Alleged SAS War Crimes Report

[Portree Kid]

I don't get your drift. Given the events, anything is possible.

1. The last thing Australia wants is for this to end up at the ICC, so it has to be dealt with.

2. An inquiry was established and the findings published.

2. Brereton will know that Senior Officers are under scrutiny in all of this.

3. So could Politicians ( If they were putting pressure on Senior Officers )

4. If things were to collapse during the course of the Investigation phase / or even further forward at trial stage, it would kick the ICC into touch.

This would potentially.

1. Save the necks of any implicated Politico's

2. Save the necks of Senior Officers

Of course - That old adage of '' Lessons will be learned '' will be repeated ad infinitum.

 

[wetsmonkey]

Might possbly follow the logic of the current English police caution
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court.

In other words, compelled to attend as a witness, not compelled to testify but simply advised that silence may come back to bite them.

The caution does not apply to witnesses, only suspects in The UK. No one in this country can be forced to give a witness statement, however they can be compelled to attend court and give evidence on oath.

 

[Gravelbelly]

Don't forget Uncle Joe and our gallant Soviet allies were well ahead of the Nasty Nazis until 1941. Over one million Russians murdered in the Great Terror from 1936-38. The Katyn massacres in Poland and NKVD murders in the Baltic States in 1949/41. Plus all the people who died in the Gulags. Ask the Polish and other Eastern Europeans about those nice cuddly Soviets.

Or you could read 'Gulag' by Anne Applebaum.

In your rush to whataboutery ("how can you criticise my favourite people, look, themuns were worse!") you're rather missing my point (if you must know, I did "One Day in the Life of Ivan Denisovich" for Higher English; you also forgot to mention the Holodomor).

Prisoners of war were taken in WW1, civilians weren't generally murdered en masse, except by their own governments. PW deaths were typically caused by incompetence (failure to prepare, inadequate resources) rather than as a deliberate policy to show no quarter, to work them to death, or to murder them all.

Where the Nazis took the next step was in deciding that humanity and mercy only mattered if you were "one of them", and then applied it to other countries' populations and soldiers. To them, the Laws of War were to be ignored if it suited the local commander; extermination was a matter of policy.

Prisoners of War | International Encyclopedia of the First World War (WW1)

The First World War marked the shift from a 19^th century, relatively ''ad hoc'' management of prisoners of war, to the 20^th century’s sophisticated prisoner of war camp systems, with their bureaucratic management, rationalization of the labour use of prisoners, and complex...

encyclopedia.1914-1918-online.net

 

[Gravelbelly]

You're an idiot - try reading some history books that explain how many empires, countries conquered other countries. You sited 2 examples - but there are hundreds (probably thousands) of examples in history of countries dominating others through brute force & showing no mercy at all.

Let me recommend a good youtube channel called "Fall of Civilizations" so you can educate yourself a little. Do you ever wonder what happened to the Mesoamerican cultures when the Spanish turned up, or how the Sumerians a once mighty empire vanished. Or how the Romans basically wiped out the Druids in England etc, etc, etc......

So, you think that the way to win a war is genocide? Interesting.

Fortunately, most realise that your opinion belongs in the dark ages, and the only people who still think it's a workable policy are called.... hold on, it will come to me... oh yes, morons and sociopaths. Not to mention the weirdos and sex offenders who actually get off on the thought of being able to commit such crimes.

 

[Cold_Collation]

From @Portree Kid's post:

Ian Turner, a commando with multiple tours in Afghanistan, was committed to a psychiatric hospital, only to be returned to combat after his release. He later died by his own hand. He wrote to his sister and said: “I have spent seven years of my life overseas fighting. I’ve had enough.”

For perspective, that's longer than WWII lasted.

 

[Caecilius]

If it was that clear, why was it not picked up on immediately at the AAR / Patrol debrief, where it would be safe to assume that all relevant material, including body cam footage would have been watched / reviewed.

That isn't how all AARs work. Maybe it is wherever you've worked, but a detailed discussion and a full review of all footage by the CoC after every single contact definitely isn't standard procedure for everyone.


Here's the footage:


So back to my question. Is this just an alleged incident?

 

[twentyfirstoffoot]

The caution does not apply to witnesses, only suspects in The UK.

No s#1t Sherlock.

 

[Señor_Chang]

From @Portree Kid's post:

For perspective, that's longer than WWII lasted.

The multitude of failings along the way there are, in my opinion, utterly appalling. I hope the family get sufficient answers as to why that state of affairs was allowed to come into being. What a sad story it is.

 

[QRK2]

So, you think that the way to win a war is genocide? Interesting.

Fortunately, most realise that your opinion belongs in the dark ages, and the only people who still think it's a workable policy are called.... hold on, it will come to me... oh yes, morons and sociopaths. Not to mention the weirdos and sex offenders who actually get off on the thought of being able to commit such crimes.

That's a bit unfair to the dark ages

 

[wetsmonkey]

No s#1t Sherlock.

So why would you seek to link the logic of the caution to a witness scenario?

 

[hackle]

A start for ten.

The Defence Disciple Act defines how defence discipline works. It does not define laws in the way that the AFA does.

Since the alleged offences took place overseas, they would be tried under the Defence Discipline Act as “Territory Offences”. Basically any offence committed by service personnel that is an offence in Jervis Bay Territory is an offence against the DDA. This gets around the fact that most criminal law is a State jurisdiction. Murder would be tried under the appropriate ACT law as applied in JBT.

If the offence is a federal issue like war crimes or espionage the Commonwealth Criminal Code. If committed overseas, these offences are still “Territory Offences”.

The court would be martial.

As I did a starter for ten. Feel free to rip it apart!

Thanks for that. My understanding is that the relevant allegations are to be referred to a Special Investigator within the Department of Home Affairs, staffed by (civilian) Australian Federal Police and using AFP police powers, with a view to reporting to the (civilian) Commonwealth Director of Public Prosecutions who will decide on whether to issue charges.

This suggests to me that although any prosecutions for alleged crimes involving killings or serious mistreatment could be by court-martial for the reasons you state, alternatively they could be in the (civilian) Australian Federal Court. As you say the Australian Criminal Code like UK law has provision for crimes such as war crimes and crimes against humanity, irrespective of where they occurred.

Courts-martial would certainly be the place for prosecution of any alleged service offences such as neglect of duty, failure to report etc which are considered serious enough to call for criminal prosecution as opposed to administrative action.

 

[twentyfirstoffoot]

So why would you seek to link the logic of the caution to a witness scenario?

Because I did not link the caution to it as no one is being interviewed after caution as a suspect before the enquiry. So in easy terms any enquiry could advise a wtness that should they choose to remain silent or give no comment responses, this could be considered should they give responses at a later date if evidence is found against them.

Remember this isn't UK, or the old bill or PACE, however if this were done it would be in the same style. I for one can't see any problem with a witness being advised to consider their responses before giving or witholding them.

 

[bobthebuilder]

Thanks for that. My understanding is that the relevant allegations are to be referred to a Special Investigator within the Department of Home Affairs, staffed by (civilian) Australian Federal Police and using AFP police powers, with a view to reporting to the (civilian) Commonwealth Director of Public Prosecutions who will decide on whether to issue charges.

This suggests to me that although any prosecutions for alleged crimes involving killings or serious mistreatment could be by court-martial for the reasons you state, alternatively they could be in the (civilian) Australian Federal Court. As you say the Australian Criminal Code like UK law has provision for crimes such as war crimes and crimes against humanity, irrespective of where they occurred.

Courts-martial would certainly be the place for prosecution of any alleged service offences such as neglect of duty, failure to report etc which are considered serious enough to call for criminal prosecution as opposed to administrative action.

You have that Australia is a federation of states. Each state has its own criminal law and jurisdiction and there is an extradition process between states.

The DFDA covers three types of offence; it defines specific low level military offences (like disobeying a lawful order), it creates more severe punishments for offences that are analogous to civil law (striking a superior officer analogous to common assault, but the punishment would be more severe) and it brings in all civilian law where there is a direct cross over into the defence jurisdiction (like murder) in a similar way to Section 70 of the AFA does.

In the third case, the issue of which civil jurisdiction would apply arrises, hence the creation of Territory Offences which means that Jervis Bay Territory law applies to all “civil offences” carried out by ADF personnel. Note that Territory Offences are external; they apply wherever the ADF is serving.

The Commonwealth Criminal Code defines certain offences federal offences (such as espionage offences, crimes against humanity, sex offences against minors committed overseas etc etc) that would not appear in state legislation. It too is external and it is also universal (ie it doesn’t matter where the crime occurred). For the military, Commonwealth offences are Territory Offences. For civilians, they can be tried in state courts.

Next, investigation. It is perfectly normal and routine for the AFP to investigate crimes by military. The military police’s investigative capacity is limited in capacity and scope. I think it would be normal for the AFP to have primacy in a Commonwealth Code investigation.

Finally court jurisdiction. Any offence charged under the DDA would be heard under military jurisdiction by court martial.

 

[hackle]

You have that Australia is a federation of states. Each state has its own criminal law and jurisdiction and there is an extradition process between states.

The DDA covers three types of offence; it defines specific low level military offences (like disobeying a lawful order), it creates more severe punishments for offences that are analogous to civil law (striking a superior officer analogous to common assault, but the punishment would be more severe) and it brings in all civilian law where there is a direct cross over into the defence jurisdiction (like murder) in a similar way to Section 70 of the AFA does.

In the third case, the issue of which civil jurisdiction would apply arrises, hence the creation of Territory Offences which means that Jervis Bay Territory law applies to all “civil offences” carried out by ADF personnel. Note that Territory Offences are external; they apply wherever the ADF is serving.

The Commonwealth Criminal Code defines certain offences federal offences (such as espionage offences, crimes against humanity, sex offences against minors committed overseas etc etc) that would not appear in state legislation. It too is external and it is also universal (ie it doesn’t matter where the crime occurred). For the military, Commonwealth offences are Territory Offences. For civilians, they can be tried in state courts.

Next, investigation. It is perfectly normal and routine for the AFP to investigate crimes by military. The military police’s investigative capacity is limited in capacity and scope. I think it would be normal for the AFP to have primacy in a Commonwealth Code investigation.

Finally court jurisdiction. Any offence charged under the DDA would be heard under military jurisdiction by court martial.

Many thanks. I think you are agreeing and supplementing what I said, and regarding prosecution of any relevant war crime as opposed to service offences charged under the DDA, you will be aware of para 74 of the Report, my bold:

74. The Inquiry recommends that any criminal investigation and prosecution of a war crime should be undertaken by the Australian Federal Police and the Commonwealth Director of Public Prosecutions, with a view to prosecution in the civilian criminal courts, in trial by jury, rather than as a Service offence in a Service Tribunal.

 

[retread2]

You have that Australia is a federation of states. Each state has its own criminal law and jurisdiction and there is an extradition process between states.

The DDA covers three types of offence; it defines specific low level military offences (like disobeying a lawful order), it creates more severe punishments for offences that are analogous to civil law (striking a superior officer analogous to common assault, but the punishment would be more severe) and it brings in all civilian law where there is a direct cross over into the defence jurisdiction (like murder) in a similar way to Section 70 of the AFA does.

In the third case, the issue of which civil jurisdiction would apply arrises, hence the creation of Territory Offences which means that Jervis Bay Territory law applies to all “civil offences” carried out by ADF personnel. Note that Territory Offences are external; they apply wherever the ADF is serving.

The Commonwealth Criminal Code defines certain offences federal offences (such as espionage offences, crimes against humanity, sex offences against minors committed overseas etc etc) that would not appear in state legislation. It too is external and it is also universal (ie it doesn’t matter where the crime occurred). For the military, Commonwealth offences are Territory Offences. For civilians, they can be tried in state courts.

Next, investigation. It is perfectly normal and routine for the AFP to investigate crimes by military. The military police’s investigative capacity is limited in capacity and scope. I think it would be normal for the AFP to have primacy in a Commonwealth Code investigation.

Finally court jurisdiction. Any offence charged under the DDA would be heard under military jurisdiction by court martial.

Bob, has the DFDA morphed into the DDA since I left the Army to try and manage without me? And to further split hairs, it is 'lawful command' ie spoken. It is a different offence to disobey a written order.

The 'Territory Offences' bit caused many heads to explode on my WO's course.

 

[bobthebuilder]

Many thanks. I think you are agreeing and supplementing what I said, and regarding prosecution of any relevant war crime as opposed to service offences charged under the DDA, you will be aware of para 74 of the Report, my bold:

Core point, the DFDA (using the correct abbreviation) provides for charges against the Commonwealth Code to be tried by Court Martial as Territory Offences. It also provides for service authorities to refer investigations of civil offences to be referred to the appropriate civilian authorities for investigation and justice. Which begs the question, what are the appropriate authorities in this case. The investigative bit is obvious, the AFP.

But which court would have jurisdiction? Australia has no federal criminal court; offences against the Commonwealth Criminal Code are tried at State level. So which state would have jurisdiction? The state in which the soldier resides or the one where he is / was based? Or would the ACT courts have , based on the Territory Offences schedules of the DFDA?

There are significant constitutional and jurisdictional issues here which would no doubt be open to challenge.

Incidentally, there was an attempt to establish an Australian Military Court (a Federal level criminal court) specifically to deal with this kind of issue. It was found to be unconstitutional precisely because criminal jurisdiction is state business.

 

[bobthebuilder]

Bob, has the DFDA morphed into the DDA since I left the Army to try and manage without me? And to further split hairs, it is 'lawful command' ie spoken. It is a different offence to disobey a written order.

The 'Territory Offences' bit caused many heads to explode on my WO's course.

I’ve corrected the DDA abbreviation; two major papers used it and I didn’t engage my brain!

 

[par avion]

In your rush to whatabouter

It was you who rushed to introduce whataboutery with a subject totally off thread.

 

[par avion]

In your rush to whataboutery ("how can you criticise my favourite people, look, themuns were worse!") you're rather missing my point (if you must know, I did "One Day in the Life of Ivan Denisovich" for Higher English; you also forgot to mention the Holodomor).

Prisoners of war were taken in WW1, civilians weren't generally murdered en masse, except by their own governments. PW deaths were typically caused by incompetence (failure to prepare, inadequate resources) rather than as a deliberate policy to show no quarter, to work them to death, or to murder them all.

Where the Nazis took the next step was in deciding that humanity and mercy only mattered if you were "one of them", and then applied it to other countries' populations and soldiers. To them, the Laws of War were to be ignored if it suited the local commander; extermination was a matter of policy.

Prisoners of War | International Encyclopedia of the First World War (WW1)

The First World War marked the shift from a 19^th century, relatively ''ad hoc'' management of prisoners of war, to the 20^th century’s sophisticated prisoner of war camp systems, with their bureaucratic management, rationalization of the labour use of prisoners, and complex...

encyclopedia.1914-1918-online.net

Its still no different to the Soviets who murdered hundreds of thousands on none Soviet citizens in Eastern Europe. Are you also saying that its OK to kill a million of your of own people? Thats OK then, it means your not as bad as the Nazis. Try saying that to the Poles and coming away with your nose intact. Stalin also had his own pograms against the Jews as well, both before the war and after it. He just called them 'enemies of the people.' I suppose that makes it all right in your book. Not as bad as the Nazis.

 

[par avion]

An interesting article from a former SASR officer and now an MP. However he is happy to ascribe behaviour to the environment, it seems.

My Reflections on the Afghanistan Inquiry

We cannot afford to draw the wrong lessons from the Brereton Report. The mission of the ADF remains unchanged: to win our wars. We must prepare ourselves for the challenges ahead. But we must always hold ourselves to high moral standards. When wrong is done, we must hold ourselves to account.

www.andrewhastie.com.au

A very good article Filthy. Andrew Hastie doesn't come across as the shy, timid troop commander who would be overawed by his big bad troop sergeant and patrol commanders does he?

yes, I have. Have you?

I didn't think senior RAF officers got down and dirty with the grunts. I am impressed.