Afghanistan war crime prosecutions complex

Paul Osborne
·2-min read

Collecting evidence will be the biggest challenge in bringing Australian special forces soldiers to trial over war crimes, a legal expert has warned.

Dr Melanie O'Brien, a senior lecturer in international law at the University of WA, said there was a lot of complexity in progressing cases arising from the Inspector-General of the Australian Defence Force's report.

Australian special forces stand accused of murdering 39 people in Afghanistan and torturing two prisoners, following Justice Paul Brereton's four-year investigation.

"Evidence will be the biggest challenge, especially given the logistics of collecting evidence of crimes committed outside of Australia, in a conflict zone," Dr O'Brien told AAP on Friday.

She said from what was known of the allegations there would be two potential charges under the Commonwealth Criminal Code - murder, which attracts a life sentence, and cruel treatment, which attracts 25 years in jail.

The federal attorney-general would have to recommend charges to the Commonwealth DPP, who would then proceed with prosecution in the Federal Court.

"The CDPP policy is that a case will proceed if there is sufficient evidence to prosecute the case and if the prosecution would be in the public interest," she said.

"The latter test would certainly be satisfied with regards to war crimes."

The trials are likely to be conducted before a jury but could also be judge-alone hearings.

"A judge-only trial is usually requested because of arguments there could not be a fair trial, which is usually because the details of the case are too well-known by the public through extensive media coverage," she said.

"This could certainly be argued, because of the media coverage of the report and the war crimes allegations generally.

"However, in this case, the fact that the report is redacted is likely done to ensure that the specific details of the offences are not in the public knowledge, and so it could be argued that a jury trial is still appropriate because the public does not know the specific details of the allegations."

A further argument for a judge-only trial would be the complexity of the cases.

"It may be too difficult for the ordinary person to grasp the concepts," Dr O'Brien said.

"This would be a significant argument for a judge-only trial with regards to crimes committed by military personnel, because the average non-military person cannot understand the experience of fighting in war, nor the regulations on life and employment that military personnel work under."