In the twentieth century’s greatest norm-setting war crimes trials – those held in Nuremberg between 1945 and 1946 – a number of legal principles were given birth. The victorious Allied powers, having humbled Nazi Germany, deemed it appropriate to hold officials accountable for the crime against peace, crimes against humanity and the conventionally accepted war crimes.
One of them crucially touched on the response of subordinates to ‘superior orders’ that might result in the commission of a crime. Principle IV bears repeating: ‘The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.’
A person following such orders, even those deemed legal by the commanding authority, would not be exonerated for executing them. From this, it followed that such responsibility entailed a duty to disobey orders that might result in the commission of a crime.
The former Australian military lawyer David McBride, who pleaded guilty on November 17 to a new indictment charging him for breaches of national security laws, felt he had a duty to disobey orders made by superiors of the Australian Defence Force. McBride, who served as a legal advocate for the ADF, had drawn attention to the operations of Australia’s special forces in Afghanistan. The material he identified, which was designed as much to identify the estranged practices of the Canberra bubble vis-à-vis the field of battle as it was the conduct of ADF personnel, was eventually disclosed to the ABC and published as the Afghan Files. Contemporaneous interest was also shown by officialdom back in Canberra, culminating in the Brereton Inquiry which found 39 instances of alleged unlawful killings of Afghan civilians.
McBride was subsequently charged with five national security offences. He was also denied immunity from prosecution under the vague, clumsy provisions of the Public Interest Disclosure Act 2013 (Cth), foiled, for the most part, by threats by the Commonwealth to use public interest immunity grounds to exclude vital evidence.
The trial that followed in Canberra was swift and unsavoury. It was burdened by one undeniable fact: the Attorney-General, Mark Dreyfus, could have discontinued the proceedings under Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker the power to drop prosecutions against individuals charged with ‘an indictable offence against the laws of the Commonwealth’. Dreyfus stood his ground, arguing that such a power could only be exercised in ‘very unusual and exceptional circumstances’.
The Crown arguments seemed fustian and antiquated when considering the Nuremberg principles. In fact, they blithely ignored them. Central to the claim made by chief counsel Trish McDonald SC was McBride’s absolute duty to obey orders flowing from the oath sworn to the sovereign. No public interest test could diminish or dilute such a duty. ‘A soldier does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.’ To justify such reasoning, the prosecution pointed to authorities pre-dating Nuremberg. One dated from the 19th century: ‘There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.’
The result of today’s outcome,’ wrote transparency advocate and former Senator Rex Patrick, ‘is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.’
Justice David Mossop was sufficiently swayed by such claims to declare that, ‘There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order’. That point, he promised, would be put to any empanelled jury, thereby depriving McBride of any rationale whereby he could positively disobey legal orders he was given, despite them being made in circumstances that would conceal the commission of alleged war crimes.
Chief counsel representing McBride, Stephen Odgers SC, had a different approach: Australian jurisprudence on the subject could do with a spruce up for the twenty-first century. Following the Nuremberg principles on superior orders, there are times when a public duty trumps the narrow dictates of a lawful command, notably when it comes to the commission or concealment of crimes. The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.
Remarkably, Australia lacks a clear precedent on the issue. McBride’s legal team thought it fitting that the Court of Appeal of the Australian Capital Territory determine the issue. Testing it before the higher court would also delay the trial. The Crown, not wishing to bring any further adverse publicity to their case, protested. Chief Justice Lucy McCallum heard the following submission from Odgers: ‘His only real argument is that what he did was the right thing. There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?’
If such an approach was adopted, Odgers went on to state, it ‘may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things, but he seeks an opportunity to have that critical issue determined by the court of appeal.’ As the submission went on to argue, Justice Mossop was essentially making the case ‘not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey’. It did not matter ‘how unreasonable or in breach of fundamental principles of justice they may be’ or would result in committing a ‘criminal offence if he does not’.
McCallum was unswayed, refusing to delay the continuation of the trial. The proposition by McBride’s lawyers, she felt, was unduly, even dangerously imaginative. She preferred to accept Mossop’s ruling as ‘not obviously wrong.’
With the trial promptly resuming, Mossop further hobbled McBride’s defence by issuing an order permitting the Attorney-General’s office to excise classified documents in his possession that could be presented to the jury at trial. Mark Davis, one of McBride’s defence team, offered an apt description: ‘The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.’
The situation for McBride proved dire. He had a judge bound by public interest considerations and content with the “following orders” argument. His defence had been undermined by the removal of vital documents. A plea of guilty to a new indictment with lesser charges duly followed. Instead of life imprisonment, he faced a potential decade behind bars or more lenient conditions which could be served outside prison. The result of today’s outcome,’ wrote transparency advocate and former Senator Rex Patrick, ‘is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.’
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University.
Main image: Whistleblower and former military lawyer David McBride. (David McBride/YouTube)