Human Rights Defender Volume 28: Issue 2

HUMAN RIGHTS DEFENDER The Military and Human Rights: Political Narratives and Moral Injury

TOM FRAME

Border Protection and Human Rights: The ADF’s Challenge

MAJOR GARETH RICE

Human Rights of Service Personnel

RAIN LIIVOJA AND ALISON DUXBURY

SPECIAL ISSUE: HUMAN RIGHTS AND THE MILITARY HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 2 – SEPTEMBER 2019

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MANAGING EDITORS:

AUSTRALIAN HUMAN RIGHTS INSTITUTE Website: www.humanrights.unsw.edu.au Email: humanrights@unsw.edu.au Twitter: @humanrightsUNSW LinkedIn: Australian Human Rights Institute

DR CLAIRE HIGGINS is a Senior Research Fellow at the Andrew and Renata Kaldor Centre for International Refugee Law, at UNSW Sydney. She is the author of ‘Asylum by Boat: origins of Australia’s refugee policy’ (NewSouth, 2017) and was a Fulbright Postdoctoral Scholar at Georgetown University, Washington DC, in 2018. Claire is the Editor-in-Chief for the Human Rights Defender.

DR PICHAMON YEOPHANTONG is an Australian Research Council DECRA Fellow and Senior Lecturer in International Relations and Development in the School of Humanities and Social Sciences, UNSW Canberra at the Australian Defence Force Academy.

DR CAROLINE LENETTE is Senior Lecturer in the School of Social Sciences, UNSW Sydney and a member of the Forced Migration Research Network, an interdisciplinary network of leading researchers in refugee and migration studies. Caroline’s research explores how storytelling through creative means can influence decision-makers towards meaningful change, and the ethical considerations of collaborative, arts-based research.

ANGELA KINTOMINAS is a Scientia PhD Scholar at UNSW Sydney. Her research interests are in the intersections of gender, socio-economic rights and migration. Her work is informed by feminist, socio-legal and interdisciplinary approaches to law.

Angela is a Research Associate with the Social Policy Research Centre and the Migrant Worker Justice Initiative and a Teaching Fellow at UNSW Law. ANDY SYMINGTON is a PhD candidate at UNSW Law and an Associate of the Australian Human Rights Institute. He is researching business and human rights, focusing on the extraction of lithium in the high Andean salt flats of South America. In 2018 he was honoured to be the recipient of UNSW’s inaugural Judith Parker Wood Memorial Prize for human rights law. He is an experienced freelance writer and journalist.

JOSH GIBSON is a current PhD Candidate and Garth Nettheim Doctoral Teaching Fellow at UNSW. As a member of both the Australian Human Rights Institute and Gilbert + Tobin Centre, Josh’s research interests include anything public law and human rights. His research focuses on human rights litigation, social movement strategies and the institutionalisation of human rights norms. Josh teaches human rights law at Macquarie University.

STUDENT EDITOR: Joshua Wilson STUDENT INTERN: Georgia Couter PRODUCTION MANAGER: Gabrielle Dunlevy DESIGNER: Stephanie Kay, On the Farm Creative Services

© 2019 Human Rights Defender. The views expressed herein are those of the authors.

The Australian Human Rights Institute accepts no liability for any comments or errors of fact.

Copyright of articles is reserved by the Human Rights Defender. ISSN 1039-2637 CRICOS Provider Code. 00098G

HUMAN RIGHTS DEFENDER | VOLUME 28: ISSUE 2 – SEPTEMBER 2019

PHOTOS Cover image: Sean Burton Tough Love (Composite), 2018 @sean_burton66 Contents page image: Sean Burton Tough Love 1, 2018 @sean_burton66 Sean Burton served with the Australian Army between 1989-2005, including service as a photojournalist in East Timor, Solomon Islands and the Middle East. Tough Love - the use of strict disciplinary measures as a means of fostering responsibility and expressing care. Originally a piece of street art, Tough Love is based on photographs by the artist depicting Australian soldiers conducting ‘Population Protection and Control’ drills prior to overseas deployment. “Love will win.”

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Editorial: In the Defence of Human Rights

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Border Protection and Human Rights: The Australian Defence Force’s Challenge

Pichamon Yeophantong

Major Gareth Rice

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The Brazilian Armed Forces and Human Rights: Inter-agency Cooperation and the Venezuelan Migration Crisis Ana Luiza Bravo e Paiva, Sabrina Evangelista Medeiros and Cintiene Sandes Monfredo Mendes

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The Workplace Rights of Warriors

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Human Rights of Service Personnel

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Combat Interpreters and A Moral Obligation: Interview with Jason Scanes, CEO of Forsaken Fighters Australia Inc.

Ned Dobos

Rain Liivoja and Alison Duxbury

Interviewed by Joshua Wilson

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Moral Injury in Military Service

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The Military and Human Rights: Political Narratives and Moral Injury

Lewis Frederickson

Tom Frame

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Human Rights, the Rule of Law, and Foundations of the Post-World War II Order Philippe Constantineau

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Civilisation on Trial: The Failure to Craft Policy Richard Adams

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Humanitarian Law and Human Rights in Armed Conflict Sam Hartridge

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The Challenge of Guarding Against Conflict-Based Sexual Violence Tamsin Phillipa Paige

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Militarised Security: Understanding the Relationship between the Armed Forces of the Philippines and Human Rights Sarah Wilson

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The Traditional Japanese Spirit and Experiences of War: Reflections on Japan’s International Peace Cooperation Activities Shutaro Sano

CONTENTS HUMAN RIGHTS DEFENDER VOLUME 28: ISSUE 2 – SEPTEMBER 2019

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Human Rights in Fifth Dimension Warfare: Exposed and Undefended Joshua Wilson

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IN THE DEFENCE OF HUMAN RIGHTS PICHAMON YEOPHANTONG Pichamon Yeophantong is an Australian Research Council Fellow and Senior Lecturer at UNSW Canberra.

She is the guest editor of this issue.

The profession of arms is mentally, physically, and morally demanding.

In a world now typified by intense geopolitical competition and the growing prevalence of non-traditional security threats like large-scale environmental hazards and terrorism, mastery of this profession has proved to be difficult as it becomes increasingly susceptible to turbulence and geostrategic uncertainty.

Especially with rapid technological advances, the character of war is likewise changing – and with serious implications for the protection of human rights. The United Nations’ (UN) most recent report on the five-year conflict in Yemen serves as a stark reminder of the human costs of war. Among the wide range of violations that is documented as having been committed against Yemeni civilians, the report alarmingly reveals the possible use by the parties to the conflict of starvation as a method of warfare.1 But despite this challenging strategic terrain, there are elements of the profession that have persisted over time: in particular, the notion that it entails the cultivation of specialised knowledge in the management of violence and that, as a result, its members are consequently tasked with discharging special responsibilities to both the state and society.2 As reflected in some of the articles featured here, although those who join the armed forces may do so understandably due to self-interest, there will nevertheless be a good number who feel a strong obligation to upholding the values and moral codes of their respective societies, largely by virtue of the special powers and duties associated with being in uniform (most notably, the ability to use lethal force). This expectation is often one placed upon the armed forces by society, as well as by those serving themselves.

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Even so, whereas the duty of a military force to the state – to advance and protect national interests – tends to be clearly delineated, the nature of its responsibility to society can remain rather equivocal. This may be truer in certain parts of the world, such as in Southeast Asia and Latin America where the armed forces have historically played, whether for better or worse, a more prominent role in politics and society.

Surveying the vast literature on the world’s militaries and the (un)ethical conduct of war, it is possible to identify three broad roles frequently used to characterise the armed forces when the question of human rights is asked: that is, the military as a recipient, defender and/or abuser of these rights. Not to overgeneralise the functions of the armed forces, these categories are useful in terms of spotlighting the agency of the military and, more specifically, of uniformed personnel in discussions about human rights.

Instead of simply focusing on conflicts and their perpetuation of human insecurity, one of the aims of this special issue is to cast light on how human rights issues are understood from a military perspective, as well as how and to what extent those serving are accorded rights.

This edition of the Human Rights Defender (HRD) is thus noteworthy for two reasons. First, it marks the first time that the HRD has been edited at UNSW Canberra, located at the Australian Defence Force Academy. Second, the issue showcases a diverse collection of articles that speaks to the varying depictions of the armed forces and their roles in receiving, safeguarding or undermining human rights. Weaving together a rich tapestry of firsthand experiences and case illustrations from Australia, Brazil and the Philippines, among others, the contributors expertly consider what human rights means to the military, how they are acted upon in different socio-political contexts, and the challenges that lie ahead.

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Kelly Manning Boys, 2002 Australian National Veterans Arts Museum Collection Kelly Manning has, through her art, portrayed the lifelong effect on the people connected to the Vietnam War. Manning depicts the stories of Australian Vietnam veterans, Indigenous Australian Vietnam veterans, the people of North and South Vietnam, and the Vietnamese diaspora around the world. She also tells the story of the generational impact of the war and its lasting effect on the children and family of those who experienced the war. www.kellymanningartist.com @kellymanning1

Contributors are drawn from within the Australian Defence Force as well as from leading military colleges and academic institutions, including the Royal Military College of Canada and the National Defense Academy of Japan.

Mirroring the complexity of the topics covered, the views and analyses presented here are the authors’ own and do not always agree. For this reason, the articles have been arranged in a way that facilitates a conversation between the authors – and hopefully, readers as well. Beginning with an examination of how the ADF and the Brazilian Armed Forces respectively manage cross-border migration (Rice; Paiva, Medeiros & Mendes), the issue delves into the topic of the rights of service personnel and the moral injury they risk sustaining when faced with injustice (Dobos; Liivoja & Duxbury; Frederickson; Frame).

Following a candid interview with Jason Scanes, CEO of Forsaken Fighters Inc., who has been campaigning to bring his Afghan interpreter to Australia, the focus shifts to a discussion of the implications – and omissions – of policy and law vis-à-vis armed conflict and gender-based violence (Constantineau; Adams; Hartridge; Paige). This then segues into country accounts (S Wilson; Sano) that juxtapose the Philippine military’s human rights track

record with the people-centred approach of Japan’s SelfDefense Forces. At a time when the information revolution is creating new battlegrounds in cyberspace, the final article (J Wilson) concludes this HRD edition by anticipating the human rights impacts of future warfare.

Taken together, the articles ultimately remind us of how the profession of arms and successful armed combat require not only physical prowess and intellectual agility, but also moral stamina. Even after a war is won on the battlefield, its human consequences will surely extend beyond the battlefield, bleeding into the lived experiences of those affected. As such, the conduct of war is necessarily a contest of wills and of moralities – a reality that holds its warriors to a higher ethical standard and level of human accountability.3

1. UN Human Rights Council, ‘Yemen: Collective failure, collective responsibility – UN expert report’, September 3, 2019 <https://www.ohchr. org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID =24937&LangID =E> 2. See S. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Harvard University Press, 1957).

3. I gratefully acknowledge the incredible assistance and support provided by Gabrielle Dunlevy, Claire Higgins and Joshua Wilson during the production of this magazine.

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BORDER PROTECTION AND HUMAN RIGHTS: THE AUSTRALIAN DEFENCE FORCE’S CHALLENGE

GARETH RICE Major Gareth Rice is an Instructor at the Australian Defence Force Academy. He is a graduate of the Royal Military College – Duntroon and has served on operations in Afghanistan. The opinions expressed in this article are the author’s own, are not based on personal experience with border operations, and do not necessarily reflect the views of the Australian Defence Organisation or the Australian government.

In international law, it is considered a human right to be able to seek asylum from persecution.1 While the Australian government recognises this fact, the arrival of asylum seekers (predominately by boat) has become a toxic and pervasive issue in Australian politics. So much so that the government has often turned to the Australian Defence Force (ADF) to solve this issue for them and stop boat arrivals. Such use of a nation’s military to potentially deny a human right poses notable ethical challenges in regard to the use of force, particularly considering the question of how much force the government is prepared to use to achieve these ends.

In 2001, then Australian Prime Minister John Howard politicised the arrival of asylum seekers by boat.2 In August of that year, he famously utilised Special Forces soldiers to board the MV Tampa in an effort to deny the asylum seekers on board access to Australian territory.3 The use of Special Forces for such a benign threat was undoubtedly a

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political statement above all else; and yet, it placed the ADF in a challenging ethical situation that has continued to this day.

Following the Tampa crisis, the ADF was utilised in Operation Relex, Resolute and more recently, Sovereign Borders.4 While the stated aims of these operations has been to protect Australia’s borders,5 they have more commonly been associated with preventing ‘illegal’ immigration from the sea. The question of whether such immigrants are seeking asylum is presumably not addressed as part of this operation, although there have been reports of enhanced screening techniques at sea.6 Presumably, the arrivals are simply denied entry and turned around through a variety of means that appear to have been successful is dissuading many subsequent attempts.7 While this article does not seek to go into the legal or ethical implications of this policy decision, the use of the ADF in this manner is of particular interest. The ADF has often viewed itself as a protector of human rights abroad.8 This is an entirely appropriate characterisation given the ADF’s operational service and is arguably an extension of Australia’s values and where it sees itself in the world. However, the ADF’s participation in such border protection policies has the potential to challenge this perception or at the very least, pose ethical challenges for its soldiers, sailors and airmen should the parameters of the operation change.

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Operations conducted since the Tampa crisis have not required the use of lethal force in the pursuit of these policy goals. Even so, it is not unrealistic to imagine a scenario where lethal force may be considered or even used. Should the smugglers (who are often responsible for operating such vessels) prevent a boarding from ADF personnel through the use of force, it is not implausible to see an exchange that could result in deaths at sea.

Whenever lethal force is used, the possibility of collateral damage must also be considered.

Further extending these hypothetical scenarios, we must also examine the possibility of a different political landscape whereby increased arrivals prompt a change in policy to authorise lethal force against maritime incursions.

While this scenario is undoubtedly extreme, there are striking parallels between this and the recent decision by President Donald Trump to authorise the United States military to use lethal force on their southern border with Mexico.9 Consider then the challenge of an Australian soldier or sailor required to fire on a crowded vessel in selfdefence (as a best case scenario) or in the execution of a government policy (in a worst-case scenario).

For those individuals required to use lethal force, it may be of little consolation that the successful implementation of this policy may prevent further losses at sea from asylum seekers boarding unseaworthy vessels. The use of lethal force to protect a nation’s sovereignty is perhaps an easier ethical consideration, but it is debatable if this is indeed a question of sovereignty. While the use of militaries to control national borders is by no means a new in hard power terms, it does pose ethical challenges when that hard power is used against people who are unlikely to pose a direct threat.

In the context of the ADF, most ethical discussions today concern the use of force to protect human rights where restrictions placed on an operation do not allow for intervention. An example might include witnessing an execution across an international border. But the scenarios posed above are far more direct and controversial. They raise questions about what the Australian public are willing to allow the ADF to do in their name. Similarly, while ADF personnel may be afforded a degree of legal protection by the Australian government, it assumes that those personnel would be willing to follow orders.

Fortunately, these scenarios are hypothetical and the success of the ADF and Australian Border Force in achieving the government’s policy goals without causing loss of life is a testament to their capability and professionalism. But the problem is not going away.

According to the United Nations Refugee Agency (UNHCR), the number of displaced peoples in the world today is the highest on record.10 Future iterations of Operation Sovereign Borders should, therefore, expect to confront a larger number of more desperate peoples attempting to reach Australia’s shores.

The ADF is well-equipped to confront these challenges, but the prospect of using lethal force on unarmed civilians poses serious questions of proportionality and military necessity. While the scenarios outlined above are extreme, the dilemma is real. Borders can be closed, but enforcing that closure often comes at a cost. The ADF needs to be at the forefront of confronting these challenges if they want to continue to be a protector of human rights.

1. J. McAdam, ‘Australia and Aslyum Seekers’, International Journal of Refugee Law, 2013, vol. 25, no. 3, p. 438.

2. M. McDonald, ‘Deliberation and Resecuritization: Australia, Asylum-Seekers and the Normative Limits of the Copenhagen School’, Australian Journal of Political Science, 2011, vol. 46, no. 2, p. 285.

3. E. Willheim, ‘MV Tampa: The Australian Response’, International Journal of Refugee Law, 2003, vol. 15, no. 2, p. 159.

4. J. Chia, J. McAdam & K. Purcell, ‘Asylum in Australia: ‘Operation Sovereign Borders’ and International Law’, Australian Year Book of International Law, 2014, vol. 32, no. 35.

5. Australian Border Force, ‘Operation Sovereign Borders’, 2019 <https://osb.homeaffairs.gov.au/>.

6. S. Whyte, ‘Immigration department officials screen asylum seekers at sea ‘via teleconference’’, The Sydney Morning Herald, July 2, 2014 <https://www.smh.com.au/politics/federal/immigration-department-officials-screen-asylum-seekers-at-sea-via-teleconference-201407023b837.html> 7. Legal and Constitutional Affairs Legislation Committee, Senate, October 20, 2014, <https://parlinfo.aph.gov.au/parlInfo/download/ committees/estimate/e0ac4873-6e45-47ec-b82f-7eb06a2dd45f/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20 Committee_2014_10_20_2981_Official.pdf;fileType=application%2Fpdf#search=%222010s%202014%2010%2020%20legal%20and%20 constitutional%20affairs%20legislation%20committee%22> 8. Australian Civil Military Centre, ‘Protection of Civilians’, 2019 <https://www.acmc.gov.au/why-were-here/protection-of-civilians> 9. J. Laporta, ‘Donald Trump signs authorization for border troops using lethal force as migrant caravan approaches, document reveals’, Newsweek, 2018 <https://www.newsweek.com/donald-trump-memo-migrant-caravan-border-troops-1226945> 10. UNHCR, ‘Figures at a Glance’, 2018 <https://www.unhcr.org/figures-at-a-glance.html>

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THE BRAZILIAN ARMED FORCES AND HUMAN RIGHTS: INTER-AGENCY COOPERATION AND THE VENEZUELAN MIGRATION CRISIS

ANA LUIZA BRAVO E PAIVA Ana Luiza Bravo e Paiva is an Assistant Professor and vice-coordinator of the Postgraduate Program in Military Sciences at the Brazilian Army Command and Staff College.

SABRINA EVANGELISTA MEDEIROS Sabrina Evangelista Medeiros is an Associate Professor and vice-coordinator of the Postgraduate Program in Maritime Studies at the Brazilian Naval War College.

CINTIENE SANDES MONFREDO MENDES Cintiene Sandes Monfredo Mendes is an Assistant Professor at the Brazilian War College.

The role of the armed forces has been evolving since the end of the Cold War. However, the decline in interstate conflicts over time has brought about an unprecedented change in the responsibilities assigned to the military.

South America, in particular, has managed to avoid both significant interstate conflict on its own continent as well as involvement in the major wars that have occurred in other parts of the world. As such, despite experiencing severe economic crises and domestic political instability, South American countries have been able to use their armed forces to contribute to the international order through other means. Contributing to peacekeeping missions has been especially popular, as doing so helps to build public trust in the armed forces and among the countries involved.

Brazil, in particular, has sought to further enshrine the core principles of human rights in its military operational doctrines, motivated by a desire to standardise military operations as well as improve interagency coordination and civil-military relations. The need to comply with the rules of engagement in United Nations (UN) peacekeeping missions has challenged, at both the individual and command level, the preparedness of Brazilian troops as well as operational training in an increasingly complex international environment. Nevertheless, such experiences have assisted with the refinement of Brazilian military training.

Brazil has had extensive involvement in UN peacekeeping operations throughout the organisation’s history. Its most substantial and strategic contributions have been in relation to the leadership of two operations: from 2004 to 2017, the Brazilian Armed Forces led the UN Stabilisation Mission in Haiti (MINUSTAH), providing the operation’s largest contingent1, and in 2011, Brazil assumed command of the UN Interim Force in Lebanon Maritime Task Force (UNIFIL MTF) 2. The country has also been sending, on average, 1700 personnel to UN missions per

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Military and civilian observers with a child migrant

year. These efforts were coordinated under Brazil’s pacifist foreign policy, whose underlying values have since been integrated into the Armed Forces’ best practices. The country’s experience in international peacekeeping missions further inspired the consolidation of inter-agency and human rights preparedness through the development of relevant military manuals, protocols and operational doctrines.

upon request by state governors to intervene during a domestic security crisis (there have been 136 of such cases since 1992, as of April 2019).

The delineation between the Armed Forces’ public security duties and their other functions is further blurred by the recognition that, given Brazil’s vast territory and challenging geography, only the Armed Forces can be as responsive as border security and domestic stability demands dictate.

Currently, the Brazilian Armed Forces face the challenge of its changing national security demands, as outlined in the Defense White Paper (2012) and as guided by the National Defense Strategy (2008) and National Policy (2012). This includes the use of the military in domestic security operations, which is written into the Brazilian Constitution (1988) and regulated by law (Supplementary Legislation 97/99; Decree 3897/2001). In the past (1992-2019), the Law and Order Assurance Operations (GLO) authorised the federal government to deploy Brazilian troops

Accordingly, the Brazilian Armed Forces have assumed many non-traditional roles and missions, as soldiers, defenders, peacekeepers, firefighters, and police officers.3 The Brazilian military is able to take on this diversity of roles due to its unique capacity to respond to crisis scenarios, being primarily employed in the development of national infrastructure and crisis management, while also operating across a spectrum of other nontraditional assignments, including food distribution in remote areas such as the Amazon.

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Given the range of these tasks and their civilian-oriented nature, human rights issues have consequently been central to the Armed Forces’ assignments. Guaranteeing electoral integrity across the country and responding to natural disasters such as recurring floods are tasks of considerable importance and operational complexity. They also entail rather varied requirements for human rights safeguards. As such, challenges remain in ensuring that the legal framework and operational protocols progress at the same pace as the deployment of domestic military operations, so as to prevent the problem of overreach.

A recent example of the Armed Forces’ deployment in response to a human rights emergency was the military’s role in the Venezuelan migration crisis. Since 2014, the deterioration of political, economic and social conditions in Venezuela has precipitated emigration on an unprecedented scale and the massive displacement of Venezuelan migrants across the land borders to Colombia and Brazil. According to data from the Brazilian Federal Police, between January 2017 and June 2018, 127,000 Venezuelans entered Brazil through the city of Pacaraima. Increased displacement has since triggered a crisis in Pacaraima, a small town on the Amazonian periphery which has inadequate infrastructure and little capacity to absorb the sudden growth in the population and labour force.

As a consequence, in February 2018, the Brazilian government recognised the “vulnerable situation resulting from the flow of migrants to the state of Roraima due to the crisis in Venezuela”4 and established a humanitarian mission in response. Since its creation, Operation Acolhida (which means ‘welcome’ in Portuguese) has been carried out by the Brazilian Armed Forces in coordination with other government agencies, civil institutions and the UN. Given the logistical and operational challenges posed by conditions in the Amazonian region, this military dimension has proven to be an important development.

According to Lt. Gen. Eduardo Pazzuelo, coordinator of Operation Acolhida, the main purpose of this operation is to provide assistance to Venezuelan immigrants experiencing vulnerable conditions. In practical terms, the operation is based on three objectives: regulating the border, providing shelter, and relocating Venezuelan immigrants. These objectives form a part of the

recommendations put forward by the UNHCR (UN Refugee Agency) to the Brazilian Armed Forces and the High-Level Committee (which had been created by the Brazilian Army). Military forces were deployed to ensure that all the agencies involved in this undertaking will be able to fulfil these objectives. The military is also responsible for providing logistical support to the shelters, which includes construction, repairs as well as the provision of meals and security.

Venezuelan immigrants are presently given the choice of returning voluntarily to Venezuela or remaining in Brazil.

Should they decide to remain in Brazil, they will be received by an available local municipality to be subsequently integrated into the Brazilian labour market.

A defining characteristic of Operation Acolhida is the fact that it constitutes a joint humanitarian and inter-agency task force. Notably, it has resulted in the cooperation between the Brazilian Army and leading international NGOs, including Médecins sans Frontières, Fraternidade Sem Fronteiras, Telecoms sans Frontières, and the Panamerican Foundation for Development (PADF), as well as with representatives of different religious groups (e.g.

Catholic Caritas, ADRA, Rotary, Methodists). The reception and integration of displaced Venezuelans are coordinated by the Brazilian Ministry of Defense, the Federal Police and the Health Regulatory Agency, in conjunction with UNHCR. Brazil’s shift from an emigrant source to host country has prompted it to take on a more significant role in at both the regional and international levels for the protection and promotion of human rights. Furthermore, an especially noteworthy development was the internalisation process conducted by the Acolhida Operation, which guarantees the transfer of migrants to humanitarian shelters distributed across the different states of the federation (Sergipe and São Paulo, for instance).

In light of the issues discussed, it is interesting to note that Brazil’s growing participation in peacekeeping and humanitarian operations has been reflected in the development and improvement of its military documents and operational protocols. From lessons learnt in operations under the aegis of the UN, the Brazilian Armed Forces has been improving its ability to act in conflict resolution as well as in human rights promotion.

1. C. Braga, ‘MINUSTAH and the Security Environment in Haiti: Brazil and South American Cooperation in the Field’, International Peacekeeping, 2010, vol. 17, no. 5, pp. 711-722.

2. A. Abdenur, ‘Rising powers in stormy seas: Brazil and the UNIFIL maritime task force’, International Peacekeeping, 2016, vol. 23, no. 3, pp. 398-415.

3. P. Shemella, ‘The Spectrum of Roles and Missions of the Armed Forces’, in T. Bruneau and S. Tollefson (eds), Who Guards the Guardians and How: Democratic Civil-Military Relations (Austin: University of Texas Press, 2006), pp. 122-144.

4. G. Oliveira, ‘Use of the Brazilian Military Component in the Face of Venezuela’s Migration Crisis’, Military Review, 2018 <https://www. armyupress.army.mil/Journals/Military-Review/Online-Exclusive/2018-OLE/Oct/Brazilian-Military/>

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THE WORKPLACE RIGHTS OF WARRIORS NED DOBOS Ned Dobos is Senior Lecturer in International and Political Studies at UNSW Canberra. He is the author of Insurrection and Intervention (Cambridge University Press) and The True Cost of the Military: Ethics, Security, and the War-Machine (Oxford University Press, forthcoming).

British General Sir John Hackett thought the military was more like a holy order than a workplace.1 In a similar vein, renowned political scientist Samuel Huntington described the military professional as ‘one who pursues a higher calling’.2 The analogy to a priesthood is carried further in the latest edition of The Armed Forces Officer, produced by the US Department of Defense. Therein, clergy and combatant are said to be alike in that both answer a summon ‘to serve others, to sacrifice self, and to be about something larger than one’s own ambitions and desires, something grander than one’s own contributions and even one’s own life’.3 For the clergy, the ‘larger’ and ‘grander’ thing in question is the divine. For soldiers, it is the closest thing on earth to divinity: the state.

Soldiering, on this view, is no ordinary occupation. Indeed, it is not an occupation at all. There is no contract of labour, but rather a sacred oath to the state. To this day the official enlistment form of the US Armed Forces advises recruits in no uncertain terms that what they are about to sign is ‘more than an employment agreement’.4 This notion that military service is something radically different from an ordinary career generalises far beyond the United States. The effect of this has been to insulate the military from our common standards of occupational ethics, workplace rights, and even labour law. On the prevailing orthodoxy, since soldiers are not workers, they do not have any workplace rights that might impose moral limitations on their own state’s war-making prerogatives.

However, the trouble is that the empirical evidence suggests military service is an occupation in the eyes of many of the people engaged in it. Several decades ago American sociologist Morris Janowitz observed that those who see the military profession as a higher calling ‘are outnumbered by a greater concentration of individuals for whom the military is just another job’.5 More recently, award-winning investigative journalist Michael Massing conducted interviews at Fort Drum with the express purpose of discovering ‘who fights, and why?’ As Massing reports, ‘Over and over I heard soldiers talk about being hard-pressed to pay the rent, of having a child and being without healthcare’. One soldier confessed ‘I joined the army because I couldn’t afford to go to college’. Another said ‘I thought it would look good on my resume’. Another admitted that the handsome retirement package offered by the military, compared to civilian employers, is ultimately what lured him in.6 Sociologist George Moskos sees this as part of a trend: what he calls the “occupational shift” in military service. The members of an institution, Moskos explains, are driven by ‘a purpose transcending individual self-interest in favour of a presumed higher good. Members of an institution are often viewed as following a calling’. An occupation, by contrast, ‘is legitimated in terms of the marketplace, i.e., prevailing monetary rewards for equivalent competencies.’7

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To put it in another way, an occupation is a means of self-advancement, whereas an institution presents an opportunity for self-sacrifice. Traditionally, the military has been thought of as falling squarely on the institutional side of the divide; but according to Moskos, this is changing fast. Every day soldiering is looking less like a ‘higher calling’ and more like an ordinary job.

The ethical implications of this occupational shift have, for the most part, gone under the radar. But in recent years, institutions representing the interests of soldiers have increasingly based their ethical demands on the idea that soldiering is, in fact, just another job Perhaps the most striking illustration has been the emergence and expansion of EUROMIL – the European Organisation of Military Associations – whose stated mission is to ‘promote the professional and social interests as well as the fundamental rights and freedoms of European soldiers’.8 The organisation now includes military unions from over 20 countries, spanning from Turkey in the east and Ireland in the west, to Sweden in the north and Cyprus in the south.

The network’s demands are as follows:

EUROMIL is committed to the principle of citizen in uniform, and particularly demands equal rights and treatment of soldiers; the right of servicemen and women to form and join trade unions; [and] inclusion of military personnel into EU social and labour legislation. EUROMIL requires of governments to lift all existing restrictions [on the] rights of soldiers which are not an inevitable and proportionate result from the military assignment.9

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These demands are justified with explicit reference to the occupational shift. The EUROMIL website declares that ‘a military career is nowadays becoming indistinguishable from alternative, and more traditional, lines of employment’, and that ‘soldiers are highly skilled employees who have the same legitimacy to promote their social and professional interests as other employees do’. The thinking is that if soldiers have become workers, then they are presumptively entitled to the protection of workplace rights.

The practical implications of this have yet to receive much scholarly attention, but there is reason to believe that they would be radical. We accept that employees are entitled to dignified treatment at work: they must not be assigned tasks that would devalue their lives. We also think that workers have a right to occupational safety, which includes a prerogative to disobey orders that are reasonably expected to cause injury or death if complied with. A research paper of mine, forthcoming in the Journal of Military Ethics, argues that if these standard workplace rights were extended to armed forces personnel, it would constrain the war-making privileges of their state in more ways than one.

But that might not be a bad thing. Some wars are waged not to defend lives and basic liberties, but simply to ensure that citizens can ‘continue to gas up their SUV’s at a comfortable price’, as David Luban puts it facetiously.10 If soldiers, like other workers, have a right to dignified treatment, it may be the case that deploying them into such wars constitutes a violation of said right, since it treats soldiers as though the loss of their lives can be morally offset by economic gains accruing to the people back home. Of course, we already think that wars waged for such trivial reasons as securing cheap access to oil are unjust, on the grounds that they violate the rights of the people on the receiving end of the lethal violence (enemy combatants and civilians). But if we can add that any such war also infringes the workplace rights of the soldiers sent in to do the fighting, this is surely all to the good.

J. Hackett, The Profession of Arms (National Defense University Press, 1962), p. 3.

S. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Harvard University Press, 1957), p. 8.

US Department of Defense, The Armed Forces Officer (National Defense University Press, 2007), p. 13.

Washington Headquarters Services, ‘Executive Services Directorate’, 2019, <http://www.dtic.mil/whs/directives/forms/eforms/dd0004.pdf> G. I. Wilson, ‘Careerism and Psychopathy in US Military Leadership’, Fabius Maximums, May 2, 2011.

M. Massing, ‘The Volunteer Army: Who Fights and Why?’, New York Review of Books, April 3, 2008.

C. Moskos, ‘From Institution to Occupation Trends in Military Organization’, Armed Forces & Society, 1977, vol. 4, no. 1.

European Organisation of Military Associations and Trade Unions (EUROMIL), 2019, <http://euromil.org> Ibid.

D. Luban, ‘Intervention and Civilization: Some Unhappy Lessons of the Kosovo War,’ in P. de Greiff and C. Cronin (eds), Global Justice and Transnational Politics: Essays on the Moral and Political Challenges of Globalization (Cambridge: MIT Press, 2002), pp. 86-7.

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HUMAN RIGHTS OF SERVICE PERSONNEL RAIN LIIVOJA Rain Liivoja is an Associate Professor at the TC Beirne School of Law, University of Queensland, where he leads the Law and the Future of War research group.

ALISON DUXBURY Alison Duxbury is a Professor at Melbourne Law School, University of Melbourne, and an Associate Director of the Asia Pacific Centre for Military Law.

When discussing the application of international human rights law to service personnel, commentary has tended to focus on the role of service members as duty bearers. This is understandable, particularly in light of the recent publicity given to UN peacekeepers engaging in sexual exploitation and abuse. Consequently, whilst much has been written on the legal frameworks surrounding the investigation and prosecution of service personnel alleged to have committed human rights abuses, there is less discussion surrounding service members as bearers of rights.

However, service personnel also enjoy the protection of international human rights law like other members of society. The International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party, reinforces this point. The Covenant requires states ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the ...

Covenant’.1 Australia is bound by the Covenant as a matter of international law, although it has not been comprehensively implemented in domestic law.2 Service members have not made many complaints to the UN Human Rights Committee, which oversees the implementation of the ICCPR. The European Court of Human Rights, in contrast, has decided numerous cases about the rights of

service personnel under the European Convention on Human Rights (ECHR).3 Several of these cases concern the application of fair trial rights in military justice systems, for example, where a military court or tribunal has allegedly not met the standard of impartiality or independence required by the ECHR.4 Indeed, national military law in some European states has changed dramatically because of human rights litigation.

The extent of the rights of service members clearly cannot be identical to that of other members of society. Armed forces need to maintain a far higher level of discipline than most workplaces and service personnel can intentionally be placed in harm’s way. Courts have recognised that the extent of the protection given to service members must reasonably account for life and service in the armed forces.5 On that basis, human rights may be qualified.

The manner in which that happens, however, remains surprisingly unclear. There are several possible options.

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RESERVATIONS

WAIVER

The most radical option is for states to make reservations to human rights treaties concerning the armed forces. As unilateral statements intend to modify the application of particular treaty provisions, the effects of reservations can be far reaching. A state could, by means of a reservation, completely deprive service personnel of some rights, as long as this is not prohibited by the treaty itself or incompatible with the object and purpose of the treaty as a whole. For example, on that rationale, reservations to the Convention against Torture would be inconceivable.

The third option is to regard service members as having waived some of their rights by signing up for military service. Thus, in a case concerning freedom of religion, the European Court of Human Rights found that, ‘[i]n choosing to pursue a military career [a service member] was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians.’8

In practice, States have been sparing in their use of reservations to the ICCPR when dealing with the human rights of service personnel. Most notably, France and the United Kingdom have made reservations to the ICCPR regarding the application of military discipline with the intention of preserving the processes of military justice systems.

INTERPRETATION The second option is to interpret concepts or terms of human rights treaties differently when applied to service members. The European Court of Human Rights did precisely that in the landmark case of Engel v Netherlands,6 which concerned detention in the armed forces. The Court held that the right to liberty and the associated right not to be detained without a legal basis needs to be interpreted in light of ‘the particular characteristics of military life’.7 Specifically, what might amount to detention in civilian society might not amount to detention in the armed forces.

While the reinterpretation of a treaty in light of the dictates of military life seems like a promising option, those involved in overseeing the human rights treaties have used it sparingly. Part of the reason may well be that while some rights (for example, the concept of detention) may be open to contextual interpretation, others are not. For example, it is not possible to suggest that torture has a special meaning in view of the characteristics of military life – what is torture in civilian society cannot but be torture if practised in the armed forces.

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But it is not clear how far such implied waivers may go. A waiver is not only about the rights of the individual, but also the public interest in protecting certain rights. Consequently, in the context of a case involving a potential waiver by a service member of the right to fair trial,9 the European Court of Human Rights held that a waiver of rights by an individual must not ‘run counter to any important public interest.’10 Treaty bodies are unlikely to treat the act of joining the armed forces as a basis for a comprehensive waiver of human rights. In any event, the idea of a waiver loses its persuasiveness when dealing with conscripts. Yet armed forces that have conscripts typically limit their rights to the same degree, if not more extensively, than those of volunteers.

LIMITATIONS Finally, the rights of service members may be restricted through limitations clauses contained in human rights treaties. Most rights contained in international human rights law are not absolute – they can be restricted when considered necessary in a democratic society for the protection of an important value, including national security, public health or safety or the rights of others. In accordance with this approach, the restriction of the rights of service members must have a basis in law, must have an identifiable public interest aim, and the restriction must be proportionate to that aim. The European Court of Human Rights has accepted that a service member’s right to freedom of expression can be restricted ‘where there is a real threat to military discipline’.11 However, in considering whether the restriction on the right is ‘necessary in a democratic society’, the Court will carefully consider whether there has been an objective impact on military discipline.12

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The requirement of proportionality can play a critical role. For example, the ICCPR includes the right to freedom of religion but it also provides that the freedom can be limited by law where it is ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.13 It would not be possible to broadly require all military personnel who, for religious reasons, have facial hair to remove that hair.

Rather, such a restriction on the right of religious freedom would need to be assessed on the basis of the limitations outlined in the relevant treaty. As a result, it may be that facial hair is prohibited for service members who need to wear a mask, such as divers or fighter pilots, because an appropriate seal cannot otherwise be achieved.

CONCLUSION

The protection of the human rights of military personnel is a complex legal issue involving debates about the role of the armed forces in a society. Service members do not simply give up their rights and freedoms on entering the armed forces.

personnel are entitled to the protections of human rights law and that any restrictions on their rights considered necessary in light of life in the armed forces should be carefully interrogated.

When considering the different ways in which restrictions on the human rights of service personnel could be legally justified, the reliance on limitation clauses seems to be the most promising option. The practical implications of this conclusion are significant. Notably, restrictions placed on the human rights of service members under limitation clauses must be assessed using the threefold test of lawfulness, legitimate aim and proportionality. Meeting the requirements of lawfulness and legitimate aim (such as national security) would not pose significant obstacles for states. Crucially, however, proportionality would require a careful balancing exercise where the intrusiveness of the restriction on human rights is weighed against the aim of that restriction. Hence, stating that some rights may be restricted in the armed forces for the purposes of national security or operational effectiveness is not the end of the enquiry, but the beginning.

The mere fact of military service and the existence of the chain of command or military traditions do not, in and of themselves, provide a sufficient basis for restricting the enjoyment of human rights.

Instead, the starting point for any discussion involves an acknowledgement that military

1. International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 1 (emphasis added).

2. For a recent statement on the status of the ICCPR in Australian law, see Joint Standing Committee on Foreign Affairs and Trade, Interim Report – Legal Foundations of Religious Freedom in Australia, November 2017, p. 67. For a discussion of Australia’s implementation of human rights treaties, see H. Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (Sydney: UNSW Press, 2002), pp. 56–8.

3. Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

4. Such cases include Findlay v United Kingdom (1997) 24 EHRR 221 and Grieves v United Kingdom (2003) 39 EHRR 2.

5. See, for example, Engel v Netherlands (1976) 1 EHRR 647, para 54; Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 89.

6. Engel v Netherlands (1976) 1 EHRR 647.

7. Ibid para 54.

8. Kalaç v Turkey (1997) 27 EHRR 552, para 28 9. ECHR art 6.

10. Thompson v United Kingdom (2004) 40 EHRR 11, para 43.

11. Grigoriades v Greece (1997) 27 EHRR 464, paras 45.

12. Ibid paras 47-8.

13. ICCPR art 18(3).

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COMBAT INTERPRETERS AND A MORAL OBLIGATION: INTERVIEW WITH JASON SCANES JASON SCANES Retired Australian serviceman Jason Scanes, the CEO of Forsaken Fighters Australia Inc., sat down for an interview with Joshua Wilson, a Student Editor of the Human Rights Defender. Forsaken Fighters Australia (www.forsakenfighters.org.au) is a registered not-for-profit organisation, focused on promoting a culturally inclusive society by assisting veterans and Mission Essential Personnel (MEP). The interview delves into Jason’s ongoing fight to bring his interpreter, Hassan, to Australia. Hassan had assisted Jason – as well as many other Australian, British and American soldiers – in daily high-intelligence operations in Afghanistan, helping to secure their safety and operational success.1

Who is Hassan?

Hassan is a young Pashtun, Afghan man from Kandahar.

He was an interpreter for Coalition forces in Afghanistan on the War Against Terror and worked with Australian, British and US Forces over a number of years. Specifically, he was my interpreter from December 2012 to September 2013, during my deployment to Afghanistan with the Australian Army. Hassan assisted me in my role in Afghanistan as the Intelligence, Plans and Information Officer Mentor. Through working closely with me, Hassan had access to highly sensitive operational information and was at a greater risk of being identified as a result. His assistance to me was critical in my role and in a number of complex events that occurred during deployment.

Since my return home in September 2013, Hassan has married with two young sons.

By providing ‘mission essential’ skills and assistance, interpreters like Hassan place themselves and their families at significant risk to facilitate our government’s mission. They are specifically targeted by insurgent or terrorist groups and are labelled as ‘traitors’ for assisting Coalition Forces. They face violent attacks and live in constant fear, often confining themselves to their homes and relying on others for financial assistance. Finding local employment becomes near-impossible as business owners worry that, were they to employ such people, this could make their businesses a target of insurgent attacks.

These interpreters live an uncertain and disruptive life, having to change cars and houses every few months in order to evade persecution.

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Jason Scanes, (former Army Captain) with two schoolchildren in Afghanistan, whose fathers were Afghan Soldiers, killed in combat fighting the Taliban with Coalition Forces.

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Many of them have been left behind, however, as they do not meet the strict criteria under the Afghan Locally Engaged Employee (LEE) Program for an entitlement to apply for this visa sub-class. Others were not notified they were eligible to apply in the first place, whereas those who applied and were found eligible are still waiting for a response from Defence and/or the Government – some for over five years now.

Why was Hassan denied an Australian visa?

Hassan was denied a special humanitarian (sub-class 201) visa based on s 501 of the Migration Act, specifically the character test. The minister can exercise this power if he reasonably suspects that a person has – or had – an association with an insurgent or terrorist group, or alternatively when the minister reasonably suspects that the they might have an association with such groups.

Intelligence sources and reporting can be difficult to navigate, however, especially with respect to determining the degree of separation or involvement on the basis of these sources. If these sources are interpreted incorrectly or out of context, then they can have a negative impact on an individual’s character assessment.

It is, moreover, important to note that under this visa subclass, the minister can exercise their discretionary power based on the character test without affording procedural fairness or natural justice, and that rules of evidence also do not apply here. In effect, it is enough for someone or a single report to cast doubt over an individual visa applicant. There are, of course, a number of reasons why it is necessary for the minister to have this power. With tens of millions of displaced people all over the world and a long line of people seeking asylum in Australia, it would be costly, ineffective and resource-intensive to investigate every derogatory claim made against an individual seeking asylum in Australia.

What inspired you personally to lead the fight to get Hassan to Australia?

Hassan and I went through a lot together and we have many shared experiences. The ultimate reason is that Hassan and I are mates, and mateship and loyalty are at the core of what it means to be Australian. These values have been hard won and tested in Australian society.

Australian soldiers are widely known as tough, resilient and compassionate fighters. Unfortunately, I am now seeing compassion being diluted, along with respect for our service personnel. Our service men and women, their families and those who assist us, all make significant sacrifices for protracted periods, often in multiple areas of conflict or disaster. The Australian terms, ‘do not let your mates down’ and ‘a fair go’, fuel me in my fight for the brave and locals who assist our troops in conflict areas.

Hassan’s case has been ongoing for some years now.

What roadblocks have you encountered and how did you respond?

The first and most significant roadblock has been getting access our political leaders to bring a deeper level of understanding to the issue, whilst also competing with media and press that control the public discourse and, on occasion, generalisation of Muslims. We have engaged in lengthy discussions with political leaders, but these took many years to secure. These continued setbacks and a refusal to accept responsibility for this issue can, and has, negatively impacted on veterans, their mental health, and their families. Our response has been to create a not-forprofit organisation to help those who are seeking assistance through the process, provide submissions to Government, as well as assist and support Government in the delivery of services to reduce adverse impacts on veterans and their health. We have so far assisted one interpreter to pursue his case through the Australian Federal Court in May 2019 and are currently awaiting a response.

‘National Security’ can be used as a justification, at times, by the Government to avoid their responsibility to these interpreters. The reality is that we needed their assistance to conduct our mission. As a coalition force, we made a commitment to remove extremist groups from their country; and they believed that we could achieve this.

These interpreters wanted peace and stability for their families and country, but instead have been left living a life of fear and are at constant risk of persecution. They are actively sought after by insurgent groups, having been labelled as traitors for assisting the coalition forces.

Looking at political rhetoric and some media reporting, it would seem that it is easier for us to tar Muslims as terrorists than challenge our policies or politicians.

However, it is negligent to allow such discourses to permeate and to leave comments from those that have little understanding of these issues unchallenged.

Are there any promising developments?

Having now had many meetings with our political leaders, universities, the Australian War Memorial, and the Australian Defence Association, we have seen a positive acknowledgment of the issue. Unfortunately, it has been just that: recognition that there may be an issue, but little political appetite to pursue an outcome. Forsaken Fighters Australia Inc. have outlined the issues and practical ways in which the government can address them. We have highlighted the benefits to our veterans in reducing moral injury, benefits to our communities as well as current and future serving Defence personnel. Despite the limited appetite for this issue, we are now pursuing it through the

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Federal Court of Australia [see postscript]. This implies that positive future discussions on this issue are possible.

Developing policies that acknowledge the service of local nationals as MEP will ensure that Australia’s Defence personnel who are deployed in the future will be provided with the best pool of local national MEP to support them in their mission.

There are hundreds of interpreters who have relocated to Australia, but many have not received the recognition they deserve, nor adequate assistance with transitioning into their new lives here. What are the key challenges faced by this community, and what more needs to be done to assist them?

Their ability to tell their stories is a major challenge. This is particularly significant, as many Australians do not understand the role of the interpreter and the risks that they face both working alongside the coalition forces, particularly given that we have now withdrawn from different parts of Afghanistan (which have now fallen back under control or are being contested by the Taliban). Once they have been granted a visa to Australia, they also need support for their unique needs – support that will also help ensure that we have productive and well-educated members capable of contributing to our society. Improvements to accessing mental healthcare, resettlement options, recognition, and education are all vital to the successful integration of interpreters and their families.

What is the aim of Forsaken Fighters Australia?

At Forsaken Fighters, we seek to ensure that our Government accepts its responsibility to MEP who have provided critical skills on the battlefield and saved many Australian lives. This is a financial and emotional burden that is too heavy for our veterans to shoulder alone. Many veterans feel a moral obligation to ensuring the safety of these interpreters and, as a result, will go to great lengths to assist them with complex visa applications, as well as providing financial and emotional support upon their resettlement in Australia.

Forsaken Fighters is advocating for the development of a streamlined visa pathway system for those who have assisted Australian Forces, one which allows for the allocation of additional resources and investigation when and where required. This system should recognise individuals who have assisted the Australian Government in conflict areas and ensure that those who are at significant risk of persecution, as a result of allying themselves with the coalition forces, are given a fair opportunity at being resettled in Australia. Individuals such as Hassan, who have assisted our troops in missions as well as the Australian Government in its pursuit of national interests, must be

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supported. This is important to ensuring that we, as a nation, show our appreciation to them by acknowledging their sacrifice for Australia.

How has your involvement in Hassan’s fight and Forsaken Fighters impacted you?

Emotionally, it has consumed me. At times, I have withdrawn from my own family and friends. It has compounded my own mental health issues and has seen me questioning our national values. It has also placed a considerable and undue strain on my relationship with both my wife and children. I have lost many years of sleep and time with my own children. Having been deployed to Afghanistan for 10 months, I had hoped that when I came home, I would be ‘present’ but it seems only my body has returned as my mind is still fighting. The Government’s disinterest in this issue has drawn it out by too many years, adding significantly to my own personal issues.

Financially, I have invested substantially in standing up for a mate, using my young family’s money to engage lawyers, migration agents and psychologists to address the Department’s concerns on Hassan’s behalf. The pressure was so great that at one point I was unable to focus on anything else. It has placed me in conflict with family, friends and many anti-Muslim groups and individuals. The toll of this work, and the lack of acceptance or acknowledgement by our Government of its importance, has been a torment and burden, which has sometimes been almost unbearable.

What does the path ahead look like?

As a registered charity, Forsaken Fighters relies solely on donations and in-kind support to continue providing a voice for MEP here in Australia. We continue to look for members, partners and ambassadors – anyone who can assist us with upholding the Australian values of ‘standing up for your mates’ and ‘never letting them down or leaving them behind’. Forsaken Fighters will continue advocating for our left-behind MEP, so that they receive appropriate recognition for their contributions and support when resettled in Australia.

Editorial Postscript: Shortly prior to the publication of this interview, it was announced in August 2019 that the Federal Court had dismissed Hassan’s appeal. His case was previously heard by the court in March. Hassan and his legal team, with the support of Mr Scanes, is now considering appealing the court’s decision.

1. This interview has been edited for clarity.

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MORAL INJURY IN MILITARY SERVICE LEWIS FREDERICKSON Wing Commander Lewis Frederickson is an Air Combat Officer in the Royal Australian Air Force, currently serving as the Chief of Air Force Fellow at the Australian Defence Force Academy. He completed his PhD on Australia’s involvement in the Great War and has served operationally in East Timor and the wider Middle East region. The opinions expressed in this article are the author’s own and do not necessarily reflect the views of the Australian Defence Organisation or the Australian government.

This article addresses the question of moral injury in the context of military service: specifically, the affront to humanity when responsible people fail to act responsibly.

Moral Injury refers to an offence to values, ethics, compassion and empathy. But this list is not exhaustive.

Moral injury is about people. And because there is no narrative without humans, the only way to elaborate on the subject is to begin with a story about people.

The young United States (US) Army non-commissioned officer (NCO) implored the Australian officer he was speaking with for guidance and intervention. The NCO was a college graduate and spoke Arabic fluently. As it went, he had been directed to present to the MultiNational Force Iraq’s (MNF-I) security centre in Baghdad’s Green Zone to interpret for the military police in a matter concerning a 14-year-old Iraqi girl. She had been pulled to safety from the railings along Baghdad’s ’14 July Bridge’ that spanned the expanse of the Tigris River. The girl’s story: her parents were dead – killed in a coalition air strike – leaving her to care for younger siblings.

“You’ve got to help, Sir,” the young NCO implored. “The MPs (military police) are going to hand her over to the Iraqi police. She has been forced to sell herself to provide for her younger brothers. The police will keep her in a room and she will eventually disappear.

Please get someone to help.”

The soldier had spoken with the girl and she was terrified.

The soldier was nearly in tears. The Australian officer was convinced, and he petitioned the US colonel in his chain

of command. The colonel was blunt. This was an Iraqi matter and MNF-I was not concerned with it. The colonel’s subtext was clear: do not involve yourself in complicated matters that fall outside the responsibilities of your immediate role. The Australian officer also knew that the colonel was desperate to be a brigadier; there was a ‘cigar-club’ to which all the headquarters colonels belonged, and they met in the evenings to smoke and discuss their careers and the war.

Despite the pain and angst that the circumstance caused him, the Australian officer did not argue the case any further with the colonel. He did not see the point, and when he returned to relay the colonel’s response to the Army NCO, both men – lean, fit, hard, one Australian and one American – bowed their heads in shame and lamented over the girl’s fate. That was me. I was the Australian officer involved. I don’t need anyone to acknowledge this story.

Yes, it was confronting, and these are facts.

In our time, the notion of moral injury has emerged to redefine symptoms which, similar to those of posttraumatic stress disorder (PTSD), come about as a result of experiences which violate an individual’s most deeply held values and moral principles. The concept is wideranging and difficult to define, but values represent individual beliefs about what is considered to be right and wrong, and what is most important. This is particularly important in hierarchical organisations such as the military, in which a values-set is intrinsic to service.

Indeed, as international economist Samer Mashlah indicates, people’s personal values, human energy and leadership are critical organisational resources that enhance an individual’s capacity to work and achieve goals.1 Renowned educator and academic Thomas Nielsen

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takes the notion further: he stresses that values are intrinsic to humanity and that we have ethical yardsticks around us all the time, whether we realise it or not.2 Psychologist Brett Litz, whose work is central to the study of contemporary moral injury, explains how: ‘Morals are defined as the personal and shared familial, cultural, societal, and legal rules for social behaviour, either tacit or explicit. Morals are fundamental assumptions about how things should work and how one should behave in the world.’3 Litz goes on to say that the majority of individuals have a strong moral code that they use to effectively navigate through their lives.4 When the moral code is continually violated, the emotional injury can be profound. For some individuals, the resultant injury confronts their core beliefs, ideals, understanding of the world around them, expectations of others, and sense of self. These are potentially replaced by some, or all, of the following: guilt, shame, anger, despair, suicidality, and the capacity to trust.5 Jonathon Shay coined the term “moral injury” in response to his observations of similar symptoms displayed by Vietnam War veterans under his care. He considered the criteria for moral injury to be: (a) a betrayal of “what’s right”; (b) e ither by a person in legitimate authority [a leader], or by one’s self – “I did it”; and (c) in a high stakes situation.6 In a military context, the perception of betrayal by a supervising officer is a significant contributing factor to moral injury. Indeed, Shay’s work highlights how the selfseeking or self-serving moral failures and ambiguity displayed by some military commanders can have a toxic impact on those under their jurisdiction – often with catastrophic consequences. In light of this, Litz and his colleagues proposed a broader criteria to describe moral injury as ‘[p]otentially morally injurious events, such as perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations may be deleterious in the long-term, emotionally, psychologically, behaviorally, spiritually and socially’.7 These events are associated with feelings of anger,

1. S. Mashlah, ‘The role of people’s personal values in the workplace’, International Journal of Management and Applied Science, 2015, vol. 1, no. 9, pp. 158-164.

2. T. Nielsen, ‘Do values have a place in education?’, The Curriculum of Giving, 2014 <http://www.thomaswnielsen.net/do-values-havea-place-in-education/> 3. B. Litz, N. Stein, E. Delaney, L. Lebowitz, W. P. Nash, C. Silva, and S. Maguen (hereafter Litz et al), ‘Moral Injury and Moral Repair in War Veterans: A Preliminary Model and Intervention Strategy’, Clinical Psychology Review, 2009, vol. 29, no. 8, pp. 695-706.

4. Ibid, p. 699.

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personal shame, alienation, disgust and contempt.8 When it is expressed in this way moral injury most directly reflects the internal moral agency of the person affected.

Jacob Farnworth, American Veteran’s Affairs (VA) psychologist and acknowledged expert in the field of war trauma, stresses that moral injury can arise in any type of warfare. Notwithstanding this, the idiosyncrasies associated with counter-insurgency operations, particularly in an urban environment, are particularly susceptible to moral injury. Such environments potentially include adversaries indistinguishable from civilians, improvised explosive devices (IEDs), great uncertainty, indiscriminate indirect fire (think Baghdad’s Green Zone), and greater dangers for non-combat troops and civilian populations.9 The Australian Defence Force (ADF) has been on operations continuously for nearly twenty years in environments beset with such ambiguities. In these netherworlds, the spectre of moral injury is looming.

Let me step away from operations and clinical definitions once more and back to the human narrative. There is a potential for a wider malaise should we officers, both warrant and non-commissioned, and other ranks of the Australian Defence Force, fail to act in accordance with our personal and professional values. In fact, I see that not doing so is a dereliction of our responsibilities: to our colleagues, service, the society we are charged with serving, but mostly to ourselves. I have encountered many other officers of the ilk of the colonel that I encountered in Iraq. Many of these officers have – mostly out of selfinterest – carelessly disregarded the integrity of the values that we members of the ADF hold dear. But for every one of these, I have seen far many more young, enthusiastic, open, and generous spirits, and I am proud to be associated with them. Do I have a moral injury? I don’t know; I have not been diagnosed. But I have been outraged and I will not stand quietly on the side and watch on. I don’t know what happened to the girl of this story, but I will make it right.

These are facts.

5. J. Shay, ‘Moral Injury’, Psychoanalytic Psychology, 2014, vol. 31, no. 2, pp. 182-191.

6. Ibid, p. 182.

7. Litz et al, p. 697.

8. J. Farnworth, K. Drescher, J. Nieusma, R. Walser, and J. Currier, ‘The Role of Moral Emotions in Military Trauma: Implications for the Study and Treatment of Moral Injury’, Review of General Psychology in the Public Domain, 2014, vol. 18, no. 4, pp. 249– 262.

9. Litz et al, p. 696.

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THE MILITARY AND HUMAN RIGHTS POLITICAL NARRATIVES AND MORAL INJURY TOM FRAME Tom Frame AM is Professor and Director of the Public Leadership Research Group at UNSW Canberra. A former naval officer and Anglican Bishop to the Defence Force, he has authored or edited nearly fifty books with an emphasis on ethics, leadership and public policy.

Much has changed within and around the Australian Defence Force (ADF) in the forty years since I joined the Royal Australian Navy as a 16-year-old cadet-midshipman in January 1979.

Thinking about internal changes for a moment, the ADF’s deepening respect for the exercise of personal conscience and increasing regard for individual dignity have been very welcome developments. Dealing with the human rights of ADF members is not, however, the focus of this article; instead, it focuses on the evolving nature of ADF deployments and their purposes since 1990, and on the possibility that the intersection of tradition and transition may be causing what is known as ‘moral injury’ among those who serve.

THE CONTEXT OF RESPONSIBILITY The ADF’s primary duty is the defence of the nation’s sovereign interests, including the safety of people and the protection of property: the Australian Defence Force defends Australia. Yet the ADF does a good deal more than protect people, property, the continent, offshore islands, and overseas trade. It is also an instrument of political power that can legally and legitimately be used to advance, and not just defend, the nation’s interests. More importantly, for the purposes of this special issue, the ADF gives expression to Australia’s commitment to human rights.

Demonstrating this commitment, it has been deployed to places like Somalia and Rwanda, and nearer to home in Cambodia and East Timor as

part of aid and assistance missions with a strong human rights imperative.

When an ADF member is asked why they joined, beyond the unavoidable admissions of selfinterest, there is the notable desire to ‘make a difference’. This is often code for securing and promoting human rights, particularly the protection of vulnerable peoples and the prevention of social implosion. These affirmations are highly significant in themselves and worthy of closer attention.

MILITARY DEPLOYMENTS AND POLITICAL NARRATIVES

There is usually a paragraph or two missing from political narratives explaining military deployments. It is the paragraph that ties a given military operation to a particular national interest: that is, the explanation of how a deployment furthers or fulfils an urgent national goal. This is a critical deficiency when human rights are the focus – as they increasingly have been since 1990 – and have the potential to become especially acute and a source of anxiety when danger or discomfort are part of the deployed experience.

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The absence of this connecting narrative is usually revealed in two laments from the uniformed person: ‘what are we doing here’ and ‘I didn’t join up for this’. In essence, the uniformed person is questioning the purpose of the deployment and how it relates to national defence, and whether the tasks they have been assigned are legitimate ADF functions (such as defending or securing human rights) and not tasks best undertaken by another nation or agency. This is a first order issue: the uniformed person is being placed potentially in harm’s way in situations that are avoidable because the deployment is, as explained below, discretionary. Australia is choosing to deploy its people; it is not obliged to do so.

One response to potentially subversive questioning among those deployed is for governments to better explain why an activity is necessary and why particular units are being sent.

There is a need to revise the dominant narratives undergirding ADF service to make defending and securing human rights in particular, more explicable in terms of the overall national security strategy. This bears upon the possibility of ADF personnel sustaining moral injuries as a consequence of their service.

This political justification for deploying ADF units is entirely absent from the 2016 White Paper, although it is a political document that reflects political aspirations, including the fulfilment of Australia’s international responsibilities for the promotion and protection of human rights. It is, for instance, an expression of political will to deploy the ADF overseas in operations that transcend the immediate defence of Australia and its sovereign interests, such as peacekeeping, election monitoring, providing humanitarian aid and disaster relief, and supervising weapon surrenders. In this way, the ADF is a vehicle for Australia to demonstrate it is a ‘good international citizen’.

For the Australian government, these are essentially deployments of choice. They are discretionary operations that are not forced upon the government, but are ones that the ADF cannot refuse to undertake. For uniformed people, they are anything but deployments of choice. The only choice that a uniformed person can exercise is the

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decision to resign if they are unwilling or unable to deploy if directed to do so.

Because missions that are prompted by or which seek to promote human rights are usually complex, dangerous and demanding, with progress imperceptible in the short-term and success in the long-term never assured – famine relief in Somalia between 1993-94 and ceasefire monitoring during the long-running Bougainville civil war being vivid examples – there is a distinct possibility that ADF members will question why they were deployed, lament that they did not join for this kind of work, and doubt that their work will make any lasting difference. This is where and how a covenant could make a difference and the propagation of a new narrative would help to build individual resilience and collective confidence. But, I would contend, resilience will be impaired if a soldier sustains a moral injury.

What is moral injury?

THE POSSIBILITY OF MORAL INJURY A 2016 study commissioned by the ADF and conducted by UNSW Canberra defines moral injury as ‘the result of harm or damage (a wound) that reduces the functioning or impairs (injures) the performance of the moral self, which is that part of a person where moral reasoning and moral decision-making takes place’.1

Exposure to, or participation in, actions that violate an individual’s own moral code cause moral injury because they destabilise the moral norms that an individual uses to make sense of themselves and the world. Moral injury can be sustained through acts of commission and omission. The extent to which these moral norms are ignored, denied or betrayed will determine the severity of the injury, along with the strength of the beliefs and their nature – whether they are foundational, supportive or expressive – within the moral self.

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The involvement of morality makes moral injury different from PTSD and other servicerelated mental health conditions and psychological disorders.

Defending and securing human rights has the potential to inflict moral injury on deploying ADF personnel. 2 Because such missions have a strong moral character, they can also have acute moral consequences. When those nations and peoples that the ADF seeks to help resist or resent what is offered, when the assistance provided is used against political enemies or exploited for personal gain, or where those being assisted seem to prefer the ways things were to the way things might be, reflection on such service can be debilitating. There are few things more demeaning than a heartfelt desire to help being manipulated

or exploited, and few things more dispiriting than seeing help turned into harm. Many ADF personnel who have engaged in human rights promotion as either a primary task or a subsidiary one often ask whether their service made a difference in either the short or long-term.3 To hear them question whether their mission had any point or purpose beyond good intentions and political appeal points to the pressing need for a new, more fulsome, approach to depicting ADF service and explaining ADF missions, if only because we ought to prevent the proliferation of moral injury. If ADF members were to become disinterested in finding any personal meaning in their deployed service, they would become little more than state-sponsored mercenaries. Such an outcome is in no-one’s interests.

1. T. Frame et al, ‘Moral Injury: From Theory to Practice’, a report prepared for the Vice Chief of the Defence Force, June 2017, UNSW Canberra <http://handle.unsw.edu.au/1959.4/unsworks_44550> 2. Instances of these injuries are reported in T. Frame (ed.), Moral Injury: Unseen Wounds in an Age of Barbarism (Sydney: UNSW Press, 2015). The collection features accounts from commanders, officers and chaplains drawing on a range of first-hand operational experiences.

3. See T. Frame, ‘Moral Objection and Political Dissent’, in T. Frame and A. Palazzo (eds), Ethics Under Fire: Challenges for the Australian Army (Sydney: UNSW Press, 2017), pp. 120-137.

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HUMAN RIGHTS, THE RULE OF LAW, AND FOUNDATIONS OF THE POST-WORLD WAR II ORDER PHILIPPE CONSTANTINEAU Philippe Constantineau is Professor in the Department of Political Science and Economics at the Royal Military College of Canada in Kingston, Ontario.

In light of the 75th anniversary of D-Day in June 2019, this article reflects on where we stand today with respect to the implementation of the political lessons that were drawn in the wake of World War II (WWII), and the role of the postwar institutions – specifically, the United Nations (UN) – that were designed to prevent such disasters from happening again in the nuclear age.

Despite the failure of the League of Nations to prevent WWII, which witnessed the most large-scale violations of human rights of any conflict in world history, the rationale underlying the League’s creation was still reflected in its successor, the United Nations. A major motivation behind the inception of both the League and UN was to establish a global governance system that would anchor international law through the establishment of an International Court of Justice that had the ability to hand down binding arbitration decisions unto states in situations where interstate quarrels, if left unresolved, could lead to war. In essence, the purpose of this international legal system was to render wars illegal, except in cases of self-defence against foreign aggression.

To this end, aggression is cited among the crimes identified as coming under the jurisdiction of the International Criminal Court (ICC), along with genocide, crimes against humanity and war crimes, which are counted as being among the most egregious violations of human rights. Although the ICC would come into existence only in July 2002, when over sixty UN member-states ratified the 1998 Rome Statute, it was the case that the great powers – namely, the United States and China – were two of seven countries that had voted against the statute, whereas Russia was initially a signatory but subsequently withdrew from it.

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The UN also underwent a fundamental change to its design, as reflected in the proclamation of the Universal Declaration of Human Rights (1948). Meant as the draft for an International Bill of Rights, the Declaration proposed quite an extensive, if not comprehensive, set of human rights that were deemed ‘inalienable and inviolable’, following the model provided by the French Déclaration universelle des droits de l’homme et du citoyen (1789) and the American Bill of Rights (1791). For its part, the League did create back then a commission aimed at eradicating slavery, forced prostitution and drug trafficking, having also established in 1930 the Office international Nansen pour les Réfugiés. However, the UN went a step further.

Crucially, a key idea behind the Declaration is that justice (i.e. the preservation of basic human rights) should trump ‘national interests’, howsoever these may be understood by sovereign governments, in the interest of preserving civil and international peace. As such, advancing the global rules-based order became viewed as a central foreign-policy objective for all nations.

The notion that ‘civil peace and order’ can be ensured by a civil government under a constitutional rule of law that upholds fundamental rights and freedoms is what inspired Immanuel Kant’s essay Towards Perpetual Peace (1795), which proposed the implementation of a global legal order through covenants between ‘free states’, based on the right to self-determination of peoples, so as to outlaw war between such states. It is this very idea that motivated the creation of the League of Nations, and which was more effectively executed through the UN’s design. This idea – or rather, aspiration – is also what had inspired many

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democratic states to embed, in their constitution, a charter of rights and freedoms that compels them to uphold human rights through the adoption of policies promoting, for example, diversity and preventing sexual abuse at home – within agencies like the military and society more broadly – and abroad.

I recall here the example of the Canadian government’s ‘Somalia Inquiry’. As discussed below, this case demonstrates how Canada, as a country that espouses human rights and the rule of law as overarching principles of justice and the most important lessons learnt from WWII, was compelled to uphold these principles despite the shame that doing so would bring upon one of its most prized agencies.

On 16 March 1993 a Somali teenager, Shidane Arone, was beaten to death after having been caught stealing within the Canadian compound at Belet Huen, Somalia.

This was the culmination of a series of other violent incidents that involved Canadian military personnel, who were then engaged in an UN-mandated, international peacekeeping mission in Somalia. As these incidents became known to the public, a Commission of Inquiry into the Deployment of Canadian Forces to Somalia was established, tasked with taking decisive action on the issue, and with public hearings held between late 1995 and 1996. The Canadian public’s outrage would grow even greater when it was revealed that a cover-up of Arone’s death, and other earlier incidents involving the abuse of Somali looters, had been ordered by those at the highest levels of the Canadian military. The scandal was widely deemed by the Canadian public to have undermined the national and international reputation of the Canadian Armed Forces, which had been engaged in many UN peacekeeping operations since the Korean War. The Somalia Inquiry filed its report in 19971, however the Canadian government, under pressure from public opinion, did not wait to get the Commission’s recommendations: instead, the government ordered the disbandment of the Canadian Airborne Regiment – the then most elite commando unit of the Canadian Armed Forces, given its distinguished history stemming from their role in D-Day. Furthermore, based on the Inquiry’s recommendations, the Canadian government ordered sweeping changes to be

made to the entire educational, instructional and training regimen of the Canadian Armed Forces. Identifying the failed preparation of Canadian troops for their mission in Somalia as a major cause, it had sought to promote a stronger ethic of professionalism among its military personnel, from the higher ranks of its officer corps down to its non-commissioned members.2 This resulted in mandated peace operations training as well as the establishment of a Peace Support Training Centre in 1996.

The Centre offers several courses that together reflect Canadian foreign policy objectives, but also UN and NATO standards and requirements. For instance, the Centre runs the ‘United Nations Military Experts on Mission’ course, which was created in the late 1990s and has been recertified every five years until now.3 The ethical dimension of this educational program cannot be understated.

A major component of professional education lies with its deontological code, its ethics. Thus, a course on the ethics in the profession of arms was also created for the Canadian Armed Forces, aimed at enhancing the military’s capacity to account for the human rights dimension of any conflict situation in which its members might be involved.

This includes peace operations, whether mandated under Chapter VI or Chapter VII of the UN Charter.

Here, beyond the focus on the pre-deployment preparedness of the military in conflict or peace operations, one should also note the psychological pressure that this new operational regime has placed on its members due to the moral responsibility and legal accountability that comes with it: a thorough evaluation of a mission on all of these aspects and metrics is conducted as soon as it is completed.

To be sure, no one today can fully rest assured that another world war, which is bound to be much worse because of the ever-increasing destructive potential of technology, can be prevented by the current system of global governance. However, the example provided above can serve as an illustration of how the principles of human rights and the rule of law can, at the agential level, become the pillars of a self-perpetuating, yet constantly adaptive, system – one which integrates past lessons to avoid future harm.4

1. Dishonoured Legacy: The Lessons of the Somalia Affair. Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Executive Summary, Ottawa, 1997 <http://publications.gc.ca/collections/collection_2015/bcp-pco/CP32-66-1997-eng.pdf> 2. H. G. Coombs, ‘25 Years after Somalia: How it Changed Canadian Armed Forces Preparation for Operations’, Canadian Military Journal, 2017, vol. 17, no. 4, pp. 35-46.

3. Coombs, p. 45.

4. I would like to thank Captain Rick Duncan for reviewing this essay and providing me with further insight into the training regime within the Canadian Forces that was put into place after the Somalia Inquiry.

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CIVILISATION ON TRIAL THE FAILURE TO CRAFT POLICY RICHARD ADAMS Richard Adams is a researcher at UNSW Canberra.

In this article, I am concerned with – and by – the dearth of properly crafted, harmonising, long-term public policy. I do not use the word ‘policy’ as a term of art but to mean a definite, thought-through purposeful course of action. As such, policy here refers to a plan or strategy informed by a sense of principle and purpose. It is common sense that a government should adopt and pursue policy in order to accomplish some predefined end. A joined-up suite of policies is thus seen to be effectual when defined by clarity and coherence. Governments do not always seem to have clear or coordinated policies, however. And without clear policy there can be no clear objectives. Brexit, for example, is arguably in omni-shambles. Launched without a clear policy basis, the implications of Brexit are imprecise and the means by which Brexit will be realised are, at the time of writing, unknown. Climate change, similarly, has been a looming crisis for years. But in the absence of straightforward policy responses, responsible action on this issue is uncommon.

To borrow from Hannah Arendt’s preface to The Origins of Totalitarianism, as our future appears dramatically unpredictable, we seem to depend increasingly on political forces that do not follow the rules of common sense.1

Among the implosions and inadequacies of modern politics, none is more concerning than the failure of governments to craft policy in relation to war. Decisions to go to war often seem ill-considered, without a clear sense of the objectives to be accomplished and, for this reason, without a convincing step-bystep plan to get from the beginning to the end.

Writing in The Atlantic, James Fallows points to the notion of a policy vacuum. Considering umpteen years of war in the Middle East, the longest period of continuous military action in United States (US) history and Australian history, Fallows notes how despite countless tactical victories, despite the great bravery and skill of soldiers, and despite long and expensive missions to train indigenous forces, the West has failed to establish lasting stability in both Afghanistan and Iraq.2 Resorting to war with an insufficient grasp of the unqualified need to win, the West and, in particular, the US seems to have forgotten US Secretary of Defense Caspar Weinberger’s caution against the indecisive squander of military power. In a 1984 address to the National

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Press Club in Washington D.C., Weinberger argued that military force must be dedicated to winning, used only when military means were critical to well-defined and urgently important political objectives, and only with a clear military strategy.3 In an age of uncertainty, the West must rediscover the art of designing policy. Wars must not be a knee-jerk response to some political or other challenge. War must be a last resort – for clear and declared reasons. To quote Henry Kissinger, ‘A nation should not send half a million of its young to a distant continent…unless its leaders can describe their political goals and offer a realistic strategy for achieving them’.4 THE MODERN FAILURE I am not against war. I am against irrational, unwinnable, ill-planned, aimless, fundamentally unjust war. Recalling John Stuart Mill’s argument from Fraser’s Magazine, this article recognises how ‘War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war is worse’.5 Some things are worth fighting for, but few things justify conflict. Confronted by complex events, political figures are failing since they fail to recognise war as a totally consuming and utterly abhorrent endeavour. War, in other words, is a complex political and legal event. And it is most richly and intensely understood as a human phenomenon. War is hell. In her Nobel prize-winning book, Last Witnesses, Svetlana Alexievich details the accounts of men and women who were children during the Nazi invasion of Russia in 1941. The voices of children – horrified, desperate, bewildered, choked with tears, raw with heartbreak and hopelessness – rise off the pages, as they reveal war’s immeasurable frightfulness:

In the morning I woke up from fear. From some unfamiliar sounds…Then I remember the black sky and the black plane. Our mama lies by the side of the road with her arms spread. We ask her to get up , but she doesn’t. She doesn’t rise. The soldiers wrapped mama in a tarpaulin and buried her in the sand, right there. We shouted and begged: “Don’t put our mama in the ground. She’ll get up and we’ll go on.6

Alexievich asks us to see the heart-sickening cost of war and the barratry of politicians who justify war on whatever scale technology permits. The unsound 2002 September Dossier, the 2014 report of the US Senate Select Committee on Intelligence on the use of torture, and the notorious 2016 report of the Chilcot Inquiry into the British government’s decision to go to war in Iraq reveal political evil, done and disguised in the plain language of legality and due process. But there is no real justification. There is no clear policy explanation, apart from some whitewashing, of how our recent wars have made the world a better place and our nations safer. It is unclear whether our recent wars have been a last resort and if there was no other way to effect justice.

In fact, the opposite appears true. The modern world is influenced profoundly by a complicated system of treaties and conventions on trade and investment, loans, patents, double taxation, labour standards, environmental protection, and much else. But only rarely do these instruments alleviate poverty, which is causally connected to political disorder, injustice, suffering, and war.7 Perhaps this point is debatable. The objector might claim that these regulatory developments contribute to poverty alleviation and socio-political stability. But this is to forget acta non verba (the importance of ‘deeds, not words’). From the comfort of our developed economies, we forget how awful it is to be the victim of inequality. We forget the horror of slavery when we buy clothes made in foreign sweatshops or oil wrested from fragile nations. We can deny the

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existence of inequality since we don’t experience the pain of serious injustice. For instance, Western governments turn a blind eye to tax havens, which enable the globe’s richest one per cent to hide US$7.6 trillion.8 Purportedly fighting to safeguard human rights, they also turn a blind eye as Western corporations trade arms with regimes known for systematic and cruel repressions. The Australian Broadcasting Corporation has similarly reported on how the Australian company, Electro Optic Systems, is selling an advanced remote weapons system directly to the United Arab Emirates, which stands accused of war crimes arising from the involvement of UAE forces in the Yemen war.9 The Stockholm International Peace Research Institute has catalogued other examples of such arrangements.10 We must discard our hypocrisy.

In short, insulated by economic and military power, the West is failing to make good policy.

Better policy would recognise how military power has the capacity to perpetuate war, but no capacity to end war. Better policy would grasp the evils of war and the need for it to be a last resort. Better policy would reflect an integrated grand design and a coordinated long-term view. Better policy would be the cornerstone of Western moral leadership and positive diplomatic influence.

FOR ALL HUMANITY In April 1967, Martin Luther King Jr. spoke at the Riverside Church in Manhattan. The talk, ‘Beyond Vietnam – a time to break silence’, resonates with insight. King portrayed the Vietnam war as ‘the symptom of a far deeper malady within the American spirit.’11 On King’s account, left untreated, this malady will drag democracy down ‘the long, dark, and shameful corridors of time reserved for those who possess power without compassion, might without morality, and strength without sight.’12 King gestures to our present need for leadership. The need is for perseverance and longsightedness, for discernment, for thinkers and consensus-builders. The need is for moral principle, not belligerence. The world needs serious leaders determined to exercise constructive influence. Peace will be won and human rights assured, not by military fiat, but by the sort of coordinated political action that is founded on well-reasoned policy.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

H. Arendt, The Origins of Totalitarianism (Harcourt, 1994). p. vii J. Fallows, ‘The Tragedy of the American Military’, The Atlantic, 2015, pp. 72-90, 77.

J. Stone, Military Strategy: The Politics and Technique of War (Bloomsbury, 2013), pp. 132-133.

H. Kissinger, Diplomacy (Simon & Schuster, 1994), p. 659.

J. S. Mill, ‘The Contest in America’, Fraser’s Magazine for Town and Country, 1862, p. 268.

S. Alexievich, Last Witnesses: An Oral History of the Children of World War II, R. Pevear and L. Volokhonsky (tr.) (Random House, 2019), pp. 3, 4.

T. Pogge and D. Mollendorf (eds), Global Justice: Seminal Essays (Paragon House, 2008).

Oxfam Briefing Paper 210 ‘An Economy for the 1% - How privilege and power in the economy drive extreme poverty and how this can be stopped’, 2016, <https://www.oxfam.org/sites/www.oxfam.org/files/file_ attachments/bp210-economy-one-percent-tax-havens-180116-en_0.pdf> D. Welch, ‘Fighting Yemen’s Dirty War: an Arab military is buying a weapons system made in Canberra’, Australian Broadcasting Corporation, 2019, <https://www.abc.net.au/news/2019-07-25/australiancompany-sending-weapons-systems-directly-to-uae/11322974> Stockholm International Peace Research Institute, SIPRI Yearbook 2016: Armaments, Disarmament and International Security (Oxford University Press, 2016).

M. L. King Jr., ‘A Time to break Silence,’ in A Time to Break Silence: The Essential Works of Martine Luther King Jr. (Boston: Beacon Press, 1994), p. 92.

Ibid, p. 96.

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HUMANITARIAN LAW AND HUMAN RIGHTS IN ARMED CONFLICT SAM HARTRIDGE Sam Hartridge is a Teaching Fellow and PhD Candidate at the UNSW Law School. His research examines the IHL and IHRL rules regulating the use of lethal force in armed conflict. He is a solicitor in NSW, practicing criminal law as well as privacy and data security law.

The relationship between international human rights law (IHRL) and international humanitarian law (IHL) – also known as the laws of armed conflict1 – is a complex legal and normative question. Notwithstanding their similar motivations and principles, these two legal regimes conflict in fundamental ways. This article will outline the broad contours of this conflict and discuss some solutions to the problem.

IHL is designed to regulate armed conflict. The law is based on the simple premise that ‘even wars have limits’.2 The law creates a comprehensive body of rules that permit and forbid certain conduct in war. These rules reflect a balance between the humanitarian imperative – protecting the sick, wounded, prisoners and civilians – and military necessity, that which is necessary to undertake warfighting. In other words, the law aims to protect those ‘who are not, or are no longer, taking part in hostilities.’ However, the law also recognises that warfare involves ‘killing people and breaking things,’3 and so IHL permits conduct of this kind.

This can be contrasted with IHRL, the ‘fundamental concern’ of which is ‘regulating the…relationship between state and individual’.4 These rules are not intended to provide a framework for warfighting. Indeed, IHRL requires the state to refrain from using lethal force except where there is absolutely no other option. The sum of the treaty rules and jurisprudence is that states must do whatever they can to avoid the loss of life or the destruction of property. Such obligations are incongruent with military operations, and here we see the first hints of substantive conflict between the two legal regimes.

Norm conflict can also be found in the structure of the two sets of rules, with each having significantly different structures reflecting their divergent aims and fields of application. IHL is designed to apply in armed conflict. Its

treaties consist of highly detailed rules regulating the behaviour of belligerents. These rules create legal protection for anyone not, or no longer, taking part in the fight. The rules govern the kinds of weapons that can be used, who can be targeted and in what circumstances.

They regulate the grounds and conditions of detention, as well as the privileges and protections for medical personnel, humanitarian actors and the sick and wounded.

In contrast, human rights treaties list a comparatively short catalogue of rights in the form of broad principles.

These rights are intended to apply in all circumstances and everywhere within a state’s jurisdiction. States must not interfere with the rights of individuals and prevent others from doing so. They must also effectively investigate credible allegations of, and provide remedies for, violations. Certain rights can be limited in specific circumstances, or qualified to protect the rights of others.

Moreover, states can derogate from rights in emergencies that threaten the life of the nation.

The differences between these two legal regimes is reflected in the contestation surrounding their interaction.

Military lawyers have argued strongly against IHRL encroaching on the warfighting domain. For them, IHL is uniquely adapted to protect the victims of war, while affording militaries the flexibility needed to fight wars.

After all, they say, these rules represent a delicate balance between the principle of humanity and the dictates of military necessity. Those on the LOAC side further argue that it is entirely impractical, if not impossible, to apply the detailed procedural obligations found in IHRL to the widespread death and destruction of armed conflict.

Underlying this is a concern that IHRL is not fit for purpose, that it ‘lacks the stomach to deal with the harsh realities of modern warfare’.5

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Human rights defenders, on the other hand, argue that IHRL can and should be applied to war, as states had always intended for the law to apply in these situations.

Moreover, this law is inherently flexible. It is designed to account for prevailing circumstances, and has mechanisms for resolving conflicts between rights and duties. But more fundamentally – as the human rights defender argument goes – it cannot be the case that the rules that say there are some things that states must never do are not applicable in war. Indeed, this is the time when we need those rules the most.

Despite these differences, both IHL and IHRL seek to protect vulnerable people. Premised on underlying notions of humanity and human dignity, these bodies of law seek to limit suffering, mistreatment and discrimination. This would suggest that these laws should not conflict and, instead, that their objectives are aligned. And often this is the case. By and large, the rules do correspond. Both regimes protect humanitarian action, prohibit inhumane treatment and forbid adverse discrimination, thereby preserving some degree of humanity in war.

There are, however, important substantive differences between these bodies of law. These differences lead to complex questions about the legal responsibilities of militaries in situations of armed conflict. In war, belligerents inflict death and destruction on each other, and so any law that seeks to regulate conflict must also acknowledge this reality. IHL permits killing the enemy and destroying property – something that is prohibited under IHRL unless there is no other option. IHL also permits detaining enemy soldiers for the duration of the war simply because they are enemy combatants.

So, the question is one of resolving conflict. Until recently, the answer to this question has been the maxim lex specialis derogat generali – that is, a special law derogates from the general law. The International Court of Justice in the Nuclear Weapons Case famously declared that: ‘the protection of [IHRL] does not cease in times of war…in principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however [is] determined by the lex specialis, namely [IHL].’5

1. I use these terms interchangeably.

2. Speech given by P. Maurer, president of the ICRC, at the United Nations Security Council Briefing, 3 May 2016, New York, USA. 3. M. Huckabee, 2015 Republican Primary Debate.

4. W. A. Schabas, ‘Lex Specialis – Belt and Suspenders – The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus Ad Bellum’, Israel Law Review, 2007, vol. 40, no. 2, p. 607.

5. M. Hansen, ‘Preventing the Emasculation of Warfare: Halting the Expansion of Human Rights Law into Armed Conflict’, Military Law Review, 2007, vol. 194, no. 1; quoted in A. Clapham, ‘Human Rights in Armed Conflict: Metaphors, Maxims, and the Move To Interoperability’, Human Rights and International Legal Discourse, 2018, vol. 12, no. 9.

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At first blush, this may seem like an elegant solution. However, this remark and limited guidance in subsequent cases have not helped to resolve actual norm conflicts. It has, however, provided ample space for international lawyers to discuss at length ‘the meaning of the expression lex specialis and, how the ICJ conceived the relationship between the two [bodies of law].7 Space does not permit an exploration into these discussions, but this extensive dialogue shows lex specialis seems to have raised more questions than it answered.8 So, in light of the broad acceptance that the substantive and procedural protections of IHRL do not cease in war, lawyers are now moving beyond arguing about lex specialis and turning to interoperability.

Echoing doctrinal approaches to multinational forces and military systems, interoperability describes ‘the ability of two complex systems to interact together in a harmonious way to achieve effective functionality, compatibility and mutual outcomes, through various processes including innovation, adaptation and partial standardisation.’9 This approach shifts from looking at legal regimes, to looking at specific norms and incidents. This has allowed for a distinction to emerge between incidents that involve the conduct of hostilities and those that are more analogous to law enforcement situations. For those that involve the former, the permissive rules of IHL will apply, informed by relevant aspects of IHRL. In the latter, IHRL will serve as the principal framework.

While there are still many issues that are yet to be resolved, the focus on interoperability progresses the analysis in a pragmatic way. Military lawyers and human rights defenders are now developing processes which enable these two bodies of rules to interact effectively, and in a manner that protects those who are not in the fight. It is encouraging that we have moved beyond unhelpful metaphors to focus on a practical implementation of the rules. Ultimately whether the ‘interoperability’ approach is successful will depend on whether those who are called upon to resolve norm conflicts between IHL and IHRL will do so in good faith. At their core, and despite their differences, the two bodies of law are aimed at protecting the most vulnerable.

6. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, at [25].

7. N. Quénivet, ‘Introduction: The History of the Relationship Between International Humanitarian Law and Human Rights Law’, in R. Arnold and N. Quénivet (eds), International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Brill, 2008), pp. 1–12.

8. See, for example, S. McCosker, ‘The ‘Interoperability’ of International Humanitarian Law and Human Rights Law: Evaluating the Legal Tools Available to Negotiate their Relationship’, in A. Byrnes, M. Hayashi and C. Michaelsen (eds) International Law in the New Age of Globalization (Brill, 2013).

9. McCosker, ‘The ‘Interoperability’ of International Humanitarian Law and Human Rights Law’; Clapham, ‘Human Rights in Armed Conflict’.

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THE CHALLENGE OF GUARDING AGAINST CONFLICT-BASED SEXUAL VIOLENCE TAMSIN PHILLIPA PAIGE Tamsin Phillipa Paige is Lecturer in International Law at Deakin Law School.

In international law, it was only in recent decades that conflict-based sexual violence (CBSV) started to be treated by International Humanitarian Law (IHL) as a crime against the personhood of the victim rather than a crime against military discipline.1 This development has since been reinforced by the United Nations Security Council Resolution 1325 (UNSCR1325) on Women, Peace, and Security (WPS), which sets out an agenda that focuses, in part, on preventing CBSV as a crime that disproportionally impacts women. Australia, like most states, has drawn on the WPS Agenda to inform what it should be doing at the national policy level on this issue, resulting in the publication of a National Action Plan on WPS in 2012. Given its central role in combatting CBSV in situ, the Australian Defence Force (ADF) was tasked with incorporating the Australian government’s interpretation of UNSCR1325 into its operational framework, with Exercise Talisman Sabre 2015 (TS15) – a biennial military exercise with the United States – marking its first attempt at doing so.2 Although there have been two Talisman Sabres since, this reflection piece focuses on TS15 as it constitutes the very first instance of the UNSCR1325’s operationalisation within a military operational context. What follows is a discussion of the key policy developments and challenges that characterised UNSCR1325’s implementation in TS15.

Particularly with respect to preventing and combatting CBSV, the integration of UNSCR1325 into the ADF’s operational framework resulted in the introduction of three new policies which, as discussed below, can arguably be ranked as being of decent to excellent in quality. The first policy to be incorporated into TS15 was the inclusion of a ‘gender adviser’ in the command team. The role of the gender adviser was modelled on the Female Engagement Teams (FETs) that had been used to build goodwill and gather intelligence in Afghanistan.

A gender adviser was included in all command meetings and was charged with ensuring that all decisions had considered the differentiated impact of armed conflict on different parts of society.

The gender adviser was thus responsible for keeping commanders mindful of the complexity of the human terrain of the area of operations. However, there remained the issue of the gender adviser’s role being misunderstood and misrepresented as being more about ‘getting women to talk to other women about women things’, which risked undermining the full positive potential of such a role, particularly in the context of preventing CBSV.3

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The second policy concerned the development of the Commander’s Guide to Implementing UNSCR1325 into Military Planning,4 which was designed to provide commanders with a checklist for different aspects of an operation to ensure that they adequately take into account a ‘gendered perspective’ in operational planning and decisions. Items in the checklist include such activities as: making sure that FETs and gender advisers are available for deployment; ensuring that civilian medical aid packages include supplies needed for childbirth, menstrual hygiene and other female ‘conditions’; ensuring that human intelligence gatherers speak to women as well as men; and identifying the family, religious, and social relationships within the area of operation. All of these inclusions are practical and reasonable; however, the fact that they need to be included in a checklist does underscore the deep-seated nature of the various challenges posed by gender discrimination and heteronormativity in the ADF. Moreover, the fact that LGBTIQA status receives scant attention in the document points to the heteronormative issue as well as the need for greater intersectionality awareness. Here, the reminder that some people may be queer was limited to only a passing clause in the checklist.

Figure 1: Soldier’s SMARTCARD

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The final policy that was implemented related to the provision to frontline troops of a ‘Soldier’s Smartcard’ (see Figure 1), which gives detailed, yet easy to understand and implement, guidance on how they are to conduct themselves when encountering CBSV victims. The document provides troops on the ground with eight points that they need to be aware of and/ or undertake when documenting and reporting incidences of CBSV. It also provides step-by-step advice, in a notable concise manner, on how to gather information about CBSV and document it, as well as the sensitivities surrounding issues of CBSV. Despite the adherence to a strict gender binary, which is in turn apparently based on a cisgendered

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heterosexual understanding of CBSV, the Card does demonstrate solid optics: it clearly communicates to soldiers the gravity of the traumas associated with CBSV, and places the well-being of victims at the centre of its concerns and those of the soldiers who have to deal with the aftermath. Although many issues (e.g. queer blindness and misogynistic institutional culture) remain with the WPS’ implementation in the ADF and across the Australian government, the Soldier’s Smartcard is an excellent tool that has emerged from the integration of UNSCR1325 into TS15.

Even so, the ADF should not be viewed as being wholly responsible for these ongoing challenges, as similar problems exist in other parts of the Australian government5 and even within the WPS framework itself.6 The fact that the ADF is aware of these issues, at the very least, is a cause for cautious optimism.7

ADF operational documents obtained by the author have since revealed how these policies were, at times, undermined by institutional and cultural challenges – in particular, those related to gender discrimination, heteronormativity and a lack of intersectionality. What this, in effect, highlights are gaps between rhetoric and reality. For example, while greater sensitivity has been brought to bear on intersectionality issues in the Australian Military Gender Advisers Course, this has not automatically resulted in compliance or changes to the broader institutional culture.

Indeed, looking through whole-ofgovernment and ADF documents, it would appear that the term ‘gender’ is still often used as a euphemism for women, with inadequate consideration given to LGBTIQA individuals and communities in these policy and operational publications.

1. The Prosecutor v Jean-Paul Akayesu (Trial Judgement) [1998] International Criminal Tribunal for Rwanda ICTR-96-4-T. 2. Details of the FOI request and documents released can be found on the Australian Department of Defence’s FOI Disclosure log under the title ‘The implementation of “Women, Peace and Security” principles into Exercise Talisman Sabre 2015’ (FOI No: 226/17/18): Department of Defence, ‘Disclosure Log’ <http://www.defence.gov.au/FOI/Decisions/DisclosureLog.asp>.

3. J. Wittwer, Integration of Women, Peace and Security into Military Strategic Guidance and Planning: A Case Study - Exercise Talisman Sabre 2015 (Freedom of Information Act Disclosure No Item 1 Serial 2, Department of Defence).

4. L. Jardins and Author Redacted, Commander’s Guide to Implementing UNSCR 1325 in Military Planning and Operations (Freedom of Information Act Disclosure No Item 3 Serial 1, Department of Defence).

5. For example, see Australian National Action Plan on Women, Peace and Security 2012-2018 (Federal Government of Australia, 8 March 2012) <https://www.dss.gov.au/sites/default/files/documents/05_2012/aus_nap_on_women_2012_2018.pdf>.

6. For a detailed examination of these issues in the WPS Agenda, see T. Paige, ‘The Maintenance of Heteronormativity’, in D. Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risk (Routledge, 2017).

7. This article features additional contributions from Pichamon Yeophantong.

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MILITARISED SECURITY: UNDERSTANDING THE RELATIONSHIP BETWEEN THE ARMED FORCES OF THE PHILIPPINES AND HUMAN RIGHTS SARAH WILSON Sarah Wilson is a graduate of the University of Queensland, having completed a degree in International Relations and Peace and Conflict Studies.

Since the declaration of martial law under President Marcos in the 1970s, the Armed Forces of the Philippines (AFP) have come under scrutiny for their human rights abuses, particularly with regard to their use of extrajudicial killings (EJKS) throughout their campaigns to protect domestic ‘security’.

Human rights organisations, international institutions (i.e. the United Nations) and the media have worked to highlight this relationship, with much critical attention directed to the AFP’s activities in three key campaigns: the Islamic insurgency in Mindanao, the communist insurgencies around the state, and the AFP’s treatment of Indigenous Filipinos. In each of these cases, the human cost of EJKs is staggering.

Families are left to mourn loved ones as communities are kept in constant fear, unaware of who will be targeted next.1 While it is tempting to vilify the AFP for these human rights abuses, members of the AFP tell a different story. Ferdinand Quidilla, a chief of the AFP Southern Luzon Command (where acute human rights violations against Indigenous Filipinos have been reported), maintains that the AFP’s ‘military offensives are within the bounds of the AFP rules of engagement, respect human rights (and international humanitarian law) at all times’.2 They have long maintained that their soldiers are taught to follow and respect human rights. In 2010, the AFP established the AFP Human Rights Office (HRO), which works to guide soldiers on human rights practice and keep track of alleged human rights violations that come their way.3 This article seeks to understand this paradox. In so doing, it will explore how the human rights abuses perpetrated by the AFP are symptomatic of deeper

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structural issues that surround the protection of human rights within the AFP and the Philippines, more broadly.

UNDERSTANDING THE STRUCTURAL FACTORS BEHIND HUMAN RIGHTS ABUSES According to Leslie Advincula-Lopez, a professor of anthropology and sociology at Ateneo de Manila University, the AFP’s engagement with human rights takes place on two levels: the individual level (i.e. how individual soldiers understand and respond to human rights norms) and the structural level (i.e. the institutions and mechanisms that guide and constrain soldier behavior).4 At the individual level, the AFP appears to possess a well-developed understanding of human rights. This is manifest in the responses to a survey conducted by AdvinculaLopez in 2012 which sought to gauge the human rights understanding of AFP personnel. One soldier, for instance, noted how the AFP ‘taught me that my rights stop where the rights of others begin’, whilst another observed that ‘[human rights refers to]…the right to life…the essence of his humanity’.5 If individual soldiers are aware of what it means to respect human rights, what then explains the frequent use of EJKs and violence?

Approaching this question from the structural perspective may help to shed some light. The AFP’s current structure was designed by former President Ferdinand Marcos (in office from 1965-1986). The pre-Marcos military had been largely built by the Americans, who had occupied the Philippines from 1898-1946. They had sought to imbue the AFP with values that were conducive to human rights promotion, including civilian supremacy, impartiality, and detachment from the political process.6

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The post-Marcos military, however, was a changed institution. In his efforts to consolidate political power, Marcos declared martial law and took steps to personalise the military. The military was reformed to suit his purposes, with changes including: an integration of the military into the political process; abolition of ideas relating to civilian supremacy; and changed constitutional control over the military.7 In effect, the AFP’s new structure resulted in a ‘total institution where the members are cut off from the wider society and the daily routines administered by a single authority in accordance with a rational plan’.8 This isolation from broader society creates a gap between the military and civilian society, which arguably, makes violence easier to rationalise and commit.

At the same time, violence is woven into the very fabric of the AFP. New cadets in the AFP are subject to a violent initiation process, in which they are forced to undergo a degrading and violent process of breaking down their ‘civilian’ identities and building their new military identities.

This initiation process is common to militaries worldwide, being used to ensure that soldiers are socialised into the military structure. Accounts from former cadets include mentions of regular beatings, humiliation, electrocution, and grueling physical activities.9 The use of systematic violence to deconstruct and rebuild one’s self is reminiscent of anthropologist Nancy Scheper-Hughes’ assertion that ‘everyday violence makes mass violence and genocide possible’.10 With respect to the AFP, working within a military structure that normalises violence invariably breeds an active willingness to use force as a first resort.

These structural conditions are exacerbated by the highly militarised environments in which the AFP works.

Testimonies taken from the AFP soldiers themselves find that in a ‘battle situation, individuals do regress to their sub-human nature [and here] there is the greatest possibility for violations’.11 A senior officer in the AFP admits

1. X. Arcangel, ‘Indigenous People Group Claims Human Rights Abuses by Military’, CNN Philippines, 2018, <http://cnnphilippines. com/news/2018/07/19/afp-lumad-mindanao-surigao-del-surhuman-rights-abuse.html>; T. Miles, ‘U.N. Says ‘Massive’ Rights Abuses in Southern Philippines Could Intensify Under Martial Law’, Thomson Reuters, 2017 <https://www.reuters.com/article/usphilippines-security/u-n-says-massive-rights-abuses-in-southernphilippines-could-intensify-under-martial-law-idUSKBN1EM0SN> 2. D. T. Mallari, ‘AFP Human Rights Abuses to Rise in ‘All-out’ War, Says Lawyer’, Inquirer News, 2017, <https://newsinfo.inquirer. net/869737/afp-human-rights-abuses-to-rise-in-all-out-war-sayslawyer> 3. Ibid.

4. L. V. Advincula-Lopez, ‘Human Rights in the Eyes of the Filipino Soldier’, Philippine Sociological Review, 2012, vol. 60, pp. 131-164.

5. Ibid, p. 146.

6. P. Chambers, ‘Constitutional Change and Security Forces in Southeast Asia’, in M. Bünte and B. Dressel (eds.), Politics and

that on a battlefield, ‘emotions run high and [when] the situation calls for quick decisions in order to survive, there is the greatest possibility for human rights violations’.12 Working within such highly securitised conditions forces AFP soldiers to create a ‘hierarchy of dangers’, in which ensuring the security and survival of AFP soldiers takes precedence over the protection of civilian human rights.13 THE POLITICAL DIMENSION OF MILITARY BRUTALITY The AFP’s use of EJKs has a distinct political dimension. In the Philippines, the military has become a tool for powerful politicians looking to achieve personal goals and gain power. Political leaders capitalise upon the structures of the AFP that enable human rights abuses (i.e. their isolation from civilian structures and their willingness to use violence) to forcefully achieve their goals.14 A clear contemporary example of this is seen in recent developments in Duterte’s ‘War on Drugs’. Despite international condemnation, the Duterte administration continues to sanction upwards of 10, 000 extrajudicial killings (EJKS) in his ‘crackdown’ on drugs. In 2017, Duterte militarised this campaign, and through this, actively facilitated the AFP’s use of EJKs to achieve his political purpose.15 The political dimension to the AFP’s actions points to a more systemic link between the Philippines and human rights abuses. Whilst the soldiers in the AFP are the physical actors committing the human rights abuses, the pervasive influence of the structure and the environment in which they work in means that they aren’t always acting out of their own volition. In this way, attempts to reform the AFP’s approach to human rights must first tackle the structural issues surrounding the protection of human rights in the AFP and the Philippines as a whole. These include: the AFP’s isolation from civilian structures; their exposure to ‘everyday’ violence; the highly militarised environments in which they work; and the influence of political figures and structures upon their actions.

Constitutions in Southeast Asia (Routledge, 2017), p. 103.

7. T. Lee, ‘Personalism in the Philippines’, in T. Lee, Defect or Defend: Military Responses to Popular Protests in Authoritarian Asia (John Hopkins University Press, 2015), pp. 81-83; 87-92.

8. Advincula-Lopez, above n 4, p. 141.

9. Advincula-Lopez, above n 4, pp. 143-4.

10. Advincula-Lopez, above n 4, p. 143.

11. Advincula-Lopez, above n 4, p. 158.

12. Ibid.

13. Ibid.

14. A. Jetschke, ‘The Philippines 1999-2008: Counter-Terrorism and Human Rights Violations’, in A. Jetschke, Human Rights and State Security: Indonesia and the Philippines (University of Pennsylvania Press, 2011), p. 232.

15. L. Karen, and M. Petty, ‘Philippine Leader to Use Troops in Drug War, says willing to kill more’, Thomson Reuters, 2017 <www. reuters.com/article/us-philippines-drugs/philippine-leader-to-usetroops-in-drug-war-says-willing-to-kill-more-idUSKBN15H0N7>

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THE TRADITIONAL JAPANESE SPIRIT AND EXPERIENCES OF WAR: REFLECTIONS ON JAPAN’S INTERNATIONAL PEACE COOPERATION ACTIVITIES SHUTARO SANO Shutaro Sano is a Professor at the National Defense Academy of Japan.

Japan firmly believes that the promotion and protection of fundamental universal values and human rights is in the interest of the international community. Tokyo has upheld the highest standards of human rights as enshrined in its Constitution and has steered its efforts to promote human security through international commitments and bilateral dialogues.

In the field of defence, the Self-Defense Forces (SDF) have begun to engage in various types of international peace cooperation activities including peacekeeping missions (PKOs), as well as humanitarian assistance and disaster relief (HADR) operations in respect of these values. The SDF acknowledges the importance of these values, but also the challenges associated with them.

Human rights issues per se have not posed as a major challenge to the SDF in its operations, which may be viewed as a rather unique phenomenon.

The SDF have tended to perceive the importance of human security intuitively – that is, they inherently acknowledge the importance of these issues. More specifically, despite their relatively short history of engaging in overseas missions, such as HADR which is just over twenty years, the SDF have acknowledged the importance of human security and contributed to

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restoring the life and welfare of the local people.

These activities are not purely of a technical nature, but are also informed by traditional Japanese culture that emphasises the spirit of the Japanese people, as epitomised by the principles of harmony (wa), self-sacrifice (jiko-gisei), and benevolence (jin) – the essence of what was elaborated in Inazo Nitobe’s classical book Bushido. Moreover, these principles are reflected in such practices as showing respect for local cultures and traditions (e.g. by not taking off one’s combat uniform or relaxing in the presence of those affected even during breaks), avoiding actions that may be viewed negatively by locals (e.g. refraining from driving quickly through puddles after the rain), and by notifying the locals of SDF activities in advance (e.g. informing them when and how road construction will take place). These may appear to be trivial examples but are nonetheless important, as they speak to the SDF’s ability to win the hearts and minds of the local populations which is, in turn, critical to promoting human security in conflict or disaster affected areas.

In light of Japan’s role and experiences during World War II, this historical memory has necessitated the SDF to be humble and accommodating, as well as attuned to the importance of human rights issues. Domestic public support for the SDF has increased dramatically over the years: in January 2012, over 90% of Japanese people surveyed had a positive perception of the SDF, marking an increase from 80.9% in January

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2009. The major role played by the SDF in large-scale humanitarian and disaster relief operations at home since the mid-1950s – for example, after the 1995 Kobe Earthquake and the 2011 Great East Japan Earthquake – has largely contributed to this gradual increase in public support for the SDF. (The SDF has engaged in around 40,000 missions in total, averaging at 500 cases per year.) Even so, it deserves note that it has taken approximately fifty years for the Japanese people to truly approve of the SDF’s existence and its participation in peace cooperation activities overseas.

Here, the SDF’s humility and endurance, in both organisational and individual terms, has often been highlighted to the Japanese public in view of their domestic and overseas missions. This is apparent from

the retirement speech of Admiral Katsutoshi Kawano, Joint Chief of Staff of the SDF, in April 2019, where he noted how: ‘Trust collapses in a matter of seconds. Do not forget to be humble and forge ahead as a SelfDefense Force that remains close to the people, always’.1 Today, a key concept that undergirds the SDF and their international peace cooperation activities is that of genbamesen, which literally means to act from the ‘viewpoint of the local people’. This idea represents the essence of Japanese culture as well as the lessons learnt from World War II, which obligates the SDF to provide utmost respect to the people, in order to ensure that human rights is promoted and protected in their activities both at home and abroad.

Warrick Eady Phase, 2016 Australian National Veterans Arts Museum Collection www.warrickeadyphoto.com @warrickeadyphoto

Warrick Eady served with the Australian Army, between 2005-2014, including in Afghanistan.

Photography became a means for coping with depression and anxiety after he left the army.

It got him ‘out of the house, if only to see the sunrise over a beach’ on days when personal motivation waned. Warrick’s main focus is exploring surf and ocean photography. Phase was shot at Redhead Beach, south of Newcastle.

“The more I think about it, the more the metaphor of a wave seems to fit the struggle I had once I left the army. A cyclical motion of highs and lows, each wave looking different, some petering out, slipping back into the ocean, while others come to a crashing halt on the shore.”

In May – June 2019, Warrick held his first solo exhibition - These Seven Seas - in Newcastle.

1. ‘Kawano-shi, Tōbakuchō rininshiki de aisatsu “tsuneni kenkyosa wasureruna”’ [Mr Kawano speaks at his farewell ceremony as Joint Chief of Staff, ‘Always do not forget to be humble’], Kyodo News, April 1, 2019.

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HUMAN RIGHTS IN FIFTH DIMENSION WARFARE: EXPOSED AND UNDEFENDED JOSHUA WILSON Joshua Wilson is a Pilot Officer in the Royal Australian Air Force and a graduate of UNSW Canberra.

The future of warfare is dictated in large part by technological progress. In the battles of today, militaries contest not just the classical domains of air, sea, land and space, but in fifth dimension warfare, that of the cyberspace as well. Unfortunately, this development has serious implications for the pursuit of human rights and the humane conduct in war. The state of affairs in cyberwarfare is such that many equivalent state and non-state actors are able to conduct operations with minimal boundaries and oversight, in ways that threaten the human rights of noncombatants and with little concern for accountability.1 In order to fully understand the effects of cyberwarfare, it is important to invalidate the notion that cyberwarfare is not kinetic and therefore cannot impact upon the rights of persons in war. Taking the Clausewitzian definition of war as ‘an act of violence intended to compel our opponent to fulfil our will’, cyberwarfare is commonly understood to be distinct from conventional warfare in its lack of any violent effect.2 This challenges the very idea of cyberwarfare: is it really ‘warfare’? Can it actually have any negative humanitarian effect? But to understand cyberwarfare in this manner is both flawed and dangerous.

In 2010, one of the largest and most effective cyberweapons to date was employed against Iran. Known as Stuxnet, the computer worm targeted programmable logic controllers in order to vary the speeds of Iranian nuclear centrifuges and subsequently cause them to self-destruct. This well-executed attack saw around one-fifth of the

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centrifuges destroyed and significantly impaired the Iranian nuclear program, demonstrating the significant power that cyberattacks have to influence physical domains in both a kinetic and violent manner. A similar attack, directed at critical national infrastructure, would have severe and crippling effects on combatants and non-combatants alike.

This raises one of the major concerns with cyberwarfare: duality. The prevalence and importance of technology in civilian infrastructure furnishes cyber combatants with the ability to wreak devastating effects on non-combatants.

The interdependence of most computer systems makes targeting difficult and increases the likelihood of collateral damage to civilian infrastructure.3 It can often be impossible to differentiate between purely military and purely civilian computer infrastructure.4 Transportation, power, communications, water supplies, sanitation systems, and even government administrations can all be brought down by a cyber-attack. This has led some commentators to go so far as to claim that certain acts of cyber warfare may be prosecutable as war crimes.5 In order to visualise these effects, consider the following scenario. A military commander orders an operation to begin with a cyber-electromagnetic attack to degrade enemy defences and disable supporting infrastructure in an occupied village. In doing so, a cyber-team instigates an indiscriminate attack which shuts down the networks, systems and power in the entire area, affecting not just the occupied buildings but a nearby hospital as well. This

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attack effectively disables the hospital and shuts down crucial equipment such as life support systems, communications and water supply. Even if every effort was made to restrict the attack to the occupied buildings, the issues surrounding duality would make strict discrimination extremely difficult. This demonstrates just how much power cyber-combatants have to influence physical domains and, therein, the human rights of non-combatants.

Despite widespread recognition of these issues, the cyber domain is notoriously unregulated. The laws and doctrines which have been put in place to regulate the behaviour of combatants, such as International Humanitarian Law (IHL) and domestic defence law, were enacted with conventional warfare and sovereign states in mind. The cyber domain, on the other hand, is anarchic, privatelyrun, and without traditional state boundaries. This problematises the enforcement of human rights because it enables warfare to be carried out with a degree of anonymity and almost no oversight. The Stuxnet case noted earlier suggests the inability of pinning responsibility conclusively on any particular actor. While the attack is believed to be of joint United States and Israeli origin, it has been virtually impossible to prove this. The issues of duality noted above also directly challenge one of the fundamental principles of IHL: discrimination.6 Thus, while pre-existing laws do retain a level of general applicability to cyberwarfare, they are not presently sufficient to mitigate these new challenges.

approach to warfare by private military companies (PMCs). Past cases, such as the killing of a security guard by a drunk Blackwater employee in 2006 and the shootings of 37 Iraqi civilians by Blackwater employees the following year in the Nisour Square Massacre, demonstrate the inability of present legal frameworks to regulate the conduct of PMCs and prosecute offenders.

Moving forward, it is likely that we will see some PMCs expand to adopt cyber warfare capabilities. The nature of cyberspace means that such actors can have an equivalent, if not greater, capability and strength than state forces. Yet, the anarchic, private and anonymous nature of cyberspace will facilitate the operation of PMCs while rendering the regulation and prosecution of such actors more difficult.

Warfare is steadily becoming indivisible from cyberspace and we can expect that in coming years, this domain will only grow in importance. Present efforts to remedy the associated humanitarian concerns with cyberwarfare, however, have been limited and generally ineffective. The international community needs to take responsibility for developing a legal instrument which can regulate a humane approach to cyberwarfare and prosecute offending combatants. The challenges of this are many: such an instrument will likely need to exist outside of the statecentric paradigm and address key issues such as anonymity, lack of national boundaries as well as increased duality. Until it is created, however, one’s human rights in warfare will be at an increased risk of violation.

The nature of cyberwarfare will, moreover, compound existing issues surrounding the enforcement of a humane

1.

2.

3.

4.

N. Akyesilmen, ‘Cybersecurity and Human Rights: Need for a Paradigm Shift?’, Cyberpolitik, 2015, vol. 1, no. 1, pp. 53-54.

C. von Clausewitz, On War, trans. Colonel J.J. Graham (New York: Barnes and Noble, 2004), p. 3.

A. Colarik and L. Janczewski (eds), Cyber War and Cyber Terrorism (Hershey: The Idea Group, 2007).

C. Droege, ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians’, International Review of the Red Cross, 2012, vol. 94, no. 886, p. 539.

5. A. Colarik and L. Janczewski, Cyber War and Cyber Terrorism (New Zealand: IGI Global, 2007).

6. Droege, ‘Get off my cloud’, p. 561.

CHANGED FOREVER LEGACIES OF CONFLICT 11 SEPTEMBER 2019 – 30 APRIL 2021 The photographer (Michael Christofas) and veteran artist (Sean Burton) collaborated with the Australian National Veterans Art Museum (ANVAM) to create the Persona – Veteran Artist Portrait Project Series.

Persona is an ongoing collaborative project beginning in late 2017, documenting and supporting notions of identity and transition in the growing Australian veteran arts community. Images from the series will be shown alongside paintings, sculpture, and poetry supported by the ANVAM collection in Changed forever, a travelling exhibition by the Shrine of Remembrance, from 1 September 2019 – 30 April 2021. www.shrine.org.au/Exhibitions/Travelling-Exhibitions Michael Christofas Sean Burton, 2017 Persona series www.michaelchristofas.com.au @michael_christofas

The Australian National Veterans Arts Museum (ANVAM) is a unique organisation that provides arts-based programs and experiences for current and former members of Australia’s military services and their families.

ANVAM invites participants to choose from a range of expressive possibilities that may enhance mental, physical and social wellbeing. In partnership with the broader veteran community, ANVAM is working to enhance the in-service and post-service support available to veterans and their families.

ANVAM’s vision is to transform an art deco building into a cultural institution dedicated to improving their health and wellbeing through art therapy and arts engagement programs. ANVAM is currently delivering programs to veterans through partnerships and direct mentoring of veterans and families. www.anvam.org.au

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