It appears that all is not well between and among our elite military forces, and between them and their hierarchies above, possibly right up to the government itself. After all it is the government that has committed these elites into battle situations leading to allegations of unlawful killings of civilians, in this case in Afghanistan (vide: http://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642)
The forces in the line of sight are the Special Air Services Regiment and the 2nd Commando Regiment – groups that are now required to do all the exceptionally dangerous, often clandestine, things which rank and file soldiers are not. We respect their work and rely on them to achieve tactical objectives which may lead to strategic success. But sometimes requirements and expectations may go too far, with unexpected outcomes and much regret.
Cases may lie between the lawful and the criminal and, in recent respects, have been a long time coming, because there is little that is clear cut between the politics of our involvement in these distant countries and their legitimacy in relation to war. For the past fifty years or so Australian forces have been deployed in combat situations quite different from those which preceded them, namely that the identity of the ‘enemy’ and the manner in which the enemy presents itself in battle – not in uniform, as soldier by night and a civilian by day, create excruciating ambiguities. Into this confusion is thrust young adults trained in a tribal context (’warrior culture’) which hinder discernment and judgement in circumstances verging on panic.
The practical reality is that our soldiers have not been engaged in the defence of their homeland against an unambiguous enemy invading their country and raping their women. They are in foreign lands, engaged in conflicts more akin to civil wars, where it is being asserted by their political superiors that the outcome will directly affect Australia’s national security. Instead the connection with national security is indirect, even remote, but linked with the national interests of the US, our ultimate protector. As seen with Iraq and now Syria that US interest is essentially based on commercial considerations or geostrategic advantage out of region.
So our soldiers are instructed to go forth and suppress a foreign country’s nationals, who, were they to stay away, would not be threatening them in any way whatsoever. The methods of fighting are clearly uneven, where danger can come from an allied foreign soldier turning on them as much as from those out in the open, in the jungles or the deserts of deployment.
To achieve this our soldiers must be convinced of the merit of his/her deployment, its legitimacy, and be assured also that his superiors have done everything possible for their protection, both in law and physically.
Where this breaks down is twofold:
- War crimes where they occur or are alleged are committed by individuals which provides a powerful incentive for a soldier’s superiors and beyond them their government to duck and weave (and suppress) or place the burden of proof and responsibility on the soldier himself/herself.
- The question is rarely raised as to whether the military deployment itself is legitimate and legal. The fact is that Australian military deployments in recent decades have lacked both: they are not authorised in accordance with Constitutional requirements and our own domestic law (see: Senate Foreign Affairs, Defence and Trade CommitteeDefence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No.2] Submission by Paul Barratt AO, Andrew Farran and Garry Woodard (Oct. 2009)); nor are they undertaken pursuant to formal requests from the government being aided (e.g. Iraq); or in the case of the bombings in Syria, not done at the request of the sovereign government affected, indeed the reverse which makes them acts of aggression as defined by international law and the UN Charter. Nor in recent times have Status of Forces Agreements been concluded and published; nor it would appear that Rules of Engagement have been clearly defined and published as they should which, if available, would assist soldiers charged with war crimes.
This comment cannot delve into the details of the specific allegations exposed by the ABC reporters. Nor is there an intention to excuse bad conduct. What has to be borne in mind is that military operations are a combined enterprise from the government down. The burden cannot be placed on the shoulders of individuals alone; nor should the circumstances in which an individual is placed in combat and the affect of that on their mental state be dismissed as it was in the First World War. It is not any easier for a soldier when amidst his doubts about the value of his role in the first place , he finds himself being prosecuted by his country in a manner that on the face of it appears very much like a double standard.
Much is going on in battle and its aftermath giving rise to ‘deadly secrets’ within and beyond the forces. Where the battle is being fought on another government’s behalf, a soldier’s or a group’s emotions may be very different from the kind of emotions at play in the case of battles fought in defence of one’s country – a phenomenon of which Australia has, fortunately, had little experience to date. While fear in battle would be much the same in both cases. there are reputational considerations in the former where adverse exposure can detract from the worthiness of the military enterprise and bring directly into question Australia’s involvement in it. War crimes cannot be dismissed. But where their prosecution is problematical, as has been found to be the case on occasions in both the UK and the US, it is not surprising that within the ranks at least, and possibly beyond, a sense of evasion by others may be triggered. What should also be avoided are long delays in bringing prosecutions when evidentiary aspects may be compromised and a sense of unfairness engendered.
The role of the Inspector-General of the Australian Defence Force – an office that has not been free of controversy – in assessing allegations and related evidence is not the same is that of a Director of Public Prosecutions in the civil sphere as battle circumstances and orders of command have no counter-part in civilian life (unless it is the police being investigated). A clear case of bad or unacceptable wilful behaviour wouldn’t be hard to identify. A battle scene is far more complex.
However if some of our elite forces are succumbing to human conditions of hubris and lack the temperament to deal appropriately with conflicts in countries of vastly different cultures to our own, then again the question must be asked: why do we involve ourselves in these extraneous conflicts in the first place? Vietnam, Afghanistan, Iraq – no lasting glory there. East Timor, yes after a settling down period. The Solomons, yes definitely. In any event, we should be more cautious next time and take on only what we can handle should it be directly in the national interest. legitimate politically and, above all, lawful.
Andrew Farran is a former diplomat, trade adviser, and former senior academic in public and international law