The first Australian war crimes case in 30 years is going to trial. It raises big questions
- Written by: Rhys Knapton-Lonsdale, PhD Candidate, School of Humanities, Arts and Social Sciences, Murdoch University
Earlier this month, former SAS soldier Oliver Schulz pleaded not guilty to the war crime of murder.
Schulz’s prosecution is historic: he is the first Australian soldier to be charged with a war crime.
This development comes five years after the Australian government first appointed a special investigator to investigate and prosecute Australian soldiers accused of war crimes in Afghanistan.
While the trial is not set to begin until 2027, the proceedings will test the Australian judiciary’s ability to administer international criminal law. Regardless of the result, it will have big consequences, both in Australia and globally.
The Schulz story
Schulz has been accused of murdering Afghani man Dad Mohammad during an Australian SAS raid on Mohammad’s village.
Footage taken from the raid and shown in court allegedly shows Schulz aiming his gun at Mohammad. Schulz asks three times, “do you want me to drop this c***?” before firing three shots at Mohammad, a father of two girls.
Schulz has pleaded not guilty to murdering Mohammad.
War crimes trials often face pronounced difficulties in tying evidence to suspects and alleged perpetrators. Security in former war zones is often precarious, and tensions between state actors are often high, limiting cooperation.
In the past, Australia and other countries have made it easier for the prosecution to provide evidence in war crimes trials. For instance, Australia’s trials of suspected Japanese war criminals following the second world war adopted relaxed rules of evidence to account for the chaotic postwar situation.
As Schulz’s trial will be conducted under normal domestic law, this is not an option.
History of hamstrung cases
Though Schulz is the first Australian soldier to face trial for war crimes, this is not the first time Australians have been investigated for war crimes.
During the 1990s, the Australian government investigated allegations Australian citizens had committed war crimes in Europe during the second world war. The focus of these investigations was naturalised Australian citizens who were suspected to have collaborated with Nazi Germany and participated in the Holocaust.
In 1993, one suspect, Ivan Polyukhovich, was tried for his involvement in the mass murder of between 553 and 850 people in northern Ukraine in 1942.
Polyukhovich, 77 at the time of his trial, was found not guilty. The prosecution’s case was hamstrung by the significant time between the crime and the trial: 50 years. Surviving witnesses, none of whom spoke English, struggled to clearly connect Polyukhovich to the mass murder.
As a result, the evidence against Polyukhovich was insufficient to convict him.
By contrast, evidence against Schulz appears to be less circumstantial. The footage clearly shows a soldier shooting a man, who is lying on the ground, at close range. Depending on the defence’s strategy, however, the Schulz trial may find itself in uncharted legal waters.
Testing untested laws
A key aspect of war crimes law is proportionality. Under Australian law, the charge of murder as a war crime can be dismissed if the defence can show that the death was both unexpected and proportional to the expected outcome of a genuine military objective.
The defence of proportionality enables militaries to carry out basic operations. For example, if the Australian military bombed a munitions factory during war, causing limited civilian casualties, it would not be a war crime. In this instance, the deaths were not expected and occurred in the pursuit of a genuine military objective.
The allegedly purposeful killing of individuals will raise difficult questions for the court if the defence of proportionality is brought forward. The definition of proportionality in war crimes trials has not been settled, so what is clearly proportional, what is not, and what is in the grey zone will likely need to be addressed in this trial.
Schulz’s trial, therefore, represents an opportunity for the Australian legal system to make an important contribution to the field of international criminal law. At trial, Australian lawyers will be able to help define an integral aspect of war crimes law.
Regardless of the outcome, the Schulz trial will set an important precedent for future cases.
A high-stakes case
The Schulz trial also has the potential to set another important precedent: Australian soldiers are not above international law.
For those who have been investigating alleged war crimes, and those building the prosecution case, starting off with a successful conviction will be crucial in establishing the credibility of the program.
At the same time, if Schulz is found not guilty (as he has pleaded), it will serve as a warning for the investigation and prosecution program. Governments and people are rarely easily convinced that their own soldiers have committed war crimes and, even when faced with overwhelming proof, are more likely to justify their actions than admit wrongdoing.
Consequently, the Schulz trial provides the government a chance to apply war crimes law consistently and fairly. By clearly showing that Australian soldiers like Schulz are not immune to prosecution, the government can demonstrate Australia’s long and vaunted commitment to international law is more than just talk.
Authors: Rhys Knapton-Lonsdale, PhD Candidate, School of Humanities, Arts and Social Sciences, Murdoch University
