Whatever their motivation WikiLeaks undermine international humanitarian law

The vast bulk of material recently released by WikiLeaks would not be new in nature to those who keep up with the Afghanistan War or the difficulties and perennial moral quandaries of fighting wars generally. However, this latest material goes well beyond justifiable whistleblowing, such as the earlier helicopter gun-camera film showing probable breaches of the laws of armed conflict by US forces in Iraq.

WikiLeaks is not authorised in international or Australian law — nor equipped morally or operationally — to judge whether open publication of such material risks the safety, security, morale and legitimate objectives of Australian, allied and Afghan troops fighting in a UN-endorsed military operation.

Nor should and can groups such as WikiLeaks be so authorised or equipped respectively.

Especially when they are unaccountable to any responsible authority or international humanitarian law (IHL) in a legal or moral sense. 

Particularly when there are many alternative avenues available for legitimate dissent about the war that do not endanger our troops, irresponsibly bolster enemy propaganda, repression and will, and do not undermine the universal acceptance of international law. 

Moreover, all Australians owe a moral and legal responsibility to the troops we send to fight our wars not to endanger or otherwise betray them.

Even if some of us might disagree with the government decision to send them or oppose the war involved.

No other position is tenable in a parliamentary democracy ruled by law and based on reciprocal obligations among its citizens. 

As an Australian citizen, WikiLeaks’ Julian Assange may be guilty of a serious criminal offence by assisting an enemy the Australian Defence Force is legitimately fighting on behalf of all Australians. Especially if the assistance was intentional.

Whatever his motives, his actions again highlight the need to further amend our treachery laws to also prohibit reckless assistance to such an enemy.

This is because all Australians must exercise reasonable care for our troops even if dissenting from the government decision to deploy them. 

More broadly, WikLleaks’ actions and declarations, and much of the subsequent media coverage, lacks moral, legal and historical contexts.

The media coverage is also often based on incorrect assumptions or sensationalised or biased interpretations of the material. 

For example, Taliban and Al Qa’eda belligerents captured in the Afghanistan War are not somehow held “without trial” or “detained unlawfully”.

As in any war, they are lawfully interned under the Geneva Conventions as the specialist international law applying – and this internment has always been duly monitored independently by the International Committee of the Red Cross (ICRC) as the designated inspecting power (as has also occurred, incidentally, at the Guantanamo Bay internment centre). 

They are not subject to “extrajudicial killings” either.

Killing enemy belligerents in a war, even without warning, is not a judicial act but lawful combat (if the Hague and Geneva Conventions are complied with).

Again the incorrect term “assassination” has been too readily but wrongly bandied around in a sensationalist and out-of-context fashion.

And with no regard for the fact that Taliban belligerents do not wear a uniform and are often difficult to distinguish from civilians in a counter-insurgency war. 

Tragic though it always is, accidentally or unavoidably killing non-combatants (including most but not always all civilians) in combat is also not illegal under IHL unless done deliberately, indiscriminately, or disproportionately to the battlefield objective necessarily involved.

The circumstances of each tragic case must be examined, in context, separately, to discern the legal truth and moral consequences applying. 

In contrast, the Taliban and its Islamist allies largely reject IHL in letter and spirit.

They routinely torture and murder prisoners, not treat them in accordance with IHL and detain them under supervision by the ICRC.

Non-combatants, including civilians, are routinely targeted and killed by the Taliban without compunction and often indiscriminately and disproportionately..

ISAF’s battlefield mistakes on the other hand are almost invariably the result of typical wartime tragedy, accidents and at times incompetence or personal failure, not deliberate or institutional policy.

Moreover, ISAF moral standards and operational procedures are necessarily self-correcting with transgressions generally reported, investigated and punished. We should expect no less. 

The over-arching moral and practical problems that WikiLeaks and its apologists ignore are the clear legal and moral differences between ISAF and the Taliban. 

ISAF is fighting while applying (however imperfectly at times) the rule-of-law generally, and international humanitarian law in particular, to the difficult circumstances of UN-endorsed warfighting in a thoroughly broken civil society and polity.

The Taliban and its Islamist allies on the other hand deliberately reject IHL and treat ISAF’s difficult adherence to this law as merely a vulnerability to be (illegally) exploited. 

All wars are always nasty, morally confusing and ethically challenging.

But all wars are also contests of ideas, morals and, ultimately, will. 

Responsible criticism of ISAF in Afghanistan is legitimate, necessary and too often deserved.

But so is responsible and consistent criticism of the Taliban.

Including constant note that it is at the bottom of a legal and moral abyss compared to the legal mandate, moral responsibilities and obligations (even if unreciprocated), and IHL-compliant activities of ISAF.

Since the loopholes in our archaic (pre-UN Charter in 1945) treachery laws were finally closed by the Security Legislation Amendment (Terrorism) Act, 2002, an Australian citizen anywhere in the world now commits an offence if he or she (among other things):

  • intentionally assists, by any means whatsoever, an enemy, at war with the Commonwealth;
  • intentionally assists, by ‘any means whatsoever’, another country or organisation that is engaged in armed hostilities against the Australian Defence Force (ADF); or
  • forms an intention to do any of the above acts and manifests that intention by an overt act.


03 August 2010
The Canberra Times, Page 9, (under the heading "There are other, safer, avenues of anti-war protest")
[Passages marked in red were excised from the Canberra Times version only]

Thursday, 29 July 2010
Crikey.com, Item 10