The Australian Defence Force (ADF) has supplied the following statement to
Australian Story in response to a series of questions in relation to the military
operation of 12th February 2009 in Uruzgan Province, Afghanistan, including
the soldiers’ actions, the chain of command, authorisation of the mission,
and the aftermath.
STATEMENT FROM AUSTRALIAN DEFENCE FORCE (ADF)
in answer to questions raised in Into The Fog Of War
30 May 2016
The Australian Defence Force is a highly professional and skilled military force that is
required to operate in accordance with international and domestic law at all times.
Where there is an allegation or a suspicion that Australian personnel have acted contrary to
the laws of armed conflict or Rules of Engagement, the Australian public rightly expects
these matters to be thoroughly investigated and, if proven, that the individuals responsible
be held to account for their actions. Similarly, ADF personnel have a right to expect fair and
independent consideration of such matters.
Defence also has an obligation to protect ADF personnel and operational information will
only be released where it is safe to do so without increasing the risk to our people.
With respect to the incident involving Australian forces in Uruzgan province, Afghanistan on
12 February 2009, the initial Inquiry Officer Inquiry in 2009 identified matters that required
further investigation. The incident was then referred to the Australian Defence Force
Investigative Service and a brief of evidence was subsequently provided to the then Director
of Military Prosecutions (DMP) for consideration.
It is not legally correct to say that the proceedings exonerated the soldiers. The Chief Judge
Advocate made a legal ruling in relation to the manslaughter charges during the pre-trial
directions hearing. The Chief Judge Advocate did not consider any evidence in making this
decision about the law, either in favour of or against the soldiers. This is an analysis that
would have happened later, if the charges had proceeded to trial before a court martial.
Similarly, the DMP decided not to proceed with charges against the third member, without
his criminal responsibility being conclusively decided at a trial.
These decisions must be understood in terms of the information available to each decisionmaker at the time.
The Director of Military Prosecutions wrote to the soldiers in June 2011 advising each that
she had decided not to proceed with the charges against them. It is important to note the
DMP is appointed by the Minister for Defence and exercises statutory functions
independently of the ADF chain of command. These functions are substantially similar to the
functions exercised in the ordinary criminal law by the Director of Public Prosecutions.
While committed to ensuring proper legal processes were observed, Defence was equally
committed to ensuring the three members affected by these proceedings and their families
were provided with appropriate support and assistance.
All three members received legal support at Commonwealth expense and had access to the
military or civilian counsel of their choice. From the time of the incident in 2009, each
member also had access to a range of services including medical, legal, counselling,
psychological and welfare support. This support continues to available to the affected
members as required today.
Separate to the legal action and in accordance with the local custom, authorised Act of
Grace payments (later known as Tactical Payments) were made within two days of the
incident. For privacy and security reasons, Defence does not provide details regarding
individual payments.
The ADF continues to operate in complex, chaotic and dangerous environments. Our ability
to continue to act as a responsible and disciplined force relies on fair and independent
scrutiny when allegations arise; the presumption of innocence until proven guilty; and
appropriate legal and welfare support for our people.
As a general principle, Defence conducts inquiries to understand what has happened
and determine what operational and tactical lessons can be learnt from an incident. Where
an investigation or inquiry identifies safety or operational issues, Defence takes immediate
action to address them.
Defence also considered, after these prosecutions were concluded, how the process of
investigation and prosecution of serious operational incidents could be strengthened for the
future. Prosecutors and investigators now have increased capacity to access experts,
including forensic experts. Potential delay is minimised by considering key trial issues, such
as the need for protective orders for national security reasons, as early as possible.
The current DMP has also reviewed her process for Services to inform the DMP of their
interests in potential prosecutions. These self-improvements are integral to ensuring that
investigations and prosecutions proceed as efficiently as possible, and they are an ongoing process.
In addition to the documents requested under the Freedom of Information Act, Defence has
provided a copy of the transcript of proceedings from the Chief Judge Advocate. This
publicly available document outlines events which occurred in Uruzgan province Afghanistan
on 12 February 2009 at pages 2, 3, 7 and 8.