Australia, an emerging International Outlier and Pariah Jurisdiction!

Wounded Warrior 4 Wounded Warriors, by Jamie Collins

It comes as no surprise to Cairns News that Australia has become a pariah of the Five Eyes intelligence sharing, international partnership. We have been told by our reliable intelligence sources that sensitive intelligence sharing with Five Eyes partners has been censored for Australia since the Labor Government was elected in 2022.

There is more we can’t divulge however among our allies, particularly the US, Albanese is a known Marxist along with most of his Cabinet and a good few Labor backbenchers. Allied alphabet agencies are aware of Labor’s close ties to Beijing and have been careful just what gets shared with the Labor government.

In case it hasn’t been noticed we will be lucky to get second hand submarines under the infamous Aukus deal because of state-of-the-art military surveillance technology and weapons systems fitted to new US craft.

Australia’s current approach to prosecuting ADF personnel — including the matters involving Ben Roberts‑Smith, Oliver Schulz, and David McBride — places the Commonwealth in a position that no comparable democracy occupies, according to legal adviser for WW4WW, Jamie Collins.

The divergence is so extreme that foreign military‑law commentators have begun describing Australia as an “international legal outlier” and, increasingly, a “pariah jurisdiction” in the application of international humanitarian law (IHL) and military justice.

1. Comparative Law: Australia Is Now Outside the Norms of Every Major Allied System

1.1 United Kingdom — Presumption Against Prosecution

The UK’s Overseas Operations (Service Personnel and Veterans) Act 2021 creates a statutory presumption against prosecution for battlefield conduct after five years.[1]

It requires prosecutors to consider:

operational stressors,

the realities of combat,

the reliability of historical evidence, and

the public interest in finality.

The UK would not prosecute Schulz.

The UK would not treat the Roberts‑Smith civil judgment as probative.

The UK would not prosecute McBride for exposing systemic failures.

Australia is now to the punitive extreme of the UK model.

1.2 United States — UCMJ & Combatant Immunity

Under the Uniform Code of Military Justice (UCMJ), the US applies combatant immunity robustly. Prosecutions proceed only where:

the conduct is manifestly unlawful,

the accused acted outside authorised Rules Of Engagement, and

admissible, contemporaneous evidence exists.[2]

The US would dismiss the Schulz matter at the Article 32 stage.

The US would treat the Roberts‑Smith civil findings as irrelevant to criminal liability.

The US would protect McBride under federal whistleblower statutes.

Australia is now more aggressive than the US, a system already known for its severity.

1.3 Canada — National Defence Act

Canada requires:

direct, admissible evidence,

clear breach of ROE,

command responsibility analysis, and

strict adherence to IHL definitions.[3]

Canada would not prosecute Schulz or Roberts‑Smith on the basis of civil findings.

Canada would not prosecute McBride.

Australia is now more punitive than Canada, despite fighting the same wars under the same coalition command.

1.4 New Zealand — Armed Forces Discipline Act

New Zealand follows the UK model:

strong combatant immunity,

strict evidentiary thresholds,

and a presumption against retrospective battlefield prosecutions.[4]

Australia is now the only Five Eyes nation criminalising soldiers for conduct undertaken under authorised ROE.

2. Treaty‑Based Obligations: Australia Is Breaching Core International Commitments

2.1 Geneva Conventions & Additional Protocol I

Under the Geneva Conventions I–IV and Additional Protocol I, States must:

recognise combatant immunity for lawful acts of war,

ensure fair‑trial guarantees,

and prosecute only where evidence is sufficient and reliable.[5]

Australia is breaching these obligations by:

prosecuting soldiers for conduct under authorised ROE,

relying on inadmissible inquiry material,

ignoring operational context, and

proceeding despite irretrievable evidentiary collapse.

The Schulz prosecution is incompatible with AP I Articles 75 and 86.

The Roberts‑Smith contamination is incompatible with GC I–IV fair‑trial guarantees.

The McBride prosecution is incompatible with AP I whistleblower protections.

2.2 ICCPR — Articles 9, 14, and 15

Australia is breaching:

Article 14 (fair trial),

Article 9 (arbitrary detention),

Article 15 (no retrospective criminalisation).[6]

Applying ordinary homicide law to battlefield conduct — in the absence of contemporaneous war‑crimes offences — violates Article 15.

The Schulz case violates Articles 14 and 15.

The Roberts‑Smith contamination violates Article 14.

The McBride prosecution violates Article 9.

2.3 Convention Against Torture (CAT)

CAT prohibits:

coercive investigative practices,

reliance on evidence obtained through coercion,

and prosecutions based on compromised or unreliable material.[7]

The Brereton Inquiry’s coercive powers — and the derivative use of its material — raise serious CAT compliance issues.

2.4 Rome Statute of the International Criminal Court

Under the Rome Statute, States must:

prosecute genuine war crimes,

avoid criminalising lawful combat actions,

and assess command responsibility before individual liability.[8]

Australia is violating these principles by:

ignoring command responsibility,

criminalising authorised combat actions,

and relying on civil findings (Roberts‑Smith) as quasi‑criminal evidence.

Australia is now closer to Rome Statute non‑compliance than any other Western democracy.

2.5 UN Charter — Collective Security Obligations

Australia’s prosecutions undermine:

coalition interoperability,

intelligence sharing,

and joint operational planning.

Foreign militaries will not share sensitive information with a partner nation that:

prosecutes soldiers for following authorised ROE,

cannot guarantee combatant immunity,

and allows political pressure to shape criminal prosecutions.

Australia is becoming a strategic liability.

3. The Roberts‑Smith, Schulz, and McBride Matters Are Now International Case Studies in What Not to Do

3.1 Roberts‑Smith — Civil Findings Misused as Criminal Foundations

The Federal Court’s civil defamation judgment against Ben Roberts‑Smith VC MG was a balance‑of‑probabilities finding.[9]

Yet prosecutors and media treat it as quasi‑criminal.

No other democracy would allow this.

3.2 Schulz — Evidentiary Collapse

The Schulz prosecution relies on:

incomplete drone footage,

missing logs,

derivative inquiry material,

and battlefield context that cannot be reconstructed.

Foreign military‑law experts cite Schulz as an example of how not to conduct battlefield prosecutions.

3.3 McBride — Criminalising Whistleblowing

The prosecution of David McBride is internationally viewed as:

punishing the whistleblower,

while relying on the system he exposed,

and simultaneously prosecuting soldiers who acted under that system.

This is seen as institutional incoherence and moral inconsistency.

4. The Bottom Line: Australia Is Becoming an International Legal Pariah

If these prosecutions continue, Australia will be:

the only Western democracy criminalising soldiers for authorised combat conduct,

the only nation allowing civil findings to contaminate criminal prosecutions,

the only nation prosecuting a whistleblower while relying on the system he exposed,

the only nation ignoring combatant immunity in practice,

and the only nation willing to expose classified operational methods in open court.

This is not principled.

This is not lawful.

This is not sustainable.

It is the path to becoming an international outlier and legal pariah.

Article by WW4WW legal spokesman Mr Jamie Collins

Footnotes

[1] Overseas Operations (Service Personnel and Veterans) Act 2021 (UK) ss 1–7.

[2] Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 801–946; see also Parker v Levy, 417 U.S. 733 (1974).

[3] National Defence Act (RSC 1985, c N‑5) ss 130–140; see also R v Généreux [1992] 1 SCR 259.

[4] Armed Forces Discipline Act 1971 (NZ); see also NZDF Operational Law Manual.

[5] Geneva Conventions I–IV (1949); Additional Protocol I (1977), arts 75, 86.

[6] International Covenant on Civil and Political Rights (ICCPR), arts 9, 14, 15.

[7] Convention Against Torture (CAT), arts 2, 15.

[8] Rome Statute of the International Criminal Court (1998), arts 8, 28.

[9] Roberts‑Smith v Fairfax Media Publications Pty Ltd [2023] FCA 555.