A legal ruling in Australia this week sentencing military whistleblower David McBride to 5 years imprisonment for disobeying orders to expose war crimes has stood the principles established at the Nuremberg trials on its head.
David McBride, found guilty, has been sentenced to 5 years and 8 months imprisonment (2 years 3 months non-parole). His offence? The refusal to just ‘follow orders.’
The only duty a soldier has is to follow orders whatever those orders may be. There is no higher obligation, and to think there is is to be accused of the arrogance of ‘knowing best.’ One must ‘operate within the constraints of the organisation,’ and those that do not, ‘must know that breaching their legal obligations … will be met by significant punishment.’ These are the words of Supreme Court Justice David Mossop in sentencing McBride.
Such mindset of course was the exact defence mounted by the Nazis facing trial in the Nuremberg Tribunal at the conclusion of WWII. That Tribunal found it to be no defence. Rather one was expected to act to a higher form of morality. To do so in the Nazi regime would likely be to sacrifice one’s life for a refusal to follow orders. Yet, that was the high bar set by those sitting in judgement at Nuremberg. Not in this case however.
It may be that David McBride’s motives were somewhat dubious in his release of material concerning the Afghan War, but the trial has come down to whether a soldier has an obligation to follow orders above all else. Mossop has found the answer to that in the affirmative. There can be no qualms of conscience or moral scruples which are permitted to stand in the way of such unquestioning obligation. David McBride stands condemned for believing that there are. He stands in that belief with the findings of Nuremberg.
Mossop’s ruling however, stands Nuremberg on its head. It gives succour to some of the worst criminals in history who pleaded, ‘but I was only following orders.’
McBride, it was clearly found, should have kept ethical queasiness to himself, put his head down, and just got on with the job, whatever was happening around him! The Sergeant Schultz, ‘I know nothing’ feinted ignorance.
The files that McBride released to the ABC, which were used in its, ‘The Afghan Files’ story, revealed that Australian soldiers were allegedly involved in horrendous war crimes while serving in Afghanistan. These allegations have been largely substantiated in the Brereton Report. That extensive 4 year enquiry found evidence of 25 Australian soldiers, primarily from the elite Special Forces were involved in 23 instances of war crimes, resulting in the deaths of 39 Afghan Civilians. We expect to read such of the WWII German military. To read it, even on a much smaller scale, carried out by Australian troops, comes as a shock.
The ABC was raided by the Australian Federal Police as a consequence of the story. Evidently this was all supposed to be swept under the carpet. Maintain decorum, and preserve blissful ignorance.
The Attorney-General Mark Dreyfus has refused to get involved, washing his hands, charging that he has nothing to do with it, as the Commonwealth Director of Public Prosecutions carries out its duties independently of the government.
Yet, of course he had the power at any stage to step in and order the charges brought by the Commonwealth be dropped. Shamefully he didn’t. The example of Pontius Pilate exemplified. Too late now of course. Separation of powers. Courts doing their duty independent of the executive.
Of course the other case which comes to mind in this is that of Julian Assange. It shall be interesting to see Australian credibility in urging the British, and probably later the US courts, regards Assange’s right to free speech, while David McBride sits incarcerated due both to the actions of the Australian legal system, and inaction of his own government. After all against McBride the Australian Government has run the same line as the U.S. against Assange
As the prophet long ago said, ‘the one who is prudent shall keep silent in such time for it is an evil time.’ (Amos 5:13).
How convenient a world with the voices of McBride and Assange silenced. Each have committed the worst crime, sharp exposure of the atrocities of the supposed ‘good.’
Nuremberg with all your scruples about moral duty, be damned!
John Queripel is a Newcastle-based historian, theologian, social commentator and published author of four books. His latest book, ‘In Wisdom and in Passion: Comparing and Contrasting Buddha and Christ’ has just been released. His blog may be found at www.johnqueripelblog.com.Substack / https://johnqueripel.substack.com