The legal grapevine is inherently unreliable, but some time ago – at least five years ago – I was told by very well-placed sources that some Australian soldiers were in very deep trouble, and would probably face murder charges arising out of events in the war in Afghanistan.  I have some recollection that senior government officials took to warning Australians that they may have to face a difficult legal process as a result.

I was curious then and amazed now that any of this should come as a surprise following our intervention into another military quagmire.  More than ten years ago in a book about revolutions (2014), I wrote about why the American rebels succeeded against the English.  I commented in the terms of the passage cited below.  Clause 13 reads:

Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

They are facts of life proved over and again since 1776 – not least in Spain when attacked by Bonaparte, when the word ‘guerrilla’ was born.  They were brutally apparent in Vietnam and Afghanistan.  Yes, those sending the men to fight were to blame, but that is no answer for the crimes the men committed while so deployed.

In the case of Roberts-Smith, the charges relate to the acknowledged killings of Afghans.  As I follow it, the case is not one of murder under the general law, but of statutory war crimes.  The allegations involve conduct outside of normal hostilities, and the principal witnesses for the prosecution are soldiers who served with the accused.

That being so, there is little point talking about ‘the fog of war’, or the like.  We are, I gather, speaking of war crimes.  That the conduct alleged occurred during a time of war is a necessary condition of the charge, not a bar to its being proven.

(It is sad to relate that in discussing these charges, it is hard to find in the press any attempt to give details of the charges.  At least in his piece in The Age, Waleed Aly referred to Division 268 of the Federal Criminal Code Act 1995.  Among other things, and at agonising length, it lists as a ‘crime against humanity’ murder, where the conduct of the perpetrator is ‘committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.’  Division 268.70 applies to the killing of a person where that ‘person or persons are neither taking an active part in the hostilities, nor are members of an organised armed group’ and the perpetrator ‘knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group’.)

Put to one side the time and millions of dollars spent in examining these events in a horrendous ocean of libel litigation.  The relevant investigation and the current prosecution were led by Mark Weinberg.  You could not imagine a better guarantee of professional integrity.  The law will take its course with safeguards built over a millennium by our ancestors.  Is the jury satisfied beyond reasonable doubt that the charges have been proved in court?

What on earth can people who complain about the present process have in mind?  The only answer I can give is that the noise comes from the usual suspects – and they are common pests. 

The Weekend Australian went into overdrive on a nostalgia highway.  Noel Pearson said ‘any soldier who serves the country should be able to rely on the presumption that their killing in combat was lawful.’  Henry Ergas said killing prisoners in cold blood is ‘completely indefensible’ but how are ‘norms to be sustained when confronting adversaries who reject them altogether’?  Joel Fitzgibbon said jailing Roberts-Smith was a tragedy ‘largely created by journalistic activism and reactive overreach on the part of those who’ve been intensely and relentlessly pressured to respond to the activism.’  None of these commentators is a lawyer, much less one versed in the perils of libel litigation, and their comments are as helpful as mine on brain surgery.

None of those commentators identifies the legal charges against the accused.  These are legal issues.  There is an inherent problem in discussing something where you do not know what you are talking about.

This is the same mob whose ideological romances are making our two-party system unworkable, and they, or most of them, do it out of the same motive – a heartless hunger for money, or wistful Romance.  At bottom, they are distressed that the very notion of ‘war crime’ should disturb the serenity of their vision of patriotism and the myth of the noble, bronzed Anzac.

What about the facts of life?  This hero and his ornately rich backers were so overcome by their own hubris that they embarked on an exercise that screamed with risk, and after subjecting the rest of us to a legal circus that cost $25 million or so, they ended up in the gutter.

BOOK EXTRACT

Although the Americans like to see themselves as having been the underdogs, they won the War of Independence, as they call it, and it is not hard to isolate some of the reasons why their position was eventually so much stronger than that of the English.  You can apply the following criteria to the American War of Independence – or to the Vietnam War, the Russian war in Afghanistan, the second Iraq war, or the present military operations in Afghanistan.  The phrases ‘home team’ and ‘away team’ are used for convenience and not to detract from the significance of the wars, or the valour shown and losses taken by those who actually fought them and are fighting the present one.

1. The away team is the biggest in the world, or as the case may be, the only empire in the world, or the second biggest.
2. The away team is a regular professional army while the home team consists of amateur irregulars.
3. The professional soldiers in the away team have no advantage over the amateurs in the other team because they have not been trained for this kind of war and people who fight for the cause are more reliable than those who do it for money.
4. People defending their own soil are far more motivated than those who cross the world to try to bring them into line.
5. The away team has massive resources and advantages in population and war matériel (such as the navy) and technology, but the home team has local knowledge. 
6. The home team can move more quickly, avoid pitched battles, and use guerrilla tactics, which are sometimes referred to as terrorism, and which, as we saw, the British objected to as not being fair play.
7. The away team has problems with morale and supplies that just get worse as time goes on.
8. The away team finds that winning requires more than just winning battles – they may beat the army of the other side, but they will not beat the country, which has widespread support among its people (even if the people are otherwise split).
9. The away team has a hopeless dilemma – it has to hit hard to win, but every time it hits hard it loses more hearts and minds.
10. The home team finds it is easy to generate heroes and leaders; the away team finds it is easy to sack losers.
11. The home team out-breeds the others – the result is just a matter of time.
12. The war becomes one of exhaustion and attrition, which in turn exaggerates the above advantage of the home team.
13. Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

In short, the American colonists felt that they were fighting on the moral high ground, a position that they have never surrendered.  Appalling crimes were committed on both sides, especially in the civil war in the south between the Patriots and Loyalists.  There were, Churchill said, ‘atrocities such as we have known in our day in Ireland.’  Professor Gordon S Wood said that the ‘war in the lower south became a series of bloody guerrilla skirmishes with atrocities on both sides’ (like Vietnam).  But for the intervention of the French, this civil war – guerrilla war may have gone on for years and degenerated into what would happen in Latin America with ‘Caesarism, military rule, army mutinies and revolts, and every kind of cruelty’ (like the Roman Empire).

But the terrorism on both sides ceased, and the result was dictated by the sentiment expressed at the time by another former Prime Minister of England.  The older Pitt, by this time the Earl of Chatham, one of the most experienced war time leaders England has ever had, knew what the home ground advantage meant:  ‘My Lords, if I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never lay down my arms – never, never, never.’