The Chief of the Defence Force was very quick to threaten the cancellation of the Meritorious Unit Citation currently worn by some 3000 serving and former soldiers. He was far less expedient in considering administrative action involving the chain of command and even slower in addressing the accountability of the senior leadership. As the saying goes, "A fish rots from the head".
Aside from the question of "superior responsibility" under international and domestic law, the "moral" and "administrative" responsibility of the chain of command must be addressed openly, transparently and independently. Internal and parliamentary inquiries have, for decades, been identifying cultural and procedural problems in the ADF including systemic abuse, maladministration and cover-ups. Once Defence has exhausted its default response - to deny and obfuscate - it eventually states "this can never happen again" only to be confronted with another inquiry a few years later.
In the aftermath of the "this can never happen again" ADF response to the 2013 DLA Piper inquiry into Defence abuse, many of those adversely mentioned remained in the ADF and continued to advance their careers, some to high uniformed or public service appointments and all in receipt of the honours and awards which form part of their salary packages. Now would be a good opportunity for the Chief of the Defence Force to remediate the track record of the ADF in promoting and awarding those whose performance is less than ideal in exercising command and leadership.
More likely we may well expect to see a mass exodus of senior officers in a bid to avoid administrative sanction. Better to retire a Brigadier than a Colonel.
So what do we do now? Do we really need to wait another 10 years for the current crop of senior ADF officers to retire and hence escape formal sanction, leaving a very long and dark cloud hanging over the heads of thousands of current and former serving personnel?
Or do we apply some fundamental principles of our justice system to those accused or implicated in these actions. The first is to ensure that the process of prosecution and the preparation of a brief of evidence is not only thorough but timely. To delay justice, as they say, is to deny justice, both to the innocent and those alleged to have committed these crimes. Let's fast-track the process, appoint a special prosecutor and increase the resources available to them so that charges can be considered and brought to trial within five years not 10.
While we are at it let's delineate between the institutional responsibility of the ADF and the individual and collective responsibilities of its members. To be clear, the ADF is not a normal workplace and it is not a democratic organisation. It works (and on occasion fails) on the principle of a clear chain of command and the enforcement of direction, instruction and orders from those in superior office. By definition, therefore, the failure of enforcement and execution of orders, culture and standards of behaviour is a clear and direct failure of those in high command. The real question is why are they still here? Do we need a war crimes trial to answer this question? And who are they accountable to?
This is where the Prime Minister comes in and where the actions of his government deserve much greater scrutiny. Gaslighting doesn't come close to describing the incredible transformation of the truth that we have just witnessed from Morrison and his regime in relation to the Afghanistan scandal. A year ago they were threatening to jail the brave journalists and soldiers who blew the whistle on these events. Today his government takes the credit for exposing this scandal and entrusts those in high command to clean up the mess in their own time. No wonder they say that truth is the first casualty of war.
Glenn Kolomeitz is a lawyer and former military prosecutor and Army Officer with multiple operational tours overseas including rotations with the Special Operations Task Group in Afghanistan. He is a former NSW police officer with experience in the coronial jurisdiction and in counter-terrorism and has studied and published on international criminal law and the law of homicide. He is presently researching command and superior responsibility for war crimes under Australian law. He was an ALP candidate for the seat of Kiama at the 2015 election.
Arthur Rorris is the Secretary of the South Coast Labour Council and has specialised in industrial relations and workplace investigations for more than two decades. He has previously sat on the Public Service Commission appeals boards and worked at the University of Wollongong.
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