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MALAYA / SARAWAK - SOUTH VIETNAM - TIMOR & TIMOR LESTE - IRAQ - AFGHANISTAN
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Charging Soldiers is a Serious Precedent
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the motto of the Royal Australian Regiment
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The charging of three Australian soldiers over the killing of six Afghan civilians during an armed conflict would set a "dangerous precedent", a senior military lawyer says.
Barrister Kathryn Cochrane, a member of the International Law Association Committee at the International Criminal Court (ICC), has questioned the Defence Military Prosecutor's plan to court martial the soldiers.
"The point of the fact is that armed conflict is chaos," Ms Cochrane told Macquarie Radio on Friday.
"It's not necessarily the case the intelligence is perfect - the weapons may not be perfect, errors do occur."
The three former members of the Special Operations Task Group are facing court martial over a night-time raid on a residential compound believed to harbour Taliban insurgents in the Oruzgan province in Afghanistan in February 2009.
One suspected insurgent and four children and a woman were killed and another two children and two adults were wounded.
Ms Cochrane said international law required all necessary steps be taken to prevent the deliberate targeting of civilians.
"This is not an issue of deliberate targeting - it's an accident of war," she added.
The commandos were chasing a Taliban insurgent believed to be in the compound with intelligence confirming no other people were in the building.
Ms Cochrane said the charges should not be dealt with in the "cold, lawyerly" environment in Canberra but by military operation members who understood the pressures faced by soldiers on the ground.
"It is a disciplinary jurisdiction - it is not a criminal jurisdiction," Ms Cochrane said, adding that the Taliban had used people as human shields.
"Decision on charging is best placed with those who are in operational environments who understand the pressures (and) the nature of a mission".
Ms Cochrane, who is also a member of the RAAF's High Readiness Specialist Reserve with the rank of Squadron Leader, said the charges would not pass muster in the ICC. "it is a dangerous precedent," she said.
"A grave breach of the laws of war is a very high test," she said.
"You need people who are behaving outrageously - not people who are applying the rules of engagement ... using the appropriate means and methods of war."
One commando is facing a manslaughter charge while the other two are accused of lesser offences, including failure to follow orders and dangerous conduct.
AAP October 1, 2010, 3:36 pm
Barrister Kathryn Cochrane, a member of the International Law Association Committee at the International Criminal Court (ICC), has questioned the Defence Military Prosecutor's plan to court martial the soldiers.
"The point of the fact is that armed conflict is chaos," Ms Cochrane told Macquarie Radio on Friday.
"It's not necessarily the case the intelligence is perfect - the weapons may not be perfect, errors do occur."
The three former members of the Special Operations Task Group are facing court martial over a night-time raid on a residential compound believed to harbour Taliban insurgents in the Oruzgan province in Afghanistan in February 2009.
One suspected insurgent and four children and a woman were killed and another two children and two adults were wounded.
Ms Cochrane said international law required all necessary steps be taken to prevent the deliberate targeting of civilians.
"This is not an issue of deliberate targeting - it's an accident of war," she added.
The commandos were chasing a Taliban insurgent believed to be in the compound with intelligence confirming no other people were in the building.
Ms Cochrane said the charges should not be dealt with in the "cold, lawyerly" environment in Canberra but by military operation members who understood the pressures faced by soldiers on the ground.
"It is a disciplinary jurisdiction - it is not a criminal jurisdiction," Ms Cochrane said, adding that the Taliban had used people as human shields.
"Decision on charging is best placed with those who are in operational environments who understand the pressures (and) the nature of a mission".
Ms Cochrane, who is also a member of the RAAF's High Readiness Specialist Reserve with the rank of Squadron Leader, said the charges would not pass muster in the ICC. "it is a dangerous precedent," she said.
"A grave breach of the laws of war is a very high test," she said.
"You need people who are behaving outrageously - not people who are applying the rules of engagement ... using the appropriate means and methods of war."
One commando is facing a manslaughter charge while the other two are accused of lesser offences, including failure to follow orders and dangerous conduct.
AAP October 1, 2010, 3:36 pm
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The media release that led to the damnation of Brigadier Lyn McDade.