The news today that Ben Roberts-Smith VC has been arrested on charges of murder relating to war crimes allegedly committed in Afghanistan whilst serving with the Australian Army has triggered a wave of outrage from some supposed patriots.
My own views on this, particularly given that the matter is now sub judice, are more nuanced.
For several months, if not years, there has been a Facebook page dedicated to demanding a ‘pre-emptive pardon’ for Mr Roberts-Smith. Given that he had, despite serious accusations and the findings of a civil court to a lower standard of proof, not yet been charged with any crimes, let alone convicted, I deplore calls for pre-emptive pardons as I feel that they undermine the place of due process in our legal system.
Indeed, I do not think that you can pre-emptively pardon someone who has not yet been found by a criminal court to have actually committed a crime. [Indeed, it implies that these petitioners believe that he did commit the crimes in question, but that he should not answer for them.]
But I doubt that those who talk of pre-emptive pardons are actually holders of law degrees, although I have met enough law graduates over the course of my adult life that I do not put my faith unreservedly in the understanding of jurisprudence held by all members of that category.
Australia’s relationship with the concept of war crimes has unfortunately been an ambiguous one, despite the fact that we are, on the whole, an extreme decent and fair nation, particularly when compared with most others.
On one hand, we played a significant role in the creation and then adoption of what is commonly known as the Rome Statute, the current main international legal instrument defining war crimes and crimes against humanity. [In my former day job, I had the pleasure and privilege of meeting and discussing these serious matters several times with a law professor from Melbourne University who had contributed greatly to the creation of the Rome Statute.]
On the other hand, we have this collective belief in the martyrdom of Breaker Morant, an Australian officer in the Boer War who, along with several of his colleagues, was convicted and executed for the killing of various prisoners of war and civilians.
Various books and a movie have emphasised this martyrdom myth in the intervening 125 years, particularly in the past half century.
This collective belief appears to have mutated into a sense of immunity for the conduct of Australian soldiers in conflict, that our troops can do no wrong, are above reproach in their behaviour on the battlefield and hence are immune from prosecution.
Ben Roberts-Smith, as arguably the most decorated living Australian soldier, has benefited from the shadow that the execution of Breaker Morant has cast on the conduct of Australian troops in the intervening 125 years.
But, Victoria Cross or not, he is not above the law. He was found by a court in a defamation trial to have, to the civil standard of proof (balance of probabilities), committed war crimes. He was unsuccessful in appealing that verdict to a higher court.
Now that the civil trials are over, the way is clear to establish in a criminal court, with its higher standard of proof (beyond reasonable doubt), whether he is guilty of murder or related war crimes.
I do feel sadness about this. I am patriotic, and I value our defence forces and the supreme sacrifice that a hundred thousand Australians have made since Federation in so many wars. I mostly believe that our troops are better behaved than those in other armies, and that we are fighting for just causes, rather than for conquest or to defend tyranny.
But that does not mean that we turn a blind eye to serious allegations of conduct that does not meet the standards of behaviour that we expect of our troops. To do so would not only undermine the legitimacy of our just cause when we do fight, but also will provide those who might behave otherwise the impunity to behave as if they are above the law.
Hence it is necessary, given the existence of such serious accusations, to see them tested in a court of law, in a criminal trial.
The Australian nation requires this, to preserve the moral integrity of our legal system, and of our defence forces, to show the world that we will behave better than others do in armed conflict, and that if we do not, we will investigate and punish transgressors.
As a footnote, in relation to the historical fact that Mr Roberts-Smith is a holder of the Victoria Cross, it is unlikely that it will be stripped from him, even if he were to be convicted. Whilst this happened several times prior to 1920, George V was asked his views that year as to whether the holder of a Victoria Cross should ever have it revoked for subsequent crimes. His views, as expressed through one of his courtiers, was:
The King feels so strongly that, no matter the crime committed by anyone on whom the VC has been conferred, the decoration should not be forfeited. Even were a VC to be sentenced to be hanged for murder, he should be allowed to wear his VC on the scaffold.
I am sad that a national hero must face justice in relation to the crimes he may have committed. But I am relieved that even heroes are not above the law.
Lost For Words! 