Posted By Bernard Gaynor on Wednesday, June 13, 2018 7:14 pm | 12 comments

One of the fundamental legal principles of our civilisation is the presumption of innocence until guilt is proven.

This should be particularly so when it comes to allegations of war crimes levelled against our soldiers on operations. They put their lives on the line in the most dangerous of circumstances at the behest of our government. They deserve, at the very least, due process.

Unfortunately, this principle appears to have been thrown out the window in the modern Australian Defence Force.

Let’s not beat around the bush: since Friday allegations have been aired in Fairfax media and on the ABC that in 2012 members of the SAS engaged in murder and then a conspiracy to cover it up:

The SASR soldier, nicknamed “Leonidas” by a fellow soldier after a Spartan warrior, kicked the handcuffed detainee off the edge of a small cliff, badly injuring his face, according to claims of two defence force insiders who witnessed the event.

As the detainee lay injured, hands still bound, the two witnesses say Leonidas was party to the decision among soldiers to “get him out of his misery.”

The journalists who wrote this story, Nick McKenzie and Chris Masters, made it very clear that they believed that these allegations were more than mere rumours:

Now, five years after Ali Jan was walked towards the cliff edge, rumour has hardened into allegations, and then into evidence. Fairfax Media has spent months looking into Ali Jan’s fate as part of broader investigation into the behaviour of SASR forces in Afghanistan. The investigation involved interviews with dozens of current and former soldiers and senior officials, and unearthed highly confidential documents and briefings. Fairfax Media also hired an Afghan journalist to track down Darwan villagers and Ali Jan’s’s family to tell their story.

Among the special forces soldiers risking their careers to brief Fairfax reporters are those who have also been summoned to give evidence to a special inquiry now being held into the actions of Australians in Afghanistan. This inquiry is run by a Supreme Court judge with the backing of top military officials.

Behind closed doors, the words “war crimes” are being used. Not only specific incidents, but the entire culture and command structure of Australia’s most renowned and trusted fighting force is now under scrutiny in a manner unprecedented in Australian military history.

The ‘suspect’? According to Fairfax media, ‘Leonidas’ had completed multiple tours of Afghanistan before deploying again in 2012, has tattoos and was known for his courage.

That could be half the SAS who are now unjustly tarred with the brush of war crimes.

But given the details in the Fairfax reporting, it should come as no surprise that there are names being thrown around on the rumour mill. Reputations have already been tarnished, even though no charges have been laid and no findings have been made.

Unfortunately, it is highly likely that at some point one or more brave Australians will be fingered in the media as war criminals, even though they have faced no trial at all.

Rather ironic, isn’t it.

Allegations of murder are serious. And they should be taken seriously.

But here’s the rub: there is no proper investigation into these allegations. One can only wonder why.

Yes. There has been a 2016 ‘war crimes’ report from a feminist sociologist.

Yes. The Inspector General of the Australian Defence Force (IGADF) has been running a separate inquiry since 2016 to advise the chain of command on how to deal with the allegations.

Yes. We now have a third ‘inquiry’ being led by the former ASIO boss, David Irvine, examining undetailed ‘reforms’ within the SAS.

And yes, we now also have trial by media.

Unfortunately, none of these processes are the due process.

Feminist sociologists are not criminal prosecutors facing a burden of proof. And neither are journalists at Fairfax or the ABC. And with all due respect to the work being undertaken by Supreme Court judge Paul Brereton and David Irvine, neither of their ongoing investigations have the power to lay charges or make criminal findings.

All they can do is recommend what should have been done in the first place: hand the matter over to the Australian Defence Force Investigative Service (ADFIS) or the Australian Federal Police (AFP).

So in terms of dealing with the allegations, all these ‘inquiries’ are pointless.

We now have a bizarre situation where we are supposed to believe that two separate witnesses have made statements to the effect that they witnessed a murder and yet neither ADFIS nor the AFP have been called in.

Instead, a shadowy and self-appointed prosecution has been given free rein to air allegations in public via the media while the ‘defendant’ has had no fair chance to lay his side of the story at all.

Due process and natural justice have been jettisoned.

Furthermore, one could easily form the impression that the media trial has been given a green light by the chain of command.

Witnesses from the Brereton inquiry seem to be leaving its hearing rooms and heading straight over to the Sydney Morning Herald, almost as if they have been directed to do so as part of some media operations campaign to shape public opinion. Fairfax journalists claim they have spoken to dozens of SAS members and that they have managed to obtain a report from feminist sociologist, Samantha Crompvoets, that Defence has previously refused to release.

Newspaper journalists appear to have been given access to all the ‘evidence’ (or should that be rumours) while the criminal prosecutors have not.

Even if none of this is condoned by military commanders, they are still responsible for failing to follow due process and instead setting up a parallel system of pointless inquiries that were always likely to end up with trial by media.

Perhaps the best way of understanding this outrageous situation is by contemplating this: in the six years since Fairfax states the allegations were first made, Defence has deployed a feminist and banned images of the Grim Reaper. And launched an IGADF inquiry to provide recommendations to senior commanders about how to deal with ‘war crimes’ allegations.

What a joke.

The fact that our military leadership has to have an inquiry into what it should do with allegations of war crimes is far more concerning than the actual allegations themselves.

If the current Chief of Army and former Special Operations Commander truly don’t know what to do with these allegations then neither of them should have been placed into these positions of responsibility.

The correct response to these allegations is simple: spare the Army from feminist sociologists and if there is evidence of murder that could result in a conviction, lay charges under the Defence Force Discipline Act 1982. If not, the matter ends there. And ‘there’ should have been back in 2012.

All of this reminds me of David Morrison.

When he was Chief of Army the ‘Jedi Council’ scandal was beat up to the media and Morrison went on to become Australian of the Year and land a cushy job with the Diversity Council of Australia. Along the way, a lieutenant colonel was unjustly framed, leading him to attempt suicide.

A cynic might question whether something similar is happening again.

The Chief of Army, who after six years of serious allegations is yet to call in the criminal investigators, is being praised in the media for his handling of this affair:

The silver lining for the Australian Defence Force is that the alleged war crimes have been exposed by SASR whistleblowers who have been backed by certain high-ranking officers, including now former major-general Jeff Sengelman and incoming defence force chief Angus Campbell.

As I said at above, these allegations are serious and should be taken seriously.

Yet the ‘whistleblowers’, who Fairfax claims are backed by the Chief of Army, have not been directed to speak with police and have instead been briefing the media.

The whole process is wrong, leaving Defence likely to get the worst possible outcomes.

If there is no substance to the rumours (which was the outcome of other war crimes accusations), senior leadership have allowed Australia’s bravest soldiers to be unfairly tarnished with allegations of murder.

If there is something to this story, Army commanders have failed to launch any proper inquiry and allowed the creation of circumstances that may prejudice any future criminal trial.

And in both cases, instead of dealing with the causative problems that were always likely to lead to problems within the SAS (such as the unsustainable over-deployment of the SAS due to the political decision to avoid casualties in the Army’s combat units deployed to Iraq and Afghanistan), the SAS is likely to succumb to the next round of feminist social engineering within the Australian Defence Force.

Either way, the greatest casualties in this scandal seem likely to be morale, capability and the rule of law…