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Introduction
Do soldiers owe a legally enforceable duty of care (DOC) on the battlefield? This question was raised in Re Civilian Casualty Court Martial (‘Re Civilian’), where two members of the Australian Defence Force (ADF) were charged with involuntary manslaughter by criminal negligence and dangerous conduct with negligence for the deaths of five civilians during a night-time raid in Afghanistan. These charges were laid under the Crimes Act 1900 (ACT) (‘Crimes Act’) and the Defence Force Discipline Act 1982 (Cth) (‘Defence Act’) respectively.
This essay seeks to analyze the judgment of Chief Judge Advocate (‘CJA’) Westwood and postulate the argument that although his ruling was correct, the reasoning adopted was flawed. This essay will also draw on International Humanitarian Law’s (IHL) position on criminal accountability for negligent actions in armed conflict to assert that ADF members in combat operations should not owe a legally enforceable DOC towards civilians.
Critique of ruling
Central to CJA Westwood’s ruling was the fact that ADF soldiers ‘do not owe a legally enforceable DOC to anyone for their acts in combat’. In applying the objection to each charge, they were ultimately dismissed for being wrong in law – both had a fault element of negligence. However, this critique asserts that although CJA Westwood’s ruling was correct, the reasoning adopted was flawed for the following reasons – Shaw Savill and Albion Co Ltd v Commonwealth (‘Shaw Savill’) is distinguished on the facts, tortious liability concepts should not be used in the criminal context, and civilian criminal law principles should not be applied in the military disciplinary community.
Firstly, Shaw Savill should be distinguished from Re Civilian as they differ in their context. Consequently, the conclusion that there is ‘no basis on which to distinguish the approach taken by the High Court in Shaw Savill’ is incorrect as they differed in their socio-political context. Set in World War II, Shaw Savill was decided against the backdrop of wartime engagement with the enemy. With the State’s interest as paramount, a balancing exercise had to be undertaken between the rights of an individual and the State’s interest in the particular context. Under such circumstances, no DOC needed to be attached to armed forces to support and legitimize the Crown’s immunity (from actions in tort and/or vicarious liability). However, given that Re Civilian was a non-international armed conflict that happened at a comparatively smaller scale, it is unlikely that the application of Shaw Savill was correct as there was no need to ensure ‘State security and State preservation’. Furthermore, more recent case law has suggested that the sphere of the DOC depends on the Court’s ‘assessment of the demands of society for protection’. Under such circumstances, the strict application of Shaw Savill to Re Civilian is arguably, tantamount to the creation of new Australian law.
Furthermore, very little emphasis was placed on the identification of certain facts of the case. For instance, important facts like ‘who shot first’ and whether the subject of the operation was a Taliban insurgent or a mere farmer remain uncertain. In doing so, CJA Westwood did not exercise his judgment to find that no DOC existed as ‘this can only be done in the light of the facts of each case’. In addition, the strict application of Shaw Savill was challenged in the case of Bici v Ministry of Defence – although the case was set during peacekeeping operations, such a finding challenges the longstanding belief that members of the armed forces are immune from claims of negligence.
Secondly, in making his ruling, CJA Westwood relied on tortious liability concepts to prove that no DOC exists in the criminal context. However, these concepts should not be interlinked as the standard of proof and consequent ramifications for both tort and criminal contraventions differ. Given that civil liability is proven on the balance of probabilities, the argument that there is no DOC for fear of the overapplication of a soldier’s liability should not be applied in the criminal context as the standard of proof of ‘beyond reasonable doubt’ is of a higher threshold. Furthermore, given that the remedies in the civil context entail the imposition of monetary damages as compared to the threat of imprisonment on the individual, the same principles should not be used to determine if a DOC exists as the ramifications of a criminal contravention are far more severe.
Lastly, CJA Westwood erred in his reasoning by relying on civilian criminal law principles in the military disciplinary community – both systems should remain separate. Although both systems seek to regulate and punish the same offenses, military discipline focuses on the maintenance and enforcement of military discipline, while civilian criminal law exists to maintain ‘the Queen’s peace’. Under such circumstances, military disciplinary standards are instruments of justice that, in fulfilling this function, promote discipline. With ‘discipline’ as its ultimate aim, the Defence Act seeks to ensure the operational capability of its members. Although there are mirroring provisions in the Crimes Act and a growing convergence of military and civilian sectors, this itself cannot justify the convergence of principles as they each have their aims. An example is as follows – unlike a civilian employer, commanders in the military cannot regard the safety of their staff as their prime concern. Rather, their concern is the success of the mission. Under such circumstances, the application of civilian criminal law to military offenses will be ‘artificial’ and result in a change in the character of the armed forces. Also known as ‘legal mission creep’, this ‘juridification’ and spread of legal intervention will consequently result in the armed forces being open to litigation.
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