Oliver Schulz, SAS soldier charged with murder, plans to argue he was following orders in Afghanistan

The first Australian soldier prosecuted for war crimes by a civilian court plans to argue he was following orders when he shot an Afghan man in a field, a killing captured on video and broadcast on television.

Special Air Service Regiment veteran Oliver Schulz will use “the defence of superior orders” when his trial begins next year for a single count of the war crime of murder, his barrister, Murugan Thangaraj SC, told New South Wales Supreme Court judge Peter Hamill on Tuesday.

Mr Schulz’s prosecution early next year is seen as a test case for the trial of his better-known former colleague, Ben Roberts-Smith VC, whose five murder charges are years away from being heard by a jury.

Lawyers said this would be the Australian first test of a legal defence that has a history dating to the Nuremberg and Tokyo war crimes trials of German and Japanese officers after World War II.

Mr Thangaraj did not provide any details about any arguments or evidence that would be used on behalf of Mr Schulz, but lawyers not involved in the case said the former soldier or his lawyers would need to explain footage said to show him pointing a rifle at Dad Mohammad in a field in 2012 and asking someone, three times, “do you want me to drop this c***?”

The video was shown on a Four Corners episode in 2020 called Killing Field, triggering Mr Schulz’s suspension from the Perth-based SAS.

In some ways they are damned if they do and dammed if they don’t.

War on trial

If Mr Schulz’s lawyers successfully argue he was operating under the directions of a superior, it could become more difficult for Federal prosecutors to convict other veterans of Australia’s longest war accused of executing prisoners.

Prosecutors are likely to argue that all Australian soldiers were told that it was illegal to harm anyone once they were no longer a threat, even if they were trying to kill the Australians minutes earlier.

Mr Schulz’s lawyers will be able to refer to a secret database of enemy fighters known as the Joint Prioritised Effects List that authorised Australians to kill enemy Afghans without trying to capture them, including executing them from far away using missiles or bombs.

By arguing SAS soldiers were under orders to kill suspected insurgents, Mr Schulz’s lawyers could effectively put the army’s conduct of the war on trial.

Many veterans have complained that the 2020 Brereton Report into war crimes allegations cleared officers of responsibility for what it said were 39 unlawful killings during the war by the special forces. Mr Schulz was the equivalent of a private. Mr Roberts-Smith was a corporal.

Bond University law professor Anthony Gray said the war crimes law, which was enacted by the Howard Coalition Government in 2002 to allow Australia to join the International Criminal Court, could subject soldiers in war zones to conflicting legal requirements.

“In some ways they are damned if they do and damned if they don’t because if they fail to comply with the orders of a superior officer then that is generally a serious crime but if they do comply with the orders of a superior officer they may have committed war crimes,” he said.

Paul Tacher, a historian at Murdoch University who studies war crimes, said it would be difficult for Mr Schulz to argue any order to shoot the Afghan was legal because he ”appears unarmed and incapacitated in the footage initially aired by the ABC”.

Prosecutor’s pay

The Office of the Special Investigator, which has been allocated about $300 million over six years to pursue veterans, said in May it had ten “active investigations” underway, suggesting more prosecutions of members of the elite special forces regiment are possible.

One of the main prosecution lawyers, Sean Flood, SC, said on Monday that Mr Schulz’s prosecution would be led by the Associate Director of Public Prosecutions, Nicholas Broadbent, SC, who was hired in August to ease the workload of Director of Public Prosecutions Raelene Sharp, according to Ms Sharp.

Government tender documents indicate that Mr Flood was issued a 10-year contract in 2023 by Ms Sharp’s office worth $1.12 million. Last month the amount was reduced to $724,500, a cut that neither Mr Flood nor the office of the Director of Public Prosecutions would explain on Tuesday.

Mr Schulz wasn’t present in court for Tuesday’s hearing to issue a non-publication order covering evidence discussed in court before the trial, which is scheduled to begin in February, one month short of the fourth anniversary of his arrest.

Justice Hamill allowed information about Mr Schulz’s planned defence to be reported after being told by Nine Entertainment Co’s executive counsel, Larina Alick, that it would be against “the interests of open justice” to suppress discussion in an open court room that would not prejudice Mr Schulz’s trial.