Some have mistakenly asserted that the prosecution of Roberts-Smith proves the principle of legal equality is well-respected in Australian law. It proves the reverse, writes CHRIS MERRITT in The Australian.
The real lesson from the Ben Roberts-Smith case is now apparent: this country’s flawed attempt to deal with war crimes has demolished the idea that everyone in the military is accountable to the law.
The goal of dealing with war crimes through the civilian justice system has created a monster that guarantees some war criminals – and their commanders – will never be held to account.
The most tangible evidence of this is that four former soldiers who admit they executed prisoners in Afghanistan have now been granted immunity from prosecution by the Commonwealth Director of Public Prosecutions in return for giving evidence against Roberts-Smith.
Grants of immunity are exceptional in criminal justice – and for good reason.
In 1889, when AV Dicey was Vinerian professor of English law at Oxford, he identified one of the great, enduring principles of English law that has been inherited by this country. He wrote that the rule of law encompasses “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts”.
Some have mistakenly asserted that the prosecution of Roberts-Smith, this country’s most decorated living soldier, proves this principle of legal equality is well-respected in Australian law.
It proves the reverse.
This country’s method of dealing with war crimes has a two-stage system that offers some war criminals a path to impunity, it significantly impedes the pursuit of those in command positions and, because of that, it has left the door open for intervention by the International Criminal Court.
The decision by the four men to voluntarily attest to their role in killing prisoners might initially seem puzzling.
After all, nobody in the justice system – police, prosecutors or judges – could have forced them to give evidence against themselves.
But the war crimes system is more than that. It includes Paul Brereton’s non-judicial inquiry into allegations of wrongdoing.
Because Brereton, who reported in 2020, was running an administrative inquiry for the military, he was effectively equipped with coercive power.
Those who refused to make incriminating admissions could be charged with disobeying a lawful command. But in return for the destruction of their right to silence, they received a promise that their admissions would not be used against them in future proceedings.
Those promises, however, were not absolute.
While the Brereton admissions could not be used as evidence, the Australian Federal Police and the Office of the Special Investigator were free to use them to identify lines of inquiry and assemble evidence from other sources.
a second immunity deal
One way to head that off and avoid prosecution would be to do a second immunity deal – this time with the DPP – and that is what appears to have happened.
So instead of facing prosecution and a possible life sentence, four killers will be free – regardless of the outcome of the case against Roberts-Smith.
The problems with this system do not end there.
The federal law on war crimes has been drafted in a way that protects senior officers who, had international law prevailed, could have been prosecuted because they should have known about the alleged misdeeds of those on the frontline.
This has been highlighted by Melanie O’Brien, of the University of Western Australia, and barrister Louise Clegg.
They have both pointed to the fact that Australia’s federal law on command responsibility differs from the wording of the Rome Statute, a treaty ratified by Australia that outlines how the International Criminal Court deals with war crimes.
Section 268.115 of the Commonwealth Criminal Code is derived from a provision in the Rome Statute that covers the legal responsibility of commanders.
But the Australian version has eliminated a section that would have imposed liability on commanders if they “should have known” about wrongdoing on the battlefield.
This preserves the precision of the Criminal Code. But it exposes this country to a new risk, as outlined in a 2022 critique of the war crimes provisions that was published in the Melbourne Journal of International Law.
“Australian law uses language that is potentially much more forgiving for superiors who fail to detect or investigate war crimes than the international law, and therefore could put Australia at odds with its obligations under international criminal law,” wrote legal academics Emily Crawford and Aaron Fellmeth.
This matters because if Australia declines to pursue commanders who “should have known” war crimes were taking place, and instead continues to focus on frontline troops, there is a risk that this could be viewed as proof this country is unable or unwilling to pursue its responsibilities under the Rome Statute.
And that is the trigger for direct involvement by the International Criminal Court.
Now that four men have admitted prisoners were executed in Afghanistan, the risk to those who were in command is growing.
the lawyers?
There has also been little zeal so far in pursuing another category of military decision makers: the lawyers.
When Brereton produced his report, it found a culture of cover-ups so most of the media focused on the involvement of frontline forces.
They should have paid more attention to what this former judge of the NSW Court of Appeal had to say about military lawyers – some of whom clearly forgot their professional ethics required them to tell the army what it might not wish to hear.
Brereton’s report contains allegations that legal officers engaged in “embellishment” or “legal whitewashing” of operational reports.
Some lawyers lost sight of the fact their ultimate client was the commonwealth of Australia, not the deployed forces, individual soldiers or commanding officers.
Three years ago, Brereton’s assessment of military lawyers prompted the Journal of International Criminal Justice to write: “The impression given is that LOs (legal officers) who attempted to push back on these practices did not last long, while others either remained ignorant to the practices or indeed enabled them by perpetuating the use of ‘boilerplate’ language.”
One former military lawyer, David McBride, has been prosecuted. But he went to prison in 2024 not because he covered up misconduct. McBride was jailed because he leaked documents that revealed misconduct.
Chris Merritt
Chris Merritt is vice-president of the Rule of Law Institute of Australia.