What does an ex-soldier’s war crime charge mean for whistleblowers?
The laying of a war crime charge against a former Australian SAS soldier has led to a renewed call for charges against whistleblower David McBride to be dropped.
Former SAS soldier Oliver Schulz became the first Australian serviceman or veteran to be charged with the war crime of murder over the killing of Dad Mohammad in Uruzgan province in 2012. He was granted bail on Tuesday, after a magistrate found his safety and his ability to mount a legal defence would be affected if he remained in custody.
McBride is facing a jury trial over the leaking of a cache of documents to the ABC shortly after his discharge from the ADF, which formed the basis of its 2017 “Afghan Files” investigation. The subsequent Brereton Report found credible evidence of war crimes committed by Australian special forces, with 39 murders, executions and allegations of torture.
McBride faces five charges relating to the unauthorised disclosure of information, theft of Commonwealth property and breaching the Defence Act, and could face up to 50 years in prison.
Senior lawyer at the Human Rights Law Centre Kieran Pender said the Schulz case “underscores the importance of McBride’s whistleblowing” and called on Attorney-General Mark Dreyfus to drop the case against McBride.
“There is a very real prospect that the first Australian to be jailed over alleged war crimes in Afghanistan will be the whistleblower, not the perpetrators. There is no public interest in prosecuting whistleblowers,” Pender said.
“Brave people who speak up about wrongdoing – whether it be human rights violations, government misconduct or corporate misdeeds – make this country a better place. They need to be protected and empowered, not prosecuted.”
A spokesman for Dreyfus said the Attorney-General could not comment on matters before the court.
Pender’s comments come as another blow was dealt to whistleblower protections this week, when ATO whistleblower Richard Boyle lost his legal bid to be prosecuted under Commonwealth whistleblower protections. Boyle was charged with 24 offences over collecting information about heavy-handed debt collection tactics on taxpayers. He is appealing the court decision.
McBride was forced to drop his application for protection under whistleblower laws after the government moved to quash the testimony of two of his key experts on public-interest immunity laws. He said the decision against Boyle showed that the protections may have been written with good intentions but simply didn’t work in reality.
A 2016 review by Philip Moss found the laws were not properly supporting whistleblowers. Dreyfus has promised to review whistleblower protection laws through the Public Interest Disclosures Bill 2022. A senate committee examining the bill released its report last month, recommending the bill be passed with two amendments.
McBride said the laying of a war crime charge against a former Australian SAS soldier gave him “no pleasure” but he would be watching to see what the trial reveals.
McBride said he would be looking to see in the Schulz trial if there was corroborating evidence from Australian planes and drones overhead at the time of the alleged incident.
“If there is, the question will be asked: why has it taken over 10 years to come to court?” he said.
“While I believe the true blame lies with the senior ADF leadership, who either knew or should have known what was going on, until there are charges laid, we can’t move on to the question of ‘who knew what, when’. Until we get some closure on this, the ADF won’t be able to move on, either internally or in the eyes of the world.”
McBride’s lawyer Mark Davis also said he saw no joy in seeing Schulz arrested.
“What occurred in Afghanistan was a result of the deliberate policy of commanders and the Canberra military bureaucracy to be blind to the actions of their soldiers in the field. It was an unparalleled dereliction of duty or avoidance of responsibility,” he said.
“[Schulz and McBride] are both facing prison. Where are the ministers facing prison [and] where are the generals facing prison? Both McBride and this man could feel that the responsibilities should lay at their feet.”
Why indeed are there no Ministers or senior ranks standing beside these men on the question of corporate culpability and responsibility?