under the general criminal law for the use of lethal force authorised by international law, and used in accordance with the Additional Protocols to the Geneva Conventions which themselves have the force of law in Australia, particularly where that conduct did not contravene any of the specific crimes governing armed conflict set out in the Commonwealth Criminal Code.
There is also, of course, the invidious position in which Lance-Corporal D would have found himself in if such a duty of care existed. Section 15F of the Defence Force Discipline Act 1982 creates an offence for failing to carry out lawful orders regarding operations against the enemy. That offence carries a maximum punishment of 15 years imprisonment. As the Chief Judge Advocate noted in his reasons for judgment dismissing the charges, members of the ADF cannot simply decide they will take no part in hostilities, or refrain from engaging in conduct that is inherently dangerous to themselves or others. In practical terms, they cannot be required to question orders to determine whether or not they are soundly-based or else run the risk of breaching a duty of care. So far as Sergeant J’s position was concerned, it will often be necessary for subordinates to be ordered into harm’s way. If a duty of care existed to subordinates, such orders would run the risk of exposing superiors to criminal charges in the event of death or serious injury. It is not answer to that to say that negligence would not in fact be established: the mere possibility of having to face trial and the uncertainty as to the outcome of any trial runs the risk of causing hesitation, further endangering lives and affording advantage to the enemy. :
Nothing in the dismissal of the charges detracts from the personal tragedy inherent in the allegations, or diminishes the importance of the lives lost. Nor does it detract from the personal tragedy of the soldiers involved, who bear the terrible burden of knowing their actions cost the lives of innocent civilians. The domestic law of Australia and the international law of armed conflict hold members of the ADF to account for their conduct on the battlefield. But for sound reasons, criminal responsibility in those circumstances requires proof of either intention or recklessness. Mere negligence, even if it could be established, is for sound reason not a sufficient basis for criminal responsibility in armed conflict.
That is no mere technicality.
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