Whatever their motivation, WikiLeaks undermine international humanitarian law
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The vast bulk of material recently released by WikiLeaks would not be new in nature to those who keep up with the Afghanistan War or the difficulties and perennial moral quandaries of fighting wars generally. However, this latest material goes well beyond justifiable whistleblowing, such as the earlier helicopter gun-camera film showing probable breaches of the laws of armed conflict by US forces in Iraq. Put bluntly, WikiLeaks is not authorised in international or Australian law, nor equipped morally or operationally, to judge whether open publication of such material risks the safety, security, morale and legitimate objectives of Australian and allied troops fighting in a UN-endorsed military operation. Nor should and can groups such as WikiLeaks be so authorised or equipped respectively, especially when they are unaccountable to any responsible authority or international humanitarian law (IHL) in a legal or moral sense. Particularly when there are many alternative avenues available for legitimate dissent about the war that do not endanger our troops, irresponsibly bolster enemy propaganda, repression and will, or undermine the acceptance of international law. Moreover, as an Australian citizen, WikiLeaks’ Julian Assange may also be guilty of a serious criminal offence by assisting an enemy the ADF is legitimately fighting on behalf of all Australians, especially if the assistance was intentional. Whatever his motives, his actions again highlight the need to further amend our treachery laws to also prohibit reckless assistance to such an enemy. But in the broader sense, WikiLeaks’ actions and declarations, and much of the subsequent media coverage, lacks moral, legal and historical contexts and is often based on incorrect assumptions or sensationalised or biased interpretations of the material. For example, Taliban and al-Qaeda belligerents captured in the Afghanistan War are not somehow held “without trial” or “detained unlawfully”. As in any war, they are lawfully detained under the Geneva Conventions as the specialist international law applying — and this detention has always been duly monitored independently by the International Committee of the Red Cross (ICRC) as the designated inspecting power (as has also occurred, incidentally, at the Guantanamo Bay detention centre). They are not subject to “extrajudicial killings” either. Killing enemy belligerents in a war, even without warning, is not a judicial act but lawful combat (if the Hague and Geneva Conventions are complied with). Again the incorrect term “assassination” has been too readily but wrongly bandied around in a sensationalist and out-of-context fashion. And with no regard for the fact that Taliban belligerents do not wear a uniform and are often difficult to distinguish from civilians in a counter-insurgency war. Tragic though it always is, accidentally or unavoidably killing non-combatants (including most but not always all civilians) in combat is also not illegal under IHL unless done deliberately, indiscriminately, or disproportionately to the battlefield objective necessarily involved. The circumstances of each tragic case must be examined, in context, separately to discern the legal truth and moral consequences applying. In contrast, the Taliban and its Islamist allies largely reject IHL in letter and spirit. They routinely torture and murder prisoners, not treat them in accordance with IHL and detain them under supervision by the ICRC. Non-combatants, including civilians, are routinely targeted and killed by the Taliban without compunction and often indiscriminately and disproportionately. ISAF’s battlefield mistakes on the other hand are almost invariably the result of typical wartime tragedy, accidents and at times incompetence or personal failure, not deliberate or institutional policy. Moreover, ISAF moral standards and operational procedures are necessarily self-correcting with transgressions generally reported, investigated and punished. We should expect no less. The over-arching moral and practical problems that WikiLeaks and its apologists ignore are the clear legal and moral differences between ISAF and the Taliban. ISAF is fighting while applying (however imperfectly at times) the rule-of-law generally, and international humanitarian law in particular, to the difficult circumstances of UN-endorsed war fighting in a thoroughly broken civil society and polity. The Taliban and its Islamist allies on the other hand deliberately reject IHL and treat ISAF’s difficult adherence to this law as merely a vulnerability to be (illegally) exploited. The bottom line is that wars are always nasty, morally confusing and ethically challenging but also that all wars are contests of ideas, morals and ultimately will. Responsible criticism of ISAF in Afghanistan is legitimate, necessary and too often deserved. But so is responsible and consistent criticism of the Taliban, including constant note that it is at the bottom of a legal and moral abyss compared to the legal mandate, moral responsibilities and obligations (even if unreciprocated), and IHL-compliant activities of ISAF. Note: Since the loopholes in our archaic (pre-UN Charter in 1945) treachery laws were finally closed by the Security Legislation Amendment (Terrorism) Act, 2002, an Australian citizen anywhere in the world now commits an offence if he or she (among other things):
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22 Comments
I usually take what you say seriously Neil James but….
You want the media to be quiet, you want no one to know. You want us to believe because the Taliban do it we should forgive our guys for doing it. You want anyone who has this information to be charged with treason for telling anyone else about it. You think this information threatens us and our allies in Afghanistan.
WikiLeaks, in conjunction with several major media organisations, released this information and while most of it is fairly boring and typical of war, as observed from my cosy home, there are some parts of it which should be allowed to be publicly known. Particularly the grey area of Pakistan’s involvement. If there is any threat to our soldiers I think WikiLeaks and the other media have pointed it out very clearly, which is something our diplomatically beholden governments can’t seem to achieve.
Neil: good article. However, I rather you had written “The ADF is legitimately fighting on behalf of the Australian government”, rather than what you wrote: “…on behalf of all Australians”. You may accuse me of splitting hairs, but the distinction is important.
The former sentence makes the war sound like realpolitik by other means, which it is. There is an objective to the conflict, and it is not winning; it is making the US-Oz more stable. The latter implies individual Australians have a stake in the conflict, which (barring family connections) we don’t. Furthermore, most of us who care have no wish to have anything to do with the conflict, given the choice between the Taliban and a corrupt vote-rigging scumbag like Hamid Karzai.
Neil James arguing that the public shouldn’t have access to facts or truth about what happens in war.
“Join the Mobile Infantry and save the Galaxy. Service guarantees citizenship. Would you like to know more?”
What humbug. We live in the 21st century - EVERYTHING governments or their agents do should be transparent and open to scrutiny. Leave the cloaks and daggers and the wars on the dustheap of history and the spy novels where they belong.
This is a genuinely terrible article - it is deliberately confusing about the law, not to mention morally bankrupt. So this information is not new, but we should be prosecuting Assange? Shame on you Crikey for publishing this.
What about the fact that Australia, along with numerous other western countries, invaded Afghanistan and are fighting on their soil? At least the Taliban are largelyAfghans fighting foreign invaders. So much of the high moral ground is reserved for geopolitical posturing: Neil sees our invasion as justified and legitimate, but let’s not forget that we did not see the USSR’s invasion in that light at all, despite it having (at that time) a common border with Afghanistan. The US was more than happy to enlist locals such as those we now know as the Taliban and Al-Qaeda to fight the invader. On balance, was it good or bad for Daniel Ellsberg to release confidential information on the Vietnam War? After 40 years, many if not most people would say ‘good’. Neil’s not-so-veiled threats about “treachery” are a reflection of political and sometimes military predisposition towards cover-up of war crimes and NC deaths under a cloak of “national security”. The legal sensitivity Neil attributes to allied forces in Afghanistan is at least in part a consequence of WikiLeaks and its disclosures.
I only read as far as a,” UN sanctioned war…” Iraq was and remains an illegal invasion of a sovereign nation. Don’t make me laugh about responsibilities! Wikileaks is doing all of us a favour, even if people like Neil James don’t realize it!
Mr. James is somewhat less full of crap than when he began this piece, but I am really sorry that I read it & wasted a little more of my life which I can ill afford in my seventh decade. I shall now read the name Neil James as a health warning.
All wars are contests of ideas, morals and ultimately will.
So..
Q.Why are we there?
A. The strategic purpose to help the USA steal resources and dominate militarily, because we are signatory to the ANZAC treaty, and USA toadies to boot.
Q. What is our moral purpose?
A. Going by the usual achievements, it is: To pretend to help as many Afghan Civilians as possible, to provide a cover for the strategic purpose. The strategic purpose means we must not under any circumstances be successful in the moral purpose and help to create a truly independent and stable Afghan Government, because then we won’t be able to steal and dominate.
My ultimate will is that we get out, ASAP. Whats yours?
This article by Neil James is one of the more idiotic that Crikey has ever published, and that’s saying something.
I have thoroughly enjoyed seeing the usual suspects (the who’s who of illiberal western organisations and quasi-fascists) line up to vilify WikiLeaks and the incredibly brave and principled Mr Assange.
I for one am very proud to have people like Mr Assange call themselves Australian (especially after the debacle of the Dr Mohamed Haneef, the embarrassing anti-terrorism legislation that was rushed into effect, and various other insults to our personal liberties).
LIke Mr Wholohan, I regret having read the whole article. I read it for the same reason that I spend about 15-30 mins watching Fox News every night: I really want to, or feel I HAVE to, know what the enemies of individual liberties are thinking and saying.
What utter rubbish. Nothing should be disclosed to the public without proper authorisation as it may endanger our military personel and anyone who does so is a traitor. This sounds like the argument of a police state. Be scared, be very scared.
@ Michael ASAP for sure. Britain got bogged down there in the 19th century, Russia in the 20th. The locals don’t want us there and it is sheer folly to impose ourselves upon them. It is Vietnam all over again.
No, Elizabeth O’Shea; not shame on Crikey but thank you Crikey for providing a portal into the military bonehead mindset. Recently sacked US general Stanley McChrystal summarised it nicely when, objecting to having to sit on a carpet and negotiate with turbaned village elders, he admitted that he joined the military in order to kill people. His actual words were “to close with the enemy and kill him”, but you get the idea. The military is a brain-dead killing machine which gets cranked up and pointed towards some politically appointed enemy, and trundles off to achieve its narrow purpose. The wider political purpose, which is strategic control of resources, seems, as Neil James verbose article suggests, to be beyond the lizard-brained level of awareness of militarists.
There is no point on going into the specifics of misadventures like Vietnam, Afghanistan and Iraq; these have been documented at great length (except in the corporate media, of course). All wars are depressingly alike; just base human emotions played out on a grand scale. Neil James and his ilk may think that trotting off to war is some kind of noble service on behalf of the country, but I suggest the true heroes are those who prick the bubbles of lies and spin, like Daniel Ellsberg and Julian Assange.
So Julian, go for it mate; I look forward to more letters from the underworld.
Wikileaks is a truly beneficial and important institution that is doing a great service on behalf of not only all Australians - but on behalf of all the citizens of the world.
Australian forces shouldn’t be operating in Afghanistan. Hundreds of thousands of Australians protested against our forces being sent to invade Iraq after seeing a limited view of what was happening in Afghanistan. I know - because I was sharing the closed off streets of the Sydney CBD with such a crowd of everyday Australians that I had never before witnessed during the protest marches in 2002/2003.
The ADF should be operating in our area of the world - with the exception of UN peace-keeping missions. Its not the ADF’s role to be on the other side of the world fighting people who have nothing to do with the security of Australia.
The guerrilla fighters in Afghanistan are reacting the same way that any people do to invaders – and it would be no different if a foreign force invaded Brisbane and annexed South East Queensland. Australians would return from all over the globe to join in the war. Australian citizens would band together and use every means at their disposal to attack, kill, disrupt and remove the invading force.
Of course guerrilla fighters facing a numerically and technologically superior force have to resort to attacking targets of opportunity and soft targets. Part of the strategy of removing invaders is to weaken morale by creating fear, terror and uncertainty in the troops of the invaders. The resistance did in to the Germans in WW2 and the Vietcong did it to the US in Vietnam.
To then use an analysis of these tactics to judge the Afghanistan fighters as terrorists and therefore justify killings and departures from the laws of armed conflict by soldiers of countries who have no business being there is despicable.
The US under Bush has blackened hands and has no right to judge others for crimes against humanity. Their use of torture, kidnapping, imprisonment without charge and departure from the Geneva Conventions, International and its own internal laws will stand out in history as a black mark that will take a long time to heal and restore its reputation. I only hope that the evidence of Australia’s part in these acts in Iraq & Afghanistan are not true.
Of course in the environment where all information is kept out of the public domain on the grounds of national security then it is hard to know if Australia has played any part in illegal killings, “renditions” and torture. It is only through Wikileaks that important facts can come to light and the guilty hiding in government can be brought to justice.
Quoting Howard-era draconian and repressive laws doesn’t give justification to your viewpoint of every bit of information should be kept hidden. These laws should be repealed – not quoted. Just the language shows how far they lie from International Humanitarian Law – such as “forms an intention to do any of the above acts”. Like all of Howard’s worst and repressive laws they take aim at trying to criminalise thoughts or opinions – all the way taking us away from the free and open society we all desire to be.
Australian laws that attempt to stretch Australian jurisdiction across the entire globe are dangerous and arrogant. Australian citizens are subject to the laws of the countries they visit and shouldn’t be also bound to Australian laws at the same time. Rare exceptions to this would be Australian service personnel on active duty and to passengers on Australian flagged vessels and aircraft.
Wikileaks is a vital and critical international institution that has come onto the world stage to give the most repressed and victimised a voice and to shine the bright lights of accountability and justice into the dark recesses of repressive and criminal acts of governments and organisations.
You lost me at “Wikileaks is not morally equipped” (seriously, I stopped reading there and moved straight to the comments). Because of course you, Neil, are morally equipped for anything. Dickhead.
@DUNCAN BEARD
Ah, another Starship Troopers fan. You poor bastard, I feel your shame. But what a perfect occasion for that quote!
I have to admit that I’m a little drunk, but still, I was so irritated at this article that I googled Neil James, and found this on the “Australia Defence Association” website as a big chunk of his bio:
“Every day he tries to put into practice his belief that vibrant and informed public debate is essential to Australia’s national security, and to our development and retention of effective defence capabilities for the future.”
An informed public, but only so far as an ex-AJ reckons they deserve to be informed.
C’mon Crikey, you’re as bad as The Drum, who publish crap from the IPA just so they can claim to be unbiased. Just because you need to publish the occasional article from a conservative doesn’t mean you need to get one from a loony.
I think you have to justify that he did indeed assist the enemy before throwing around charges of treason.
As you yourself say, the material is not exactly news. It may also be the case the Assange is assisting:
“In the words of presidential spokesman Wahid Omer, “the sheer number of the reports might be surprising, but not so their content”. The spokesman added: “There are two issues that appear repeatedly in the secret files and that are a matter of concern to us: the issue of civilian casualties and the role of the Pakistani intelligence ISI in actively undermining stability in Afghanistan.”
http://www.guardian.co.uk/commentisfree/2010/jul/27/war-logs-no-surprise-afghans
When I first read the article I thought that Crikey was publishing a spoof. It is rare to come across in such a short space a compendium of nonsense that Mr James writes. Unfortunately it is typical of the mindset that got us embroiled in two illegal wars in the past nine years; prefers the moonshine emanating from the US departments of Defence and State to reality; and completely fails to understand international law.
Give us a break Crikey. Devote some space to people who actually understand the issues.
I disagree totally with this article, as I do with all articles by Neil James, which generally do little more than to put the boring, staid, traditional arguments that support the actions of defence forces, and which have shown little change in substance since 1915: the ADF is good, any criticism is unpatriotic and ‘treacherous’. Yawn.
Most importantly: I don’t think it’s a particularly novel or convincing argument to suggest that the reason why it’s ‘bad’ for Wikileaks to release leaked military information is because we are fighting some kind of just war in line with the terms of the Geneva Convention and IHL principles, while the Taliban are evil terrorists who don’t play fair. Gosh, really? Similar arguments have been run by just about every country in just about every modern conflict. Particularly ‘colonial’ and ‘neo colonial’ conflicts (cf: Korea, Vietnam). The problem is this argument just isn’t convincing. The fact that you are fighting a group of terrorist insurgents who don’t respect human rights doesn’t mean that the West shouldn’t be held to international standards about transparency in reporting about the casualties and progress of an horrific war. And it certainly doesn’t justify the ISAF carrying out any act that might contravene the Geneva Convention, or that might even contravene the standards of the 4th Estate. We should be held to a higher standard, as a means of enforcing the importance of the standard. If you want evidence of our ‘superiority’ as a moral force, then that is how you go about it. Not by whinging that people don’t play by our rules, and complaining when we are shown to lie.
Further: to pompously suggest that Wikileaks are ‘treacherous’ for releasing this information is just ridiculous. This is the task of the press: to keep government honest and to report juicy things. If anyone is to blame, it’s the person/people who leaked the materials themselves. You are 150 years too late, Neil, to do anything about the power of the press.
People in the ADF/ supporting the ADF need to show more regard for the media, and for principles of transparency and honesty about reporting facts from war zones. This isn’t 1932, and we don’t just ‘close down the media’ when we engage in international conflict. And for all those people who complain that Australians ‘arent interested’ in our progress in Afghanistan- the Wikileaks saga has provided more information in the last 3 days than al the press releases from the ADF in the last 3 years. You should be pleased.
And for god’s sake, please stop writing your articles in such a Churchilian tone. Your prose lacks the appropriate (any?) grandeur, purpose and substance to justify it. The great man would be supremely unimpressed. Ditto for sprinkling your writing with bizarrely placed jingoistic terms. Try using the words “patriotic”, “treason”, “moral force” and “treachery” only once per article. I guarantee you more people will read to the bitter end.
Oh man, I feel so much better now. Neil James has been grating my cheese for a year now….
After “Habib”, “Hicks” and “Haneef”, Assange must be counting his lucky stars Howard, Andrews, Ruddock, Downer, Keelty and the crew aren’t running the circus.
Put bluntly, WikiLeaks is not authorised in international or Australian law, nor equipped morally or operationally, to judge whether open publication of such material risks the safety, security, morale and legitimate objectives of Australian and allied troops fighting in a UN-endorsed military operation. Nor should and can groups such as WikiLeaks be so authorised or equipped respectively, especially when they are unaccountable to any responsible authority or international humanitarian law (IHL) in a legal or moral sense.
What a load of mischievous diatribe this is. There is no consensus of opinion in Australia regarding our involvement in Afghanistan and a supposed “War” on what! WikiLeaks is only declaring that “The West” is as intolerant and as uncaring as the Taliban. Nothing we can do there will change the underlying problem of systemic corruption of their leaders and their total disregard for the lives of their nationals. We need to stop preaching to them using guns and drones and let natural order take hold. We do not belong there. We are not helping. Our kids are being killed there without sensible reason. Get them out before we import far more serious problems
William Slaney
“Afghanistan” has been underestimated, and poorly prosecuted (through political interference) as a war - it was always an entree to Iraq, and under-resourced with that in mind.
But if we are to have any regard for the consequences of our actions (and as an example of the consequences of a cavalier political approach to international relations), if the future of these people, whose lives have been so impacted (how many refugees), is of any import, from a “humanity” aspect, I think we have to stay there til they can stand up in the truck load of cow manure (on their mountain of resources?) that our governments have delivered.
Wasn’t “the Taliban” a western “Frankenstein’s monster” - that suited “rushin’” political imperitives, “then”?
Neil, in asserting that someone is not authorised in international or Australian law, nor equipped morally or operationally, to judge whether open publication of such material risks the safety, security, morale and legitimate objectives of Australian and allied troops fighting in a UN-endorsed military operation. you concur with Dr Peter Shergold, once of PMC, is denying the main contribution of the Nuremburg Trials and beg the question, “Who is?”.
Presumably, like all authoritarians & similar ethical inadequates, your answer would be our betters, those born-to-rule.