At last we are to have a Parliamentary debate about what we are doing in Afghanistan. Hopefully this will go to the desired end-state (what we are hoping to achieve), how Australia’s roles (all of them, Special Forces as well as mentoring teams) contribute to the objective, how we will measure success, and the criteria by which we will judge when it is time to withdraw.
Hopefully our Parliamentarians will consider the ethical issues associated with withdrawal of NATO forces including our own. Packing up and leaving the locals to it is vastly different from not having invaded the country in the first place, so deciding that we shouldn’t be there does not absolve anyone of the responsibility to think about the trajectory by which we leave, and the consequences for the locals. I am not just thinking of the consequences for Hamid Karzai and the government he leads. I am thinking also of the village elders who have taken huge risks, for example, in permitting girls’ schools to be opened, the people who teach in those schools, the parents, the girls themselves, and all the other Afghans at the local level who by cooperating with NATO forces have exposed themselves to a charge of having collaborated with the invaders.
This is of course the kind of debate that should have been had before we became involved in military operations in Afghanistan (and indeed in Iraq). On 13 February 2008 Greens Senator Scott Ludlam introduced in the Senate a Private Members’ Bill to limit the prerogative power of the Executive to commit Australian forces to overseas service without the consent of the Parliament (see War Powers Bill). Unfortunately neither side of politics as it was then took the matter seriously and this worthy attempt to involve our Parliament in decisions about war and peace got nowhere (see War Powers Bill crushed by major parties).
In War Powers: what the PM said I commented in detail on a disappointing response from former Prime Minister Rudd’s Foreign Policy Adviser to a letter from Dr Kristine Klugman on behalf of Civil Liberties Australia. In War Powers Bill: Pre-emptive self-defence I outlined the Caroline case, the precedent that established the international law regarding acts of pre-emptive self defence. In War Powers Submission, I noted that my colleagues and I had lodged a submission to the inquiry and provided a link to the relevant page of the Parliament House website.
I think that the time is ripe for Senator Ludlam’s Bill to get another Parliamentary airing.
The following is a transcript, issued by the Department of Defence, of an interview by the ABC’s Sabra Lane of Defence Minister Stephen Smith. The interview was broadcast this afternoon by ABC Radio National’s PM program.
I cannot understand for the life of me why the Opposition will not let go of this issue. They are not doing the soldiers any good, they are not doing the Military Justice System any good, and if they had their way on this they would not be doing anything for Australia’s standing as a nation bound by international humanitarian law and the laws of armed conflict.
One of the attributes of a government in waiting, as the Opposition considers itself to be, is the judgement to know when to let something go. Clearly that attribute is lacking in this case.
TRANSCRIPT: INTERVIEW WITH SABRA LANE, ABC RADIO “PM”
TRANSCRIPTION: PROOF COPY E & OE
DATE: 14 OCTOBER 2010
MARK COLVIN: The Opposition is not letting up over the charging of three Australian soldiers over the deaths of six civilians in Afghanistan last year.
The Opposition Defence spokesman, Senator David Johnston, said on AM today that he thought the soldiers in question have been betrayed by the Government and he was disappointed that they had been charged in the first place. The soldiers were charged last month after an 18 month investigation by the Director of Military Prosecutions. Senator Johnston says that he’s not convinced that the Department did all it could to retain senior and experienced counsel to defend the soldiers before they were charged.
The Defence Minister, Stephen Smith, has now responded to the claims. He spoke to Sabra Lane.
STEPHEN SMITH: I think on this matter there has been too much ill informed, inflamed language. I think we need to just very calmly understand what has occurred here.
Australia has always had a system of military justice. It is very important that out Defence Force operates within our domestic and international law. We’ve prided ourselves on our higher standards and we have a well regarded international reputation about so doing. And when, for example, there are incidents involving civilians we always investigate those.
From time to time, those investigations historically and recently have led to charges being laid. The only change we’ve seen in the current circumstance is the charges on this occasion were laid by the independent Director of Military Prosecutions who was established by the Howard Government under legislation they introduced and we, when we were in Opposition, supported that process. So historically Australia has confronted these issues before. The only change we’re dealing with now is we have an independent Director of Military Prosecutions who has made the decision to press charges and historically of course that decision has been made by military chiefs. Under the Howard Government, the Parliament believed having that independence was a sensible thing to do and I agree with that.
SABRA LANE: Senator Johnston says he’s not convinced though that Defence retained very senior or experienced counsel to make full submissions to this Director of Military Prosecutions on behalf of these soldiers before they were charged. Can you confirm, were these soldiers … did they get QC advice before they were charged?
STEPHEN SMITH: Well again I think people have to be very clear about the thrust of the legislation. It was Howard Government legislation. Senator Johnston himself was a Senator at the time. And provision of the legislation Section 5A of the Defence Force Discipline Act enables the Chief of the Defence Force or his representative – on this occasion it was the Vice Chief – to make representations to the Director of Military Prosecutions on general implications for the Force.
Now when the legislation went through the Parliament the legislation made it clear that any such representation was not to impact adversely on the independence of the Director of Military Prosecutions. Some people including Senator Johnston are out there somehow suggesting that the representations made by the Chief of the Defence Force or the Vice Chief on his behalf went to the legal defence of the three concerned. They don’t indeed. When the Director of Military Prosecutions asked for the advice in accordance with the statute she expressly made clear that it should not go to those matters about guilt or innocence or whether charges should be preferred because that would impact upon her independence. The second point goes to the legal defence of the three concerned and the Chief of the Army, the Chief of the Defence Force and I have made it absolutely crystal clear that they have been and will be provided with all the necessary resources to deal with this matter, both legal and other support; and the Chief of the Army has made it clear to the families concerned that he will spare no expense to make sure that they get the legal support and counsel that they require and they need.
SABRA LANE: The Senator says that he’s been told that people inside Defence that the pre-charge submission made on behalf of these soldiers was a bit of a doddle. Is that your assessment?
STEPHEN SMITH: I would be not making such pejorative remarks. But again, that remark misunderstands either inadvertently or deliberately the nature of the representations that can be made under the Howard Government legislation.
SABRA LANE: But it’s still not clear from what you’re saying Minister, did these soldiers get adequate legal advice before these charges were laid?
STEPHEN SMITH: The Howard Government legislation provides for the Chief of the Defence Force to make representations to the Director of Military Prosecutions about the general interest of the Defence Force. It does not go to whether charges should be preferred or not.
SABRA LANE: Isn’t it just a simple case of yes or no?
STEPHEN SMITH: It is a simple case of carefully understanding the legislation that the Howard Government put through the Parliament which Senator Johnston supported and which the Labor Party supported.
SABRA LANE: Given what you’re saying now then, after this case is heard and is finished is it a case that this legislation should be reviewed to allow a defence to be mounted on behalf of soldiers before they are charged?
STEPHEN SMITH: A defence will be mounted on behalf of these soldiers and that defence will be mounted as they are given access to the prosecution brief by the Military Prosecutor and have access to all the necessary legal and other support that will be provided.
MARK COLVIN: The Defence Minister Stephen Smith speaking to Sabra Lane.
One of the key differences between the Australian Defence Force and the rag-bag of contractors, mercenaries and private militias that have been involved in the wars in Iraq and Afghanistan is that the ADF is a disciplined force, trained in and subject to the rule of law, including international humanitarian law and the international law of armed conflict.
The requirements of Australian military law and applicable international law are normally embodied in the rules of engagement under which our soldiers enter into military operations.
It is quite typical for our military personnel to be indemnified against local law while they are deployed into the relevant theatre of operations. This is the case with the ADF’s deployment in Afghanistan; the Status of Forces Agreement (SOFA) indemnifies our soldiers from prosecution under local law. This means that the only law to which our soldiers are subject is Australian military law. If they commit a crime against Afghan citizens those people have no expectation of justice except through the Australian military justice system.
A corollary of the ADF being a disciplined force subject to the rule of law is that when there is reason to suppose that there has been a breach of law or of discipline, that alleged breach must be investigated, and if an investigation by the competent authority finds that there is a case to answer, then that matter must be referred to the Australian Military Prosecutor for consideration as to whether charges should be laid. The Australian Military Prosecutor is an independent prosecutorial authority for the Australian Defence Force, and makes her decisions outside the chain of command in order to remove any suggestion of command influence.
The charges against three Australian soldiers to which Opposition Leader Tony Abbott has referred in recent press commentary arise from a compound clearance undertaken by the Special Operations Task Group in Oruzgan Province on 12 February 2009. The matter, which involved the deaths of six Afghan civilians, including several children, was investigated by the ADF Investigative Service, which referred the matter to the Director of Military Prosecutions for consideration of charges. The Director of Military Prosecutions decided that three ADF members were to be charged in relation to the incident, with offences including failure to comply with a lawful general order, manslaughter and dangerous conduct.
This is of course an acutely sensitive matter – the soldiers concerned were undertaking a dangerous operation on active military service. Nevertheless, the competent military authorities have found that there is a case to be answered, and there is no alternative to the matter being tested before a properly constituted military tribunal – otherwise our soldiers are in effect subject to no law when they are on military operations in Afghanistan.
What the soldiers are entitled to in these circumstances, and have been assured that they will receive, is a presumption of innocence, proper legal representation, and other forms of support. The Chief of the Defence Force, Air Chief Marshall Angus Houston, has stated, “Consistent with the presumption of innocence, these members will receive the full support of the Australian Defence Force”. This support will include, but not be limited to, medical, psychological, legal, chaplaincy and welfare support.
The Chief of Army, Lieutenant General Ken Gillespie, has stated, “I give the members facing these charges a firm, personal undertaking that I will ensure that they are thoroughly supported throughout the legal process”.
Tony Abbott must know, or ought to know, all of the above. It is therefore the height of populist irresponsibility for him to be using inflammatory language like his suggestion to talk-back radio host Alan Jones that our soldiers are being “stabbed in the back by their own government” and that the Government is failing “to provide these soldiers with the defence that they are entitled to”. Jones of course was delighted to go along with this; he was beside himself to assert that the problem was the supposedly untrammelled powers conferred on “this woman” (the DMP) by the Rudd Government, whereas it was in fact the Howard Government in 2006, but Jones is clearly not going to let the facts get in the way of a good story.
Unfortunately this is yet another episode in which Tony Abbott seems neither to know nor to care how key systems in the Australian polity work, or the legal frameworks within which they operate, and is heedless of the potential consequences of his populist comments. His approach to asylum seekers is another obvious example.
For further informed commentary on this issue see opinion piece Soldiers’ work is life or death, but they are not above the law by Gideon Boas, former senior legal officer at the International Criminal Tribunal for the former Yugoslavia in today’s edition of The Age (accessible here), and the contribution to today’s edition of Crikey by Angela Priestly, editor of Lawyers Weekly (accessible here).
The above is the title of a 5 October newswrap by The Atlantic Wire, which may be accessed here.
It says that the rapidly deteriorating situation in Pakistan has many re-evaluating basic U.S. assumptions, including the U.S. relationship with that country, and summarises what key opinion makers are saying:
- The Afghan War is not making Pakistan safer (Time’s Robert Baer)
- The U.S. should consider the possibility that Pakistan is a rogue state (Foreign Policy’s Simon Henderson)
- The U.S. Military is moving off fossil fuel dependence (The New York Times’ Elizabeth Rosenthal)
- The U.S. counter-terrorism strategy is making things worse (Salon’s Glenn Greenwald)
- Many Pakistanis increasingly hate America (Foreign Policy’s Mosharraf Zaidi).
I would add another overarching problem. As is so often the case (Vietnam, Iraq) many of the key U.S. decision makers seem neither to know nor to care about the history of the country or region they are dealing with. The United States, over two Administrations (Bush and Obama) has been telling the Pakistanis that they must sort out what is going on in the Federally Administered Tribal Areas (FATA), and becoming exasperated to the point of incandescence that the Pakistanis fail to do so (not, it should be noted, that they haven’t carried out a number of major military operations, with great loss of life amongst their soldiers as well as great dislocation and loss of life amongst the tribals).
I would be one of the first to say that Pakistan has been and is an unreliable ally in Afghanistan because it has always had its own agenda and, thanks largely to the steadfast refusal of the Americans to concern themselves with how the Pakistani Inter-Services Intelligence Directorate spent U.S. taxpayer’s money during the insurgency against the Soviet Union, and subsequently, many Pakistani actions in Afghanistan have been seriously counterproductive.
But I have a lot of sympathy for the Pakistan Government in relation to their problems in the FATA, and for those who argue that American actions in and in relation to the FATA are a major problem. The Federally Administered Tribal Areas are designated thus because, to the extent that they are administered at all by any external agency, they are administered direct from Islamabad. They are neither states nor parts of states. Anyone who lives in a Federal structure ought to understand that.
An important part of the history of the FATA is that they are within Pakistan as a result in the first instance of an 1893 agreement between Henry Mortimer Durand, the Foreign Secretary of British India at the time, and the Afghan Amir Abdur Rahman Khan. The border marked out in the 1890s runs for 2,640 kilometres, is poorly marked, and cuts right through the Pashtun tribal areas. Pashtun tribespeople work, trade, marry and move across the border pretty much at will. Afghanistan and many Pashtuns reject it as an arbitrary division of the Pashtun heartland, and do not consider it to be a validated international boundary – so much so that Afghanistan opposed Pakistan’s application to join the United Nations upon independence in 1947.
In 1901 the tribal agencies on the British side of the Durand Line were first formally designated as such under British rule, as part of the arrangements for the administrative separation of the Pashtun region from the Province of Punjab. The Pashtun region itself was divided into (initially) five tribal agencies and the “settled region” of the Pashtun belt, which latter became the North West Frontier Province (NWFP). The tribal agencies did not come under the administrative purview of the NWFP, but were administered by political agents under the orders of the Governor of NWFP, who was directly responsible to the Viceroy of India. The Governor was expressly instructed not to interfere in the internal affairs of the tribes, but to maintain friendly relations with them and to disburse tribal allowances that had been agreed in a series of treaties with tribal leaders. If, in spite of the agreements and the financial inducements, the tribes caused trouble, the British would mount punitive expeditions and impose collective fines or other retribution, and withdraw speedily.
On partition in 1947 the fledgling state of Pakistan induced all of the tribes to become part of Pakistan, rather than India, but the status of the region remained somewhat ambiguous. All Pakistan’s regular army units were withdrawn from the region in December 1947, and in 1949 Pakistan negotiated an Instrument of Accession under which the FATA would maintain the semi-autonomous status and administrative arrangements established by the British in 1901.
Under Pakistan’s 1973 Constitution, the Pakistan Parliament has no power to legislate for the FATA – the President extends laws to the FATA through Presidential Regulations. The FATA have no police or law courts, and the Supreme Court does not have jurisdiction to safeguard and enforce constitutional rights there.
Today, the FATA consist of seven semi-autonomous agencies and the six frontier regions, which are situated within the NWFP. The FATA cover an area of 27,000 sq. km. inhabited by 3.5 million people, and have a 600 km (Durand Line) border with Afghanistan.
It is into this delicate situation that the U.S. has thrust itself as part of its war in Afghanistan, with demands that the Pakistan Government get the tribals under control (something no-one has ever done since the Pashtuns first appeared in the historical record in about 500 B.C.) and its autonomously initiated cross-border drone strikes against people it considers to be its enemies.
This leaves the weak civilian Government of Pakistan in an impossible situation, and the resulting mess means that the Afghan War is destroying Pakistan as well as Afghanistan.
Note:
Principal source for the above background: Hilary Synnott, Transforming Pakistan: Ways out of instability, published by Routledge for the International Institute for Strategic Studies, 2009.
Hilary Synnott was British High Commissioner in Islamabad from 2001 to 2003, and the Coalition Provisional Authority’s Regional Coordinator for South Iraq in 2003-4. Before joining the diplomatic service he was a submariner in the Royal Navy.
His account of Pakistan’s current problems in their historical setting is a very readable one, and quite succinct (181 pages of text). I would recommend it as very good place to start for anyone who wants to acquire an understanding of contemporary Pakistan without dedicating a huge amount of time to doing so.
That is the question addressed by Peter Brent in his Mumble Blog in today’s edition of The Australian – read it here.
“No” is the short answer given by Brent, who argues that the recent election was effectively a campaign between two Opposition leaders, in the sense that neither was for the electorate a known quantity as governmental leader.
Brent concludes his analysis:
If Abbott survives until the next election, it will be tempting to anticipate a good campaign from him, as we got in 2010. But that’s all over. Barring another ALP brain-explosion, the next election will prime minister versus opposition leader, an equation that doesn’t suit Tony.
And if the parliament goes full term, lasting three more years as leader is also a huge ask.
Abbott’s best - perhaps only - chance of becoming prime minister is on the floor of the House.
That looks unlikely. But not impossible.
I agree with this – I have felt since the outcome of the country independents' deliberations was known that Tony Abbott’s political career peaked on 21 August 2010.
Apart from the advantage that incumbency will give to Julia Gillard, Tony Abbott has other problems. I think that the outcome of the negotiations demonstrated one of them. Government was within Abbott’s reach, but he conducted an incompetent negotiation. Unlike Julia Gillard he was too impatient for an outcome, and failed to get onto the country independents’ wavelength. These are both fundamental failures of negotiating practice. It is an enormous disadvantage to feel that you need a quick answer, and if you cannot understand what motivates the other party you have no hope of offering something acceptable to them at reasonable cost to yourself (in the case of both Andrew Wilkie and the country independents, he tried to buy his way in with cash, and in both cases he failed).
This is consistent with a wider problem. Tony Abbott never seems to do the homework that is required of someone who aspires to be Prime Minister of this country. He could not and cannot conduct a sensible conversation about the National Broadband Network or the alternative he is proposing, he cannot conduct a sensible conversation about the economy (we just get slogans about reckless spending, debt and the need for the budget to be always in surplus), he presents arrivals of asylum seekers by boat as one of the nation’s biggest problems but seems to know nothing of our international obligations regarding either asylum seekers or safety of life at sea, and when his Defence spokesman David Johnston said that he trusts the advice of the troops on the ground in Afghanistan over that of the Chief of the Defence Force (see here), Tony Abbott said that he supported him, but then declined to clarify whether the Opposition was changing its policy on Afghanistan, and protested that he had not had time to obtain a briefing from the CDF. In other words, he knew he supported his spokesman, he just wasn’t sure why, which suggests again a man who has not done his basic homework on what is clearly a major national issue.
I think that if Tony Abbott is to have any chance of leading his party to electoral victory he is going to have to ease up on the manic personal fitness regime and devote some time to the long hard slog of mastering the subject matter of the key policy issues that the nation confronts, and deciding where he stands on them.
What amazes me about the Opposition on this matter is that they appear to operate in a legislation-free treaty-free environment. They bandy about all sorts of heroic talk about tough measures as though the 1951 Convention on the Status of Refugees, the 1974 Convention on the Safety of Life at Sea and the provisions of the Defence Act 1903 did not exist. They just make it up as they go along. The Government is bad enough, but this mob is a nightmare.
I would be prepared to allow for the possibility that the Opposition Leader and his Immigration Spokesman are not aware of these legislative frameworks – homework does not seem to be a strong suit for the Opposition – but really, ignorance of the law is no excuse. Surely they know that much.
This weekend Robb College at the University of New England, Armidale, will be celebrating the fiftieth anniversary of the first students moving into its permanent buildings.
Here is a photo of the first block of Robb, taken in 1960 from the front gate of our home at 136 Handel Street:
