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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):

  • intentionally assists, by any means whatsoever, an enemy, at war with the Commonwealth;
  • intentionally assists, by “any means whatsoever”, another country or organisation that is engaged in armed hostilities against the Australian Defence Force (ADF); or
  • forms an intention to do any of the above acts and manifests that intention by an overt act.

Peter Fray

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