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Human rights

Australia's War Crimes Whistleblower Seeks Justice through Nuremberg Doctrine

Strategic Insights

— 2 min read

War crimes whistleblower David McBride has filed a special leave application to the High Court, arguing that Australia must adhere to the Nuremberg doctrine, which rejects the "following orders" defense for wartime atrocities. McBride's lawyer, Eddie Lloyd, emphasized that individuals must disobey orders that violate fundamental principles of law, even if they are authorized by military law. The application cites the post-WWII Nuremberg Tribunal, which formally rejected the idea that individuals cannot escape criminal liability by claiming they were simply following orders. This doctrine has become a cornerstone of modern international humanitarian law.

Key Takeaways:

  • David McBride, a former military lawyer and whistleblower, is seeking justice through the Nuremberg doctrine, which rejects the "following orders" defense for wartime atrocities.
  • McBride's legal team argues that individuals must disobey orders that violate fundamental principles of law, even if they are authorized by military law.
  • The Nuremberg Tribunal formally rejected the idea that individuals cannot escape criminal liability by claiming they were simply following orders.
  • The doctrine has become a cornerstone of modern international humanitarian law.
  • The application cites the Nuremberg Tribunal's recognition that obedience to orders is no defense to actions that violate fundamental principles of law, such as crimes against humanity.
  • The same principle should apply under Australian law, where obedience to orders cannot excuse conduct that offends a soldier's ultimate duty of service.
  • The issue strikes at the core of democratic accountability, with implications for Australian soldiers who may be sent to combat zones and asked to follow orders that violate international law.
  • McBride's lawyer, Eddie Lloyd, warned that Australian soldiers may be sent to Iran and told to follow orders under the premise that Iran is developing a nuclear weapon, which could be a lie.
  • Rex Patrick, founder of the Whistleblower Justice Fund, echoed the concern that the prosecution is seeking to punish soldiers for disobeying orders that violate international law.
  • Greens Senator for NSW, David Shoebridge, criticized the prosecution and called for urgent reform of whistleblower laws that punish truth tellers.
  • The Attorney-General has a conflict of interest in deciding whether McBride receives parole, given that the department decided to prosecute him.

Statistics:

  • 5 years and 8 months: The sentence currently serving by David McBride for blowing the whistle on war crimes in Afghanistan.
  • 10 years: The expected duration of McBride's potential imprisonment if he is denied parole.
  • 9 October 2025: The date when the High Court is expected to hand down the decision on McBride's special leave application.

Sources:

  • "Australian war crimes whistleblower David McBride files special leave application to the High Court" by Stephanie Tran, 2023 (exact date not specified in the original text)
  • The Nuremberg Tribunal's judgment, 1946 (exact date not specified in the original text)
  • Rex Patrick's statement, 2023 (exact date not specified in the original text)
  • Greens Senator David Shoebridge's statement, 2023 (exact date not specified in the original text)

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