Category: Policy

Spotlight back on PPPs as BrisConnections falters

by Flavio Menezes

News that BrisConnections, which operate Brisbane’s Airport Link M7, has suspended trade on the ASX as it continues to talk with its debtors is likely to again lead to a debate about the role of Public-Private-Partnerships – or PPPs – in providing government infrastructure.

PPPs have been criticised in the wake of several high profile failures including Sydney’s cross-city tunnel, Brisbane’s Clem 7 tunnel and the consortium building the Ararat prison in Victoria, as well as the high cost to the public of PPPs undertaken in the 1980s and 1990s.

Supporters will argue that the PPP model works because ratepayers will be protected if the company that built and operated the tunnel fails.

Both sides are mistaken. Economic research suggests that PPPs can deliver better outcomes than traditional procurement but often governments choose PPPs for the wrong reasons and fail to take key steps to ensure their success.

Under public procurement, the government finances the construction phase of the infrastructure, tendering the construction to private parties. The operation and maintenance of the infrastructure also may be contracted to private parties.

Under a PPP, a government tenders a “bundle” consisting of financing, construction and operation to private parties. The contract is usually for a fixed period at the end of which the asset reverts back to the government.

An important advantage of PPPs is the potential efficiency gains from bundling the construction and operations/maintenance.

When bundling occurs, the winning firm minimises the total of construction and maintenance/operating costs. So design and construction are undertaken in a way to minimise the total cost of the project over its lifetime.

Another potential advantage from the involvement of private financing under a PPP is in avoiding the construction of politically motivated white elephants. Private parties will find it difficult to obtain financing for a project that is not commercially sound. Arguably, the PPP failures reported above could be related to the particular structure of those PPPs rather than the underlying economics of the projects.

There are also, however, wrong reasons for selecting PPPs over traditional procurement. For example, governments may favour PPPs over public tendering to alleviate its budget constraints. This argument is clearly wrong when PPPs involve direct government transfers, such as minimum income guarantees or other types of payments. It is also wrong to the extent that the PPP project is financed by user fees — a revenue stream which the government gives for the duration of the PPP contract.

Governments can be also attracted to PPPs because they perceive this model shifts the demand risk from the government to the private parties. This argument for choosing PPPs is erroneous for several reasons. Firstly, the private parties bearing demand risk do so in exchange for a risk premium. To the extent that they cannot influence demand, the government may be the best party to hold the risk. Secondly, the upshot of the financial difficulties with projects such as the M7 Airportlink is that it will be very difficult to find investors willing to finance similar ventures in the future.

Third, in a number of cases in Australia and overseas, governments have bailed out failed projects, for example, by renegotiating payments or taking equity stakes. In such cases governments ended up bearing at least some of the demand risk.

There are ways in which PPP tenders can be modified to allocate risk appropriately. For example, research developed over the past decade suggests a tender process that allocates risks appropriately. The key idea is to run a least-present value of revenue tender. The winner of the tender is the firm that has submitted the lowest required revenue (expressed in present value terms). The innovation of this process is that the duration of the concession is variable.

The contract only expires when the winner of the tender recovers the amount of revenue bid. This type of tender allocates the demand risk to the government, reducing financing costs and ensuring that the benefits of PPPs over public tender are realised. This approach has been successfully tested in Chile.

In the past decade, we have learned a lot about what works and what does not in PPPs. To avoid previous mistakes with PPPs, governments need to ensure that there is a robust process for evaluating PPPs. Moreover, closer attention needs to be paid in the design of PPP tenders and contracts, as suggested by both economic theory and international practice.

Flavio Menezes is a Professor of Economics and currently the Head of the School of Economics at the University of Queensland.

A longer version of this article is at Australian Policy Online.

Corby by-election: British Tories all talk on wind power

by Adam Corner

There are few cardinal sins in politics – but campaigning on behalf of your opponent has to be one of them. So when news broke this week that the British Conservative Party MP Chris Heaton Harris had boasted on camera of providing resources and support to an opposition anti-wind farm candidate in order to “cause some hassle”, it was widely expected that the axe would fall.

But instead, as the story developed, it transpired that this was a trail that led to the very centre of the Conservative Party.

In the end, the manouverings came to naught – Labour won the by-election easily, the first time it has taken a seat from the Tories in a by-election since just before Tony Blair’s seismic 1997 general election victory.

Heaton-Harris was caught in an undercover sting by the environmental campaign group Greenpeace. He was bragging that he had backed the anti-wind farm election campaign of the blogger and self-publicist James Delingpole, a far-right commentator whose pantomime-villain outbursts are typically treated as undeserving of serious engagement. Among the climate-sceptic elements of the Conservative Party, however, Delingpole appears to have carved out a role for himself as the mouthpiece for views that they dare not air in public.

Delingpole stood down as a candidate in the Corby by-election several weeks ago, prior to the video emerging. But not before the energy minister, John Hayes, gave an interview declaring that “enough was enough” for on shore wind. This was seemingly in direct contrast to official government policy, which favours a range of renewable technologies as part of an increasingly low-carbon energy mix.

And in potentially even more serious developments, a second Greenpeace film appeared to show the Chancellor, George Osborne, implicated in a plot to withdraw government support for onshore wind. This is despite its huge value to the British economy as a fully operational low-carbon technology.

When David Cameron boldly proclaimed that his would be the “greenest government ever”, following his election in 2010, he must have known the boast would come back to haunt him. And, although the UK is (currently) a world leader in terms of legally binding carbon reduction targets, some members of the Conservative Party look like they are doing everything they can to ensure these targets are unlikely to be met.

The Conservative central command would like to paint anti-wind zealots like Heaton-Harris as existing on the lunatic fringe of the party. But increasingly, it is looking like the MPs who represent the rural constituencies where wind turbines are typically sited are having a disproportionate effect on the Conservative Party. Although there has been no formal shift in energy policy, the “mood music” around the environment on the British right is worrying.

To be clear: opposing the siting of a wind farm cannot be equated with climate change scepticism. But the willingness of Conservative party representatives to promote and publicise the views of hardline anti-environmentalists like James Delingpole does not send out a good signal. And opposing on-shore wind without suggesting an alternative policy for reducing levels of carbon dioxide is tantamount to dismissing the risks that climate change poses.

The relationship between climate change scepticism and political ideology has been documented repeatedly and consistently in the US, the UK and Australia. But how to address it is an altogether trickier question.

There is a proud tradition of conservation and respect for the natural environment in the history of British Conservatism. But the “conserve” part of conservatism currently seems to apply only to the hyper-local, with debate focusing on the aesthetics of wind-farms instead of the value of clean, green energy for the whole of the UK.

Ultimately, the Conservative Party will lose its hard-fought status as an (allegedly) moderate, modern, compassionate, centre-right group if it associates itself with the extreme views of individuals like Delingpole. If the Conservatives don’t want wind farms across the UK, their challenge is to identify and implement another set of policies that will allow Britain’s carbon targets to be achieved – with the consent of the electorate.

Despite the noises coming from climate-sceptic Conservative MPs, wind farms – and renewable technologies in general – are very popular with the public. They are certainly more popular than nuclear power or fossil fuels.

Few credible energy future scenarios see no role for on-shore wind. If the Conservatives have evidence to the contrary, they should speak up. If not, they need to find a way of convincing their voters that climate change is the biggest threat to the environment that they supposedly want to conserve so much – not the wind turbines that can provide clean, abundant energy for the future.

Adam Corner is  a Research Associate in the Understanding Risk research group at Cardiff University.

This article was first published at www.theconversation.edu.au

 

R18+ rating added for videogames … but are children protected?

New guidelines for the classification of videogames have been released by Federal Home Affairs Minister Jason Clare and, despite being a step in the right direction, the revisions are largely disappointing and a missed opportunity.

The Guidelines for the Classification of Computer Games – which were revised to account for the introduction of an R18+ classification – are an important step towards the enhanced protection of minors which has been held out as a result of the reform.

Under the existing system, the highest legal classification a game can be given is MA15+. This year the Parliament has amended the law to allow an R18+ classification, in response to community concerns that the strong, contextually justified violence available in MA15+ was not suitable for anybody under 18. However it was necessary to change the guidelines to ensure that level of violence would no longer be available at MA15+.

While the revised guidelines show an obvious intent to meet community expectations about enhanced protection for minors – by tightening up the level of violence permissible at MA15+ – there was a disappointing lack of public consultation during their creation.

Instead the draft guidelines were simply placed on a website, with no proper call for public comment. As the guidelines are more important to the policy aim than the introduction of the new classification, consultation on them should have been at least as widely publicised.

Nor does there appear to have been any proper legislative drafting process; rather the guidelines were passed around for individual ministers to make their own changes and additions.

The result is a patch-up job with minimal substantive changes. Worse, some of the wording is awkward and unclear.

The test for sexual violence at the R18+ level, for instance, stretches logic by distinguishing between “implied sexual violence” which is “visually depicted”, and that which is not visually depicted.

The guidelines go on to state that the classification does not permit implied sexual violence that is visually depicted if it is “interactive, not justified by context or related to incentives or rewards”. I doubt any self-respecting legislative drafter would have mixed up positives and negatives in this way.

The new guidelines also contain a restriction on depictions of “actual” sexual activity, thereby failing to recognise that nothing in a game is “actual”. The word, I imagine, was chosen to make a distinction from depictions of “implied” sexual activity, but if this was the case, a drafter would have known that the appropriate word would have been “explicit”.

Perhaps more importantly, the new guidelines contain more changes on sexual activity, nudity and drug use than they do on violence. It was violence driving the push for an R18+ classification in the first place and violence should have been central to the changes.

Rather, the violence-related changes come across as an afterthought; for example, all classification levels contain changes relating to sex, drugs and nudity but the criteria for non-sexual violence change only at G and MA15+. The dominance of the sex-related changes, in my view, further entrenches the classification system as one based on moralistic concerns rather than the clear evidence about what can influence children’s development in detrimental ways.

I have been disappointed (but not surprised) to see a renewal of claims by the gaming industry of an absence of evidence violent interactive games (by demanding active engagement) can have a stronger influence on users than film (which demands only passive engagement).

Interactive games may not have been around long enough for there to be conclusive evidence about enhanced impact through interactivity, but as this UNICEF Multigrade Teacher’s Handbook reminds us, we do have plenty of evidence that children learn better by doing than by watching, especially through repetition and rewards.

The analogy to interactive and passive media experiences is powerful enough to justify a different approach to the classification of games.

Of course the comments sections of articles and online forums are still full of pundits protesting about an alleged lack of evidence that violent media of any kind can have an influence on its users.

These claims sound strange coming at the end of a lengthy campaign for an R18+ classification that was driven by hand-wringing about all the inappropriate material currently available to minors at MA15+.

I’ve yet to meet anyone who disagrees some games are inappropriate for minors – the problem is that some people are happy to reach that conclusion based on a moralistic assessment of the material, or on gut-feeling and guesswork, or on the intent of the developer, rather than on the weight of the scientific evidence that exists as to how violent media can influence people’s thoughts, attitudes and behaviour.

People who weigh in to the debate over the appropriate role of this evidence in policy formation nearly always presume that the main, or only, question is whether violent media begets violent behaviour. In doing so they overlook the more subtle but potentially widespread influences on thoughts and especially attitudes.

Desensitisation to violence is at least as big a concern for the future of our society as increased tendencies to aggressive behaviour. Possibly more so because, while parents and carers have some opportunity to notice and address behavioural changes, attitudinal ones might go unnoticed and unchecked until it is too late.

The revised guidelines for videogames are another lost opportunity for a root-and-branch, considered review to base the classification system on the science, rather than on guesswork and moral judgment.

If we are going to have a classification system based on the wide recognition that media content can be harmful to minors, it’s imperative that we take seriously the evidence about what is harmful, and build the criteria around that.

Elizabeth Handsley is aProfessor of Law at Flinders University.

This article was originally published online at The Conversation.

The Far Right Takes Root in Europe

by Mariano Aguirre
 
Anders Behring Breivik’s attacks are part of a worrying trend in Europe: the far right’s rise within mainstream politics.

 
The bloodthirsty attacks perpetrated by Anders Behring Breivik in Norway on July 22 last year (leaving 77 dead) provided a brutal awakening for all those in Europe who had been passively observing the rise of the Islamophobic far right. As the trial opens, around thirty political parties that openly call for a “pure European identity” are effectively in the process of consolidating their parliamentary positions (occasionally even signing agreements with mainstream right wing parties, as is the case in the Netherlands), and are claiming an ever greater media presence.

 These parties, following the example of the Nordic Forum, are adept at using new technology and social networks, which gives them an even greater platform to spread their messages of hate and bolster their national and international alliances. 

Those responsible for this noxious propaganda always hide behind the principle of freedom of expression, and, when they are criticised for the speeches they deliver encouraging the Breiviks of the future, they assert that the carnage perpetrated by this “lone wolf” has nothing to do with the climate that they have helped to create. Indeed, they present themselves as victims that are being suppressed. They make out that Europe will ultimately lose its “Christian identity”. These demagogues are active both inside and outside the electoral system: just as they have an elected presence in the parliaments, on the other hand they endlessly criticise democracies, accusing them of being far too liberal on the issue of immigration.

The European far right is seduced by the fantasy of a “pure” Europe as opposed to a real Europe, which is in fact successfully diversified. Like Anders Behring Breivik, thousands of individuals that haunt websites and blogs (Gates of Vienna, Brussels Journal), organisations such as the English Defence League, Platform per Catalunya, or Militia Christi, as well as religious leaders are all actively preparing fertile ground for the growth of extremism. 

A study at the University of Nottingham undertaken for Chatham House by Matthew Goodwin demonstrates that extremist parties are primarily characterised by their visceral opposition to immigration (particularly Muslim immigration), to ethnic diversity, and finally to multiculturalism, alongside social behaviours that they consider to be a great danger to Europe. 

Further, they think that mainstream political parties are far too “soft” in their responses to the issues surrounding immigration. Another study, by Elisabeth Ivarsflaten , shows that populist parties have always had their greatest electoral successes after integrating a strong anti-immigration strand into their speeches and manifestos. 

These “new” populists carefully avoid the usual racist and anti-Semitic discourse, and prefer to position their stance more subtly, around questions of culture and identity. Paradoxically, they claim two conflicting identities: Christian through their recognition of a mythological European past, and secular in their fight against Islam. 

They fight “Marxist” politicians, or those that are too liberal. It’s with this in mind that Anders Behring Breivik attacked the government buildings in Oslo and subsequently the summer camp of young labour party activists on Utøya island. They are generally pro-American, have close working relationships with the far right in the United States, and consider Israel to be a defensive western bulwark against Islam. During times of crisis they also use the argument of the welfare state to justify themselves: they contend that immigrants are stealing jobs and scamming the welfare state, in particular social security, as they have many more children than the European average, and so on. 

In his manifesto – a vast copy and paste job of the greatest hits of extremist ideas – Anders Behring Breivik opposed the welfare state and a pluralistic hegemonic identity. “European societies” he wrote “must be able to rely on a solid social cohesion, which can only really exist in a monocultural system where everyone has complete confidence in one another.”

Goodwin’s study reveals that the majority of those who vote for populist parties come from a modest background or the middle classes. They are also often small business owners or farmers afraid of drastic economic and social change. “Market globalisation and economic deregulation have hurled the planet into an era of uncertainty which is inevitably provoking fear” reminds Javier de Lucas, professor at the University of Valencia. To this, the extreme right counters with a riposte made up of simplistic formulas, and lays responsibility for the all the economic and social woes on “the politicians”, “leftists” and immigrants. 

As the philosopher Slavoj Zizek concludes: “The only way to introduce passion into this kind of politics, the only way to actively mobilise people, is through fear: the fear of immigrants, the fear of crime…”

Timid counter-offensives 

Moderate politicians remain relatively impotent in the face of attacks from the far right, and when they attempt a riposte, they do so in a contradictory fashion: centre-left parties – to avoid losing a public that is sensitive to these issues – willingly revisit the pet subjects of the far right, in particular immigration. In fact, Europe is imposing ever more restrictive policies to limit the right to asylum and inward migratory flow, while at the same time political parties are lauding “greater tolerance” towards foreigners. The reality is that xenophobic sentiments are on the rise, and immigrant Muslim populations and their culture are being increasingly rejected. 

If Europe wants to sustain growth, then it will need to open the door wide to immigration. However, this argument does not succeed in halting the advance of Islamophobia. “There is something that worries me far more than the growth of the far right at the 2010 ballot, explains Thomas Hammarberg , Commissioner for Human Rights at the European Council:

“and that is the profound inertia and above all confusion that seems to reign amongst moderate democratic parties of both the left and right. One even has the impression that these parties have come to accept the narrative of hatred and that this unencumbered xenophobia has been integrated into the political discourse as though it were something quite ordinary: their leaders have totally failed to check this rise in Islamophobia.”

Leading media outlets have opened the debate, keeping centrally in their sights the fact that a major segment of their audience is sliding steadily, at least electorally speaking, towards the populist right. Meanwhile new ultra-nationalist media outlets are appearing on the media landscape, just as they have in the UnitedStates , along with thousands of websites and books, which for the most part, have been able to find a place in the unfolding discussions as though they were serious political institutions. 

It is thus that the British essayist Bat Yeor, using her real name Gisele Littman-Orebi, invented the famous Euro-Arabian axis (or Eurabia), abundantly referenced by Breivik in his manifesto, and in which Europe will sooner or later be conquered by Muslims. The author explains that Jews and Christians will be subjected to Islamic law. 

“Today, freedom of speech is complete and the essence of what is published is neither edited nor censored,” comments Sindre Bangstad, a teacher at the University of Oslo.

“Islamophobic discourse can spread much more easily than before. In this context, outlandish opinions like those held by Breivik are barely discernible from those found on some social networks, and sometimes even in the mainstream media in Norway…” 

Nevertheless, dangerous agitators are by no means all paranoid and bloodthirsty madmen. The highly respectable German social-democrat economist Thilo Sarrazin published a book in 2010 in which he very seriously explained that his country will become more and more impoverished and lose its identity as well as its potential, because Turkish and Arab immigrants possess a lower IQ. He maintains that his ideas are supported by a third of Germans who believe that the state should limit immigration and the practice of Islam. In October 2010 Angela Merkel declared, “Multiculturalism has failed”. David Cameron, the British Prime Minister, said exactly the same thing a few days later. In September 2011, the German National Democratic Party (NDP) gained 6% of the vote in the Mecklenburg-West Pomeranian parliament, an unprecedented result in that country. 

On the question of immigration, centre-left parties have two options: ‘integration’ or ‘assimilation’. The concept of assimilation has suffused political discourse since the 1980s: it suggests that immigrants must adapt to ‘our’ society and renounce all or part of their religion, culture or traditions. ‘Integration’, for its part, allows ‘new citizens’ to keep their idiosyncrasies, as have all prior immigrant groups for that matter. In its modern sense, integration expects a mutual attempt to adapt and notably, the acceptance of the welcoming country of the religion of those that it is seeking to welcome. 

Attempts to make religious symbols disappear from public spaces (minarets, burkhas, veils, mosques…) are more and more vocal, Olivier Roy noted in 2009 in ‘L’Islam en Europe, une religion qui doit être traitée comme les autres’, pointing out that Europe wanted to have immigrants working here, but wanted them to be invisible. 

In a general sense, both strategies have failed. Immigrant communities have more of a tendency to isolate themselves to avoid being assimilated. They often feel discriminated against, and the societies that are hosting them don’t feel the need to change anything at all to accommodate them since they consider the immigrants to be an undifferentiated and fragmented external group. In Germany, after forty years of communal living, Turkish and German populations still only know very little about each other. It’s a paradox.

Goodwin’s study has also dug up worrying results regarding the political response to the extreme right in general. Since political parties became ‘electoral machines’, populist parties have been fully exploiting their ability to directly address the electorate and respond to their concerns about immigration, which the other parties do not do. 

Are we ready to abandon our community-based approaches in order to adopt a multi-strand citizenry founded on fundamental shared norms and values? 

“European society in its plurality is collectively responsible,” explains Javier De Lucas. “We need to teach our societies to accept an evolution towards a multicultural world and to negotiate this change successfully. Unfortunately however, society is not moving. It is not very motivated, and very restrictive migratory politics are sending contrary signals: without negotiation, a desire to change, to evolve, the unilateral integration project of immigrant populations is doomed to fail.”

Mariano Aguirre is the director of the Norwegian Peacebuilding Centre (Noref) in Oslo

Translated by Tristan Summerscale. This article was originally published in French in Le Monde Diplomatique on March 10, 2012. 

 

The WikiLeaks War Logs Don’t Show Rare War Crimes–They Show The (Legal) Reality of War

by Chase Madar
 
The real problem with the laws of war is not what they fail to restrain but what they authorize.

Anyone who would like to witness a vivid example of modern warfare that adheres to the laws of war — that corpus of regulations developed painstakingly over centuries by jurists, humanitarians, and soldiers, a body of rules that is now an essential, institutionalized part of the U.S. armed forces and indeed all modern militaries — should simply click here and watch the video.

Wait a minute: that’s the WikiLeaks “Collateral Murder” video!  The gunsight view of an Apache helicopter opening fire from half a mile high on a crowd of Iraqis — a few armed men, but mostly unarmed civilians, including a couple of Reuters employees — as they unsuspectingly walked the streets of a Baghdad suburb one July day in 2007. 

Watch, if you can bear it, as the helicopter crew blows people away, killing at least a dozen of them, and taking good care to wipe out the wounded as they try to crawl to safety.  (You can also hear the helicopter crew making wisecracks throughout.) When a van comes on the scene to tend to the survivors, the Apache gunship opens fire on it too, killing a few more and wounding two small children.

The slaughter captured in this short film, the most virally sensational of WikiLeaks’ disclosures, was widely condemned as an atrocity worldwide, and many pundits quickly labeled it a “war crime” for good measure.

But was this massacre really a “war crime” — or just plain-old regular war?  The question is anything but a word-game. It is, in fact, far from clear that this act, though plainly atrocious and horrific, was a violation of the laws of war.  Some have argued that the slaughter, if legal, was therefore justified and, though certainly unfortunate, no big deal. But it is possible to draw a starkly different conclusion: that the “legality” of this act is an indictment of the laws of war as we know them.

The reaction of professional humanitarians to the gun-sight video was muted, to say the least.  The big three human rights organizations — Human Rights Watch (HRW), Amnesty International, and Human Rights First — responded not with position papers and furious press releases but with silence.  HRW omitted any mention of it in its report on human rights and war crimes in Iraq, published nearly a year after the video’s release.  Amnesty also kept mum.  Gabor Rona, legal director of Human Rights First, told me there wasn’t enough evidence to ascertain whether the laws of war had been violated, and that his organization had no Freedom of Information Act requests underway to uncover new evidence on the matter.

This collective non-response, it should be stressed, is not because these humanitarian groups, which do much valuable work, are cowardly or “sell-outs.”  The reason is: all three human rights groups, like human rights doctrine itself, are primarily concerned with questions of legality.  And quite simply, as atrocious as the event was, there was no clear violation of the laws of war to provide a toehold for the professional humanitarians.

The human rights industry is hardly alone in finding the event disturbing but in conformance with the laws of war.  As Professor Gary Solis, a leading expert and author of a standard text on those laws, told Scott Horton of Harper’s Magazine, “I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the laws of armed conflict.  Legal guilt does not always accompany innocent death.”  It bears noting that Gary Solis is no neocon ultra.  A scholar who has taught at the London School of Economics and Georgetown, he is the author of a standard textbook on the subject, and was an unflinching critic of the Bush-Cheney administration.

War and International “Humanitarian” Law

“International humanitarian law,” or IHL, is the trying-too-hard euphemism for the laws of war.  And as it happens, IHL turns out to be less concerned with restraining military violence than licensing it.  As applied to America’s recent wars, this body of law turns out to be wonderfully accommodating when it comes to the prerogatives of an occupying army.

Here’s another recent example of a wartime atrocity that is perfectly legal and not a war crime at all. Thanks to WikiLeaks’ Iraq War Logs, we now know about the commonplace torture practices employed by Iraqi jailers and interrogators during our invasion and occupation of that country.  We have clear U.S. military documentation of sexual torture, of amputated fingers and limbs, of beatings so severe they regularly resulted in death.

Surely standing by and taking careful notes while the Iraqi people you have supposedly liberated from tyranny are getting tortured, sometimes to death, is a violation of the laws of war.  After all, in 2005 General Peter Pace, then Chairman of the Joint Chiefs of Staff, publicly contradicted his boss Secretary of Defense Donald Rumsfeld by commenting into a live mike that it is “absolutely the responsibility of every American soldier to stop torture whenever and wherever they see it.” (A young private working in Army Intelligence named Bradley Manning, learning that a group of Iraqi civilians handing out pamphlets alleging government corruption had been detained by the Iraqi federal police, raised his concern with his commanding officer about their possible torture.  He was reportedly told him to shut up and get back to work helping the authorities find more detainees.)

As it turned out, General Pace’s exhortation was at odds with both official policy and law: Fragmentary Order 242, issued by Donald Rumsfeld’s Pentagon, made it official policy for occupying U.S. troops not to interfere with ongoing Iraqi torture.  And this, according to some experts, is no violation of the laws of war either. Prolix on the limits imposed on the acts of non-state fighters who are not part of modern armies, the Geneva Conventions are remarkably reticent on the duties of occupying armies.  

As Gary Solis pointed out to me, Common Article 1 of the Fourth Geneva Convention assigns only a vague obligation to “ensure respect” for prisoners handed over to a third party.  On the ground in either Iraq or Afghanistan, this string of words would prove a less-than-meaningful constraint.

Part of the problem is that the laws of war that aspire to restrain deadly force are often weakly enforced and routinely violated. Ethan McCord, the American soldier who saved the two wounded children from that van in the helicopter video, remembers one set of instructions he received from his battalion commander: “Anytime your convoy gets hit by an IED, I want 360 degree rotational fire.  You kill every [expletive] in the street!”  (“That order,” David Glazier, a jurist at the National Institute for Military Justice, told me, “is absolutely a war crime.”)  In other words, the rules of engagement that are supposed to constrain occupying troops in places like Afghanistan and Iraq are, according to many scholars and investigators, often belittled and ignored.

Legalized Atrocity

The real problem with the laws of war, however, is not what they fail to restrain but what they authorize.  The primary function of International Humanitarian Law is to legalize remarkable levels of “good” military violence that regularly kill and injure non-combatants.  IHL highlights a handful of key principles: the distinction between combatant and civilian, the obligation to use force only for military necessity, and the duty to jeopardize civilians only in proportion to the military value of a target.

Even when these principles are applied conscientiously — and often they aren’t — they still allow for remarkable levels of civilian carnage, which the Pentagon has long primly (and conveniently) referred to as “collateral damage,” as if it were a sad sideline in the prosecution of war.  And yet civilian deaths in modern war regularly are the central aspect of those wars, both statistically and in other ways.  Far from being universally proscribed, the killing of high numbers of civilians in a battle zone is often considered absolutely legal under those laws.  In the pungent phrase of Professor David Kennedy of Harvard Law School, “We should be clear — this bold new vocabulary beats ploughshares into swords as often as the reverse.”

The relative weakness of the laws of war when it comes to preventing atrocities is not simply some recent debasement perpetrated by neoconservative Visigoths.  Privileging the combatant and his (it’s usually “his”) prerogatives has been the historical bone marrow of those laws.  In the Vietnam War, for instance, the declaration of significant parts of the South Vietnamese countryside as “free-fire zones,” and the “carpet bombing” of rural areas by B-52s carrying massive payloads were also done under cover of the laws of war.

IHL has certainly changed in some respects.  A century ago, the discourse around the laws of war was far more candid than today.  Jurists once regularly referred to “non-uniformed unprivileged combatants” simply as “savages” and the consensus view in mainstream scholarly journals of international law was that a modern army could do whatever it wanted to such obstreperous, lawless people (especially, of course, in what was still then the colonial world).  On the whole, the history of IHL is a long record of codifying the privileges of the powerful against lesser threats like civilians and colonial subjects resisting invasion.

Even though the laws of war have usually been one more weapon of the strong against the weak, a great deal of their particular brand of legalism has seeped into antiwar discourse. One of the key talking points for many arguing against the invasion of Iraq was that it was illegal — and that was certainly true.  But was the failure to procure a permission slip from the United Nations really the main problem with this calamitous act of violence?  Would U.N. authorization really have redeemed any of it?  There is also a growing faith that war can be domesticated under a relatively new rubric, “humanitarian intervention,” which purports to apply military violence in precise and therapeutic dosages, all strictly governed by international humanitarian law.

Here is where the WikiLeaks disclosures were so revealing.  They remind us, once again, that the humanitarian dream of “clean warfare” — military violence that is smoothly regulated by laws that spare civilians — is usually a sick joke.  We need to wean ourselves from the false comfort that the law is always on the side of civilians.  We need to scrap our tendency to assume that international law is inherently virtuous, and that anything that shocks our conscience — that helicopter video or widespread torture in Iraq under the noses of U.S. soldiers — must be a violation of this system, rather than its logical and predictable consequence.

Let’s be clear: what killed the civilians walking the streets of Baghdad that day in 2007 was not “war crimes,” but war.  And that holds for so many thousands of other Afghan and Iraqi civilians killed by drone strikes, air strikes, night raids, convoys, and nervous checkpoint guards as well.

Regulatory Capture

Who, after all, writes the laws of war?  Just as the regulations that govern the pharmaceutical and airline industries are often gamed by large corporations with their phalanxes of lobbyists, the laws of war are also vulnerable to “regulatory capture” by the great powers under their supposed rule. Keep in mind, for instance, that the Pentagon employs 10,000 lawyers and that its junior partner in foreign policy making, the State Department, has a few hundred more.  Should we be surprised if in-house lawyers can sort out “legal” ways not to let those laws of war get in the way of the global ambitions of a superpower?

It’s only fair that the last words on the laws of war go to Private Bradley Manning, now sitting in a prison cell in Ft. Leavenworth, Kansas, awaiting court-martial for allegedly passing troves of classified material to WikiLeaks, documents that offer the unvarnished truth about the Afghan War, the Iraq War, and Guantánamo.  They are taken from the instant-message chatlogs he wrote under the handle of “bradass87” to the informant who turned him in.  The young private saw very clearly what so many professors and generals take pains to deny: that the primary function of the laws of war is not to restrain violence, but to justify it, often with the greatest lawyerly ingenuity.

(02:27:47 PM) bradass87: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything…

(02:28:19 PM) bradass87: but just because something is more subtle, doesn’t make it right

 

Chase Madar, is the author of a new book, The Passion of Bradley Manning (OR Books), is a lawyer in New York.   Madar tweets @ChMadar
 
First published at AlterNet.org

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