June 15, 2023
Ben Roberts-Smith breaks his silence after returning to Australia.
Former SAS soldier Ben Roberts-Smith has broken his silence after returning to Australia for the first time since a judge’s damning verdict against him.
Australia’s most decorated living soldier was seen on Wednesday boarding a business class flight with his girlfriend in the New Zealand resort town of Queenstown.
Hours later he landed at Perth’s airport, where TV cameras approached the Victoria Cross-holder. Mr Roberts-Smith uttered few words, but said he was “devastated” by the verdict in his long-running defamation trial against Nine newspapers, adding that it was a “terrible outcome and the incorrect outcome”.
Mr Roberts-Smith was adamant he would not apologise. “We haven’t done anything wrong so won’t be … making any apologies,” he said.
When asked if he was proud of how he had behaved when serving Australia, he responded: “Of course.”
It was the first time Mr Roberts-Smith had been seen in public since losing his defamation case over war crimes.
Mr Roberts-Smith sued the newspapers and journalists over stories that alleged he killed Afghan civilians, bullied colleagues and committed domestic violence.
The Victoria Cross recipient denied the allegations and said he’d been defamed. Mr Roberts-Smith was nowhere to be seen when the judge handed down his decision.
His return to home soil coincided with reports that the Australian Federal Police has abandoned two criminal investigations into alleged murders involving the veteran in Afghanistan. The dumped investigations will be replaced by Operation Emerald – a new joint taskforce of the Office of the Special Investigator and AFP investigators.
NOTE: This would appear that Australia’s CDF General Angus Campbell is hell bent on continuing his persecution of Australia’s bravest Soldiers from the Afghanistan conflict. Just how out of touch is this so-called Commander of the Defence Force, when you consider this was the longest conflict by Australian Forces which was conducted by the smallest number of actual feet on the ground SAS and Commandos.
Why, because all but a few of these COMBAT SOLDIERS were required to do multiple rotations across these years.
Ben Roberts-Smith (BRS), did six (6) tours.
Ex-soldier lambasts ABC’s defamation defence
By Miklos Bolza Oct 19, 2022
An ex-commando has criticised the ABC’s defence in a defamation case brought over reports an Afghani prisoner of war was unlawfully killed because they did not fit on a military helicopter.
Heston Russell, who served in the Australian Defence Force from 2003 to 2019, is suing the ABC over an article first published in November last year regarding a claimed criminal investigation into a platoon serving in Afghanistan in 2012.
Named in the article, Russell says the article wrongly implied he was involved in the unlawful killing of a hogtied prisoner in Afghan’s Helmand province, that he was the subject to an active criminal investigation, and that he had callously denied the allegations.
The November piece linked to an earlier October 2020 report about claims made by a US marine referred to as “Josh” who accused Australian soldiers of the unlawful killing of the prisoner because there was not enough room on the helicopter.
The ex-commando claims these joint articles further defamed him by implying he “habitually killed people unnecessarily” while in Afghanistan and that he left “fire and bodies” in his wake.
“The story in the linked article was wrong to the ABC’s knowledge and despite knowing that shortly after publication of the November article, it stubbornly persisted in its defence of ‘journalism’ that was indefensible,” he wrote.
The ABC, which admitted that the November article breached its own accuracy standards, personally apologised to Russell and amended the piece but has not taken the reports down nor issued a public apology.
In its defence, the national broadcaster denied the article defamed Russell and argued that it was published in the public interest.
It has claimed that some lower level imputations were truthful, but denies that the report connected the former soldier to war crimes.
The organisation also argued several other imputations were true, including that members of Russell’s platoon were “reasonably suspected” of committing crimes in Afghanistan and were under investigation, and that his reputation could not be further harmed as a result.
In a reply filed on Friday, Russell slammed the details of the ABC’s defence, saying they were “dishonest in their context, evasive and included merely to besmirch (him)”.
He said it was all part of an attempt to intimidate and put improper pressure on him to dissuade him from commencing or maintain the proceedings.
He is seeking to eliminate whole portions of the news organisation’s defence, including a 10-page annexure which details alleged criminal breaches of the rules of engagement made by him and his platoon in Afghanistan.
Russell, who is also founder of the Australian Values Party, denies involvement in any criminal conduct.
A report by the Inspector General of the Australian Defence Force released in November 2020 “did not find credible evidence of war crimes” by the 2nd Commando Regiment of which he was a part, he wrote.
Russell claims his reputation has been injured as a result of the publications. (Sydney Morning Herald)
The ABC is facing claims for damages and aggravated damages with Russell claiming his reputation has been “gravely injured” as a result of the publications.
Investigative journalists Joshua Robertson and Mark Willacy have also been named in the lawsuit.
ABC drops truth defence in ex-commando’s defamation suit
By Michaela Whitbourn May 1, 2023
The ABC has abandoned its truth defence in a defamation case brought against it by former Australian special forces soldier Heston Russell over claims he was involved in shooting and killing an Afghan prisoner.
In an amended defence to Russell’s defamation claim, filed in the Federal Court on Friday, the ABC deleted defences of truth and contextual truth. It will seek to rely chiefly on a new public interest defence that has yet to be tested in the context of a full trial in Australia.
Justice Michael Lee delivered a preliminary win to Russell in February, when he ruled the ABC conveyed 10 defamatory meanings about the former commando in a television broadcast on November 19, 2021, an online article that day, and the same article combined with a linked article from October 2020.
The meanings included that “Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012”; that he “habitually and knowingly crossed the line of ethical conduct” as a commando in Afghanistan; and that he “behaved so immorally when deployed in Afghanistan that American forces refused to work with him”.
Heston Russell and his barrister Sue Chrysanthou, SC.Credit: Louie Douvis
Former commando wins first round in ABC defamation fight
Lee must now consider the ABC’s defences to those 10 meanings.
The national broadcaster denies the article satisfies a new serious harm test, which requires the person bringing a defamation case to show a publication “has caused, or is likely to cause, serious harm” to their reputation.
The ABC had previously said in a written defence that it would, if required, seek to rely on a defence of truth to some of the 10 meanings, including that he was involved in shooting and killing an Afghan prisoner. It was also seeking to rely on defences of contextual truth and public interest.
On March 24, Lee struck out the particulars of ABC’s truth defence after Russell’s barrister, Sue Chrysanthou, SC, argued the alleged facts the broadcaster sought to rely upon were insufficient to prove the truth of the defamatory claims. Lee gave the ABC leave to file an amended version of the defence.
In response, the broadcaster filed a written defence on Friday removing the defences of truth and contextual truth, leaving the public interest defence intact.
The public interest defence started in July 2021 in NSW, where the trial will be held, and is now law in most Australian states and territories.
The broadcaster’s lawyers say the publications each concern a matter of public interest and the ABC and its journalists “reasonably believed that the publication of each … was in the public interest”.
Chrysanthou had argued during a preliminary hearing in Sydney that Russell, a former major and commando officer in the Special Operations Command, had been subject to “further defamation” via media reporting of the ABC’s truth defence.
“My client is being publicly maligned and further defamed because of this document, which we say is wholly unmeritorious and hopeless and should be struck out,” Chrysanthou said.
“This is not theoretical: there are baseless, illogical, unsupported allegations in this document of serious crimes and that’s being reported.”
The November 2021 online article at the centre of the defamation suit was amended in March 2022 to include a correction.
The correction states that “a key point for this story initially stated that a US Marines helicopter crew chief alleged that November platoon killed an Afghan prisoner after being told he would not fit on an aircraft”, but the article had been amended because “the marine’s allegation did not identify a particular platoon”.
May 2, 2023
ABC Abandons Truth Defences.
Heston Russell’s letter to Raye Payne – VETERANWEB NETWORK
Hey G’day Ray
I can finally give you an update on my Defamation Case against the ABC. They have just filed the fourth attempt at their defence and have abandoned their Truth Defence and Contextual Truth Defence, now they will just be relying on their Public Interest Defence.
For those of you who have been following, this has been a saga now almost three years long. I’ve tried my best to keep you up to date along the journey at HestonRussell.com/ABC
While I’m not allowed to go into any more detail outside of the judicial process, many of you will know the personal and professional struggles this fight for accountability has caused. I cannot personally believe that I have had to fight so hard for the truth and simply see common sense in action. I can only imagine the cost this is causing Australian Taxpayers, and what it is costing me on so many levels to pursue this quest for justice.
From here, we are next in Sydney at the Federal Court on May 26th. I will fly down to be in person and certainly look forward to what the proceedings will be from here. Until then, you can catch more of what others in the media have been reporting on these latest developments via the links I’ve included below:
‘Legal blow for the ABC’: Major update in war crimes case
ABC drops truth defence in ex-commando’s defamation suit
Thank you so much to all of you who have been supporting me, sending messages, stopping me in the street to give encouragement, and having conversations within your own networks. This has sometimes felt like a very uphill and lonely battle, but I am continuously comforted by the support of so many from behind and in front of the scenes.
Yours in Service,
HR
Duty and Consequences
What strange rules for combat wrapped in white flags we use
To placate political masters far distant from arenas of win or lose
Blind to cruel reality and reluctance to raise clenched fists of war
Constant “ifs, buts, ums” and gentle nudges to signal what for?
Suits seeking victory with timidity, naivety and swollen empty heads
Armed with appetites for self- praise and prepared tears to mourn the dead
Safe In an opulent Special Place far distant from fields of death and despair
Where war weary Space Age ANZACS standing tall, still go forward to dare
A soldier accused of war crimes in headlines, bold, black and white
A bloody arena with a thin invisible line between wrong and right
Photographs galore of enemy dead on the same page, readily seen
Frozen images falsely hinting what gentle citizens such foe had been
The accused, already a hero before this split second survival need
Had been presented proud ANZAC laurels for previous brave deeds
For grit In combat against ruthless foe who never, ever showed mercy
Thugs and murderers now converted to martyrs with sly pen for all to see
So much easier to bury heads in the sand in which injustice thrives
Yet where is presumption of innocence until proved otherwise?
Such irony in assumptions of guilt of a soldier pre – trial to determine sin
Echoing from ages past, I can hear “Sar- Major, march the guilty basxxxds in”
George Mansford © March 2023
“March the guilty b—s in” was once said with much humour. It referred to a weekly phase of administration in barracks when soldiers charged with a military offence were paraded with armed escort before their Commanding Officer to determine guilt or otherwise.
The beginning of such procedure was always referred to by soldiers with tongue in cheek as “march the guilty bastards in”
As once uninvited Political Correctness and WOKE slowly take their place in our increasingly troubled society, the saying with tongue in cheek no longer has the humour intended.
Presumption of innocence, the very base of our legal system has been tossed aside, particularly in the fog of war, where the media has already made its judgement of alleged crimes yet to be proven.
No Front Line: Australia’s Special Forces at War in Afghanistan
28th February 2018
Alistair Pope
With Friends Like This…
Need a present for an irritating pal? I have a copy of “No Front Line” to give away. It’s by the ABC’s Chris Masters, whose recounting of his time in Afghanistan is good in parts but mostly what you might expect from a ‘friend’ who is on your side but can’t curb the urge to nitpick and bemoan.
No Front Line: Australia’s Special Forces at War in Afghanistan
by Chris Masters
Allen & Unwin, 2017, 563 pages, $27.90
____________________________
I probably would not have read this book had I not switched on ABC radio while driving, just as Chris Masters was being interviewed about it. I listened for about twenty minutes.
If that interview was all I knew about Australia’s war in Afghanistan then I would probably be joining the radicals in protesting against the numerous war crimes, murders and atrocities carried out by the Australian Army’s thugs. The interview was typical ABC and another example of our tax dollars being spent in exposing their version of truth, justice and the ABC way.
To say that I later opened the book with a severe degree of prejudice would be a fair assessment. It was therefore a surprise to find that, like the curate’s egg, it is good in parts and is almost a readable book.
This review appeared in the February edition of Quadrant.
The destruction of the World Trade Center in September 2001 was a globally traumatic event and a direct attack on the USA and the West. I supported the view of most of the civilised nations that this act required a counterattack to exact retribution at the terrorist source. Afghanistan was duly invaded and Australia committed some special forces to the war.
Nowhere is it explained how Chris Masters was chosen to be the reporter who would be accredited and embedded with the warriors of Special Forces. In fact he writes:
… my admiration … [and] my personal empathy would not compromise professional objectivity. While I liked them I never wanted to be them. Rather I wanted to tell their story. But there was a limit, which investigative journalists find hard to abide.
Did no one in Defence think that appointing an investigative journalist was a tad risky? Did it not occur to anyone that he would conform to type and find something, anything to investigate—and expose? Investigation is his game.
Unsurprisingly, Masters proudly reveals that he managed to penetrate the Hesco, an operational planning “no-go” area in Camp Russell that for security reasons is restricted to those on a “need to know” basis. However, to Masters, denying him access “always felt wrong”. Ah, that sense of journalistic entitlement by one who “never wanted to be them”. As one of the photos shows, he never could have been a warrior, but the photo is proudly captioned, “The author finally breached Camp Russell, becoming the first and only reporter to embed with the Australian Special Operations Task Group”. Embed? I would suggest he “breached” the Hesco operations centre of Camp Russell by invitation, not through journalistic guile and cunning, but I am willing to stand corrected—or is he really the James Bond he hints at?
These are irritations that detract from an otherwise well-written story of warriors in action. In fact, his description of some of the close calls and battles are among the best I have read, apart from first-hand accounts by frontline soldiers themselves, such as in Ion Idriess’s Desert Column and Peter Ryan’s Fear Drive My Feet.
I found it curious that, after Masters spends time with warriors who are sometimes killed (“Trooper David ‘Poppy’ Pearce had been killed”), wounded (“Private Chad took three bullets to his legs, but kept going”), and knocked about (“Sergeant Ray had been knocked unconscious … [and it] also knocked Sergeant Mick out … After being told to rest, Sergeant Mick sought another opinion and returned to the fray”), he could then spend so much time mulling over “the bad side of war”, the collateral damage of civilians being injured or killed and their property devastated. What is there not to admire about men like these who put their lives on the line every day and make split-second decisions that armchair lawyers, academics and leftist politicians can analyse for years afterwards?
The sad part is that our current crop of bureaucrat “generals” side more with the social-justice warriors than they do with their own soldiers. It is neither being objective, nor is it telling their story to waste a couple of pages repeating the ABC’s (yes, the ABC again) Four Corners allegation that “the unarmed businessman was dragged behind a pile of planks and executed”—although Masters does admit that “the witnesses interviewed for the Four Corners report had not actually seen the shooting”. Who can doubt witnesses who saw nothing? Investigative journalist Masters sees it as a closed case to which he feels no need to add explanatory comment.
The good war can be summed up by: “fewer than 1000 Australian soldiers killed between 4,000 and 5000 enemy … [for] forty-two Australian soldiers killed on operations”. This is operational success and is what good armies do. Masters follows this by quoting a frontline warrior who understands the ethos of soldiers: “We mourn the loss of a soldier as a national tragedy, when in fact it is not … I hold the personal belief that we as a nation have blown the significance of a dead soldier out of proportion.” I agree with this view, so when Sir Angus Houston saw a need to recognise each individual by ensuring that there would no longer be a case of their “profound personal sacrifice passing unnoticed” the unintended consequence was that commanders are now seeking to fight “bloodless” wars. Therefore, a war in which casualties occur becomes a target for criticism and questioning. We certainly should question our commitment to every war, but in a reasoned way and not in response to casualties.
It struck me that Masters is like that “friend” who is on your side, but always has to add a negative for “balance”: “That operation went really well and you killed or captured every bad guy—but what about the homes that were damaged, the traumatised women and children and the two dead cows?” You know, the sort of person able to take the shine out of a sunny day. An example of this is when two SASR troopers (one of whom was later killed) hunted and killed two “spotters”. When one spotter was shot, a flare he was carrying went off, but the other was (possibly) unarmed. A third may have escaped. Shortly afterwards about 100 insurgents arrived to kill them.
As Masters concedes, the “scenario of one year earlier, which saw a US Seal team almost wiped out, was in the front of his mind”. In that scenario (and in the British SASR epic Bravo Two Zero) letting someone go who can report your position is ethical and humanitarian, but doing so when there is no front line can kill you and your comrades. Yet the moral dilemma is dragged out over pages without Masters providing a conclusion as to whether they did the right thing to live and fight, or the wrong thing in killing “alleged” spotters. If you think Masters is avoiding the realities of war, then fear not because the ADF hierarchy and its lawyers are on the case and way ahead of him in promoting non-lethal warfare.
Like that “friend” described above, Masters mentions another infamous case in which “The accidental killing of civilians (along with the bad guy) by 1 Commando … led to failed manslaughter charges” against two commandos. He recognises that the killing of the children was unintentional—the commandos did not know they were in the room. Was it a failure of Brigadier Lynn McDade to succeed in convicting them, or should charges never have been brought by the non-combat lawyer seeking—what? Oh, yes, the creation of our new non-lethal fighting Army and the removal of rough men willing to kill and risk their own lives in doing their duty.
For balance, the “green-on-blue” killing of three Australians by an Afghan they were training is covered in seven lines.
I thought that by page 545 the rationale of the book would have been clarified, but it is not:
Friends of friends overheard gossip at parties of Afghan males without weapons dead in fields—and far worse. Ahead of the squall of prospective war crimes was a general alert about Special Forces acting as a law unto itself.
Do we need any more evidence than that to justify disbanding and disarming this “narrow cohort now largely disconnected from the broad community”? After all, as the ex-Army politician, the Honourable Stuart Robert proclaimed, “Diversity is strength”, so maybe a few of the fifty-seven varieties of gender and religion will help bring balance.
Although he never defined what the winning objective was, Masters, the Special Forces’ “friend”, sums it up concisely: “I hope fault can rest more broadly than on those who carried the most weight of this long and losing war.” Well, 5000 dead enemies appears to me to be a good start in winning.
If you need a present for someone who irritates you, I have a copy of No Front Line to give away …
Alistair Pope served as a lieutenant-colonel in the Australian Army.
Comments [4]
- Tezza
The people who annoy me would only be confirmed in their annoyance value by reading No Front Line. So I’ll pass on your kind offer, but thanks for the review.
- Egil
There will be more wars.
Have absolutely no doubt about that.
Will ‘Western Civilization’, as we know it, win another war?
The entrenched enemy/fifth column within will make that next to impossible.
PC ‘progressives’ in media/academia/unions/political class will undermine/accuse/misrepresent
our side at every given opportunity.
Failing to do so would, of course, result in instant shaming by their fellow ‘progressives’.
A gender neutral fighting unit facing violent death in battle, looking over their back at lawyers/’journalists/investigators’,
thus having one hand firmly tied up;
Against an enemy not necessarily clearly defined;
How can they/WE win?
- whitelaughter
If he wished for an expose, he might want to focus on the bloodbath that is veterans committing suicide –
2001 and 2015, the AIHW found 325 cases:
https://www.huffingtonpost.com.au/2017/06/30/military-members-are-battling-higher-suicide-rates-than-the-rest_a_23007539/
https://www.aihw.gov.au/reports/veterans/incidence-of-suicide-among-serving-ex-serving-2014/contents/table-of-contents
-
- en passant
Whitelaughter,
Don’t you know that soldiers don’t count and ex-soldiers and their deaths count even less?
1,786 words
Australian General War Crimes
Article No. 24
24.1 – Quadrant Magazine
24.2 – Quadrant on Line
Australian General War Crimes
by
Alistair Pope
Australian General War Crimes
by
Alistair Pope
The two points I want to make in this article are:
- denigrating front line combat soldiers who have put their lives at risk when their leaders demand it from the comfort of an armchair is the beginning of the corrosion process that causes whole countries fail. If our so-called military and political leaders consider that their greatest duty to the nation is to investigate and prosecute their own troops for instant battlefield decisions, rather than stand up for them, then why would anyone take up arms to fight for this country?
- The current batch of clownfish we have for politicians and senior ADF officers are opening a Pandora’s Box with their investigations into alleged war crimes. They cannot determine the outcome of their witch hunt and, if properly and fairly applied, they are apparently unaware that the outcome will adversely affect them as the Yamashita Standard enshrined in International law means the buck stops with them:
- The Yamashita Standard states that the highest ranking officer is accountable for and should be prosecuted and convicted as accountable for the crimes of every officer and soldier under his command, even if he is unaware of that crime and actually gave orders to stop it. Ignorance of the actions of his/her subordinates and failed attempts to stop them are not a defence. Read that again.
There is a well-documented (and frequently repeated) incident that supposedly occurred in Somalia in 1993 in which an Australian military lawyer was apparently involved in the potentially unlawful execution of a murderous warlord. If his own statements can be substantiated, then it appears he should be prosecuted based on his own claims. This will be referenced again later. Surely, it is a bonus when lawyers eat their own, but I do not recommend ‘Brigadier’ Lynn McDade as prosecutor.[i]
Brigadier, Lynn McDade
Note the number of combat and other medals she is wearing. The item on the right is her Name Tag.
There is an old saying that goes: ‘Be careful what you wish for as your wish may be granted’.
It appears that our current clique of Army Generals are ignoring this cliché and wish to denigrate some of our frontline combat soldiers as potential war criminals. These are the rabbits leading the warrior lions who put their lives on the line as their government directs. It was bad enough when they were merely failing to support their soldiers from slanders and unsubstantiated allegations. Now they have individually or collectively taken proactive action to ask the enemies that we, as a nation sent our soldiers to fight and kill, if they know of any ‘crimes’ committed by Australian soldiers on the battlefield.[ii] This raises a whole series of questions about the fitness of our current crop of generals to command soldiers in battle because, if you have any doubts about killing your enemies, then a military career is not for you.
It would appear from my introductory criticism of the investigative process that that has been commenced by asking our enemies to tell us of war crimes by our soldiers, that I would oppose this inquisition: it will therefore probably surprise the reader that I actually wholeheartedly support this travesty. Then again, as I will explain, perhaps I have just looked a little deeper into the implications of their actions than the clownfish proposing this charade.
I believe that we can trace the proposed demise of the rightly famous Australian warrior ethos to the civilianisation of officer cadets’ initial education at the Australian Defence Force Academy and the caring-sharing, social engineering programs now embedded into the killing-averse training at the Royal Military College. However, my aim is not to address how we arrived here, but to look at the potential outcomes of the current inquisitorial hunt for war criminals among our warrior heroes. As a final aside, let me say that when real crimes are identified I do not excuse the perpretators. The evidence that our much eulogised Lt. Harry ‘Breaker’ Morant was indeed a war criminal who murdered unarmed prisoners is irrefutable. By the laws of the day he was dealt fairly with by the court and executed accordingly. Forget any posthumous pardon.
War is a nasty, brutal business. Yet what we now have are Australian politicians, socially conscious ‘Generals’, media pundits and lawyers poring over every enemy contact and shot fired. With no experience of war, and leisurely looking with a jaundiced eye at every incident of collateral (unintended) damage for crimes committed by our troops becomes ‘social justice’ a mission. In jungle fighting from WW2, through Malaysia and particularly in Vietnam one popular tactic was to find a trail used by your enemies then settle down and wait. When they came along you initiated the ambush and killed them all. If they never had a chance to fire back, so much the better. As the much decorated LtCol David Hackworth is quoted as saying: “If you find yourself in a fair fight, then you made a bad plan”. Let’s hear a shout from from the equal opportunity brigade “That’s not fair! What if some wanted to surrender? What if not all were killed, but some were wounded?” Well, cupcake, this is not a sport or a game, so you figure it out and then find a colouring book and a box of crayons … and suck your own thumb.
But let’s have a look at the implications of the Brereton Inquiry that is seeking testimony from insurgents, beheaders, genuinely innocent farmers and collateral ‘damagees’. Firstly, how do you categorise them into which is which? After all, several Australians were killed in ‘Green on-Blue’ attacks (where Afghans supposedly on ‘our’ side killed Australian soldiers). Now we are asking then Afghanis (who have 3,000 years of near constant warfare experience to their credit) if we fought fairly – or not. Breathtaking …
The Yamashita Standard[iii]
General Yamashita, the ‘Tiger of Malaysia’ was hanged on 23rd February 1946 for crimes committed by his soldiers in the defence of the Philippines. It is important to note that Yamashita was not accused of personally committing any crime, nor could it be proven that he even knew of the atrocities committed by any of the 360,000 soldiers under his command. Yamashita took command of 14th Army just 10-days before the American invasion. Yet, after the war ended MacArthur had him court-martialled for ‘failing in his duty as commander of the Japanese forces’ by not preventing massacres of civilians in Manila. His defence lawyer, Col. Harry E. Clark, Sr. argued that Yamashita “… is not charged with having done something, but simply with having been the commander. [My emphasis] American jurisprudence recognises no such principle so far as military personnel are concerned. (and the key point he made is) No one would even suggest that the commanding general of an American occupation force becomes a criminal every time an American soldier violates the law.”
Due to a lack of communications capability, Yamashita had not had effective control of his Army since he arrived. The American landings had quickly broken the 14th Army into three separate areas. When the war ended, Yamashita surrendered the Shobu Group in northern Luzon, but was convicted of the crimes committed by the independent Shimbu Group in Manila. The U.S. Supreme Court upheld the conviction (7-2) that ‘a commander can be held accountable for crimes committed by his troops even if he did not order them, did not know about them or did not have the means to stop them’. [my emphasis]
I find this principle totally illogical but wonderfully to my liking for the purpose of convicting our despicable politicians and self-serving Generals!
This bizarre doctrine of ‘command accountability’ has now been added to the Geneva Convention as the ‘Yamashita Standard’ and was adopted by the International Criminal Court in 2002. Australia is a signatory to this convention and our Generals are therefore subject to the ‘Yamashita Standard’. There is now a body of legal precedent as it was applied in many of the recent Balkan War prosecutions.
Now to review a couple of practical applications.
In his book ‘Bravo 20’ about a disastrous SASR patrol in Iraq, Andy McNab tells of their patrol being spotted by a shepherd and a bulldozer driver. They let both go and as a result are soon hounded by Iraqi soldiers. One of their number is killed, two die of hypothermia, the rest are captured and only one escapes. Question: from the comfort of your armchair would it have been a war crime for them to save themselves by killing the bulldozer driver, or if it was you, would you prefer to die? If they killed the two ‘innocents’ what punishment do they deserve?
In the book and movie ‘Lone Survivor’ an American SEAL Team is spotted by a goat-herder. They discuss the option of killing him and making their escape, but eventually decide to let him go and make off for the pickup point. They are soon pursued by 100+ jihadis. All but one of the five SEAL’s is killed. Worse, in trying to rescue them a Chinook carrying 18 SEALs is shot down and all are killed. 25 American dead for the very humanitarian decision to let one goatherd live. In the film, one of the SEAL’s says “If I kill him I will spend the rest of my life in Leavenworth.” Instead, he was one of the SEAL’s killed by the Taliban.
Question: from the comfort of your armchair, now that the outcome is known: what is the correct decision you would have made? If they killed the goatherd and escaped without loss of a SEAL what punishment do they deserve?
Let me return to the oft repeated example that has fascinated me for years involving an Australian Legal Officer in Somalia during ‘Operation Restore Hope’ in 1993. That lawyer is now a politician. The main version of the story goes that he and only one other soldier were in the courtroom when the warlord, Gutaale was sentenced to death. Gutaale had 15-days to appeal. However, Gutaale attacked our lawyer, who then dragged him to another compound where he was executed 5-minutes later. As lawyers do, he apparently had to defend himself with a bayonet from Gutaale’s supporters along the way.
There are three issues arising from this incident worthy of the ‘Brereton Investigation’:
If this story is correct and there were only two Australians in the Courtroom and no protection party close by in the likely event that the warlord’s men might seek revenge, then I see a serious dereliction of duty to provide adequate security by our Legal Eagle’s superiors. This is worth clarifying as our Generals should be held to the highest professional standard. After all, the standard you walk by is the standard you accept (unless it will come back on you, if the Jedi Council episode is anything to judge Australian Military Command Accountability by).
Secondly, I emailed the author of the book on the Australian Somalia deployment and received the reply that he did not hear of any incident concerning an Australian lawyer fighting Gutaale from the Courtroom to his execution. Apparently it is also not mentioned in the battalion or force War Diaries, though I was unable to obtain a copy to verify hearsay. Then again, as hearsay meets the Yamashita Standard criteria, then what I was told by an unnamed source is sufficient enough evidence. However, the alternative is that the lack of documentary evidence concerning this incident could be because of a cover-up. Surely after such a traumatic incident a report was written, considered and filed? A well-known case for Brereton to investigate perhaps?
Thirdly, since when was it the job of an Australian lawyer involved in setting up another nation’s judicial system to drag a prisoner to their place of execution before the appeal process is exhausted? The real point is that this could be a case of a potential extra-judicial murder that needs a full investigation to determine the facts.[iv]
It seems we have found our first potential investigation into a possible war crime allegedly involving an Australia lawyer. Also, by applying the Yamashita Principle, if he was exposed to such extreme dangers, then we have dereliction of duty by the battalion and force commanders. Oh, great days when the Iron Law of Unintended Consequences kicks in.
I look forward to Major-General Brereton finding just one prosecutable ‘war crime’ and then logically following the trail to the door of his fellow Generals and laying charges against them at the Hague. Popcorn sales will go through the roof and many frontline soldiers will cheer.
3,537 Words
References
The Spectator, July 2018: ‘Australian troops fear Afghan lawsuits’. – Bill O’Chee
Quadrant Volume LXI, No. 9 No. 539, September 2017: Gender Diversity in Khaki – Keith Windschuttle
Quadrant Books 2015 – Anzac and its Enemies – Mervyn Bendle
No Front Line: Australia’s Special Forces at War in Afghanistan’ – by Chris Masters – 2017, 563 pages
A Little Bit of Hope – Bob Breen (500 pages)
[i] We have already had the unedifying spectacle of ‘Brigadier’ Lynn McDade’s failed attempt to prosecute two commandos for the collateral damage of children killed when they responded to a jihadi firing at them. The commandos did not know the children were there when they fought back. Maybe the better question to ask is: what sort of enemy surrounds himself with children before he opens fire?
Oh, did I mention that all of this took place in the dark in a confined space? It must be great to have the luxury of considering the commandos split second actions from the comfort of an office while being paid multiples of the pay rates of real soldiers.
[ii] No Front Line: Australia’s Special Forces at War in Afghanistan’ – by Chris Masters – 2017, 563 pages
‘An example of this was when two SASR troopers (one of whom was later killed) hunted and killed two ‘spotters’. When one spotter was shot a flare he was carrying went off, but the other was (possibly) unarmed. A third may have escaped. Shortly afterwards about 100 insurgents arrived to kill them.
As Masters concedes the ‘lone survivor scenario of one year earlier, which saw a US Seal team almost wiped out, was [possibly at the] front of his mind’ [Page 104]. In that scenario (and in the British SASR epic Bravo Two Zero) letting someone go who can report your position is ethical and humanitarian, but doing so when there is no front line can kill you and your comrades. Yet this moral dilemma is dragged out over several pages without Masters providing a conclusion as to whether they did the right thing to live and fight, or the wrong thing in killing ‘alleged’ spotters. If you think Masters is avoiding the realities of war, then fear not because the ADF hierarchy and its lawyers are on the case and way ahead of him in promoting non-lethal warfare.
Masters mentions another infamous case in which ‘The accidental killing of civilians (along with the bad guy) by 1 Commando, {which} led to failed manslaughter charges (being laid against two commandos)…’ [Page 401]. As he recognises that the killing of the children was unintentional (the commandos did not know they were in the room). Was it a failure of Brigadier Lynn McDade to succeed in convicting them of manslaughter, or should charges never have been brought at all by the non-combat lawyer seeking – what? Oh, yes, the creation of our new non-lethal climate fighting Army and the removal of rough men willing to kill and risk their own lives in doing their duty.
For balance the ‘green-on-blue’ killing of three Australians by an Afghan they were training is covered in seven lines by Masters [Page 447].’
‘I thought that by Page 545 the rationale of the book would have been clarified, but it is not. ‘Friends of friends overheard gossip at parties of Afghan males without weapons dead in fields – and far worse. Ahead of the squall of prospective war crimes was a general alert about Special Forces acting as a law unto itself.’ [Page 545]. Do we need any more evidence than that to justify disbanding, disarming and prosecuting this ‘narrow cohort now largely disconnected from the broad community’? After all as the ex-Army politician, The Honourable Stuart Robert, MP proclaimed ‘Diversity is Strength’ so maybe adding a few of the 57 varieties of gender and religions will help bring balance and a more effective defence capability?
[iii] American Caesar: Douglas MacArthur, 1880 – 1964 – William Manchester, Arrow Books, 1979. ISBN: 0 09 920780 X
MacArthur went to a great deal of effort to justify himself and wrote at length about his decision to execute the two senior Japanese commanders, Homma and Yamashita.
- 443: ‘… Homma and Yamashita … were tried and convicted by kangaroo courts which flouted justice with the Supreme Commander’s approval and probably at his urging.’
- 444: ‘The tribunals consisted, not of lawyers, but of regular army officers, who were answerable to the five-star general in Tokyo. They could have been under no illusions about what he wanted them to do. He had drawn up the charges. He repeatedly goaded them to move swiftly. And he had established the rules of evidence, such as they were. The court determined the credibility of witnesses. Hearsay, double hearsay, and even triple hearsay based on conjecture were admissible as proof; so was extremely prejudicial material. Cross examination was aborted, or omitted entirely, at the whim of the presiding officer. (The mention of MacArthur’s name was forbidden in the courtroom).’
- 444: (12 reporters who heard all the testimony carried out a straw poll and all found the defendant not guilty).
P.444: ‘He reasoned Hirohito’s authority was required for the war … Then, backing away from his own argument, Sir William {Webb, the Australian chairman of the tribunal} agreed that extending immunity to him “was in the best interests of the allied powers”.’ Apparently there is the Yamashita Standard and the ‘Expediency Principle’ when it suits. Just ask the general who was accountable when the ‘Jedi Council’ inquisition was in force.
- 445: ‘ … the trial transcript, which exceeds four thousand pages, expose[s] a clear miscarriage of justice. To the end of his life MacArthur insisted that the verdict had been “above challenge” … None of this survives scrutiny. The truth is that the prosecution had no case at all.’
The Yamashita Standard is based on a false premise, but that is now the accepted standard we must apply to our own Australian General Officers.
[iv] Somalia, 1993
‘Dr Kelly … end[ed] his military career as a full colonel and head of the army’s legal branch. His 20-year career included being awarded the Order of Australia for his service in Somalia, where he famously used his bayonet to fend off supporters of a bloodthirsty warlord who had just been convicted and sentenced to death by a court.’
A Little Bit of Hope – Bob Breen (500 pages)
I have looked up every reference in “A Little Bit of Hope” by Bob Breen and Breen’s version reads:
Page 136: “Gutaale’s luck eventually ran out. The pleasure of capturing him was to belong to (SGT Wayne) Thomson and (SGT Wayne) Douglas. On the morning of 29 March …. they recognised Gutaale’s car … it had to stop for a donkey cart, right alongside. Thomson and Douglas got out immediately, dragged Gutaale out from behind the wheel and bundled him in amongst the diggers in the back of their vehicle.”
Page 137: Gutaale was flown to Mogadishu and put in detention while Major Mike Kelly, the AFS Legal Officer, and Sergeant Peter Watson … continued to gather evidence.
Page 223: The culmination of the Australian efforts to introduce a viable police force and judicial system was the execution of the criminal, Gutaale, on 27th April. Mick Kelly, Captain Matt Carrodus, CMOT Team leader attached to the ASF, and WO1 Bill Bowser, head of Counter Intelligence attended the trial and were not pleased when Gutaale appealed against his 20-year sentence. …. Subsequently, Gutaale not only lost his appeal but was sentenced to death. …. he was executed by small arms fire five minutes after his appeal failed and his death sentence was pronounced.” It appears that there were more people at the court than just two Australians so witness statements should not be hard to obtain.
I emailed the author of ‘A Little Bit of Hope’ and received the reply that he did not hear of Col (then Major) Kelly fighting Gutaale from the Courtroom to his execution. As I understand it, Gutaale had 15-days to appeal, but was dragged to his execution 5-minutes later. If there was a 15-day appeal period, would this mean that Major Kelly, was involved in an extra-judicial murder? Surely this needs to be investigated and resolved, if only to set the record straight and clear his name?
From:The Daily Telegraph Gemma Jones August 31, 2011
‘ … Mr Kelly, 51, a retired colonel, said his job was to make sure Gutaale was executed in accordance with international law.
“There was just myself and one other soldier there in the process of trying to secure the situation and get him to where he was to be executed,” Mr Kelly said.
“There was quite a bit of scuffling. I got attacked. He had always threatened he was going to take me with him if he went down. He jumped on me in the court room. I had to use my rifle to subdue him by buttstroking.”’ [my emphasis]
Like a Zombie that will not die the story is repeated again in the VetAffairs Autumn Newsletter in 2018 – 25 years after this incident is alleged to have occurred.
The Ben Roberts-Smith story – the soldiers’ hero
KISHOR NAPIER-RAMAN
(Image: AAP/Tracey Nearmy)
After US President Joe Biden vowed to end the “forever war” in Afghanistan, Australia dutifully followed suit. Our longest military conflict, one which has barely registered in the public consciousness, will end by September.
It’s a war which has cost 41 Australian lives, and billions in defence spending. But in recent years, the war in Afghanistan has been remembered for allegations of Australian war crimes, and the fall from grace of a widely-revered hero: Ben Roberts-Smith.
Already accused of committing multiple war crimes in Afghanistan (allegations he strenuously denies), a 60 Minutes investigation last Sunday claimed he had intimidated witnesses and buried evidence relating to those war crimes.
But despite everything, for many Australians, Ben Roberts-Smith is still the war hero who can do no wrong.
There are the Facebook commenters on the 60 Minutes story, furious at the perceived character assassination of their man. There’s Kerry Stokes, the Seven boss, who is bankrolling Roberts-Smith’s lawsuit against Nine and without whom the soldier says he’d be “fucked”. And then there’s the military itself.
It’s a community divided between those repulsed by Roberts-Smith’s alleged actions, and those who — no matter how many allegations are aired or incriminating photos released, no matter the outcome of a high-profile defamation trial against Nine this year — remain fervent in their support for a man they lionise.
The soldiers’ hero
In 2012, TV host Yumi Stynes made an offhand joke suggesting Roberts-Smith was a brainless jock — and the outrage was deafening. There was a deluge of vitriol on social media, a racist headline in The Herald Sun, and disproportionate attacks on Stynes compared to her white male cohost. Sponsors pulled out of the soon-to-be-cancelled show.
Stynes had hit a nerve. Roberts-Smith, a Victoria Cross (VC) recipient who’d singlehandedly stormed a Taliban position, was, to many, an untouchable hero. He was a symbol of bravery and courage — the best of Australia’s military.
A decade on, and numerous allegations later, many haven’t flinched in their support for Roberts-Smith.
Nowhere is that stronger than in parts of the veterans community, where the allegations against Ben Roberts-Smith have always been troubling. Many held him up as a hero, and seeing that heroism exposed can feel like an attack on one’s faith.
Veteran and Flinders University military sociologist Ben Wadham says the VC winner is seen as both a hero and a villain in the sector. While many feel like he’s guilty of something, others think he’s being unfairly targeted and hung out to dry by a military top brass disconnected with the harsh realities of the battlefield. Most generals lack the kind of intense wartime experiences of Special Air Service (SAS) troops like Roberts-Smith.
“The hero worshippers are mainly SAS acolytes who think strong men like BRS [Roberts-Smith] walk the walls so we can sleep soundly at night, and anything they do in the war zone is justified,” Wadham said.
One former soldier who served in Vietnam and maintains close ties with the veterans’ community told Crikey that if you took a vote among veterans, there would be a 50:50 split over Roberts-Smith’s culpability for his alleged actions.
“My assessment from the veterans I’ve spoken to is the feeling isn’t as negative towards BRS as the public might think,” he said. “Unless you’re in that sort of environment yourself, there’s never any comprehension of how intense it is. I can’t help liking him, I just can’t.”
This sentiment was common among veterans in response to the findings of the Brereton report, which pointed to a deeply rotten warrior culture among elite troops serving in Afghanistan: civilians (and civilian institutions) will never understand the true horrors of war, the severe psychological toll of serving multiple tours with little respite, the kind of split-second decision-making needed to take on an enemy combatant in a hostile environment.
Many believe that outsiders who have never been there simply cannot understand, and are too quick to judge.
The cult of the SAS
But by now, the case against Ben Roberts-Smith goes well beyond a few firefights that went awry. There are photos of Roberts-Smith grinning as fellow soldiers get around in KKK attire and drink from a prosthetic leg taken from an Afghan man he killed. He’s alleged to have buried evidence against him in a pink lunchbox in his backyard and sent intimidating emails to potential witnesses, which if proven in court would constitute a criminal offence.
But what really strengthens the cult of Roberts-Smith is where he sits on the military ladder. His regiment, the SAS, are the elites — the cream of the military hierarchy. To get to that level, soldiers must endure a gruelling, years-long examination. Their work involves the most dangerous, often highly secretive missions. It’s this deification of the SAS that helped breed many of the problems spelled out in the Brereton report. And it’s what makes Roberts-Smith so untouchable.
Nobody exemplifies that hero worship of the SAS better than Kerry Stokes — chair of the Seven Network and the Australian War Memorial, and Roberts-Smith’s very generous benefactor. When the Brereton report was released, Stokes promised financial support to the families of SAS troops accused of war crimes. He’s a trustee of the SAS Resources Fund, which provides relief to members of the regiment. Mining magnate Andrew “Twiggy” Forrest also sits on the board, along with a number of high-profile Western Australian personalities.
And yet, despite our collective disinterest in the Afghan conflict, the support and idolisation of Roberts-Smith runs deep, from everyday veterans to regular Australians who see him as a hero. That support gets its power from the financial and reputational backing provided by people like Stokes. And, as the last few months have shown, that support will likely never be shaken.
“I don’t think anything that could happen, even if he’s prosecuted for war crimes, will make those true believers change their mind at all,” Wadham said.
“It’s an ideological [belief] rather than a commonsense one.”
SAS FIASCO / BRERETON FIASCO
Peter,
The letter below was written several years ago. Masters, who was ‘implicitly trusted’ became one of the main instigators of the Brereton Bullshit.
It is not war that destroys an Army, but its own, the bad leadership of its officers.
You have a lot on your plate, but this travesty is destroying the morale of our frontline soldiers, you know, the ones who put their lives on the line to maim and kill whoever the politicians designate as enemies.
There is a lot we could talk about as you need an independent view … on everything.
LtCol Alistair Pope, (Retired) psc, CM
- 0419-367-726
Subject: SAS FIASCO!
Importance: High
This was written some time back, but remains very pertinent today as this fiasco drags on ….
The writer wants to remain anonymous, the way the SAS likes things.
He served 14 years in the ADF, 9 years as a Royal Australian Regiment infantryman and 5 years with the Special Air Service Regiment.
The Special Air Service Regiment seeks out and destroys Australia’s most dangerous enemies.
It targets the leaders of terror organisations who are shielded by suicidal, heavily armed Jihadis embedded amongst co-operative “civilians”.
Our enemies don’t like us and they do their best to kill us with no moral restraint and complete impunity. The Mujahideen don’t have much use for a Human Rights Commission.
The SAS cannot fight enemies like that by adhering to normal Western moral standards. If we did, it would be leveraged as a weakness by the enemy. We have to keep them guessing about our limits. I wouldn’t deploy if I was working with blokes who operated like predictable Mr Nice Guys.
The ADF is currently conducting a full-blown enquiry into “rumours of possible breaches of the laws of armed conflict” by Australian special forces in Afghanistan. We are alleged to have operated with “disregard for human life and dignity”. Fair enough. I don’t know one bloke I served with who has a high regard for the lives of terrorists. There’s nothing dignified about IEDs and their fighting methods either.
We are not sent out to deliver a personal dignity entitlement to our enemies. We go out to kill them.
Right now, the Chief of Defence Force is doing immense damage to our troops deployed in Afghanistan.
Australian taxpayers are paying for ads in the Afghani press encouraging Afghanis to dob in Australian troops for war crimes. How idiotic is that? What a propaganda gold mine; and you can be certain the enemy will be using it against us.
The Australian enquiry will receive heaps of responses from the enemy, let’s face it they are embedded among the local Afghans.
And what will it achieve? How do you think Australian troops will respond to allegations against them from the enemy? This might be difficult for outsiders to hear, but even if boundaries have been overstepped, unless the entire patrol turned on each other there will be little chance of any evidence to support any claims made by the enemy or Afghan civilians.
SAS troops obey orders. We go where we’re ordered to go and act as we’re ordered to act. There’s no allegations that I know of that say SAS troops have failed to obey orders. Whatever’s been done has been the work of a highly disciplined team of professional, accountable soldiers operating within their own internal chain of command – and that goes all the way to the top. Smiling politicians are always on hand to get their photo taken and congratulate us on our results. Well God help any ADF leadership that tries to hang a few young troopers out to dry.
So, what are we stuck with?
- A bombardment of allegations that will ALL have to be investigated at taxpayer expense.
- SAS unit members taken away from their duties to “help” the investigation and for interviews with investigators.
- The usual bags of tax payers money given to the enemy in compensation for alleged wrongdoing by us – even if unproven
- SAS tactics and operational security compromised by our own Government and Defence force due to a call for an open investigation and for transparency from left wing journalists to mention a few.
- Resentments amongst the SAS members and as is common practice much more secrecy, which is a certainty at the grass root levels.
The ADF’s investigation into the rumours has already been leaked to Fairfax and the ABC who’ve made the leaked material public.
As a result of Fairfax and the ABC’s reports, the Russians have now joined in to make life more difficult for us in the field.
On Saturday the Russian Foreign Ministry issued a statement about “The crimes committed by Australian troops in Afghanistan”.
Using the ABC and Fairfax’s reports, the Russian statement said Australians have engaged in “systematic, unauthorized and groundless use of weapons, particularly against civilians.” It quotes the ABC as the source for “shocking facts about cold-blooded murders committed by Australian soldiers in Afghanistan”.
Total bullshit, created by our taxpayer funded broadcaster to be used by our enemies against us.
The ABC is always going on about Russia and scandals. Looks like they’ve made one of their own.
There are plenty of problems in Australian society.
There is definitely a problem in the ADF.
But it’s not the war fighters.
It’s our leadership and the tone they set – from the PM down.
Hardcover Synopsis: Chris Masters is Australia’s foremost investigative journalist. In Uncommon Soldier he explored the nature of Australian soldiering from recruitment to being on the front line in Afghanistan. His descriptions of battle are some of the most powerful reporting from that war. No Front Line takes this story even further, to the heart of Special Forces and its war in Afghanistan, a war the Australian public know very little about. Implicitly trusted by Special Forces, Chris gives voice to these soldiers. He takes us right into the centre of some of the fiercest combat, opens up the story of the relationship between the Australians and their US partners and provides the most intimate examination of what it is like to be a member of this country’s elite fighting forces.
Masterfully told, No Front Line will be as controversial as it is revealing. It will also find a place as one of the finest contemporary books on soldiering.
eBook Synopsis: The soldiers of the SAS, the Commandos and Special Operations Engineer Regiment are Australia’s most highly trained soldiers. Their work is often secret, their bravery undeniable and for thirteen years they were at the forefront of Australia’s longest war. Shunning acclaim, they are the Australian Defence Forces’ brightest and best skilled.
In an extraordinary investigation undertaken over ten years, Chris Masters opens up the heart of Australia’s Special Forces and their war in Afghanistan. He gives voice to the soldiers, he takes us to the centre of some of the fiercest combat Australia has ever experienced and provides the most intimate examination of what it is like to be a member of this country’s elite fighting forces. But he also asks difficult questions that reveal controversial clouds hanging over our Special Operations mission in Afghanistan.
ABC Interview 1st November 2017: “… the charges were dropped …” No they were not. They Commandos were found not guilty at a courts-martial.
“… it was possible that the Afghan shooting at them was just a farmer defending his property …” No, he was not, but why mention an inconvenient truth?
No Front Line has been ten years in the making. This is one of the most important investigations Chris Masters has ever undertaken. No other journalist in the country has been given the unprecedented access Chris has had to all levels of Australia’s Special Forces from Commando and SAS operators on the ground to top command. Nor has any book covered the full breadth of Australian Special Forces operations in Afghanistan. Chris describes missions that have been unreported until now. He also confronts the controversies and grievances. No book, no report, no investigation has opened up the world of Australian Special Forces to public view as No Front Line.
‘In this remarkable book about the intense combat environment experienced by our soldiers in Afghanistan, Chris Masters captures the highs, the lows, the courage and the sacrifice of Australian warriors and their loved ones in our longest war.’ – Air Chief Marshal Sir Angus Houston AK, AFC (Ret’d)
Author biography
Chris Masters is a powerful force in Australian journalism. In 1985, he won Australia’s most prestigious award in journalism, the Gold Walkley, for his Four Corners report on the sinking of the Rainbow Warrior. His reports ‘The Big League’ and ‘The Moonlight State’ both led to royal commissions that helped transform the nation. He is the author of the bestselling Jonestown (2006) and the critically acclaimed Uncommon Soldier. No Front Line is his most recent book.
Manipulation of the ‘truth’ by the media and emphasises William Blake’s statement that “truth told with bad intent beats all the lies you can invent”.
In the words of Chris Masters , “One must constantly be on the lookout for alternative truths”.