A decorated former SAS soldier shown in a Four Corners story shooting an Afghan man in a wheat field has become the first Australian serviceman or veteran to be charged with a war crime under Australian law.
Former trooper Oliver Schulz, 41, was arrested by the Australian Federal Police at Jindabyne in the New South Wales Snowy Mountains this morning, after a years-long investigation into alleged war crimes in Afghanistan.
In a statement, the AFP said it would be alleged he murdered an Afghan man while deployed to Afghanistan with the Australian Defence Force (ADF).
Mr Schulz has been charged with the war crime of murder under the Commonwealth Criminal Code.
His case was mentioned in Queanbeyan Local Court this afternoon, where his solicitor made no application for bail. He has been remanded in custody to appear at Sydney's Downing Centre Local Court on May 16.
His charge, the ABC understands, relates to the shooting death of Afghan man Dad Mohammad during an ADF raid in May 2012 in Uruzgan Province in southern Afghanistan.
That killing was revealed in March 2020 by the ABC's Four Corners program, which broadcast footage showing Mr Schulz shooting Mr Mohammad while the Afghan man lay on the ground.
If found guilty, Mr Schulz could face life in prison.
Case could set international precedent, legal expert says
His arrest marks a historic shift in the response to suspected military wrongdoing, both in Australia and among Western allies, who have avoided holding war crimes trials in civilian courts, according to international law experts.
"It's unprecedented," said University of Tasmania law professor Tim McCormack, a special adviser on war crimes to the prosecutor of the International Criminal Court (ICC) in The Hague.
"We've never had a situation in the past where a member of the ADF, either current or former, has been charged with a war crime and slated for trial in a civilian court.
"I suspect that this will be an important precedent for the British, for the Canadians, for the New Zealanders and, hopefully, for other state parties [to the ICC]."
Mr Schulz was awarded the Commendation for Gallantry for his service in Afghanistan, where he completed multiple tours.
He was stood down by the ADF after the killing was revealed by ABC Investigations and Four Corners.
Killed man was father of two young girls
The Four Corners program, Killing Field, broadcast explosive footage taken from a helmet camera worn by the dog handler from Mr Schulz's patrol.
It shows an SAS dog mauling Mr Mohammad in a field, before the dog is called off and Mr Schulz is seen training his weapon on the man.
Mr Mohammad was a father of two, in his 20s, from the village of Deh Jawz-e Hasanzai.
Four Corners identified the dead man and tracked down his father and brother during its investigation.
"They can arrest him," his father, Abul Malik, told the program in 2020. "Why did they have to kill him?"
"He was married and had two daughters," said Dad Mohammad's brother, Jamshid.
"The youngest one was about a month old and the other was three years old at the time."
Four Corners also revealed that the ADF had investigated the killing months after the 2012 incident, following complaints from Afghan villagers.
However, ADF investigators cleared Mr Schulz after being told Mr Mohammad had been "tactically manoeuvring", was carrying a radio, and had been shot in self-defence.
After Four Corners' story, the incident was broadcast around the world.
The then-prime minister, Scott Morrison, described it as "shocking and alarming" and then-defence minister Linda Reynolds referred the incident to the AFP for investigation.
That investigation was later taken over by the Office of the Special Investigator (OSI), the body set up to probe alleged war crimes after the Inspector-General of the Australian Defence Force inquiry, which was led by Paul Brereton, an Army Reserve Major General and New South Wales Supreme Court judge.
The Brereton inquiry handed down its findings in November 2020, recommending that 23 incidents and 19 individuals be referred for further investigation by police.
That inquiry recommended that any alleged war crime should be prosecuted in a civilian criminal court in a trial by jury, rather than in a military tribunal.
During Senate estimates hearings in February, the Director-General of the OSI, Chris Moraitis, said the agency was investigating between 40 and 50 alleged offences.
Attorney-General's consent required for war crime prosecution
ABC Investigations understands that a dedicated OSI team made up of homicide detectives and an intelligence officer examined the Killing Field incident for more than two years.
This year, a brief of evidence was signed off by the Commonwealth Director of Public Prosecutions and Attorney-General Mark Dreyfus, whose consent is required to start a war crime prosecution.
"The willingness of the Commonwealth Director of Public Prosecutions to use that legislative framework is a very significant thing," Professor McCormack said.
"If states don't take seriously their national obligations and responsibilities, then it's left to the International Criminal Court [to prosecute], and the work is so overwhelming, the ICC doesn't have the resources to deal with all of that.
"Not a lot of states have got great track records in taking their national responsibility seriously."
In a statement, the AFP said it was working with the OSI "to investigate allegations of criminal offences under Australian law related to breaches of the Laws of Armed Conflict by Australian Defence Force personnel in Afghanistan between 2005 and 2016".
"As the matter will be before the court and the investigation is ongoing, no further comment will be made," the statement said.
War crimes charges must be tried before a jury under Australian law.
Under the Commonwealth Criminal Code, a killing constitutes the war crime of murder if the victim is neither a combatant nor out of action due to injury or damage.
Prosecutors must also prove that the perpetrator knew, or was reckless to, this fact.
The killing does not constitute a war crime if it occurred as a result of an attack on a military objective, during which the perpetrator did not expect excessive civilian casualties.
