Re Civilian Casualty Court Martial: prosecuting breaches of international humanitarian law using the Australian military justice system

Abstract: In Re Civilian Casualty Court Martial, disciplinary charges preferred against two Australian commandos accused of causing the deaths of five civilians during a night-time raid in Afghanistan were dismissed as being wrong in law. Despite the relevance of ‘war crimes’ under the Criminal Code (Cth) to their conduct, the charges preferred against the commandos were based on the ordinary crimes of ‘manslaughter’ and ‘dangerous conduct’, available under the Defence Force Discipline Act 1982 (Cth). Through an analysis of the decision to dismiss the charges as wrong in law, this article discusses the issues raised by the prosecution of breaches of international humanitarian law using the Australian military justice system, and asks whether disciplinary charges based on ordinary crimes, or war crimes, should be preferred when prosecuting such breaches