The Canberra Times, By David Ellery
17 May, 2011
The Government is spending far more to try two Australian soldiers for manslaughter than it may have paid out in compensation to the families of their six alleged victims in Afghanistan.
The two Army Reservists – both members of the 1st Commando Regiment – are allegedly responsible for the deaths of one adult and five children on February 12, 2009.
The men’s legal counsel, Major David McLure, defended their actions yesterday.
He said at least 18 other Australians could have been exposed to death or injury if the accused had chosen to defend civilians instead of themselves and their fellow soldiers.
This would have been a ”suicidal course of action”, he told Judge Advocate Brigadier Ian Westwood at the pre-trial directions hearings in Sydney.
Members of the Special Operations Task Group, operating in Oruzgan Province, Afghanistan, were ”clearing” a family compound the hearing was told. An Afghan man responded with automatic weapons fire.
The Australians, Sergeant J and Lance Corporal D, reportedly threw grenades into the room from which he was shooting – apparently unaware five children were with him.
They face alternative charges of two counts of dangerous conduct with negligence as to consequence.
It has been revealed separately the families of the victims could have been paid as little as $7200 in total for their lost relatives.
Defence insiders have said the court martial could cost hundreds of thousands of dollars.
Claims payments of up to $61,200 were authorised only days after the tragedy appear unlikely given Defence paid out only $159,801 in non-recurrent ”act of grace” expenses across all theatres of operation for 2008-09.
In the 12 months to January 31 this year only $90,035 had been paid out to Afghans under Operation Slipper, Defence has told The Canberra Times.
A further $55,784 was paid out under the Tactical Payment Scheme which did not come into effect until July 2009.
While Defence is coy about revealing the levels of compensation it pays the relatives of dead civilians in Afghanistan, it has been claimed the ”going rate” is $1200 a death.
If so this is substantially less than the $25,000 – the price of 40 camels – set by Afghanistan’s current penal code for a ”mistaken killing”.
It is also less than the compensation distributed by the British Army which pays out up to $8000 for an adult male civilian.
Yesterday’s pre-trial directions hearing was told the two Australians had been placed in an unenviable position.
”If a soldier under Sergeant J had been killed, Sergeant J would still be sitting here, still facing charges,” Major McLure said.
He said the prosecution had failed to define what standard of care the accused men should have met and whether there had been a shortfall.
He also argued the course of action undertaken by the two accused may not have been unlawful under the War Crimes Act.
There was a question as to whether ”war crimes offences render lawful what the ACT [Australian Capital Territory] crimes act would render unlawful,” the major said.
The War Crimes Act assumes to be lawful the ”proportionate death or injury of non-combatants when death or injury is proportionate to direct or concrete military advantage”, Major McLure said.