Category: The Courts

Royal Commission: abuse victims need to be helped, not just heard

by Michael Salter

There has been a great deal of focus on the role of a Royal Commission in delivering “justice” for victims of sexual abuse. Justice is a powerful, symbolic principle, and being listened to can be a moving and meaningful experience for survivors. My experience interviewing child abuse survivors suggests the opportunity to tell their story in a validating and comfortable environment can have a range of emotional benefits for them.

However, once the drama of the Royal Commission is over, survivors must return to their day-to-day lives. Some recover well, but many continue to experience high rates of depression, anxiety, substance abuse and suicide. They suffer in silence or are bounced between health and welfare services that are not funded to meet their needs. The worst affected wind up in prison or on the streets.

NSW premier Barry O’Farrell said that sexual abuse has “robbed young children of their futures”. The implication is that the lives of child abuse survivors have been irrevocably compromised and the only substantive action we can take is to prevent abuse from occurring in the first place; once it has happened, it’s too late to do much. This represents the state’s failure to provide adequate health services to child abuse survivors.

Ensuring the quality of life of survivors into the future should be a key focus of the recommendations of the Royal Commission. Safety and justice are fundamental human rights, but so are health and wellbeing. The World Health Organisation defines health as an individual and collective “resource for everyday life”. We build and preserve this resource as a community, first by creating healthy environments in which people can live happily and safely, and second by ensuring that care and support are available.

In both regards, Australia has failed child abuse survivors. They grew up in spaces where they were not safe or protected. Many were not provided with the opportunity to disclose what had happened to them, or when they did, they were ignored. Now, as adults, they find themselves unable to access health care that addresses the impact of trauma and abuse on their lives.

As a result, they are often subject to inappropriate, ineffective or even dangerous forms of treatment that compound the harms of abuse. But effective treatment does exist for child abuse survivors. The fact is that successive governments have not invested in them, made them available or provided enough abuse-specific training to the health workforce.

Royal Commissions have the power and scope to address systemic policy issues. The prevention, detection and reporting of child abuse is one such issue. Providing and ensuring access to effective mental health care in the aftermath of abuse is the other side of the coin – and it has long been neglected. Child abuse is at the very centre of the burden of mental illness in the community. Until steps are taken to address the health needs of survivors, this burden will remain, at a significant financial cost to the community, not to mention the personal cost to survivors, their friends and families.

When it comes to child abuse, justice, safety and health are inextricably linked. Children protected from abuse are less vulnerable to mental illness. Where they are abused, early detection and intervention can result in better outcomes for the child, and the identification of offenders and protection of other children.

For those victims enduring the long-term impacts of abuse, however, real justice must deliver more than the symbolic opportunity to attest to their victimisation. It must provide them with access to the care and support that has previously been denied them.

This is one of the main challenges that faces the Royal Commission and, in my view, if this challenge is not addressed then the current rhetoric about justice and safety will remain just that – rhetoric.

Michael Salter is a lecturer in criminology at the University of Western Sydney.

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

 

Breivik court verdict: security lessons?

by Robert Lambert 

Now that the legal question of Anders Breivik’s sanity has been resolved it should be possible to focus more closely on his political motivation and the security lessons that arise from this case. This should help inform a debate about how best to tackle the growing problem of far right violence in Europe and the US

Today Anders Breivik’s trial came to a conclusion when he was found to be sane and sentenced to a maximum twenty one years in prison. Previously two teams of court-appointed psychiatrists who examined Breivik had reached opposite conclusions. The first said that he was a paranoid schizophrenic, and the second assessed him to be sane.

As the psychiatrist Tad Tietse noted in respect of the first report, it may have told us ‘more about the socially embedded nature of psychiatric diagnosis and the prevailing political climate in Norway than any claim it was the result of some kind of cold, hard, value-free science’. Be that as it may, it is to be hoped that if and when the next serious case of far right terrorism takes place in Europe or the US, governments, police and judiciary will have a better grasp of the political rationale that drives it irrespective of the mental profile(s) of the individual perpetrator(s).

To express the same point on a different premise:  it is to be hoped that far right terrorists will in the future be treated the same as all other terrorists. Whether they operate as ‘lone wolves’ (or ‘solo terrorists’) their far right political affiliations (like Breivk’s prior membership of the Progress Party) should not be lightly disregarded.

Notably, the legal and medical fixation with Breivik’s mental health followed an immediate interest in the same topic by political commentators determined to deny a political terrorist motivation for Breivik’s violence.

Such a strong focus on the mental wellbeing of the accused is unusual in a case of political terrorism. That said, cases of political terrorism are rare in Norway and it is probable that the psychiatrists in the case lacked experience of examining politically motivated individuals like Breivik. Unfamiliarity with political violence might help explain a failure on the part of the first team of psychiatrists to grasp the significance of Breivik’s lengthy manifesto 2083 – A European Declaration of Independence - a document he circulated to hundreds of contacts that helps reveal the extent to which he was influenced by a global anti-Muslim movement known as the Counter Jihad Movement.

Significantly, the counter-jihad movement contains commentators who are notoriously quick to link a handful of al-Qaeda terrorist attacks in Europe and the US to what they call the ideology of radical Islam or Islamism (or sometimes Islam itself). In fact, the links (in terms of a shared political ideology) may be much closer between prominent members of the counter jihad movement and Breivik than between most al-Qaeda terrorists and many mainstream Muslims who are regularly and pejoratively stigmatised as fellow travellers or closet supporters of al-Qaeda by the counter jihad movement.

It should not be left to Breivik to explain and promote his political motivation and his political campaign from his prison cell. Now is the time to expose it, discern its proximity to the counter jihad movement and, at some points, its alarming appropriation of mainstream discourse on Islamism, Muslims and immigration. To hide instead behind the legalities of sanity and insanity serves Breivik’s victims – and the unknown or unremarked victims of countless acts of lesser political violence against Muslims, ethnic minorities, immigrants and their allies – very poorly indeed.

Duty to the victims and the bereaved

The overwhelming majority of Anders Breivik’s victims were young, left wing activists who would still be alive today if their killer had not taken his attachment to far right politics to such a lethal conclusion. While their bereaved parents, siblings, relatives and friends are bound to be relieved that Breivik has finally been brought to justice at least some will, in addition, be eager to understand why and how he carried out his violent acts as part of their difficult bereavement journeys.

For some it may be comforting to witness the overwhelming majority of their fellow citizens standing steadfastly against a significant minority of far right bigots. But political terrorists like Breivik are always a tiny minority (within a much larger community of like minded activists) who will seek to conceal their preparations so as to avoid detection prior to carrying out their criminal attacks. Therefore, for all that is positive and effective in ‘open confrontation with right-wing bloggers and activists’ as a ‘strategy to combat [far right] extremism’ it is also necessary to tackle far right terrorism and political violence as effectively as any other kind, including that which is carried out or threatened by Muslim extremists, generally under an al-Qaeda banner .

Police failings

Just weeks before the verdict was announced, an official report highlighted police failings that may have prevented Breivik being arrested shortly after his first bomb attack against a government building in Oslo and before he landed on Utoya Island to carry out a shooting spree. The report also highlighted a separate police failure to arrive on Utoya Island as speedily as possible and thereby bring an earlier halt to the killing.

The second of these two failures revolved around a decision by police officers to wait for expert colleagues before taking a ferry to Utoya Island – a disturbing scenario that suggests a negative example of ‘health and safety’ culture overruling a fundamental police commitment to public safety. As a result Norway’s police chief Oeystein Maeland resigned from his post.

Less explicit, the report suggested that ‘with better ways of working and a broader focus, the police security service could have become aware of the perpetrator prior to 22 July’. This might well be taken to refer to missed intelligence opportunities to monitor Breivik after he purchased ingredients for his bomb. It is hard to imagine that such a failure would have occurred if Breivik had instead been an identifiable Muslim purchasing the same ingredients in the same circumstances.

The report was oddly silent on Breivik’s far right political motivation saying instead that it had ‘foregone issues related to the perpetrator’s motive….’ and intriguingly, that it had ‘not explored the measures society puts in place for the early prevention of radicalisation’.

Far right radicalisation

How might the ‘early prevention of radicalisation’ relate to Breivik’s case? Had Breivik been a member or associate of a white supremacist or neo-Nazi organisation it is reasonably safe to assume that he would have been actively monitored by police and police security services. Instead, Breivik was able to take advantage of the fact that his prior membership of the Progress Party and his wide engagement with the counter jihad movement was apparently not regarded as evidence of ‘extremism’ or as a basis for reasonable suspicion in his activities.

There are numerous examples of how ‘the new far right’ has successfully re-invented itself and created sufficient distance from ‘the old far right’ so as to become immune to pro-active police and security investigation. In the UK, for example, government and police have steadfastly refused to cast the English Defence League (EDL) in the role of ‘extremists’ despite a growing catalogue of violence carried out by its members and supporters. In consequence EDL (and their counter-jihad counterparts across Europe and the US) are considered as more of a public order or social cohesion problem than a counter-terrorist or political violence issue. As a result they are not considered as suitable for ‘counter-radicalisation’ strategies in the way that supposedly ‘radical’ Muslims often are.

Instead, in Norway, across Europe and the US, ‘the early prevention of radicalisation’ has come to denote intrusive strategies that are aimed at individual Muslims who are suspected or deemed to be at risk of radicalisation into violent (or increasingly non violent) Muslim extremism (which includes terrorism inspired or directed by al–Qaeda). The UK has been a leader in this field of work and while some work carried out under the Prevent umbrella has been narrowly and effectively focused on terrorism and violent extremism other strands of work has been ineffective and counter-productive by virtue of being too broadly cast against politically active Muslims who pose no threat to security or social cohesion.

It is far from certain that any of Anders Breivik’s victims – particularly those members of AUF (Labour Youth) killed on Utoya Island who he regarded as prime targets – would be alive today if their killer had received psychiatric treatment or counselling during the months he was planning his acts of terrorism. In contrast, it is safe to assume that the AUF summer camp of 2011 would have reached a peaceful non-violent conclusion if Breivik had not become influenced by the Counter Jihad Movement. So rather than medical help did Breivik need political counselling?

This is not an idle thought. In neighbouring Sweden, for example, there is an experienced street based group in Stockholm called Exit run by former far right activists that helps individuals disengage from far right politics and far right violence. Admittedly, Breivik was not as visibly engaged in far right politics as some Exit clients but if he had been subject to closer security monitoring it is entirely feasible that he could have been ear marked for such an intervention.

Even handed counter-terrorism policy

However, so long as the disparate elements of the counter jihad movement in particular, and the new far right movement in general, are wrongly treated as somehow representing a lesser threat of extremism and violence than their less sophisticated neo-Nazi colleagues in the old far right we will fail to tackle the motivation for both Breivik’s actions and hundreds of acts of lesser political violence that have gone largely unremarked during the last decade.

It is of course vital not to infringe the civil liberties of far right activists and counter jihad activists unless there is compelling evidence of the kind that might have arisen during Breivik’s long period of terrorist preparation and planning. That said, it is equally vital that governments and law enforcement agencies do not show sensitivity to the civil rights of the far right and the counter jihad movement while disregarding the civil rights of politically active Muslims. From now on there needs to be an even handed counter-terrorism policy in Europe and the US.

Robert Lambert is Lecturer at the Centre for the Study of Terrorism and Political Violence, University of St Andrews. He is the author of Countering al-Qaeda in London: Police and Muslims in Partnership, Hurst, London in September 2011.

This article was first published at Open Democracy / Open Security

Homicides, homosexual advances and male honour: will NSW act on provocation law?

by Thomas Crofts and  Stephen Tomsen

Murder is the most serious of all violent crimes, and needs a determined criminal justice response. If there are circumstances in which a killing might be seen as wholly or partly excusable, then this is of interest to all citizens – particularly if these circumstances weigh unevenly against a specific social group.

Provocation is a defence that signals reduced culpability for an intentional killing by replacing a murder conviction with one of manslaughter. Historically it differentiated killings worthy of the death penalty from less heinous killings committed “in the heat of passion” without premeditation.

This was linked to a tradition of male social honour, a breach of which tended to provoke an angry response. Behaviour seen by criminal courts in the past as an affront to male honour included insults arising from drunken fights or a wife’s adultery. Unfortunately, the latter situation is still seen by some, such as Christian lobby group FamilyVoice Australia, to be an acceptable defence to murder today. The perpetuation of such views is partly the reason why provocation has been subject to so much criticism and why some jurisdictions have abolished provocation.

An affront to male honour which in recent decades has been used to argue a case of provocation is the so-called “homosexual advance defence” (HAD), sometimes incorrectly referred to as the “gay panic” defence (which is actually a failed US version of the defence strategy).

Since the 1990s, gay and lesbian activists have expressed serious concerns about homicide cases in which an accused male killer or killers pleads provocation on the basis of an alleged unwanted sexual advance from the victim who was known or assumed to be homosexual.

The argument is that a man who is the subject of an unwanted sexual pass by another man finds this so provoking that he loses self-control and kills. According to the law, if an “ordinary” person could have reacted the way that the offender did by losing their self-control in the face of victim’s behaviour, then the charge of murder will be reduced to manslaughter.

This strategy relies on negative courtroom depictions of the homosexual victim. The logic is that the perpetrator is a “regular” masculine man or youth whose goodwill is pushed to the limit by being propositioned or even sexually touched by a homosexual “nuisance”.

The use of this defence strategy in the NSW case of Green v The Queen in the 1990s reached all the way to the most senior judges in the land. A majority ruling by the Australian High Court favourably viewed the accused killer’s appeal against a murder conviction and paved the way for his eventual securing of a much lighter sentence for manslaughter.

The Green case was subject to much criticism because the court allowed claims of a homosexual advance to substantiate a claim of provocation. In reaching this decision the majority of these judges did not take the opportunity to rule that no ordinary person could be provoked to kill by a non-violent sexual pass. In fact, several comments were made which suggested that such extreme violence may often be expected.

The High Court result in Green mobilised gay and lesbian lobbyists nationwide. It spurred an official Attorney-General’s Working Party Inquiry in NSW which in 1998 recommended that a non-violent sexual advance should be barred from forming the basis of a provocation defence. Nothing came of those recommendations.

More general feminist opposition to provocation because of the way in which it has traditionally privileged male violence and not worked for females has to an extent been more successful and led to provocation being abolished in Victoria, Tasmania and Western Australia.

Other jurisdictions have retained the defence of provocation but amended it with the aim of removing its more problematic aspects. For example, amendments in the ACT and Northern Territory bar the use of provocation on the basis of a non-violent sexual advance. Queensland also retains provocation but bars the defence of provocation in response to the ending or changing of a domestic relationship. Parallel to this reduction in the scope of provocation Queensland has also introduced a specific defence of killing for preservation in an abusive domestic relationship.

The result of these changes is that NSW and Queensland are the only jurisdictions that still retain provocation and have no legislative bar against provocation claims based on a sexual advance (in South Australia provocation is a common law defence and is not found in statute). Two recent cases in Queensland in which provocation was used successfully to reduce charges from murder to manslaughter have once again ignited concern about allowing the defence on the basis of sexual advance.

The ensuing campaign for change led to the creation of a working party in 2011 to examine the operation of the homosexual advance defence and a government pledge to amend the Queensland Criminal Code to, in the words of the former Attorney-General Paul Lucas:

make it crystal clear that someone making a pass at someone is not grounds for a partial defence and by no means an excuse for horribly violent acts.

But a change in government means there is now no commitment for reform in Queensland, as stated by the current Attorney-General, Jarrod Bleijie.

Meanwhile, things might be about to change in NSW. In the fifteen years since the Attorney-General’s Working Party recommended changes to the law, successive governments have reneged on their promises of reform or ignored this issue. Now, however, a select committee has been established to inquire into provocation in NSW, and is currently accepting submissions.

This review was sparked by the case of Chamanjot Singh, who was sentenced to six years imprisonment after being found guilty of manslaughter rather than murder of his wife on the basis that he had been provoked by verbal abuse.

It remains to be seen whether NSW will join Tasmania, Victoria and Western Australia in abolishing provocation outright, or whether it will make amendments to remove more controversial elements such as its use in HAD claims.

What sort of signals about male interaction and violence does the legal status of the homosexual advance defence send to men and boys? If the answer to this question suggests physical and even fatal violence as the acceptable response, rather than a simple declaration of non-interest, then we should consider why our society would not tolerate a similar violent reaction from women who are subjected to routine unwanted overtures from men.

The ongoing failure to scrap the homosexual advance defence and the partial excuse it provides to certain forms of male violence is an embarrassment and an injustice for the citizens of Queensland and NSW.

The politicians of NSW now have the chance to change this and we should all hope they do not fail a second time.

Thomas Crofts, Associate Professor, Sydney Law School at University of Sydney and  Stephen Tomsen, Professor of Criminology at University of Western Sydney

First published on-line in The Conversation

The Unrepentant And Unreformed Bankers

By Phil Angelides

Money laundering. Price fixing. Bid rigging. Securities fraud. Talking about the mob? No, unfortunately. Wall Street.

These days, the business sections of newspapers read like rap sheets. GE Capital, JPMorgan Chase, UBS, Wells Fargo and Bank of America [2] tied to a bid-rigging scheme to bilk cities and towns out of interest earnings. ING Direct , HSBC and Standard Chartered Bank  facing charges of money laundering. Barclays caught manipulating a key interest rate, costing savers and investors dearly, with a raft of other big banks also under investigation. Not to speak of the unprecedented wrongdoing that precipitated the financial crisis of 2008.

Evidence gathered by the Financial Crisis Inquiry Commission clearly demonstrated that the financial crisis was avoidable and due, in no small part, to recklessness and ethical breaches on Wall Street. Yet, it’s clear that the unrepentant and the unreformed are still all too present within our banking system.

A June survey of 500 senior financial services executives in the United States and Britain turned up stunning results. Some 24 percent said that they believed that financial services professionals may need to engage in illegal or unethical conduct to succeed, 26 percent said that they had observed or had firsthand knowledge of wrongdoing in the workplace, and 16 percent said they would engage in insider trading if they could get away with it.

That too much of Wall Street remains unchanged is not surprising. Simply stated, the banks and their leaders have paid no real economic, legal or political price for their wrongdoing and thus have not felt compelled to change.

On the economic front, the financial sector has rebounded nicely from its brush with death, thanks to an enormous taxpayer bailout. By 2010, compensation at publicly traded Wall Street firms had hit a record $135 billion.

Last year, the profits of the nation’s five biggest banks exceeded $51 billion, with their chief executives all enjoying pay increases. By 2011, the 10 biggest U.S. banks held 77 percent of the nation’s banking assets.

On the legal front, enforcement has been woefully inadequate. Federal criminal financial fraud prosecutions have fallen to a two-decade low. Violations are settled for pennies on the dollar – the mere cost of doing business, with no admission of wrongdoing and with the bill invariably picked up by insurers or shareholders. (When it’s shareholders, that’s not someone else far away, that’s your 401(k), pension fund or mutual fund.)

When Goldman Sachs was charged with failing to set policies to prevent insider trading, it was fined $22 million, an amount the bank collects in about seven hours of trading. Goldman’s record $550 million penalty for securities fraud in 2010 amounted to less than 2 percent of that year’s revenue.

On the political front, after a brief stint in the penalty box, the big banks have resumed the political muscling that got them two decades of deregulation.

To block reform, the financial industry has spent more than $317 million on lobbying in Washington over the past two years and more than $230 million in federal political contributions in the 2010 and 2012 election cycles.

It’s been to good effect. Two-thirds of the regulations called for in the financial reform law passed two years ago are still not in place. And the House Republicans, the banks’ sturdiest allies, have slashed at the budgets of the Securities and Exchange Commission and theCommodities Futures Trading Commission to impede their ability to investigate wrongdoing.

Clearly, the present order is unsustainable. We need to demand fundamental changes now, breaking up the big banks to snap their stranglehold on our markets and our democracy, ensuring that the newly minted financial reform laws are implemented, and wringing out rampant speculation.

But true reform can only occur if we root out the corruption that has distorted our banking system and undermined the productive work of the many good people in the financial sector.

The system of financial law enforcement is clearly broken. Think of it this way: If someone robbed a 7-Eleven of $1,000 but could settle a few days later for $25 and no admission of guilt, would they do it again?

Only enforcement with real consequences will work. That means vigorous pursuit of criminal cases against individuals involved in wrongdoing, the surest method to deter malfeasance.

It means enforcement agencies eschewing weak settlements in civil cases and seeking remedies with teeth such as civil penalties, restitution and executives forfeiting their jobs. And, it means tougher financial fraud laws. In that regard, the bipartisan proposal by Sens. Jack Reed, D-R.I., and Charles Grassley, R-Iowa, to increase fines for securities fraud is a place to start.

To make any of this a reality, the U.S. Department of Justice and the federal regulators must have the will and the resources to do the job. President Obama has asked for additional funds for the Department of Justice, the SEC and the Commodities Futures Trading Commission.

Giving these agencies the tools to detect and prosecute wrongdoing will more than pay for itself – the Commodities Futures Trading Commission’s fine against Barclays for interest rate manipulation alone will pay for almost an entire year of that agency’s budget.

None of these changes will come easily, but this much is clear: We cannot allow Wall Street to continually flout our sense of right and wrong, to erode faith in our legal and political systems, and to put our financial system and economy in jeopardy.

Originally published in The San Francisco Chronicle.

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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