CRIKEY: Over the weekend The Australian published another story about an offensive reader comment that was published under the Crikey story “Posetti accuses The Oz of bullying tactics” on our website. As always, and in line with our code of conduct, the insensitive comment about the late Frank Devine was taken down as soon as it was brought to our attention.

It goes without saying that we don’t agree with the sentiments expressed, which we believe would be in poor taste to republish here — that’s why we removed the comment. We have written about our comments moderation process in the past: reader comments are published automatically on our website. Like many other news outlets, Crikey uses a post moderation model (comments are automatically published, subject to certain filters) because we’re committed to a debate on our website — a pre moderation model can lead to long delays for comments being published and effectively shuts down the conversation thread.

The Comments, Corrections, Clarifications, and c*ck ups section in the Crikey Daily Mail is a curated process much like editing a newspaper’s letters to the editor section but our comments moderation process is very different. We use filters on certain automatically offensive words and stories that could be problematic but as our code of conduct explains, we are committed to publishing comments quickly on our site in the interest of promoting a fast paced conversation — we trust our Crikey readers to behave responsibly and the vast majority of them repay that trust.

Moderating and managing reader comments is hard work and can prove problematic at times. However, most publishers, news practitioners and readers acknowledge fair play in the process. Publication of a comment does not mean an automatic endorsement or commission by the Crikey editorial team or fellow Crikey readers for that matter — the comments section is a space for readers to engage. As our code of conduct states, we reserve the right to delete offensive comments and to ban repeat offenders on our site. And there it rests.

Clarifications: Friday’s story “Posetti accuses The Oz of bullying tactics” contained the line “This morning, The Australian issued a correction over the yarn [also not online], admitting that Posetti’s quotes were mistakenly attributed to Cameron.” It was subsequently changed to: “This morning, The Australian issued a correction over the yarn [also not online], admitting that Cameron’s quotes were mistakenly attributed to Posetti.” In both versions of the piece, earlier quotes were attributed correctly.

Howard Pender, Climate Advocacy Manager, Australian Ethical Investment, writes: Re. “Woodside resists perfectly reasonable shareholder resolution on carbon” (21 April, item 18). I refer to the Crikey posting on the Woodside AGM. The article is inaccurate. It says “… the Climate Institute … pursued the path…” On a number of occasions it reads as if the Climate Institute sponsored the resolution.

In fact the resolution was lead filed by Australian Ethical. Your references to the resolution being filed by the Climate Institute are wrong. I lodged the resolution.

I spoke at the AGM on behalf of the 109 shareholders. I am an attorney for those shareholders. I have no connection with the Climate Institute. The Climate Institute has provided some support to Australian Ethical in regard the Climate Advocacy Fund, in no way was it the sponsor of this resolution. I’d appreciate it if you would post a clarification.

Osama bin Laden:

Bill Williams writes: Re. “Rundle essay: bin Laden was executed, that much is obvious” (Friday, item 2). Guy Rundle, argues  that the execution of Osama bin Laden was “the conduct of an empire that cannot believe in itself to such a degree, that any attempt to deal with its enemies from a position of self-respect cannot be countenanced.”

This gem (in his less than concise and somewhat Zionist fixated 3309 word dissertation) only begins to describe the patent loss of good authority that seems to have beset the Obama administration.

Why did bin Laden’s death have to be announced at all? Surely the US’s security interests would have been best served by keeping the execution a secret, or at least a fact not broadcast, until all the intelligence about al-Qaeda collected in the raid could be analysed and acted upon?

Executing bin Laden and then announcing the execution immediately afterwards was a bit like killing an elephant for its tusks … or perhaps removing the tail from a drop-tail lizard and allowing  the lizard to run away.

Despite Obama’s claim that “Osama Bin Laden is not a trophy”, that is exactly how the Obama administration have used the news of his execution: they could see no further than the opportunity to enhance their own political brand. The chance to use all of the data collected in the mission to strike at the whole of the al-Qaeda organisation worldwide through the rich intelligence gathered in the mission was largely lost.

Announcing the execution prematurely, forewarned al-Qaeda operatives all over the world … and thereby  totally undermined the military advantage and chance to improve world wide security that would otherwise have been available. The announcement of bin Laden’s execution was similar but worse than Kevin Rudd’s March announcement of the arrest of Bali Bomber and bin Laden ally, Umar Patek.

Actually, apart from helping to build Obama’s political brand all the other consequences of announcing the execution are negative. Americans would probably be safer if the announcement was not made. Of course rumours would get out, but Obama would have been seen as stronger if he had no need to parade his trophy … and at least would have been saved the embarrassment of public rewriting  the storyline.

Guy Rundle is right to conclude that the handling of the Obama execution evidences the fact that Americans have lost their own self-respect … but apparently they are so far gone that they have even lost focus on self-preservation.

David Edmunds writes: There are a number of ways in which Guy Rundle seems to have overdone the implications of Bin Laden’s assassination.

It is obvious that he was assassinated, but, as Guy concedes, there was a huge cost in a trial, in terms of the security that would be necessary. The analogy of Adolf Eichmann or the trial of any other war criminal after a war has finished and the vanquished party has more or less conceded the point does not work in this case. A better analogy is the killing of Admiral Yamamoto during the second world war. The moral implications suggested by Guy simply do not apply.

Bin Laden was an instigator of a non-state war, with the continuing avowed goal of killing Americans whenever and wherever he could. It is not clear why he would deserve the measure of justice suggested by Guy, when the frontline fighters and civilians of both sides put up with the vagaries and injustice of war. The world would be a far better place if those most at risk of immediate death in war were those who choose to instigate it.

He mentions the antics of the yobbos celebrating bin Laden’s death by chanting “USA”, but this did not seem to be an overwhelming movement amongst the American citizenry, who seemed, like most of the rest of us just to be somewhat relieved that he was gone, and to believe that his death was of considerable significance.  Again Guy seems to be overdoing the point.

Guy conflates the argument to include wider US military failures, and of course there have been such failures. He does not mention the moral failure of western Europe, Russia and China, the other major powers that ought to be acting in the world’s trouble spots, but instead hide behind the US and tend to snipe from the side.  Consider the failure of Europe to act not only in the Balkans, its own backyard, but also in numerous areas in Africa. It is all very well to accuse the US of overreach, but the other major powers of the world hardly have credibility, when, whenever there is a problem they look to the US to solve it.

Lastly, it is not clear exactly how successful the US has been in many military operations.  There is a lot of hyperbole in Guy’s assertion that Bin Laden’s assassination was “the first well-planned and successfully undertaken operation that the US has performed in a decade.” We mostly hear about the failures.

One indicator is that despite strident efforts, and the vulnerability of an open society, bin Laden’s followers have not had much in the way of conspicuous success for some time. I think a better reading may be that the current US leadership has had the self-discipline to keep quiet about a lot of what it is doing.

Adam Stone writes: I’m not sure how Neil James (Friday, comments) concluded that I do not appreciate that International Humanitarian Law (aka the Law of Armed Conflict) is lex specialis in a situation of armed conflict. It is, and I have no quarrel with his claim that such a situation is determined by the prevailing facts, rather than any statements by the parties to the conflict.

The doubts that I raised were firstly whether the prevailing facts would support a finding that Osama was shot during an armed conflict, and secondly whether the rules of International Humanitarian Law (IHL) can be applied to a conflict between a State and a transnational terrorist group in any event.

Different standards are applied to determine whether an armed conflict is occurring, and therefore whether the rules of IHL are in effect, depending upon whether the conflict is occurring between States or between a State and a non-State group within its borders. In the former case, any armed violence suffices. In the latter case, the Geneva Conventions specifically provide that sporadic acts of violence are insufficient, and the International Tribunal for the former Yugoslavia found that ‘protracted armed violence’ was the relevant threshold.

The conflict with al-Qaeda does not fit this schema. As I said on Thursday, “al-Qaeda is not a State, Osama was not leading an insurgency group inside the US “. However, if we had to choose, it seems that the rules that apply to a conflict between a State and a non-State group (normally within a State’s borders) are the closest fit. If that was the case, then could we say that a “protracted armed conflict” was occurring with al-Qaeda when Osama was shot?

On Thursday I was sceptical, right now I’m genuinely unsure. The situation has been going on for a long time and has involved arms and violence, but the various actors are so loosely related to one another, and the violence so random and infrequent, that it does not look much like the organised insurgency engaging in protracted armed violence that is contemplated by the Geneva Conventions’ Second Optional Protocol (the treaty that applies to internal conflicts between States and insurgent groups within their borders).

So that’s the threshold issue, and if it cannot be met, then IHL does not apply and Professor Rothwell’s claims that Osama was an “enemy combatant” and therefore a lawful target are incorrect. Even Neil James’ references to the Hamdan case acknowledged that “international terrorists may be … subject to LOAC … during an ongoing armed conflict” (my emphasis).

However, even if the threshold is met, my second reservation concerning whether IHL even contemplates these kinds of conflicts (and therefore can authorise the killing of an enemy combatant during such a conflict) remains alive. Neil is correct to state that State practice can run ahead of treaty law. But in order for such practice to be lawful, it must reflect a significant international consensus on what the new rules are. This is known as Customary International Law, and it is (alongside treaties) the other primary source of international law.

But to establish what the customary rules are, we must be able to show evidence that States are acting in accordance with the new rules, and that they are doing so because they believe the rules to have the force of law (this is known as opinio juris). This is a very involved exercise requiring substantial evidence, and I have not seen the evidence for a rule supporting the US’ right to kill a terrorist leader inside the borders of a foreign sovereign State without that State’s permission or any evidence of its complicity.

Finally, the fact that UN Security Council Resolutions require Pakistan to assist in the eradication of terrorism does not give the US the right to unilaterally project force inside Pakistan’s borders without Pakistan’s permission, even if it is correct that Pakistan was in dereliction of its international responsibilities (which has not been proven). To do so appears to me to be a clear violation of Pakistan’s sovereignty.

Even the doctrine of the Responsibility to Protect, while arguing in favour of intervention to prevent States carrying out massive violations against their own populations (which is obviously not pertinent to the present discussion), still recognised that “A sovereign state is empowered in international law to exercise exclusive and total jurisdiction within its territorial borders. Other states have the corresponding duty not to intervene in the internal affairs of a sovereign state.” (The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, paragraph 2.8)

John Richardson writes: Re. Neil James. I actually didn’t think that the question was that difficult until I read Neil James’ tortuous (pun unintended) 1000 word justification.

James’ reasoning lurches from the lazy to the nearly incomprehensible: on the one hand, he casually accepts the alleged view of Professor Don Rothwell of the ANU that the US was legally justified to act as it did, simply because James regards him (Rothwell) as an “expert” on such things whilst, on the other, he says it must be OK because doubtless the US “would no doubt argue that they were targeting only al-Qaeda”.

As my rejoinder to James, I’ll simply quote Harvard Law Professors Gabriella Blum & Philip Heymann who, in their June 27, 2010 Harvard National Security Journal article, Law and Policy of Targeted Killing, stated:

“The right of a government to use deadly force against (anyone) is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty … guilt must be proved in a court of law, with (charged) individuals (given) the protections of due process guarantees.”

“Killing an individual without trial is allowed only in self-defense or need to save other lives.”

“In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.”

In response to the same question on May 3rd, Der Spiegel writer Thomas Darnstadt quoted University of Cologne Law Professor Claus Kress as saying that achieving justice for any crime isn’t “achieved through summary executions, but through a punishment that is meted out at the end of a trial.”

As to the broader propensity of the US to see itself as being above the law, Crikey readers might be interested to read the UN Human Rights Council Report, Special Rapporteur on Extrajudicial, Summary Or Arbitary Executions, written by Philip Alston (May 28, 2010).

I think that anyone who stands ready to support a world where an accusation by the US is all that is required to establish guilt should be very careful …. most of us are old enough to remember the irony of President Ronald Regan proudly introducing members of the al-Qaeda family to the American media on the White House lawns in 1985, describing them as “the moral equivalents of America’s founding fathers”.

UK referendum:

Marni Switzer writes: Re. “UK referendum marks a bad night for Liberal Democrats” (Friday, item 13). Charles Richardson wrote:

“And this comes on top of Monday’s election in Canada, where the Liberal Party — the traditional party of government, and probably the most successful of the liberal family in the world — recorded its worst ever result, falling to third place with just 18.9% of the vote. While the Liberals can’t be written off, since Canada’s Conservatives recovered from a much worse result in the 1990s, it’s an ominous sign for liberal parties everywhere.”

With regards to the above statement, comparing the Liberal Democrats in the UK to the Liberals in Canada is not comparing like-for-like; the Liberal Democrats in the UK align much more closely with the New Democratic Party of Canada (NDP), which made history in the Canadian election earlier in the week by winning 102 seats, making them the Official Opposition.

Comparing the two ‘Liberal’ parties in an article talking about the demise of Liberal parties around the world is unfair — much like comparing the Liberal Democrats to the Australia’s Liberal Party.

Peter Fray

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