Investigating Operational Incidents in a Military Context : Law, Justice, Politics [1 ed.] 9789004277106, 9789004277090

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Investigating Operational Incidents in a Military Context: Law, Justice, Politics

International Humanitarian Law Series VOLUME 43 Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack

Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiří Toman The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law including, – protection for victims of armed conflict and regulation of the means and methods of warfare – questions of application of the various legal regimes for the conduct of armed conflict – issues relating to the implementation of International Humanitarian Law obligations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law.

The titles published in this series are listed at brill.c0m/ihul

Investigating Operational Incidents in a Military Context: Law, Justice, Politics

Edited by

David W. Lovell

leiden | boston

Library of Congress Cataloging-in-Publication Data Investigating operational incidents in a military context : law, justice, politics / edited by David W. Lovell. pages cm. -- (International humanitarian law series ; volume 43) Includes bibliographical references and index. ISBN 978-90-04-27709-0 (hardback : alk. paper) -- ISBN 978-90-04-27710-6 (e-book) 1. War crimes investigation. I. Lovell, David W., 1956- editor. KZ7390.I58 2015 363.25’938--dc23 2014043581

isbn 978-90-04-27709-0 (hardback) isbn 978-90-04-27710-6 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhofff, and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents

Acknowledgements

vii

List of Contributors

ix

1

Introduction: The Challenges of Investigating Operational Incidents

1

David W. Lovell

2

A Strategic Commander’s Perspective

21

Rear Admiral James Goldrick, RAN (Ret)

3

Bloody Sunday: Politics, Truth and Justice in the Widgery and Saville Inquiries

31

David Blaazer

4

The Maxim of Thucydides: Transparency, FactFinding, and Accountability in East Timor

51

Clinton Fernandes

5

The UK in Basra and the Death of Baha Mousa

71

Rachel Kerr

6

Haditha: A Case Study in Response to War Crimes

87

Tom Ayres

7

Investigating Violations of International Human Rights Law and International Humanitarian Law through an International Commission of Inquiry: Libya and Beyond Annemarie Devereux

99

vi

Table of Contents

8

Ethics or Politics? The Palmer Commission Report on the 2010 Gaza Flotilla Incident

123

Deane-Peter Baker

9

The Challenges of Green-on-Blue Investigations in Afghanistan

147

Clive Williams

10

The Tension between Secrecy and Transparency: Investigations in the ‘Wiki Age’

169

David W. Lovell

11

The Emerging Paradigm for Operational Incident Investigation

197

Rob McLaughlin

Bibliography

221

Index

241

Acknowledgements

The inspiration for this volume came from discussions I held with Captain Rob McLaughlin of the Royal Australian Navy in 2011 about the difficult issues surrounding investigating operational incidents, particularly in light of the allied experience in Afghanistan and Iraq. By that stage a senior academic with the ANU, Rob persuaded me that this topic was worth a detailed examination and that we should take stock of recent developments. My rather diverse interests (in a disciplinary sense) combined with his more focused international law interests to assemble a group of scholars whose contributions to our request you have before you. I thank them for their efforts, as I thank Professor Tim McCormack for welcoming this unconventional volume into the Brill series in IHL that he co-edits. David W. Lovell Canberra, 2014

List of Contributors

Brigadier General Thomas E. AYRES, US Army is a lawyer and a soldier; he received a BS degree from West Point and a JD from the University of Pennsylvania’s School of Law. He currently serves as the Commander of the US Army Legal Service Agency and the Chief Judge of the US Army Court of Criminal Appeals. Recent key assignments include the Commander of The Judge Advocate General’s Legal Center and School, and the Staff Judge Advocate for Multinational Corps-Iraq. He was also the lead attorney for the 82nd Airborne Division during Operations Enduring Freedom and Iraqi Freedom in Afghanistan and Iraq. He began his Army career as an infantry officer in Italy, and later served as chief prosecutor at Fort Stewart, Georgia and as an environmental litigator in Washington, DC. His military awards include the Bronze Star with two Oak Leaf Clusters and the Master Parachutist Badge. Deane-Peter BAKER teaches in applied ethics at UNSW Canberra. In August 2012, he came to Canberra from Annapolis, Maryland, USA, where he was an Assistant Professor of Ethics in the Department of Leadership, Ethics and Law at the United States Naval Academy for two and a half years. Prior to that Dr Baker was Associate Professor of Ethics at the University of KwaZulu-Natal in South Africa, where he taught for eleven years. His PhD was awarded by Macquarie University. Dr Baker is an External Research Associate of the US Naval Academy’s Forum for Emerging and Irregular Warfare Studies (FEIWS), and was formerly Director of the University of KwaZulu-Natal Strategic Studies Group. Dr Baker resigned from the South African Army Reserve in 2009 with the rank of Major. He served as Convenor of the South African Army Future Vision Research Group and as part of the leader group of the Umvoti Mounted Rifles, a reserve armored cavalry regiment. A specialist in both epistemology and the ethics of armed conflict, Dr Baker’s

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research straddles philosophy, ethics and security studies. From 2006 to 2008 Dr Baker was Chairman of the Ethics Society of South Africa. He has held visiting fellowships at the Triangle Institute for Security Studies in North Carolina and the Strategic Studies Institute of the US Army War College, and was a 2010/11 Academic Fellow of the Foundation for the Defense of Democracies. From 2007 to 2010 Dr Baker was editor of the African Security Review. David BLAAZER is an historian in the School of Humanities and Social Sciences at UNSW Canberra, where he is also Associate Dean (Education). He has taught extensively in modern British and Irish history, including courses on Irish nationalism and the Northern Ireland troubles. He has also given numerous training seminars on the Provisional Irish Republican Army and British counter-terrorism. Most recently, he has supervised a successful doctoral thesis on the British Army in Northern Ireland 1969–1972. His early research was on the history of the British non-communist left 1870–1939. His current research interest is in the social and cultural history of money in the British Isles since 1603, on which he has published numerous articles. Annemarie DEVEREUX is an international and public law lawyer whose major practice has been with the United Nations and the Australian Government. She undertook her Law and Arts Honours degrees at the ANU, completed an LLM at Columbia University and her PhD at the Australian National University. After working for Chief Justice Gleeson as his Research Director, Annemarie worked briefly in private practice before commencing work with the Attorney General’s Department (1995–2000). In 2009 she was appointed as Assistant Secretary in the Office of International Law in AGD. Her engagements with the UN (from 2000–09, and 2011–) have included working as a legal adviser in 3 human rights components of peacekeeping missions in Timor Leste, for OHCHR-Nepal, for the Security Council’s Counter Terrorism Committee Executive Directorate and on International Commissions of Inquiry. In 2011, she was the Senior Legal Adviser for the International Commission of Inquiry for Libya. Annemarie is currently on leave from AGD while she undertakes further international law work. Alongside her legal practice, Annemarie maintains a keen interest in academic matters, being an Adjunct Professor at QUT and having had fellowships/ adjunct teaching engagements at ANU, Sydney University, QUT, ACU

List of Contributors

xi

and Columbia University. In late 2012, she will be a visitor at RegNet, ANU. Clinton FERNANDES is in the School of Humanities and Social Sciences at the University of New South Wales Canberra, located at the Australian Defence Force Academy. His principal research area is ‘International Relations and Strategy’. He focuses on the ‘National Interest’ in Australia’s external relations. Rear Admiral James GOLDRICK (Ret) joined the Navy in 1974 as a 15 year old Cadet Midshipman. A graduate of the RAN College, he holds a BA from the University of NSW and a Master of Letters from the University of New England. He is a graduate of the Advanced Management Program of Harvard Business School. He was awarded the degree of Doctor of Letters honoris causa by UNSW in 2006. A Principal Warfare Officer and anti-submarine warfare specialist, he twice commanded the frigate HMAS Sydney and later served as Commander Australian Surface Task Group. During this posting, he commanded the Australian task group deployed to the Persian Gulf in early 2002 and also served as commander of the multinational naval forces conducting maritime interception operations to enforce UN sanctions on Iraq, including units from the RAN, the United States Navy, the Royal Navy and the Polish Armed Forces. He was made a Member of the Order of Australia for this service. He commanded the Australian Defence Force Academy from 2003 to 2006; was promoted to Rear Admiral (two star) in May 2006 and served as Commander Border Protection Command for two years; and served as Commander of the Australian Defence College from May 2008 to August 2011. He is currently a Fellow of the Sea Power Centre and an Adjunct Professor at UNSW Canberra. His books include The King’s Ships Were at Sea: The War in the North Sea August 1914–February 1915, With the Battle Cruisers (edited), Reflections on the Royal Australian Navy (co-edited), Mahan is Not Enough (co-edited) and No Easy Answers: The Development of the Navies of India, Pakistan, Bangladesh and Sri Lanka. Rachel KERR is a Senior Lecturer in the Department of War Studies at King’s College London. Prior to joining the faculty at King’s, she was a Commissioning Editor at Polity Press and Research Associate at the Centre for International Studies, University of Cambridge. She holds a BA in International History and Politics from the University of Leeds and an MA and PhD in War Studies from King’s College London. She

xii

List of Contributors

is co-convener of the War Crimes Research Group at King’s, and conducts research and teaching broadly in the area of international law and war, in particular war crimes and transitional justice. She is the author of The International Criminal Tribunal for the Former Yugoslavia: Law, Diplomacy and Politics (2004); Peace and Justice: Seeking Accountability After War (2007) and The Military on Trial: The British Army in Iraq (2008). From 2011-13 Dr Kerr was a Visiting Research Associate at the Centre for International Policy Studies, University of Ottawa. Her chapter builds on an earlier study of a set of cases brought against UK forces operating in Iraq in 2003/4 conducted under the auspices of the European Commission-funded Framework VI research project CHALLENGE, led by Elspeth Guild at Radbound University of Nijmegen, and published in 2008: The Military on Trial: The British Army in Iraq (Nijmegen: Wolf Legal Publishers). David W. LOVELL is a Professor of Politics and Head of the School of Humanities and Social Sciences at UNSW Canberra, located at the Australian Defence Force Academy. His PhD was in the field of the History of Ideas. He co-edits The European Legacy and is a member of the Australian Committee of the Council for Security Cooperation in the Asia-Pacific. He participated in a Human Rights Commission dialogue in Beijing in 1999, and in 2001 was a member of the Australian delegation to the Second Global Forum on Fighting Corruption, and now regularly contributes to the International Association of Anti-Corruption Authorities. In 2005 he was the only non-European to be invited to the EU’s ‘A Soul for Europe’ initiative in Budapest, and in 2006 he spoke on harmony and governance at the Beijing Forum. He has written or edited more than a dozen books on topics including military ethics, Asia-Pacific security, Australian politics, communist and post-communist systems, and the history of ideas. Rob McLAUGHLIN is an Associate Professor in the ANU College of Law and a Captain in the Royal Australian Navy, and has served as both a Seaman Officer (in surface units and submarines), and as a Legal Officer. His experience includes maritime law enforcement operations, deployments to East Timor and Iraq, and legal roles including Fleet Legal Officer, Director Naval Legal Service, and Director Operations and International Law. His research interests are in maritime law enforcement operations, law of armed conflict, and the application of Australian criminal and administrative law to military operations. Rob’s

List of Contributors

xiii

publications include: ‘The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications’ (2010) 13 Yearbook of International Humanitarian Law; United Nations Peace Operations in the Territorial Sea (Martinus Nijhoff, 2009); Multinational Rules of Engagement Handbook (with Alan Cole, Phillip Drew, and Dennis Mandsager) (Institute for International Humanitarian Law, 2009). Clive WILLIAMS is a former Military and Defence intelligence officer. Since leaving Defence in 2002, he has been a Visiting Fellow and Visiting Professor at the ANU and has run Masters courses at several other Australian universities. He has also worked overseas running Masters courses in Indonesia, Japan, Taiwan, and the US, and has worked in 15 countries, including Afghanistan. His most recent visit to Afghanistan was in April 2012. He is a member of the International Association of Bomb Technicians and Investigators (IABTI), the International Association of Chiefs of Police (IACP), the Australian Institute of Professional Intelligence Officers (AIPIO), and is an Associate of the International Academy of Investigative Psychology (AIAIP).

1 Introduction: The Challenges of Investigating Operational Incidents David W. Lovell

Militaries are organized to prepare for the deployment of, and where necessary to deploy, lethal force to achieve strategic goals. In operational mode, it is generally that lethal capacity—used in an appropriately targetted, disciplined and proportionate way—which is to the fore.1 ‘Operational incidents’ is a broad term used here to denote misconduct, misdeeds or mishaps that occur on operations, whether they concern, for example: the mistreatment of enemy soldiers (in combat or in detention); offences against civilians; conflict of varying levels within one’s own forces; or accidents that lead to injury or death within a theatre of operations. Alleged breaches of International Humanitarian Law (IHL)2 or the disciplinary regulations of particular militaries, or both, require at the very least an initial assessment to determine the facts and then, if warranted, a more substantial investigation. It is the latter process on which this volume focuses, as the use of force to achieve strategic goals becomes ever more subject to legal procedures. At an instrumental level, the need for investigating such operational incidents is evident, since they are a threat to the good order and functioning of a military that has been given a specific task to accomplish. And if a crime, including a 1

2

Though peacekeeping operations can have lethal dimensions, they are secondary; I exclude military operations which are concerned with aid to the civil community, or humanitarian and disaster relief operations, and where—unless they are sworn in as ‘special constables’ to assist police in maintaining law and order—members of a Defence Force are unarmed. Known commonly by militaries as the Laws of Armed Confl icts, and codified—to some extent—in the four Geneva Conventions (1864, 1906, 1929 and 1949) and their three Additional Protocols (1977 and 2005), the Hague Conventions (1899 and 1907), and the Geneva Protocol (1925).

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 1 – 19.

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crime against humanity, has been perpetrated justice must be done to the victims and the perpetrators, and must be seen to be done. Investigations are one part of the learning culture that modern military organizations deliberately try to foster; just as importantly, they are one part of a culture of international justice that humanity, now more than ever, seeks to consolidate. The need for robust investigations, however, is not always matched by the will and the ability to undertake them (as many of the chapters in this volume attest). There are many reasons for this gap. Increasingly, where the justification for particular military operations themselves is politically contested, such incidents may become grist to partisan politicking, point-scoring, or vindication; investigations may even be established in disregard of best practice.3 Evidence may not be fresh or may simply (and understandably) be difficult to gather. Soldiers may collude in presenting their side of the story to avoid reproach; soldiers at different levels may ‘close ranks’ to protect their comrades and their Service. Jurisdiction may be unclear. The wheels of the applicable law—where that is acknowledged—may turn slowly, and justice may not, in the end, be well served even if the letter of the law is observed. Operational incidents may, furthermore, reflect on poor training or culture within a military, or may point to poor decision-making in the acquisition of matériel. There are many obstacles, and many ‘interested parties’ (some with axes grinding). Nevertheless, there is now a substantial body of experience on which we can reflect more deeply on such investigations and their challenges. That is the purpose of this book. Regrettably, rarely a week passes without news of an alleged operational incident of the type examined herein, or its legal aftermath. Of particular concern over the past decade and more has been the behaviour in Afghanistan of the International Security Assistance Force (ISAF), created in December 2001, and of the allied forces which invaded Iraq in March 2003 and occupied that country until December 2011. The sheer availability of information, by way of ‘embedded’ and other journalists, soldiers’ accounts in social and other media, and the investigative skills of domestic opponents to these expeditionary operations, forms one part of this high profile. Another is related to the fact that such militaries have highly developed institutional mechanisms for responding to operational incidents, whether through their military justice systems, political 3

The general principles for an ‘effective investigation’ are summarized in the Second Report of the Turkel Commission; see below, n. 13.

Introduction: The Challenges of Investigating Operational Incidents

3

or judicial investigations, or through establishing international commissions. American and Israeli troops have frequently been accused of atrocities in their campaigns in Afghanistan and Iraq and in the Gaza Strip and West Bank, respectively, and—leaving the diverse and often disputed outcomes to one side—are scrutinized at length in domestic and international forums. Elsewhere, however, there are only intermittent reports of operational incidents from the numerous conflicts and insurgencies that continue to wrack the globe, though they are rarely connected with either the will or the mechanisms to investigate them thoroughly and pursue justice for the victims and punishment for the perpetrators. In the first half of 2013, troops were accused of atrocities in, among other places, Mali, Syria and the recently independent state of South Sudan. Towards the end of 2013, conflict in South Sudan flared up again with the alleged killings of at least a thousand people, apparently in a political struggle (turned ethnic bloodbath) between President Salva Kiir, and the former vice-president, Riek Machar.4 The world’s media have—if they stay true to form, briefly—focused on this ‘trouble spot’; but they are likely to move on when the shock factor wanes. The calls for justice will persist, however faintly. We cannot be confident that South Sudan has the institutional structure to investigate or prosecute alleged crimes committed during this period, but the International Criminal Court (ICC), established in 2002/3 as an independent, permanent criminal court to try crimes of concern to the international community in such circumstances, is hampered in its ability to intervene. Not because these crimes do not come under its jurisdiction (genocide; crimes against humanity; and war crimes); nor because some highly significant states, including the United States, have refused to ratify the Rome Statute that established the Court; but because the Court’s resources, including its ability to conduct investigations, are limited. Trials conducted by the ICC occasionally register in newspaper headlines, but of the cases it has conducted since 2003, only one has come to a conclusion with the conviction in March 2012 of Thomas Lubanga Dyilo, of the Democratic Republic of the Congo, on the charge of war crimes. Currently the trial of Jean-Pierre Bemba Gombo is underway 4

‘South Sudan: UN fears thousands dead as mass grave fuels fears of ethnic bloodshed’, ABC News, 26 December 2013; accessed 29 December 2013 at http://www.abc.net.au/news/2013-12-25/mass-grave-fuels-fears-of-ethnicbloodshed-in-south-sudan/5174688.

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in the ICC for the crimes committed by his Congolese militia in 20022003. But in addition, the ICC is currently investigating situations that occurred in Uganda, The Democratic Republic of the Congo, Mali, Darfur (Sudan) and Libya, among others. Preliminary examinations are also taking place in a number of situations.5 The legitimate fear, however, is that justice delayed will indeed be justice denied. The picture of contemporary investigations is complicated, especially in the legal sphere. For the sorts of incidents covered by a duty for initial assessment at the very least, and thus potentially for a full investigation, often cross national jurisdictions, and may be found snarled in the web of IHL (and international human rights law) and its emerging institutions and case law. Thus operational incidents often create issues of governmental and inter-governmental (and supra-governmental) jurisdiction, with all the potential for ‘boundary’ issues, application issues, and the punishment or restitution issues that these throw up. The hoary political issue of sovereignty, i.e., of the right of each state to make and enforce laws over its own territory, has reasserted itself at a time when the world is becoming increasingly globalized, national boundaries are increasingly porous to ideas, information and capital, and supra-national institutions (including companies, security arrangements, and even political unions) are commonplace. Paradoxically, even as it created the State as ‘a person of international law’,6 the developments in international law have begun to create standards and associated moral pressures that can be uncomfortable, and even confronting, for national jurisdictions. Strange bedfellows have been created between developed and developing countries—such as the United States and China—as they move to shield what they hold dear against the scrutiny of the international community, and retain control of what they regard as their vital interests. For the United States, and even despite the positive role it played in drafting the Rome Statute, that control is deemed to require an ability to veto ICC investigations and prosecutions: essentially, the right to veto prosecution of its citizens.7 At base, the concerns of non-signatory states to the Statute are 5

6 7

See the International Criminal Court, ‘Situations and Cases’, http://www. icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20 and%20cases.aspx (accessed October 18, 2013). The Montevideo Convention on Rights and Duties of States of 1933, Article 1; (1934) 165 League of Nations Treaty Series, at 19. In practice, because of the deference of the ICC to national investigations and prosecutions, this is unlikely ever to be a problem for the United States.

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political, not legal, for laws have a tendency to close off the openness, maneuverability, and the pursuit of ‘interest’, upon which politics thrives. Where an operational incident is clearly within national bounds, a government or its military generally responds in ways that conform to its laws and traditions, though they tend to be ever-mindful of the need to deal with the political implications (‘fall-out’ as well as opportunities) of the incident in question. Governments proceed in this area in a calculating way, depending on a range of factors including their estimation of likely political success or even survival, the strength of any organized opposition (including the worth of an independent, investigative press), and the likelihood of international pressure (for little escapes international attention nowadays). Governments, particularly democratic ones, are enormously concerned to shape the impressions of their citizens, and in countries with a tradition of military subordination to civilian authorities there is sometimes political capital to be made in criticizing military shortcomings that may be exposed by an investigation connected in some way with acquisition (‘waste’) or military culture. In non-democratic states, the political dynamics are quite different, and the ability to initiate or conduct an open and fearless investigation of a domestic operational incident is severely circumscribed; cooperation with an international investigation, where that is warranted, is unlikely to be willing or generous. Sometimes the will to investigate atrocities that occur within a national setting and then set the wheels of justice in motion is dependent on the larger game of international politics. We were powerfully reminded—after the chemical weapon attacks in Syria in August 2013— that the international community itself is divided, and that the chance for justice for ordinary people may be compromised by alliances and other deals between states. However much international institutions such as the United Nations and the International Criminal Court are staffed by honest and upright individuals, they can only do as much as they are allowed within this inter-state ‘great game’. The eleventh-hour deal to account for, collect, and destroy the Syrian government’s chemical weapons precursor chemicals—a process now underway as this chapter is being written—was a fortuitous extrication from a stalemate caused

Bartram S. Brown, ‘U.S. Objections to the Statute of the International Criminal Court: A brief response’, International Law and Politics, Vol. 31, 1999, 855-91.

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by Russia’s insistent support for President Bashar al-Assad’s beleaguered regime and US reluctance to intervene.8 To turn to the investigatory rather than political dynamics of the incident of August 21, 2013 in Ghoutta, Syria, where more than 300 people died of poisoning by the chemical agent, sarin—and from which the planned destruction of Syria’s chemical weapons stocks has arisen— the criminal responsibility has yet to be established. It is embroiled in political claim and counter-claim between the warring parties, and the blame game is perpetuated by their international backers. An independent, effective investigation is difficult, if not impossible, while the conflict persists (an obstacle that bedevils many investigations). Independence of investigatory efforts where IHL is at issue has a better chance of success with the involvement of international legal institutions (with their eye on legal norms that are more principled, consistent and enduring than inter-state alliances), eminent legal scholars (with their method of cogent, transparent legal reasoning), and international non-government organizations (NGOs). In the case of each, and whatever their loyalties and preferences, record and reputation are the surest safeguards of the integrity of their contributions. Nevertheless, we continue to see differences—even among jurists of the utmost integrity, and leaving aside the tendentious choruses that accompany many investigations—over issues of interpretation. For example, the UN Fact Finding Mission on the Gaza Conflict (the so-called Goldstone Inquiry), which reported in late 2009 on alleged violations by Israel of IHL during the Gaza War of January that year, has been beset by criticisms, inter alia, around its original mandate and its gathering of evidence.9 More recently, and more importantly for our central theme, the numerous investigations into the ‘Gaza Flotilla Incident’—including those by the Turkish government, by the United Nations, and by Israel (the ‘Turkel Commission’)— 8

9

U.S. Department of State, ‘Framework for Elimination of Syrian Chemical Weapons’, September 14, 2013, at http://www.state.gov/r/pa/prs/ ps/2013/09/214247.htm, accessed 5 January 2014. Two quite different assessments of the Goldstone Report may be found in: Richard D. Rosen ‘The Protection of Civilians During the Israeli-Hamas Confl ict: The Goldstone Report’, in D.W. Lovell and I. Primoratz (eds), Protecting Civilians During Violent Conflict: Theoretical and Practical Issues for the 21st Century (Surrey: Ashgate, 2012), pp. 251-270; and Susan Breau, ‘An Assessment of the Gaza Report’s Contribution to the Development of International Humanitarian Law’, in ibid., pp. 271-292.

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produced different findings depending on their different assessments of the legal regimes that applied or, within a particular legal regime, the compliance of the parties with the requirements of such a regime. These differences point to the developing nature of the jurisprudence of international law, as well as the fundamental indeterminacy of constructing interpretive arguments. (Thus, in The Republic, Plato has Socrates declare that “wherever the argument, like a wind, tends, there we must go”.) But we are not entirely without reliable guides in this rapidly developing realm, and the Turkel Commission itself has added substantially to our understanding of the normative dimensions of investigations within the sphere of IHL. In early 2013, in connection with an investigation established by the Israeli government to examine the ‘Gaza Flotilla Incident of 31 May 2010’ (the boarding of the ship MV Marmara, some of the outcomes of which are analysed in Chapter 8 of this volume), known as the Turkel Commission after its chief commissioner, retired Supreme Court judge Jacob Turkel, the second Report of the Commission was released. Aside from the matters themselves under investigation, this Report makes a significant advance in the clarification of the framework of international law for examining and investigating claims of violations of IHL. While part of the Commission’s brief was to examine whether Israel’s domestic procedures in investigating the Incident conformed with international law, the second Report begins with the broader question: What are the obligations of a state under international law for investigating complaints and claims of violations of the laws of armed conflict? It is worth pausing to outline its key responses. In the first place, the second Report reviewed the applicable rules of international law. In connection with the jus in bello aspects of law governing the use of force, the Report is clear that alongside IHL, there are three additional bodies of law relevant to the duty to examine and investigate [alleged] violations of international humanitarian law: international human rights law, international criminal law, and the laws of State responsibility. Each of these bodies of law is comprised of treaty law, customary law and “soft law”.10

As for human rights law, the Report states:

10

Chapter A, Para 3.

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Notwithstanding their primary goal of ensuring the basic protection of human rights, the conventions nonetheless allow States to derogate from certain human rights in specific circumstances in which the State’s vital interests are implicated. Such derogation is permitted, for example, during a “time of public emergency which threatens the life of the nation”. The derogation must be public, necessary, temporary, proportionate and non-discriminatory. It should be noted that only some rights can be derogated from but other rights, for example, the right to life and the prohibition on torture, are non-derogable.11

Although it notes that there is disagreement about the extent and applicability of these various bodies of law in specific situations, the Commission is of the view that they are complementary. The same act, for example, may be liable under the various bodies of law, though the agent held responsible, depending on the law applied, may be different (it may be state, or an individual). The Report goes on to make a total of 18 recommendations for the State of Israel to bring its domestic institutions, laws and practices in the military and security spheres to the level of international best practice, even though it found that Israel had responded, in the investigative sense, in accordance with international law. As to the normative framework against which a state’s response to allegations of war crimes should be measured, the Report states that there is a duty to conduct an investigation wherever there is a reasonable suspicion (deepened by a preliminary fact-finding assessment) that a war crime has been committed. Such an investigation should be effective: for which the general principles are “independence; impartiality; effectiveness and thoroughness; promptness; and transparency.” 12 There is, furthermore, a legal duty to examine all suspected violations of the laws of armed conflict that do not reach the threshold of a war crime. And, importantly, best practice in this area requires that an investigation

11 12

A, 9. The Turkel Commission, ‘Summary of Second Report’, pp.3-4; http:// www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2& ved=0CC4QFjAB&url=http%3A%2F%2Fwww.turkel-committee.gov. il%2Ffi les%2FnewDoc3%2FSummary.pdf&ei=P5jIUtydEKSUiQfw9YG YDQ&usg=AFQ jCNGVRr3fGMgnFWyIHILFiFqN77AIvw&bvm=bv .58187178,d.aGc ; accessed 5 January 2014.

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be separated from the chain of command, or that there is a move towards external oversight and review.13 Of all the guardians of investigative integrity, the International Committee of the Red Cross (ICRC), an international NGO and custodian of IHL for more than a century, can stand proud. The ICRC has been given a mandate to protect and assist civilians and other victims of armed conflict. As part of its protection mandate, the ICRC visits persons in detention and monitors the conduct of hostilities, to ensure compliance by the parties to an armed conflict with their obligations under IHL.14 But conducting an independent assessment of alleged violations of IHL, both during and following an armed confl ict, is also an important part of the ICRC’s protection work. While the ICRC acknowledges the primary responsibility of states to ensure respect for the rules during armed conflict and to investigate alleged violations by persons under their control, it plays a type of external auditing role. Amongst other things, it supplies confidential reports15 to states and enters into dialogue with them and other weapon bearers16 about the activities of their armed forces, reminding them about their obligations under IHL. The ICRC’s reputation for independence is both well-deserved and precious. The issue of independence also raises the question of whether in some cases the public, either directly or through the news and social media, may put undue pressure on the investigation of an operational incident without a requisite knowledge of appropriate procedure and law. A recent Australian case highlights this point, when charges of manslaughter brought against two Australian servicemen were dismissed amidst a public outcry. In brief, the facts of the case are these: on 12-13 February 2009, members of the Australian Special Operations Task Group in Afghanistan conducted a raid in Sorkh Morghab seeking to capture a Taliban leader. Responding with grenades to gunfire from a 13 14 15

16

Ibid., p.4. ICRC; http://www.icrc.org/eng/what-we-do/index.jsp; accessed January 5, 2014. For the ICRC’s approach to confidentiality, see ICRC, ‘Confidentiality: key to the ICRC’s work but not unconditional’, http://www.icrc.org/eng/ resources/documents/interview/confidentiality-interview-010608.htm; accessed January 5, 2014. http://www.icrc.org/eng/what-we-do/building-respect-ihl/dialogueweapon-bearers/other-weapons-bearers/overview-icrc-other-weaponbearers.htm; accessed January 5, 2014.

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house, the Australians killed six Afghans, five of whom were children. Consequently, two Australian commandos were charged with manslaughter and other offences under the Defence Force Discipline Act. The manslaughter charges were ultimately dismissed in a pre-trial ruling on the grounds that they were wrong in law. The legal issue turned on whether the soldiers had a legally enforceable duty of care to the people who died (as distinct, for example, from whether they were reckless in their use of lethal force); the judge ruled that there could be no such duty of care.17 In law, this outcome was perhaps to be expected, but there remained public unease that a ‘law-breaker’ had not been identified, and that the dismissal of the charges was due to a ‘technicality’. The intense interest generated by media reports describing the Sorkh Morghab incident as a ‘botched raid’,18 as well as the indisputable tragedy of the deaths of innocents, tended to obscure the legal complexities of the case. Thus independence may be compromised by external, just as much as by internal, pressures. It is worth recalling that the Rome Statute allows the ICC jurisdiction in cases where a State is unwilling or unable to carry out an investigation or prosecution,19 where ‘unwillingness’ includes the notion that ‘The proceedings were not or are not being conducted independently or impartially’.20 Militaries are sometimes assumed, by their critics, to be 17

18

19 20

For a discussion of this case, see Joshua Kelly, ‘Re Civilian Casualty Court Martial: Prosecuting Breaches of International Humanitarian Law Using the Australian Military Justice System’ (2013) 37(2) Melbourne University Law Review (Advance); http://www.google. c om . au /u rl ? s a = t & r c t= j & q = & e s r c = s & s o u rc e =w e b & c d = 2 & v e d = 0 C C 8 QF j A B & u r l = ht t p% 3 A% 2 F % 2 F w w w. l a w.u n i m e l b. e d u . au%2F61CEF0B0-3302-11E3-B7FA0050568D0140&ei=zYHLUu7aKoHlAW_1IHYAw&usg=AFQ jCNHadJ_cK6icmwd_k1d2QOeurVcSqg&bv m=bv.58187178,d.dGI accessed January 7, 2014. Bette Dam and Tom Hyland, 2011, ‘Botched army raid based on false tip’, The Sydney Morning Herald, 22 May 2011, http://www.smh.com.au/world/ botched-army-raid-based-on-false-tip-20110521-1exnc.html; accessed January 7, 2014. This is part of the so-called ‘complementarity principle’: that the ICC shall be complementary to national criminal jurisdictions. United Nations, 1998, Rome Statute of the International Criminal Court, Article 17(2)(c), http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s& source=web&cd=1&ved=0CCsQFjAA&url=http%3A%2F%2Fwww.icccpi.int%2Fnr%2Frdonlyres%2Fadd16852-aee9-4757-abe7-9cdc7cf02886%2

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incapable of conducting sufficiently independent investigations of alleged war crimes by their own armed forces, but this is far too sweeping a view. The European Court of Human Rights (ECHR), for example, in the case of McCann and Others v. The United Kingdom (relating to the shootings by British troops of three suspected Provisional IRA terrorists in Gibraltar in 1988) considered that the various shortcomings of the Gibraltar Inquest into the killings cited by the applicants—particularly that it had occurred in a ‘garrison’ town—had not ‘substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings’.21 Other jurisprudence from the ECHR suggests that the Court attaches specific importance to the fact that the persons who are expected to carry out the investigation, are independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.22

Whether militaries are sufficiently independent to conduct effective investigations is an important issue; but it is just as important to ask whether they have the capacity and capability to do so. Is the party responsible for conducting an investigation able to create, staff, fund and otherwise properly support the investigation? There are variations in competence, even amongst those militaries—generally Western—that have the greatest institutional capacity to undertake investigations. In 2006 an audit of the Australian Defence Force investigative capability found that there were serious deficiencies in the structure and functioning of the existing capability, centred on individual Service Police, and it led to the establishment of the Australian Defence Force Investigative

21

22

F283503%2Fromestatuteng1.pdf&ei=K3HLUpugNceHkwX29oGYAg&us g=AFQ jCNEMOG9UP0qthl_T5SI-jFNiYHhdaQ&bvm=bv.58187178,d. dGI Accessed January 7, 2014. European Court of Human Rights, 1995, Judgment in the Case of McCann and Others v. The United Kingdom, http://hudoc.echr.coe.int/sites/eng/ pages/search.aspx?i=001-57943 , accessed January 7, 2014, Para 163. Harmen van der Wilt and Sandra Lyngdorf, 2009, ‘Procedural Obligations Under the European Convention on Human Rights: Useful Guidelines for the Assessment of “Unwillingness” and “Inability” in the Context of the Complementarity Principle’, International Criminal Law Review, Vol. 9, pp. 39-75, at p. 51.

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Service that investigates serious incidents and crimes of those subject to the Defence Force Discipline Act. The audit was damning: The principal deficiencies in SP [Service Police] investigations identified by the audit team are untimeliness and inferior quality briefs of evidence. Other perceived deficiencies included the less-than-impartial pursuit by SP of alleged offenders in order to achieve a successful prosecution, a focus on finding guilt rather than simply inquiring thoroughly and collecting material for possible evidentiary purposes, and a lack of investigation experience, capacity and skill.23

The audit, however, reminds us that military organizations such as the ADF are subject to frequent reviews, not just internal to the military justice system but also external (from parliamentary inquiries, through the Commonwealth Ombudsman, to external consultants appointed by the Chief of the Defence Force or the Attorney-General), in relation to operational incidents, systems of inquiry and investigation themselves,24 and ‘cultural change’. A recent overview of reviews of the ADF connected to issues of culture and behaviour reveals that from 1995 to 2012, there were 24 such reviews, with 18 of them being external.25 While the latter sorts of cultural investigations are not our primary concern here, they amplify the point that an extraordinary effort is being devoted at any one time to investigation, inquiry and review by Western militaries.

23

24

25

Australian Government, Department of Defence, Report of an Audit of the Australian Defence Force Investigative Capability, July 2006, 2.1, Accessed 30 December 2013, http://www.google.com.au/url?sa=t&rct=j&q=&esrc= s&source=web&cd=2&ved=0CDEQFjAB&url=http%3A%2F%2Fwww. defence.gov.au%2Fpublications%2Fspauditreport.pdf&ei=YcHAUrugC Y6IkgWc3IHgBQ&usg=AFQ jCNG0rqHqXlbYujFxpZojm_8tuLR7g&bvm=bv.58187178,d.dGI. Australian Government, Department of Defence, Re-thinking systems of inquiry, investigation, review and audit in Defence Annex C, ‘Analysis of previous relevant inquiries’ (nd, 2012?), Accessed 30 December 2013, http:// www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved =0CCsQFjAA&url=http%3A%2F%2Fwww.defence.gov.au%2Fheader%2F documents%2FAnnexC.pdf&ei=YcHAUrugCY6IkgWc3IHgBQ&usg=AF Q jCNGenXjAAgoGzI57G0INpQ JBngaaiA&bvm=bv.58187178,d.dGI. Clint Arizmendi, ‘A Culture of Reviews’, Australian Defence Force Journal, 192, 2013, pp. 81-89.

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A note on terminology is also appropriate at this stage. While ‘investigation’ and ‘inquiry’ are interchangeable in most circumstances, the ADF’s report on ‘Re-thinking systems of inquiry, investigation and review’ made a distinction between the two that mirrors the earlier use in this chapter (and elsewhere in this volume) of the terms ‘initial assessment’ and ‘investigation’. The Review’s classification is worth reproducing: –

–

–

An inquiry is any fact-finding process to inform administrative and command decisions within Defence—including decisions to prevent recurrence of an incident, to change systemic problems, or to refer an individual for investigation. An investigation is a fact finding process that underpins a determination of individual criminal, civil or disciplinary liability. A review is a reconsideration of decisions or actions that have already been made.26

The distinction between ‘inquiry’ and ‘investigation’ is important, at least in the current Australian context, to help frame the potential legal powers of the investigator or inquiry officer, and the likely rights of a person being quizzed by such an investigator or inquiry officer. An inquiry is conducted for the purpose of fact-finding; an investigation is conducted for the purpose of subsequent potential proceedings to adjudicate personal liability. Case studies This work proceeds, in Chapter 2, with the thoughtful observations of a recently-retired Australian naval commander, Rear Admiral (Ret.) James Goldrick, who has seen the wide range of challenges of commanding at sea and on land. A key requirement for armed forces on operations is to improve their performance. For the commander, the immediate priority in an investigation after an event is the development of understanding. Only by comprehending what happened can individuals, units and organizations learn and improve. Depending upon the circumstances, 26

Australian Government, Department of Defence, Re-thinking systems of inquiry, investigation, review and audit in Defence. Stage A report for Secretary and CDF, August 2012, p.3. Accessed 30 December 2013, http://www. defence.gov.au/header/documents/StageAreport.pdf.

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timeliness may thus be a vital factor. Goldrick argues that sheeting home accountability may be important, but when conflicts are in progress and operations still to be run, this—to a certain point—is a secondary aim. It also has to be recognized, however, that an incident may be so serious— or the investigation may reveal failure on such a scale—that the issue strikes home at fundamental elements of a force’s organization or culture. Recognizing this possibility and possessing the ability to respond and avoid ‘covering up’ are essential within the constitution of any investigation. Both context and recognition of complexity need to be at the forefront of the investigating team’s minds at every point of the process. This means that careful consideration has to be given to the composition of the investigation team, to its terms of reference and to the timeline, as well as to the balance that may have to be achieved between speed and completeness. At every point in the process, sustained good judgement will be vital. For these reasons, the skills and outlook of the lawyer—particularly those of the advocate—must be matched by the understanding of subject experts who combine the necessary levels of detachment and disinterest with practical experience and a lively distrust of hindsight. David Blaazer examines the events and the prolonged investigative aftermath of ‘Bloody Sunday’ in Northern Ireland. ‘Bloody Sunday’ (30 January 1972), when British paratroopers fatally shot fourteen unarmed civilians and wounded fourteen more following a civil rights protest in Londonderry, was one of the most controversial incidents in the history of the British Army, and one of the most damaging to its reputation. Blaazer’s chapter examines the contrasts and similarities between the two official inquiries into the incident. The Widgery Inquiry, established the day after the incident, took eleven weeks to exonerate the British Army of all wrongdoing and to lay the blame squarely on Irish Republican paramilitaries. The Saville Inquiry, established 26 years later, took twelve years to lay almost all of the blame at the feet of individual soldiers, and to conclude that some soldiers had knowingly lied about their actions. Despite these differences the two inquiries had one striking similarity: each was conceived and conducted in accordance with the government’s understanding of the political necessities of the Northern Ireland troubles. In 1972 the overriding need was to defend the army as it fought the paramilitaries; in 1998 it was to facilitate reconciliation following the Good Friday Agreement. Blaazer concludes by suggesting that political requirements have made justice unattainable. Clinton Fernandes, too, raises the issue of justice—or its absence— in cases where the alleged wrongs have been undertaken in an expedi-

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tionary operation by the stronger power and the military justice system of that power is the one responsible for conducting investigations. Fernandes reminds us that power is an essential element in some investigations, and particularly in the initial decision about whether to investigate. Chapter 4 discusses the investigation of operational incidents in the case of East Timor after the intervention by UN troops, chiefly Australians, in 1999. Fernandes argues that there is a rich historical record that diverges sharply from official pieties about the necessity and importance of transparent investigations. Indeed, the record on investigations in East Timor conforms with great precision to the maxim of Thucydides: that ‘Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.’ Fernandes begins by examining the major periods in East Timor within living memory: the invasion of the territory during World War II; the invasion by Indonesia in 1975 and its occupation until 1999; the international peacekeeping presence under UN auspices from late 1999 to May 2002; and the foreign military presence from 2006 to the present day. He posits a central contrast: on the one side, there is an official doctrine, and on the other there is a historical record, and they have very little to do with each other. He examines how civil society groups have attempted to close the investigatory gap, and suggests further ways in which transparency, fact-finding and accountability might be introduced. Not surprisingly, Chapters 5 and 6 examine the legal and other aspects of highly-publicized operational incidents associated with the Iraq War. Rachel Kerr, in Chapter 5, looks at the record of the British presence in Basra. In 2003/04, a number of allegations of unlawful killing and abuse of Iraqi civilians were made against British forces operating in Iraq. Some of these allegations resulted in cases being brought against the State under international human rights legislation and against individual soldiers in civilian and military courts. Her chapter reviews these cases and considers their implications. It begins by discussing the legal, political and operational context in which the allegations of war crimes were made, moves on to discuss the detail of a selection of these cases, including the most notorious, concerning the death of Iraqi civilian Baha Mousa, and concludes with some observations on the fallout from these cases and their implications for the system of military justice and the international criminal justice agenda. Brigadier-General Tom Ayres, writing in a private but understandably well-informed capacity, focuses in Chapter 6 on US troop activities in Haditha during the Iraq War. In November 2005, Marines were

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allegedly involved in the deaths of Iraqi civilians in Haditha. Marines involved in the incident, members of the chain of command, and a serving Judge Advocate were later charged under the US Military’s Uniform Code of Military Justice. The disposition of these cases and a brief contrast and comparison to other war crimes in Iraq and Afghanistan are discussed. Annemarie Devereux’s chapter focuses on one aspect of the international community’s response to events in Libya in 2011: namely, the Human Rights Council’s mandating of an International Commission of Inquiry to: – investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya; – establish the facts and circumstances of such violations and of the crimes perpetrated and, where possible, to identify those responsible; and – make recommendations, in particular, on accountability measures, to ensure that those responsible are held accountable. Devereux examines key legal, methodological and operational questions which relate to such Commissions, including where the authority for such Commissions derives, the legal framework for their operation, and the particular practical challenges that arise in investigating violations of international human rights and humanitarian law. In Chapter 8, Deane-Peter Baker examines in detail the report of one of the investigations launched into the ‘Gaza Flotilla Incident’: the investigation established by the UN Secretary-General and widely known as the Palmer Commission. In May 2010, the MV Marmara and a number of other vessels seeking to break the blockade of Gaza were boarded by Israeli soldiers, leading to the deaths of nine persons. As previously mentioned, this Incident led to the creation of a number of investigations, each resulting in quite different conclusions about whether and how Israel had contravened international law. Baker is concerned to test two of the key findings of the Palmer Commission Report against the requirements of jus in bello norms. While the Commission concluded that the blockade of Gaza was legal, it found that Israeli action in boarding the vessels was ‘excessive and unreasonable’, and that the loss of life was ‘unacceptable’. Baker argues that the Commission’s own arguments do not support these findings, and he strongly suggests that they were motivated more by political, than by legal or ethical, considerations.

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Clive Williams examines the so-called ‘green-on-blue’ incidents in Afghanistan since the International Security Assistance Force entered the country in late 2001 (‘green’ denoting the Afghan police or military, and ‘blue’ the ISAF personnel). These sorts of attacks have become increasingly common, with dozens of ISAF troops killed in each of the recent years; in 2012, they accounted for 15% of all Western casualties.27 Williams looks at the background to such incidents, causative factors, implications, and investigative aspects. He also considers the prospect of preventing such incidents as the ISAF troop presence draws down towards the end of 2014. Investigations into such incidents have recommended higher levels of security for ISAF troops, and better intelligence about Afghan recruits, but the jurisdiction for the trial of suspects in such cases lies with the Afghan legal system.28 In my own chapter in this collection, Chapter 10, I look closer at the types of external pressures on investigations created by the explosion of publicly available information in the ‘Wiki Age’ of computer mediated, and virtually uncontrollable, data. I take ‘operational incidents’ to be those where there is a prima facie case that rules of engagement have not been followed, or matériel has failed, or proper procedures have been circumvented such that either the lives of non-combatants or one’s own forces have been lost or put at serious risk, or the good order and functioning of a military unit is in jeopardy. The purpose of formal investigations in this realm is multi-faceted: to discover what happened and why, to assign responsibility (and recommend punishment, if appropriate), and to learn the lessons to avoid a repetition of such failures. Logic suggests, and recent history confirms, that there are two major complications to the smooth creation of this virtuous feedback loop. First, where there is much at stake, there is also the potential for (inter alia) dishonesty or ‘cover up’, so that investigations are blocked, or distorted, or secretive, or inconsequential. And the stakes are indeed often high, for operational incidents are more or less damaging to military organizations 27

28

‘Pakistan aid in Hekmatullah arrest bodes well for peace talks: analyst’, ABC News, October 3, 2013, http://www.abc.net.au/news/2013-10-03/ pakistan-aid-in-hekmatullah-arrest-bodes-well-for/4996740. Accessed 30 December 2013. As demonstrated by the current trial of Sergeant Hekmatullah, accused of killing three Australian soldiers in Uruzgan in 2012; ABC News, October 2, 2013, http://www.abc.net.au/news/2013-10-02/afghan-accused-of-murderingthree-australian-soldiers-in-custody/4993578 ; accessed January 7, 2014.

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and the governments that deploy them. Effectual investigations require independence, honesty and courage from investigators at the very least. Second, the public availability of large amounts of information about particular incidents—authorized or not—means that investigations are increasingly played out in public. Indeed, the technological ability to share information, including classified information, is now massively enhanced, posing a fundamental challenge to governments’ routine (and often unnecessary) secretiveness; it weakens the credibility of government recourse to ‘national security’, a term that has been deceitfully abused. Yet despite a flood of information, the court of public opinion is not always well informed either about particular incidents or about the issues in dispute; vivid images of abuse, for example, supply urgency to the conduct of investigations, ensuring that they cannot be sidelined, but may obstruct the dispassionate analysis required of them. This chapter weighs the benefits and risks to operational investigations of the publicity they will increasingly confront in the ‘Wiki Age’. Rob McLaughlin brings this volume to a close by returning to the theme that animated our discussions at the outset of the project: what can we learn about the proper conduct of investigations into operational incidents from recent cases, and what does the future hold for legal and military authorities in this area? The key influences over the evolution of investigations in this area are the expansion of the pool of relevant law, the development of technology that enables better communication of information and gathering of evidence (while at the same time raising unrealistic expectations that military operations should be errorfree), the greater contribution by NGOs of various sorts, and finally the interconnectedness of states in operational matters which gives rise to even greater complexity (of law, and interested parties) in the investigatory process. There are three features of investigations that McLaughlin believes will characterize developments in the next decade and beyond. First, there will be greater demands for transparency of investigations, including about who conducted the investigation, and how. Second, the scope of what counts as an ‘operational incident’ will continue to expand, to encompass the sources of information and intelligence that led to an operation, and other parts of its planning. And third, investigations will remain open-ended, in the sense that both facts and findings may be revisited formally again and again. ***

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A broad work on investigations into operational incidents in the military sphere, such as this, is an ambitious undertaking. We have limited ourselves to contemporary history, for while picking over the entrails of the ill-fated Charge of the Light Brigade in 1854, the mutiny on the HMS Bounty in 1789, or the Indian Rebellion of 1857—each of them with significant consequences for the actors concerned and for the organization of military forces thereafter—might shed some light on present-day challenges, the overwhelming features of the context we seek to illuminate further are substantially different. Nowadays, we expect, with due respect to Lord Tennyson’s dramatized account, that our soldiers will ‘reason why’, and not simply ‘do and die’. Indeed, the transition of soldiers from what might be termed ‘cannon fodder’ to ‘strategic corporals’ brings with it not just greater autonomy but much greater responsibility for combat initiative, and for observing the rules of war. Likewise, we do not draw from the (often outstanding) work of recent military historians with an operational bent. The good historians’ battles against clichés and swift conclusions are worthy, but our concerns are elsewhere, focusing chiefly on informing contemporary investigatory practice. There is an underlying hope (and often much pious rhetoric) in human activity that we will learn from our mistakes. The twentieth century philosopher, George Santayana, famously declared that ‘Those who cannot remember the past are condemned to repeat it’. In the sphere of public policy, a vast industry is given over to deconstructing the lessons of the past, even if it is sometimes motivated by considerations of political advantage (‘blame’). But the enduring lessons that animate the contributors to this volume are simpler: all exercise of power is open to abuse, and the bearing of arms is an exercise of power that carries with it heavy responsibilities. Thus we must be prepared to advocate and defend an effective investigatory system which gives a voice to the less powerful while protecting the rights of all. And so in its accounts of investigations from the recent past this work offers, for those who care to listen, some salutary guides to the challenges to investigating operational incidents in a military context.

2 A Strategic Commander’s Perspective Rear Admiral James Goldrick, RAN (Ret)

What is an operational incident? It is an interesting question, perhaps most of all because it is so difficult to determine in active military organisations where operations stop and everything else starts. In particular, incidents which may not themselves be operational or on operations may well have profound implications for their conduct. My inclination is therefore to take a wide view of what constitute operational incidents and what investigations come within the ken of these proceedings. The focus of this book, inevitably and probably rightly, is on the investigation of operational incidents that relate to potential wrong doing— the commission of acts which are either illegal, unethical or both. But, I would suggest, it is important to understand that a commander’s perspective must extend more widely into the requirement to learn from what has happened. In other words, investigations may be and are required, not only to establish accountability, whether individual, collective or systemic, but also to achieve improvement in order that operations can be conducted more effectively and that organisations work better. This focus on doing things better is one that will underlie my discussion. Let me add some other caveats. Although the most well known investigations in the last decade or so have related to potential wrong doing and to serious crimes of violence—and these will occupy much of the attention of the book—my perspective as a naval officer and some of the examples that I intend to cite relate more closely to platform issues: to ship and aircraft accidents and incidents. I will also add the important point—as one of the joys of being retired and no longer a full time member of the Navy—that the views I express are not only my own personal opinions but are very definitely not necessarily those of the RAN or the ADF as a whole. Finally, I am not a lawyer, but I have had a great David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 21 – 29.

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deal to do with them over my entire life, so I feel that my observations and suggestions have some legitimacy. Identifying the Need All that said, I don’t think that I will get any disagreement from currently serving senior officers that the requirement to learn and improve will be the first factor in the mind of a commander and achieving that learning in the most expeditious and effective way the immediate goal. However, there does need at the same time to be a readiness to accept that there may be more to an event than meets the eye; that in the worst situations there may have been wrong doing and that such wrong doing may involve more than the actions of those directly involved. Doing something about this is equally key to the commander’s execution of their responsibilities. There is necessarily a conflict here between a commander’s loyalty to their subordinates and to their service; and there will also be, to be completely frank, a fear of the unintended consequences. Thus, there will always be an element of internal conflict which has to be overcome in accepting such a requirement with its ramifications of intrusion and inquisition—and that acceptance may then need to be ‘sold’ to higher command and to subordinates alike. The more difficult ‘sell’ will almost always be to those below. But if there is a lesson that will be clear already to many readers, one which will be drummed home to us over and over again in the case studies and discussions that will appear in this book, it is that failure or tardiness to accept that there may have been wrong doing will result only in greater anguish, greater damage to the individuals involved and even greater collateral damage to their services and to the other members of those services. I will, however, add another caveat, which is of concern to me as a former commander but also in a more general sense as a present citizen. It is the increasing inability of our culture to accept that good people make mistakes but remain good people and that an operational or any other sort of professional error does not necessarily equate to negligence or to incompetence. I am also afraid that, where—as, for example, in an air accident—that accident may have resulted directly and principally from the actions of those involved, it has become very difficult for others, particularly immediate families, to accept that this may be the case. I am increasingly uncomfortable in these circumstances even with the term ‘error of judgement’ and the extent to which it can become loaded. The

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word ‘error’ seems to me to be a simplistic one when applied to a decision made under stress, with inadequate time available and in a dangerous, complex and ambiguous environment which has resulted in unfavourable consequences. My particular fear here for the military is that a ‘zero defects’ mentality may end up with our developing, selecting and retaining military leaders who lack the ability to take risks and seize the passing opportunity which is so vital in war. I will tell you that my advice to new commanding officers that the reality of the future is not that they may make mistakes, but that they will make mistakes and that the first real challenge of command is when the commander has made a mistake, when it is clearly their fault and when their team as well as everybody else are well aware of this. In such circumstances, the test of both character and competence is the quality of the recovery—which includes recognition and admission of the mistake. I should add that I do recommend that they not make the same mistake twice—then I will begin to think that they are stupid. The problem is, how do we recognise mistakes in a constructive way and how should they be reported and described? Conducting the Investigation How then should an investigation be conducted? I suppose that one of the things that I want an investigator to develop is an understanding of context without an uncritical acceptance of that context. It is in this aspect that, as a historian, I am not convinced that legal or even police investigatory skills are ideal by themselves, particularly at the early stages. What is wanted is a clear picture of the whole, not a line of argument. Let me expand further on what I see as the place of lawyers, because I see this as an important issue. As I survey the history of inquiries and investigations, it seems to me that lawyers should support but not lead the conduct of the less complex investigations, while in the more complex they should have the leading but not an unsupported role. What do I mean by this? In simpler circumstances, a good lawyer can be extraordinarily helpful in ensuring attention to process and to the maintenance of natural justice on the part of the investigating officer. The forensic and inquisitorial skills of the lawyer can support the investigator in framing questions and—at the right point—developing lines of inquiry, but, above all, they can help determine that matters do not go too far, or that actions are taken which might prejudice later decisions. It is also clear that an inves-

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tigation may identify that there are issues which are relevant to the subject of the inquiry which are outside both its scope and capability. Again, it is here that I think that qualified legal staff can have a role to play in helping to identify sufficiently early when this is the case. On the other hand, I have a fundamental concern with inquiries into complex operational matters which are solely conducted by lawyers, or in which lawyers or people with legal training can have an undue influence. There are two famous instances of what can go wrong in such circumstances. The first is Australian in the first Royal Commission into the sinking of HMAS Voyager in 1964. To be fair to Robert Menzies, the Prime Minister of the day, setting up the Royal Commission was not only an immediate political response to a serious incident, but also at least partially in response to the Navy’s less than adept handling of inquiries and disciplinary action resulting from a succession of other accidents and incidents in previous years. However, as a former Australian state Chief Justice has apocryphally remarked, Royal Commissioners often go off the rails and Counsel Assisting the Commission always go off the rails. In this case, the Counsel Assisting, a keen amateur yachtsman, regarded himself as sufficiently expert in seagoing matters as not to require technical advice. As events were to prove—and I acknowledge that the Navy itself handled the affair very badly—he was tragically mistaken.1 The second instance is more complex, but equally worth reflection. In early 1949, the Royal Canadian Navy suffered a succession of what have been described as outbreaks ‘of mass insubordination’.2 I would be inclined to describe them as mutinies, albeit non-violent. A commission of inquiry followed, which produced an extraordinarily wide ranging assessment of the culture of the RCN and what needed to be done to improve the service. Much of what came to be called the ‘Mainguy Report’ was good, but it is clear in retrospect that many of its conclu1

2

The best studies of the Voyager affair remain those by Tom Frame. The first, directly based on his PhD Thesis, is Where Fate Calls: The HMAS Voyager Tragedy Hodder & Stoughton, Sydney, 1992. The second, The Cruel Legacy: The HMAS Voyager Tragedy Allen & Unwin, Sydney, 2005, is a revised and compressed version with some additional material, particularly relating to events after 1992. Richard Gimblett ‘Mutinies in the Royal Canadian Navy’ Articles & Projects CFB Esquimalt Naval & Military Museum. Downloaded 17 Aug 12: www.navalandmilitarymuseum.org/resource_pages/controversies/rcn_ mutinies.html.

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sions, particularly those which focused on the alleged British attitudes of RCN officers inappropriate to the Canadian situation, were driven by the powerful influence of a French-Canadian naval volunteer reserve officer, Louis Audette. His personal perspective of war service—much of which was in ship command—and his own interactions with the British Royal Navy profoundly coloured his own outlook and progressively that of the commission as a whole, including Rear-Admiral Mainguy who was the chair. Audette was in civilian life a lawyer and on his own testimony, as well as the internal evidence of the Mainguy report, he put his skills of argument and persuasion to determined use to drive the commissioners to the conclusions he wanted.3 Only more than fifty years later has more dispassionate analysis suggested that the Mainguy Report was at least partially misdirected and subject to Audette’s prejudices. Even lawyers can lose their ability to detach themselves from the subject. If I can gently suggest an associated tendency on the part of the legal profession here, it is what I term the fallacy of ‘mastery of the universe’: the assumption, particularly by barristers, that their ability to master a brief creates the capacity to master the intricacies of any subject. In particular, I think that this can generate over-confidence in judging such issues as operational decisions under stress, particularly when that stress includes being in immediate personal physical danger or being responsible for subordinates in immediate personal physical danger. If you haven’t been there, as Clausewitz spent a great deal of time trying to explain in On War, it is incredibly difficult to understand what it is like. And I don’t just mean combat risk; simply operating at sea or in the air can be pretty frightening. I can say from my own review of the reports of inquiries and investigations, both in Australia and overseas, that if I have a concern, it generally relates to a lack of comprehension of context and circumstance in high-stress environments. Interestingly enough, the fact that such rapidly acquired mastery is impossible in some circumstances has long been recognised within the maritime domain by the addition of what are termed nautical assessors to the courts of admiralty in the United Kingdom, as well as to marine inquiries generally. These assessors were available to the presiding judge to provide advice on technical issues; in particular, they provided the 3

For Louis Audette’s perspective (persuasively argued) see L.C. Audette ‘The Lower Deck and the Mainguy Report of 1949’ James A. Boutilier (Ed.) The RCN in Retrospect 1910-1968 University of British Columbia Press, Vancouver, 1982, pp. 235-249.

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Chapter 2 – Rear Admiral James Goldrick, RAN (Ret)

depth of understanding of context required to establish whether particular decisions were reasonable and justifiable in the circumstances. I don’t propose to go here into the debate as to whether such assessor advice should be in private and available only to the judge or provided in open court, with the ability for interested parties to submit contradictory expert advice.4 But I do suggest that the availability of a disinterested but truly expert authority is a vital element to making a complex investigation work properly. And that such an authority should be privy to and able to advise on all facets of the professional evidence and information available to the inquiry, not simply matters identified by the presiding officer. I use the word ‘disinterested’ deliberately and in what I understand is its correct meaning. I am not arguing, particularly in relatively small organizations such as the Australian Services or even the ADF as a whole, that assessors need to be or even should be drawn only from within those organisations. The fact is, particularly when there are potentially wide and long term cultural and systemic issues at stake, that insiders bring personal and organizational baggage with them that can affect the quality and legitimacy of their advice—disinterestedness, in other words, is very difficult to maintain, as in the case of Louis Audette. In these circumstances, I think that there is real potential in the concept of importing suitably experienced and qualified personnel from other countries. For example, given the similarities of culture, size and capacity—as well as a shared political and legal heritage—a Canadian officer may be well qualified to support an investigation into an Australian issue, with minimal risk that there will be something in their history that would invalidate their judgement. My point in being willing to go overseas is that I think the key requirement is for someone who has done the same work that is involved in the matter at issue—navies need naval experts, and so on—and that this, within some limits, over-rides nationality and other aspects. I am much less comfortable with the importation of experts from what are considered ‘parallel’ occupations. For example, as a naval officer, 4

A good (if inevitably dated) survey of the role of the assessor is provided in Anthony Dickey ‘The Province and Function of Assessors in English Courts’ The Modern Law Review Vo. 33, No. 5, September 1970, pp. 494507. The NSW Law Reform Commission Report No 109 of 2005 ‘Expert Witnesses’ is also valuable as background. The rules for Nautical Assessors in the UK were refined in the 2005 Case “Global Mariner and Atlantic Crusader”.

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I have sometimes become impatient with commentary about my service and seagoing life from those who, however hard and demanding their own line of work, have been able to go home every night, rather than having to share a large steel box with a couple of hundred other people. The incomprehension that is so often evident extends more often than it should to the other Services, but I’ll also admit that seagoing challenges are not something that the Navy has found it easy to explain to others in ways that they can understand. I also emphasize that I am not arguing against a legal ‘lead’ in complex investigations. The qualities and expertise of experienced judges are not readily reproducible and the fact is—as it should be—there is recognition in the Australian community that the presence of a judicial officer does inherently mean that an inquiry or investigation will be impartial and transparent. In circumstances where this would or could be in doubt, there should be no hesitation in securing the services of a judge to lead the work. On the other hand, particularly for the audience within a military service, the extent to which a report—particularly a critical one— will be accepted as legitimate will depend upon the perception that there has been real subject matter expertise available at every stage. I think that we are all aware of some recent instances when this has been called into question, whether fairly or not. I am also not suggesting that the presiding officer must necessarily follow the advice and guidance of the assessors. There is always the risk of a situation analogous to the ‘emperor’s new clothes’ if the judge does not approach matters critically and with a fresh eye. Sometimes it will indeed be the outsider who will identify a fundamental problem which has gone unrecognized by the experts. In such circumstances, however, I believe that there needs to be clear and public acknowledgement of the existence of a difference of views and the reason for it. And the assessors themselves need to be able to go back to first principles and regard matters with a fresh eye—above all, they need to avoid the sort of situation that once occurred between a British defence minister and the head of the Royal Navy. When the latter was asked why Britain had a Navy, the response was ‘Secretary of State, if you have to ask that question, you shouldn’t be Secretary of State’. In other words, there needs to be both an element of creative tension and a readiness to question assumptions on the part of all concerned. So, may I finish by asking that my readers consider some of the points of method and process that I have raised in developing a way ahead for operational investigations and their best conduct?

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Chapter 2 – Rear Admiral James Goldrick, RAN (Ret)

I want to round out my discussion with a story to indicate that the truth—and the right outcomes—are never simple and rarely pure in any investigation. My master’s degree thesis dealt with what was called the ‘Australia Court-Martial of 1942’ in which two young stokers were tried by court-martial and found guilty of the murder of a third.5 It is a fascinating and nationally significant case, as a direct result of which this country adopted the Statute of Westminster in three days after a delay of eleven years. I don’t propose to go into all the details—you can read them in the thesis—but a key issue was, although the victim was recovered mortally wounded and interviewed before his death, his evidence was not taken as a dying deposition and was therefore inadmissible. The stokers were tried and convicted solely on circumstantial evidence. Many regarded the finding as a miscarriage of justice and a commission of inquiry under wartime regulations was eventually set up. However, the commissioner, Justice Maxwell (senior) of the New South Wales Supreme Court, confirmed the verdict, despite the absence of a motive. What is significant is that he quoted the eloquent plea of the Captain of the Australia for clemency for the two for their capital sentences written immediately after the court-martial. Both were very young and had been in the ship on operations for many months with little or no leave. This had, in the Captain’s words, helped create ‘an abnormal, un-natural and perhaps perverse state of mind’ in them.6 I am sure that you can read the seventy year old code as well as I. And you would be right. But the Judge did not form his judgement from anything formally submitted to him; neither the Navy nor the two stokers wanted the motive brought to light and for good reasons. None of the persons who had been privy to the words of the dying victim were called to give evidence, and the Navy seems to have made no effort to make them available. But one, the ship’s doctor, by serendipity sat next to Justice Maxwell at a dinner in Sydney while the latter was still considering his findings. Perhaps improperly (but not, in the circumstances, unethically), Maxwell and the doctor discussed the incident and the doctor told the judge—who at this point was deeply unhappy with the 5 6

J.V.P. Goldrick ‘The AUSTRALIA Court-Martial of 1942” Master of Letters thesis University of New England 1984. Commanding Officer HMAS Australia (Captain H.B. Farncomb) Letter to Flag Officer Commanding HM Australian Squadron SC801/26/2 of 20 April. Australian Archives MT1214/1. Cited ‘The AUSTRALIA CourtMartial of 1942’ pp. 29-30.

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court-martial’s verdict—what he had heard. The motive was the protection of a homosexual ring which the victim intended to expose and the latter had named both defendants as his attackers. I think at this point that all the pieces fell into place for Maxwell. He was now—which he had not been before—convinced of the men’s guilt, but he also appreciated the mitigating circumstances and the fact that revelation of the motive would probably destroy whatever chance the two had for rehabilitation, while doing the RAN no good either. So he finessed his findings in what he probably saw as being in the best interests of all concerned. Given the prejudices of the day, I believe that he did the right thing. Let me finish by suggesting that what is vital in any investigation on the part of those conducting it, is humility, the willingness to question not only others, but oneself and one’s own assumptions and understanding. Above all, to paraphrase Oliver Cromwell, to be able to ‘think it possible you [yourself] may be mistaken’.

3 Bloody Sunday: Politics, Truth and Justice in the Widgery and Saville Inquiries David Blaazer

Bloody Sunday is unique among the incidents considered in this collection in that it involves firing by the army of a democratic state at its own citizens. Such incidents are exceedingly rare, at least in the developed world. Partly for this reason, few would dispute that Bloody Sunday remains one of the most controversial and traumatic operational incidents in the history of the modern British Army. It has been subject to two official investigations under the auspices of the British government, each of which has become a byword—although for different reasons. It has also been investigated unofficially by the government of the Republic of Ireland, by a couple of NGOs, by various other bodies of varying degrees of partisanship, and in a large number of books and investigative reports in newspapers as well as television documentaries. It has been the subject of a feature film, and has even provided the title and chorus of an iconic rock song.1 In historical terms, not just the incident itself, but the initial inquiry into the incident, have been attributed with changing the course of the Northern Ireland ‘Troubles’ sharply for the worse: making the conflict more deadly, more intractable, and much longer than it otherwise might have been. I will briefly consider the consequences of Bloody Sunday on the course of the Northern Ireland conflict at the conclusion of this chapter. The main focus of the chapter, however, is on the sharply contrasting official investigations into the incident. This chapter analyses the characteristics of the first inquiry that ultimately made the second inquiry necessary, as well as the forces, assumptions and political context that shaped the two inquiries. Finally, it considers whether the two inquir1

Paul Greengrass (writer & director), Bloody Sunday, Paramount, 2002. “Sunday Bloody Sunday” (A song by U2: Island Records, 1983).

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 31 – 49.

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ies, taken together, teach us any broader lessons about the investigation of such incidents. Bloody Sunday is notorious: almost everybody has some picture in their mind’s eye of what happened. For that reason, it is all the more necessary to outline the basic facts of what took place. Most people, when asked about Bloody Sunday will say something like, ‘On 30 January 1972, British soldiers fired into a crowd at a protest march in Londonderry, Northern Ireland, killing 13 unarmed civilians and wounding a similar number. There has been ongoing dispute about whether, at what point, and to what extent, the soldiers themselves came under fire’. The first of these sentences creates a mental image of the events that is fundamentally misleading, even before we consider whether or when soldiers were fired at. It is therefore necessary to briefly sketch the events of the day. First, however, it is essential to grasp some of the immediate context in which those events took place. This is not the place to consider the centuries-old disputes and enmities, with their appalling litany of violence, which have shaped Ireland’s and Londonderry’s politics, society and culture, although these are crucial to the fundamental contours of the conflict and the construction of the attitudes of the protagonists— including the British Army—which has had a long and mostly inglorious history of involvement in Irish affairs.2 Carrying the burden of that history, and the attitudes that went with it, the British Army was deployed into the streets of Northern Ireland in August 1969 in an attempt to end sectarian violence between the Catholic and Protestant communities in the province’s two largest cities of Belfast and Londonderry (or, as Irish nationalists prefer to call it: Derry). The violence had seen numerous deaths, and the largest forced movements of population in Europe since the immediate aftermath of the Second

2

For a general account of Irish history see R.F. Foster, Modern Ireland 16001972 (London: Penguin, 1988). For the history of Irish nationalism see R. English, Irish Freedom: a history of nationalism in Ireland (London: Pan Macmillan, 2006). For accounts of the partition of Ireland and the history of Ireland since partition, see T.G. Fraser, Ireland in Conflict 1922-1988 (New York: Routledge, 1999) and Henry Patterson, Ireland since 1939: the persistence of conflict (Dublin: Penguin Ireland, 2006). For the British army in an earlier campaign see Charles Townshend, The British Campaign in Ireland 1919-1921: the development of political and military policies (Oxford: Oxford University Press, 1978).

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World War, as Catholics fled their homes in terror.3 This came as the culmination of steadily escalating confl ict over the question of civil rights for the Catholic minority in Northern Ireland. Nationalists at first welcomed the British Army onto the streets, seeing them, rightly, as saviours from loyalist attackers and their allies in the Northern Ireland security forces. This situation did not last. The upsurge of violence itself had led to a resurgence of the hitherto moribund Irish Republican Army (IRA).4 In the meantime, the Army aggravated the situation by commencing a counter-insurgency campaign before an insurgency had actually begun, treating all Catholics as essentially suspect, and too often engaging in gratuitous violence against civilians. It could be argued that the Army thus helped to create the insurgency that it most certainly did face by the middle of 1971.5 The Army was in a very difficult position. Having quickly brought the mass sectarian violence under control, its continuing role was unclear. In accordance with British law and practice the Army’s role in such a crisis was to support the civil power to re-establish and maintain order. But the civil power was the government of Northern Ireland, and the organ of that government the Army had to support in day to day operations was the Royal Ulster Constabulary (RUC), an almost exclusively Protestant force whose role during the Civil Rights campaign had confirmed Catholics in their belief that it was incurably sectarian.6 On 9 August 1971, the British government finally conceded what the Northern Ireland government had wanted for some time, the introduction of internment of terrorist suspects without trial. Northern Ireland had always had the legal power to do this, but in the circumstances of 1971 the Northern Ireland government required the Army to actually 3

4

5 6

On the origins of the ‘troubles’, see T. Hennessey, A History of Northern Ireland 1920-1996 (Basingstoke: Macmillan, 1997), chs 1-3, and Niall Ó Dochartaigh, From Civil Rights to Armalites: Derry and the birth of Irish troubles, 2nd ed. (New York: Palgrave Macmillan, 2005). R. English, Armed Struggle: the history of the IRA (Oxford: Oxford University Press, 2003); M. L. R. Smith, Fighting for Ireland? The military strategy of the Irish Republican movement (London: Routledge, 1995), ch. 4. Brian Treanor, “Making a bad situation worse: the British Army and Irish nationalism 1968-1970” (PhD diss., University of New South Wales, 2011). Verdicts differ about how severe and entrenched the discrimination was, but the important point in this context is the Catholic population’s perception.

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carry out the sudden mass arrests that would make it effective. Acting on outdated, prejudiced, and plain wrong intelligence supplied by the RUC, the Army rounded up hundreds of suspects, few of whom had anything to do with the IRA, and most of whom were released shortly afterwards. 9 and 10 August 1971 were the most violent days since the deployment of troops. Among the 17 deaths on 9 August were 11 nonparamilitary Roman Catholic civilians shot by the Army, including a priest who was shot while aiding a wounded man. These incidents have never been investigated. It was in opposition to the coruscating grievance of internment that the Northern Ireland Civil Rights Association (NICRA) organized a protest march in Londonderry for 30 January 1972. The march was illegal: the banning of all political marches had been part of the package of measures introduced with internment. Illegal marches were not unusual in this context, and the authorities planned to manage the 30 January march rather than try to prevent it altogether. After discussion at levels from RUC Superintendent to Brigade command to Prime Minister, the decision was taken to allow the march, but to contain it within the Bogside, a Catholic area outside the old city walls. The organizers had initially intended to march from the Bogside into the CBD itself, but the security forces feared that this would probably lead to extensive property damage, and to a violent confrontation with a Unionist counter-demonstration. It was agreed with the organizers that NICRA stewards would steer the march away from the barricades erected to contain the march.7 The Brigade commander, Brigadier MacLellan, and his staff developed a plan to deal with possible rioting by what they termed ‘hooligan elements’ at the barricades. This involved the use of baton rounds, water cannon, and, as a last resort, CS gas, to drive rioters away from the bar7

The account of planning for the march and the events of the day presented in this section attempts to present only generally accepted facts, or to indicate clearly where controversy or uncertainty remain. It is derived largely from the report of the Saville inquiry. Lord Mark Saville, William Hoyt, and John Toohey, Report of the Bloody Sunday Inquiry, Last updated 3 November, 2010, http://webarchive.nationalarchives.gov. uk/20101103103930/http://bloody-sunday-inquiry.org/. Despite the differences between the two reports, many of the same facts can be found in Lord John Widgery, Bloody Sunday, 1972: Lord Widgery’s report of events in Londonderry, Northern Ireland, on 30 January 1972. (London: Stationery Office, 2001), Accessed 24 October, 2013, http://cain.ulst.ac.uk/hmso/widgery.htm.

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ricades. The water cannon were to use a purple dye to assist in a planned arrest operation against the rioters. The latter was to be conducted on foot by soldiers of the 1st Battalion of the Parachute Regiment (1 Para) coming through the appropriate barrier once a clear separation had been established between rioters and peaceful marchers. Repeatedly throughout the planning for the day, and in orders given during the day, it was emphasized that 1 Para were “not to engage in a running battle down Rossville street”, the main street of the Bogside. The march passed very much as the plan had envisaged until shortly after the rioters had been repelled from the barriers. Just after the battalion commander, Lieutenant Colonel Wilford, asked Brigade HQ for an order to launch the arrest operation through Barrier 14, two paratroopers stationed in a derelict building fired five shots at two unarmed men walking across a nearby waste ground. Both were wounded; one died four months later. Immediately after this (although it may have been moments before) a member of the ‘Official’ IRA8 in a sniping position fired a rifle shot in the direction of the building, hitting a drain pipe. About ten minutes after this, at 1607 hours, Brigade ordered Lieutenant Colonel Wilford to launch the arrest operation with one ‘subunit’, reiterating the injunction not to conduct a running battle down Rossville Street. Wilford sent in two companies, C Company on foot through Barrier 14 and around the corner into Chamberlain Street, and Support Company in APCs through Barrier 12 along Rossville Street. Support Company debussed at various points around either side of Rossville Street and its surrounds. The main body of marchers was now either dispersing for home, or moving up towards Free Derry Corner to hear speeches from various luminaries, including the local Northern Ireland MP and moderate Civil Rights activist, Ivan Cooper, the octogenarian First World War conscientious objector and lifelong peace activist, Lord Brockway, and the young radical republican Westminster MP, Bernadette Devlin. The people in the area consisted of a mix of peaceful marchers and rioters. Regardless, almost all of them ran away as soon as the APCs appeared, to avoid arrest. A group in an alleyway began to 8

The ‘Official IRA’, known colloquially as the ‘stickies’, were based on those elements who remained loyal to the original organization at the time of the formation of the Provisional IRA in Dec. 1969-Jan 1970. The Provisional IRA split from the IRA in response to what its members saw as the latter’s insufficiently militant response to the upsurge of sectarian violence and the deployment of the British Army. See English, Armed Struggle, ch. 2.

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throw stones at some soldiers in an attempt to save a man from arrest. At this point the platoon commander fired two shots above the crowd’s head. In the course of the next 10 minutes soldiers fired a further 101 rounds at various points around the various blocks of flats on Rossville Street, killing 13 and wounding 11 (in addition to the two men shot earlier). It is uncontroversial that none of these people was in the act of doing anything to threaten anybody with death or serious injury at the time they were shot. None of the wounded and only one of the dead, Gerald Donaghey, aged 17, a member of the (unarmed) youth wing of the IRA, had any paramilitary connection. It remains a matter of dispute whether this youth had nail bombs in his pockets at the time he was shot, or whether these were later planted in his pockets.9 There is no suggestion that he was doing anything other than running away when he was shot. The claims and counter-claims about what had happened began even before the bodies had been counted. The Army for its part claimed that its soldiers had been led into a cunningly laid IRA trap, had come under heavy gunfire as well as bombardment by petrol, nail and acid bombs, and had responded in a professional and restrained manner. Most supporters of the nationalist cause claimed that all of the firing came from the soldiers and was largely if not entirely unprovoked. Overwhelmingly, the neutral observers, including the many journalists and photographers from different countries, presented a version of the day’s events that was very much closer to that presented by the demonstrators and rioters than to that presented by the Army. International reaction was loud and generally hostile. In Dublin the next day, a mob burnt down the British Embassy, and the Irish government forcefully denounced the British Army and the British government. This was especially significant given that the British government had been seeking closer cooperation with the Irish government to counter the IRA. Anger in the USA was predictable, but nevertheless highly embarrassing. The day following Bloody Sunday, Edward Heath, the British Prime Minister, announced that an inquiry would be conducted under the Tribunals of Inquiry (Evidence) Act of 1921. It would be conducted 9

Saville makes clear that acceptance of either claim requires one to accept implausible propositions. Saville, on balance, chose to believe that it was more likely that Donaghy was carrying the bombs at the time he was shot. Saville Report, http://webarchive.nationalarchives.gov.uk/20101103103930/ http://report.bloody-sunday-inquiry.org/volume07/chapter145/. The present writer leans slightly to the opposite view.

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by the Lord Chief Justice of England, Lord Widgery, sitting alone. The terms of reference were set out in the parliamentary resolution establishing the inquiry: That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, namely the events on Sunday 30 January which led to loss of life in connection with the procession in Londonderry on that day.10

The purpose of such inquiries was well understood: to establish the facts where events had taken place leading to a crisis of public confidence.11 It was not to mete out punishment, to make findings of guilt or innocence, nor even to recommend criminal action against individuals. It was simply, as Lord Widgery correctly stated, to ascertain the facts of what had happened.12 The crisis in public confidence had two elements: first, there was the accusation that British soldiers were guilty of acts of willful murder against unarmed and otherwise defenceless civilians; second there was the rapidly developing theory—almost universally accepted in nationalist circles—that this murder spree had resulted from a deliberate decision at high levels of the Army, and/or the British and/or Northern Ireland governments. This theory pointed to the fact that 1 Para had an unmatched reputation for brutality and the ruthless use of deadly force, and that although it had only been in Londonderry for a day it had been chosen to conduct the arrest operation, rather than one of the many units available that were familiar with Londonderry and who had some sort of modus vivendi, however uncomfortable, with the citizens of the Bogside. 1 Para, it was widely alleged, had been deployed to teach the Catholics a lesson. An alternative theory was that the operation had been intended to flush out the IRA into an open firefight which it could only lose.13 Widgery interpreted his terms of reference in the narrowest conceivable way. He explicitly confined his attention to the moment from

10 11

12 13

Widgery Report, p. 1. Lord Justice Salmon, Royal Commission on Tribunals of Inquiry (London: HMSO, 1966), pp. 10-15, gives a brief account of the history of Tribunals of Inquiry and the terms of the Act. Widgery Report, p. 2. Widgery Report, p. 8.

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the first violent events of the march to the firing of the final shot.14 He only examined the circumstances of the deaths, completely ignoring all but the first two woundings. None of the wounded were interviewed by the tribunal. Widgery expressed the view from the beginning that it was important to the restoration of public confidence that the inquiry not drag out. He was true to this principle, completing his inquiry within ten weeks of his appointment. His final report was 45 pages long, including five pages of appendices. His key observations and conclusions were as follows: – First of his summary conclusions—and thus framing all the rest— was that there “would have been no deaths in Londonderry on 30 January if those who organised the illegal march had not thereby created a highly dangerous situation in which a clash between demonstrators and the security forces was almost inevitable.” In short, the main responsibility for the deaths lay with NICRA. – None of the deceased (apart from Gerald Donaghey, who was in possession of nail bombs) was armed at the time he was shot. Claims that the bombs had been planted on Donaghey were implausible. – Based on forensic evidence of lead on their hands, five of the deceased had either handled firearms or been in close proximity to the discharge of firearms at some time in the day. – The deceased had been shot either because soldiers reasonably believed that they were carrying firearms; because they appeared to be throwing nail or petrol bombs when they were in fact throwing stones or half-bricks; or because they had been hit by fire intended for others close by who were either firing or throwing nail, petrol or acid bombs. (Widgery also suggested that some gunmen had actually been shot, but that their bodies may have been “spirited away over the border into the Republic”.) – The Army’s firing was in general justified by the fact that the soldiers had come under significant fire, although he doubted that the fire was as intense as some of the soldiers had claimed. – The first shots had been fired by paramilitaries. This question he regarded as the most vital he had to answer. – Lieutenant Colonel Wilford had acted consistently with his orders and with the operational plan in every respect.

14

Widgery Report, p. 2.

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–

– –

–

39

Some of the judgments by some of the officers and soldiers could, in hindsight, have been better, but they were made in difficult circumstances and were sincere and reasonable in themselves. The arrest operation was justified to remove “the future threat to law and order posed by the hard core of hooligans in Londonderry”. There was no basis to the allegation that the deployment of 1 Para was calculated to teach the nationalists a lesson. The deployment was purely contingent, and those who decided it cannot have anticipated such consequences. Moroever, there was a substantial body of evidence to suggest that both the government and the army had been trying to calm the situation to pave the way for a political initiative. Notwithstanding all of these findings, Widgery also found that some of the soldiers’ firing had ‘bordered on the reckless’.

A thorough and properly reasoned critique of the Widgery report would take significantly more space than is available here. Several such critiques have been presented, most of them a great deal longer than the report itself.15 In many ways the first such critique remains the most compelling, simply because it was written on the basis of what was on the public record in 1972, rather than on the basis of information that has come to light since. It was written by Professor Samuel Dash, then Director of the Institute of Criminal Law and Procedure of Georgetown University Law Center (Washington DC), who was commissioned by the International League for the Rights of Man at the request of the National Council for Civil Liberties. Dash played a key role in persuading relatives of the deceased to participate in the Widgery inquiry, despite the fact that Widgery had decided to hold the hearings 50km away from Londonderry in the protestant town of Coleraine, and despite the fact that many were convinced that their participation would only lend credibility to a white-

15

Dermot Walsh, Bloody Sunday and the rule of law in Northern Ireland (Basingstoke: Macmillan, 2000). Samuel Dash, Justice Denied: a challenge to Lord Widgery’s report on ‘Bloody Sunday’ (New York: Defence and Education Fund of the International League for the Rights of Man; London: National Council for Civil Liberties, 1972). Robert J. Breglio, Don Mullan and Raymond McClean, ‘Bloody Sunday’: the Breglio report (New York: Bloody Sunday Justice Campaign, 1997).

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wash.16 The report was a vindication of their worst fears, and was clearly both a shock and a profound disappointment to Dash himself. Dash accepted the clear evidence that there was paramilitary firing on Bloody Sunday, although he contended that it was trivial in scale and that most of it took place after the army had stopped firing. His criticisms of the report, published under the title Justice Denied, point to the many cases where Widgery reaches conclusions that are clearly contradicted by the weight of the evidence heard by the Tribunal; where he relies on utterly fanciful propositions to explain away evidence; where he explicitly chooses to prefer the testimony of the soldiers to that of other witnesses with no reasoning whatsoever. Dash also pointed to some obvious problems, such as that no soldier was wounded by gunfire or by nail bombs, nor was there any mark on any vehicle; and that despite the fact that soldiers repeatedly testified that they had targeted and hit men who were firing weapons or throwing bombs, Widgery himself accepted that none of the dead had been doing so at the time they were shot. In fact there was virtually no correspondence between the soldiers’ testimony about either the circumstances or the results of their firing and any evidence from any other party present, the available forensic and ballistic evidence, or the large amount of available photographic or video evidence. Dash also pointed out that despite Widgery’s statement that he was concerned with only one hour on 30 January, he had devoted two pages of his brief report to a background on the security situation that was written wholly from the Army’s point of view, and which failed to mention either internment or the many incidents of unarmed civilian deaths at the hands of the Army before Bloody Sunday. To that extent the text of the report was so blatantly partisan that it condemned itself. To this Dash added criticism of Widgery’s decision to effectively ignore the 700 or so statements of Bogside eyewitnesses which had been gathered under the auspices of NICRA in the days immediately following Bloody Sunday, and a critique of the manifestly inadequate pathology reports that had allowed Widgery to claim that some of the dead had either been handling firearms or had been in close proximity to discharging firearms at some point during the day. On the basis of Dash’s internal evidence alone, it has been clear since 1972 that the Widgery report was not a serious investigation, but an obvious and crude whitewash. It nonetheless served the important purposes of restoring confidence in the armed forces among English newspaper 16

Dash, Justice Denied.

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readers, and reassuring the Army that it had the virtually unconditional backing of the political and judicial elite in the difficult and dangerous task it faced in Northern Ireland. The press and the government presented the report uncritically as a complete exoneration of the Army, which was how it was treated by the authorities. Even those soldiers whom Widgery suggested might have been guilty of ‘reckless’ firing were not called to account in any way, and Lieutenant Colonel Wilford was awarded the OBE six months after the report’s publication. For Irish nationalists, and indeed for many others, the report itself only deepened the crisis. It added an extra dimension to their conspiracy theory: 1 Para had been deployed to cow the nationalists, Widgery had been deployed to make sure they got away with it, and thereby to leave the Army free to murder with impunity. The immediate result of Bloody Sunday and of the Widgery report was to dramatically boost recruitment to the Provisional IRA, and to significantly increase ordinary, otherwise peace-loving nationalists’ sympathy for its cause, and tolerance of its methods. As the Northern Ireland troubles dragged on, interest in Bloody Sunday waned, except among the families of the dead and the wounded, who remained determined to commemorate the deaths and to vindicate their loved ones. In 1992, some of the relatives formed the Bloody Sunday Justice Campaign, which grew steadily. In 1997, with the momentum building for a peace settlement in Northern Ireland, an overlapping group formed the Bloody Sunday Trust. This group commissioned another lawyer, Professor Dermot Walsh of the University of Limerick, to write a report on the Widgery Inquiry in the light of material relating to the inquiry that had been released from the archives under political pressure, despite an original embargo period of 50-75 years.17 These documents demonstrated that officers of the tribunal had helped soldiers to doctor their statements to remove some of the most serious discrepancies between them. It also revealed that the tribunal had in its possession statements made by the soldiers to the Military Police in the immediate aftermath of the shootings which were at odds with evidence they had given to the tribunal, but that the tribunal had not made these available to counsel for the relatives. Moreover, Walsh discussed another document recording a conversation between Heath, Widgery and the Lord 17

Dermot Walsh, The Bloody Sunday Tribunal of Inquiry: a resounding defeat for truth, justice and the rule of law (Bloody Sunday Trust, 1997) Accessed 24 October, 2013, http://cain.ulst.ac.uk/events/bsunday/walsh.htm.

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Chancellor in which Heath had reminded Widgery that Britain was fighting a ‘propaganda war’ in Northern Ireland, and that the nature of the event was so exceptional that the accepted procedures for conducting tribunals possibly should not apply. This material was explosive, and duly found its way into a dossier prepared by the Irish government and presented to the British government later that year.18 As well as Walsh’s evidence, the dossier presented other claims by investigative journalists about the events of the day itself, including new ballistic evidence that appeared to suggest that some of the dead had been shot by snipers on the city walls On 29 January 1998, the British Prime Minister, Tony Blair announced a new inquiry, to be presided over by a senior British judge together with two judges from the Commonwealth. The Saville Inquiry was established under the same 1921 Act as the Widgery Inquiry had been, and with identical terms of reference, but for the addition of the phrase: “taking account of any new information relevant to events on that day”. It has been suggested, although it is not clear, that Blair agreed to the inquiry as part of the long and complex bargaining process that finally produced the Good Friday Agreement a few months later. Whether or not this is true, the new inquiry was clearly a token of goodwill to the nationalist community; an effort to remove an ongoing, indeed growing source of distrust and hostility in the context of a difficult search for a lasting peace settlement. The Saville Inquiry spared no effort to find the operational truth of Bloody Sunday. The inquiry had been established two years before it took its first oral testimony in March 2000. It heard from 912 witnesses, and a further 1,555 made written statements. Its hearings concluded in December 2004, but the 5000 page report was not completed until June 2010, 12 years after the inquiry began.19 The report went to the most extraordinary lengths to try to establish precisely which soldier fired which bullet that hit which unarmed person, and, remarkably, what state of mind each soldier was in when he fired. It found that with one relatively minor exception, none of the sol18

19

Irish Government, Bloody Sunday and the report of the Widgery Tribunal: the Irish Government’s assessment of the new material [np], Accessed 24 October, 2013. http://cain.ulst.ac.uk/events/bsunday/irgovt.htm. BBC News, “Bloody Sunday Inquiry: Saville has ‘no regrets’”, Last updated 13 October 2010, http://www.bbc.co.uk/news/uk-northern-ireland -11536743.

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diers was facing a threat at the time he fired. It also found that some of the soldiers may have believed they were facing a threat, but did so on insufficient grounds. It concluded that some soldiers may have been in a state of fear or panic when they fired, and had been given every reason to believe that they were in an extremely dangerous situation. It also concluded that some specific soldiers fired calmly and deliberately at people whom they knew to be posing no threat. It concluded that while there was a small amount of paramilitary firing, it is likely that the Army fired first. Due to its timing and location, none of the paramilitary firing could justify any of the firing by the Army. The report explicitly exonerated NICRA from all blame, and sheeted most of the blame for the events home to Lieutenant Colonel Wilford, who “either deliberately disobeyed Brigadier MacLellan’s order or failed for no good reason to appreciate the clear limits on what he had been authorised to do”.20 In short, Lord Saville took 12 years and £200m pounds to reach conclusions that were in essence available to any fair-minded assessment of the totality of the evidence available to the Widgery Inquiry. Saville also went to some length to investigate the various versions of the theory that Bloody Sunday was the result of a deliberate policy hatched at high level. Interestingly, Lieutenant Colonel Wilford himself appeared to become a convert to this theory when the Saville inquiry was announced. Speaking on television he said, “One cannot help thinking that we were taken there to teach them a lesson, to go in knocking a few heads and show them that they cannot have a no-go area. … [Such an idea must have] come from higher than the Brigade commander. The germ of it must have started in London.”21 To this writer’s knowledge this is the first and only occasion on which Wilford has said anything to imply that any aspect of British policy or attitudes could have any contextual relevance to the events of Bloody Sunday. Even here, however, he remained true to his fundamental belief, repeated on numerous occasions between Bloody Sunday itself and the period of the Saville Inquiry, that neither he nor his men did anything wrong. Perhaps sensing that the Saville Inquiry was highly likely to reject the obvious fictions that Widgery had accepted, and thus highly unlikely to leave all blame with

20 21

Saville Report: http://webarchive.nationalarchives.gov.uk/20101103103930/ http://report.bloody-sunday-inquiry.org/volume01/chapter004/. Eamonn McCann, The Bloody Sunday Inquiry: the families speak out (London: Pluto Press, 2006), p. 18.

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NICRA and the victims, Wilford decided that it was necessary to look elsewhere for culprits. Before turning to Saville’s findings on the conspiracy theory, it is worth considering Wilford’s credentials as a scapegoat. There is no doubt that his statements since January 1972 have fitted him admirably for the role. He appears to embody everything that could be wrong about soldiers’ attitudes to civil protest in general, and about British soldiers’ attitudes to Irish nationalists in particular. While unswerving loyalty to one’s men is in most circumstances a highly laudable quality in a military officer, in Wilford’s case it has gone far past the point where he might be excused for abandoning it. Blind insistence on the innocence of men whose conduct was at best highly unprofessional, and at worst seriously criminal, is not an obligation of a good commander. Rather, it suggests either extreme obtuseness or active support for wrongdoing. Wilford’s other remarks on the events suggest both of these, underpinned by an inability to understand that killing Irish nationalist protestors could ever be wrong. In an interview given for a twentieth anniversary documentary on Bloody Sunday, he took the interviewer to task for using the word ‘innocent’ in relation to the dead, claiming that ‘there is no innocence in a riot’, and that Lord Widgery used the word only because ‘that’s a civilian word’. The interview went on: WILFORD: If you get into an enormous crowd, which is out to make mischief, you are in the first instance a party to it. And I’m sure the law would have to say that … And if you’re on the receiving end, which we were, you’ve got to assume that they were all out to make trouble. INTERVIEWER: But you don’t sign your death warrant by taking part in a demonstration. WILFORD: Some people do.22

In another interview given in 1999, as Saville’s Tribunal wrestled with the courts over whether soldiers could give evidence anonymously, Wilford provided some more insight into his views. After accusing Michael McKinney—the brother of one of those killed—of representing ‘the 22

‘Inside Story: Remember Bloody Sunday’, fi rst screened BBC2, 28 January 1992.

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republican organization’, Wilford asserted that anyone who believed otherwise would be ‘naïve to the point of idiocy’. Rejecting McKinney’s denial of republican links, Wilford went on to say, “They will say that, won’t they? I mean every republican, every—I regret to say—almost every Ulster Catholic will say that”.23 In sum, Wilford’s view appears to be that virtually all Ulster Catholics, and therefore all participants in the civil rights march on Bloody Sunday, were adherents of the IRA, and as such deserved whatever may have come to them (including death at the hands of the state) for choosing to participate in a demonstration at which rioting was likely to take place. Considered in conjunction with the clear evidence of the brigade logs that he exceeded Brigadier MacLellan’s orders, and his admission to the Saville Inquiry that his assertions about his soldiers’ innocence were based on faith rather than evidence or observation, Wilford’s public statements made him an easy, and richly deserving, target of blame. The evidence that led Saville to criticize Wilford was available to Lord Widgery in the weeks following Bloody Sunday, but as the Prime Minister had told him, Widgery operated in the context of a propaganda war, which made it essential that no blame be attributed to any element of the army. Consistent with the political needs of the time, Widgery briskly chose to disregard the plainest of evidence regarding Wilford’s conduct. Consistent with the very different political needs of his own time, Saville examined the evidence and the witnesses in great detail and drew the conclusions they plainly suggested. In contrast, Saville’s equally thorough examination of the evidence regarding the conspiracy theory led him to the same conclusion as Widgery on substantially the same grounds. Even with access to relevant government documents that were obviously unavailable to Widgery, and after examination of Edward Heath and other relevant actors, Saville found that there was no evidence to support the theory that Bloody Sunday was the result of a government-level decision. On the contrary, Saville was able to refer to clear evidence that the government and senior military leadership in early 1972 was trying hard to reduce tensions in order to pave the way for a new political initiative to resolve the crisis.24 It is difficult to dissent from this conclusion, and indeed, Saville’s very care23 24

Guardian, 7 July 1999, Accessed 24October, 2013, http://www.guardian. co.uk/uk/1999/jul/07/bloodysunday.northernireland. Saville Report: http://webarchive.nationalarchives.gov.uk/20101103103930/ http://report.bloody-sunday-inquiry.org/volume01/chapter004/.

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ful treatment of it, together with his general vindication of the victims’ and families’ accounts of the day, have seen the theory’s popularity and importance wane since the publication of his report. While Saville was undoubtedly correct to dismiss the conspiracy theory presented by nationalists and republicans, his manner of treating it suggests some significant problems with the Tribunal’s approach not only to this question, but to its task more generally, stemming from a fundamental misconception about the purpose and role of his inquiry. This chapter will conclude with consideration of those problems, and a suggestion about how they might have been avoided, leading to a briefer inquiry and a richer understanding of why the tragedy of Bloody Sunday took place. Sir Louis Blom-Cooper, counsel for NICRA, has criticized Saville for approaching his task with the aim, in effect, of establishing every finding he made with legal standards of evidence, almost as if he was preparing a brief against any possible wrongdoer.25 As Blom-Cooper points out, and as Lord Widgery understood, this is not the purpose of a tribunal established under the Tribunals of Inquiry (Evidence) Act, whose conclusions cannot “be evidence, either conclusive or prima facie, of the facts found by the tribunal”.26 Despite the tribunal members’ repeated statements that they were not conducting a trial, according to BlomCooper, “the legalism of the adversarial mode of civil or criminal trial was ever-present”.27 Certainly, the relevant transcripts support BlomCooper’s claim that “the soldier-witnesses who fired the fatal shots perceived themselves … as defendants in the dock at the Old Bailey”.28 Given Saville’s near-obsession with the destination and trajectory of every single bullet and the state of mind of the person who fired it, such a perception on the soldiers’ part was entirely reasonable. Undoubtedly, it made each of them even less inclined to give a full and frank account of the events as they remembered them than they might have been if the tribunal had chosen to focus on the systemic causes of Bloody Sunday rather than questions of individual culpability. As we have seen, the evidence available to the Widgery tribunal was sufficient to provide an account of the day that would vindicate the victims’ and relatives’ claims of their 25 26 27 28

Sir Louis Blom-Cooper, “What Went Wrong on Bloody Sunday: a Critique of the Saville Inquiry,” Public Law (2010). Blom-Cooper, “Bloody Sunday,” 64. Blom-Cooper, “Bloody Sunday,” 62. Blom-Cooper, “Bloody Sunday,” 65.

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innocence. The Saville tribunal’s attempts to squeeze significantly more evidence out of the soldiers and other witnesses, at a distance of three decades, with the inevitable ‘pollution’ of the intervening private and public discussion, was inherently unlikely to achieve much of value, but certain to consume enormous amounts of time and money. Having chosen to focus on questions of individual culpability, and to approach the evidence in a way consistent with that approach, the Saville inquiry made itself blind to many of the systemic questions that it might more usefully and efficiently have tried to answer. The conspiracy theory provides one example. There is, as we have seen, no good evidence to support a claim that the British government conspired to have civil rights marchers shot by 1 Para. But that statement does not sufficiently deal with the questions of systemic failure or high level responsibility. Using the investigative method of the historian, rather than the adversarial or inquisitorial methods of the lawyer, Niall Ó Dochartaigh has shown convincingly that the military operation on Bloody Sunday emerged at the intersection between two opposing tendencies within the security forces, each of them able to claim a mandate for their approach from different government policy decisions, still locked in struggle in the last minutes before the Paras moved forward into the Bogside.29

Lieutenant Colonel Wilford stood on the side of that struggle that advocated tough measures, while Brigadier MacLellan, his brigade commander for the day, stood on the side that advocated a more conciliatory approach. Crucially, the Commander of Land Forces in Northern Ireland, Major General Robert Ford, who took the planning decision to use 1 Para for the arrest operation, and who stood behind a barrier urging them on as they launched it, was also an advocate of tough measures. It was his memo of early January 1972, suggesting that the only way to deal with the Derry Young Hooligans might be to shoot some of the ringleaders,30 that formed the basis of many of the claims of conspiracy. There is no evidence that this was discussed at a higher level, or formed the basis of any official policy; nor was it the view of anyone in the operational chain 29 30

Niall Ó Dochartaigh, “Bloody Sunday: Error or Design?,” Contemporary British History 24, 1 (2010): 105. Saville Report: http://webarchive.nationalarchives.gov.uk/20101103103930/. http://report.bloody-sunday-inquiry.org/evidence/B/B1123.pdf.

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of command on Bloody Sunday other than Lieutenant Colonel Wilford: thus Saville could reasonably dismiss it. It is equally clear, however, that Ford and other key figures in the military hierarchy such as Brigadier Frank Kitson, were strongly committed to it.31 The institutional dysfunction that allowed the hardliners to subvert the approach of the government, the GOC Northern Ireland (General Tuzo) and the local Brigade Commander to the Bloody Sunday march was invisible to the lens Saville had chosen. This point is further illustrated by Saville’s approach to the question of whether a culture had developed in the army that regarded the killing of unarmed civilians as legitimate. This claim was based on the large number of other incidents, especially in Belfast under Kitson’s command, in which such killing was alleged to have taken place. According to Saville, this claim could not be investigated for this could only be done by examining in the same detail as Bloody Sunday the circumstances of each of those incidents, in order to decide, among other things, whether or not they involved unjustified firing by soldiers. In our view this would have been a wholly impracticable course for us to take, adding immeasurably to what was already a very long and complex inquiry.32

This statement goes to the nub of the problem Saville had created for himself. An investigation of every such shooting incident conducted in the same fashion as his inquiry into Bloody Sunday would indeed have been completely impracticable. It would also have been wholly unnecessary. The issue at stake for such an inquiry would not be whether this or that soldier was personally liable for the death of a specific civilian. In the absence of the large number of witnesses present on Bloody Sunday, such questions are unlikely to ever be answered except in the highly unlikely event that soldiers choose to incriminate themselves or their comrades. But to seek such evidence is to miss the point, for claims about the existence or operation of a culture simply cannot proceed by such methods. Rather than the discourse and methods of the lawyer, they require the 31

32

Saville Inquiry evidence: Ford: http://webarchive.nationalarchives.gov. uk/20101103103930/http://report.bloody-sunday-inquiry.org/evidenceindex/. Ó Dochartaigh, “Error or Design?,” 100. Saville Report: http://webarchive.nationalarchives.gov.uk/20101103103930/. http://report.bloody-sunday-inquiry.org/volume01/chapter004/.

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discourse and methods of the historian, the anthropologist, the sociologist and the psychologist. As an investigation of an operational incident, the Saville inquiry was commendably thorough, fair and accurate—everything that the Widgery inquiry was not. It tells us as reliably as possible what happened, but it gives us very little knowledge at a systemic level about why it happened. For that, very different kinds of investigation are required. Over time, scholars will no doubt complete them. It would have been better, perhaps, if their perspectives had helped to frame Lord Saville’s inquiry.

4 The Maxim of Thucydides: Transparency, Fact-Finding, and Accountability in East Timor Clinton Fernandes

This chapter on operational incidents in East Timor argues that transparent investigations and accountability have been of little importance when the Power element is absent. Its core propositions are: (1) if an operational incident results in harm to those without sufficient relative power—relative, that is, to those who are causing the harm—then Transparency, Fact-Finding and Accountability are unlikely to occur, and (2) it is also unlikely that there will be repercussions for those causing the harm. This proposition is encapsulated in a concept articulated by a British diplomatic historian, Mark Curtis. The concept is ‘unpeople’: creatures who look human but are not really human and therefore do not merit elementary human rights.1 The concept is highly relevant to this topic. It wouldn’t be fair to take one or two aberrant cases and single them out for special attention. Anyone can find the odd incident where the investigation of an operational incident has been unsatisfactory. To establish the proposition it is necessary to show that it applies to numerous, large-scale incidents occurring over a long period of time. In doing so, I will show that the record on investigations in East Timor conforms with great precision to the maxim of Thucydides: that “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” 2

1 2

Mark Curtis, Unpeople: Britain’s Secret Human Rights Abuses (London: Vintage, 2004). Thucydides, The History of the Peloponnesian War, Chapter XVII. Available at: http://www.gutenberg.org/fi les/7142/7142-h/7142-h.htm.

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 51 – 70.

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The invasion of East Timor during World War II The invasion of East Timor during the Second World War is an appropriate place to start. Apart from a small circle of academics and military personnel, it is commonly supposed, especially in Australia, that Japan invaded Portuguese Timor, as it was then known, and that Australia sent troops to Portuguese Timor in order to expel Japanese forces. In fact, there were no Japanese troops in Portuguese Timor when Australian forces landed, and Japan had no intention of deploying forces there. Even during its march through Asia it never included East Timor or Portugal’s other colony of Macau on its list of war objectives. It was only after Australian, Dutch and British troops had deployed to Portuguese Timor and violated Portuguese neutrality that Japan decided to send its own forces there. Allied forces then conducted aerial bombing sorties against both halves of the island.3 Five days after the Japanese attack on Pearl Harbor, Australian Prime Minister John Curtin received a cable from Lord Cranbourne, Britain’s Secretary of State for Dominion Affairs.4 Cranbourne urged Curtin to send troops to Portuguese Timor. The Australian contribution, Cranbourne stated, was of “considerable importance.” He requested a favourable response “at the earliest possible moment.”5 Curtin cabled back on the same day, saying that the Australian Government had agreed and was authorizing Lieutenant Colonel Bill Leggatt, the Australian commander in West Timor “to send a detachment to act in conjunction with the Dutch” in order “to liquidate the Japanese.” Curtin advised that the move “should be made without delay.” 6 The obvious problem, of course, was that there had not been any Japanese attack against Portuguese Timor (or against the other Portuguese colony of Macau), nor was there any evidence of Japan’s intention to attack Portuguese Timor. It was hardly likely that the Governor of Portuguese Timor would be agreeable to the intrusion of Allied troops 3 4

5 6

I have examined this episode in C. Stockings (ed), Zombie myths of Australian military history. (Sydney: UNSW Press, 2010). Cable, Cranbourne to Curtin, dated 11 December 1941, received 12 December 1941. Documents on Australian Foreign Policy (DAFP), Vol. V, Document 186. Cable, Cranbourne to Curtin, dated 11 December 1941, received 12 December 1941. DAFP Document 186. Cable, Curtin to Cranbourne, 12 December 1941. DAFP Document 187.

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when the Japanese had been so scrupulous in respecting Portuguese neutrality. Unsurprisingly, the reaction of Portugal’s Secretary-General Dr L. Teixeira de Sampaio to the operation was “violently unfavourable.” 7 And when Lieutenant Colonel Leggatt met Mr M. de A. Ferreira de Carvalho, the Governor of Portuguese Timor, he expressed in writing his opposition to foreign troops: In reply to the communiqué which you gentlemen handed me at 9.20 am today, requesting me to accept the help of the Australian and Dutch forces, which will be directed immediately to the territory of this colony, I have the honour to inform you that, in accordance with the instructions from my Government in Portugal, I cannot accept this help, because the position with regard to the confl ict is one of strict neutrality, and because no aggression of any sort has taken place in our territory, the last-mentioned being the sole condition under which the Government of Portugal could accept the help of Australian and Dutch forces for the Defence of the Colony. … Under these circumstances every disembarkation of forces will be considered as a breach of the neutrality of our territory.8

Ferreira de Carvalho also cabled Australian Prime Minister Curtin in similarly unambiguous terms: The Governor of the colony of Portuguese Timor protests vigorously against the aggression [my emphasis], absolutely contrary to the principles of law, being carried out against this part of Portuguese territory, by Dutch and Australian forces, who claim to be acting in accordance with the instructions received from the Government of the Netherlands Indies in agreement with the Government of the Commonwealth of Australia.9

7 8

9

Cable, Cranbourne to Curtin, 17 December 1941, received 18 December 1941. DAFP Document 202. Translated letter from Mr M. de A. Ferreira de Carvalho to LtCol W.W. Leggatt and LtCol W. Detiger dated 17 December 1941. NAA: A81, 19/301/820A. Translated Cablegram, Ferreira de Carvalho to Curtin, 18 December 1941. DAFP Document 200.

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The Australian Government tried to portray its intervention as being necessary to defend Portuguese Timor against “Japanese aggression”—something that had not occurred in the territory. An embarrassed Cranbourne then informed Curtin that the Portuguese Government “would in no circumstance consent to Allied troops entering the territory unless and until the enemy attack had actually been made.” 10 He tried to minimize his own part in the affair by telling the Portuguese Government that “Japanese submarine activity off Portuguese Timor” had created “an unavoidable necessity.” He apologized to the Portuguese for the Allies’ actions, implying that lower-level tactical commanders from Australia and the Netherlands had acted hastily. An angry John Curtin agreed to maintain Australia’s silence as far as the Portuguese were concerned but laid out the entire sequence of events in a detailed cable to Lord Cranbourne in order to ensure that the historical record was preserved.11 Once Australian (and Dutch) troops had violated Portuguese neutrality, Japan, after an agonizing debate between its Navy and Army, decided— reluctantly—to deploy troops there too.12 Australian commandos (then known as Independent Companies) waged a guerrilla war against the Japanese, and were supported by airpower. Aerial bombing operations against Timor were conducted by 79 Wing RAAF (No 2 Squadron), which was manned by Australian airmen, 18 (NEI) Squadron, which was manned by both Australian and Dutch airmen, and 380 Bombardment Group (528, 529, 530 and 531 Squadrons) of the USAAF Fifth Air Force. For the people of East Timor, the costs of this conflict were severe, with 40,000 to 60,000 people dying as a result.13 No international investigation was ever conducted into war crimes committed by Australian or Japanese forces. The people of East Timor never received war reparations for their suffering in this conflict. In April 10 11 12

13

Cable, Cranbourne to Curtin, 27 December 1941. DAFP Document 233. Cable, Curtin to Cranbourne, 26 December 1941. DAFP Document 225. H. Frei, ‘Japan’s reluctant decision to occupy Portuguese Timor, 1 January 1942-20 February 1942’, Australian Historical Studies, Vol. 27, No. 107, October 1996: 281-302. See James Dunn, Timor: A People Betrayed. (Queensland: Jacaranda Press, 1983). The population of East Timor in 1930 was 472,221. Seventeen years later the population had fallen by 38,809. James Dunn allows for a normal population growth to show that the loss of life was up to 60,000. See also East Timor’s Commission for Reception, Truth and Reconciliation, Final Report, Volume III—The History of the Confl ict, Dili, 2005.

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2010, East Timor’s Prime Minister, Xanana Gusmao, accused Australia of sacrificing the lives of 60,000 Timorese in World War II. He said the Japanese occupation of East Timor from 1941 to 1945 covered the entire country and caused great suffering to the Timorese, including the deaths of about 60,000 people. Australia’s Foreign Minister Stephen Smith had the opportunity at this time to engage in some Transparency, Fact-Finding and Accountability. But when asked about Gusmao’s remarks, he said, “I’m not proposing to engage in a running commentary about Australia or East Timor or Indonesia’s view of history.”14 At this time, 24,000 Australians signed a petition organized by a Catholic nun, Sister Susan Connelly of the Mary Mackillop Institute in Sydney, asking Federal MPs to back an award to honour the sacrifices made by those East Timorese who died or were wounded while trying to protect Australian commandos. To date, nothing has happened. The episode supports the core propositions of this chapter: (1) if an operational incident results in harm to those without sufficient relative power—relative, that is, to those who are causing the harm—then Transparency, Fact-Finding and Accountability are unlikely to occur, and (2) it is also unlikely that there will be repercussions for those causing the harm. The maxim of Thucydides resonates loudly and clearly. The invasion and occupation of East Timor by Indonesia In 1975, Indonesia illegally invaded East Timor, which had been declared a non-self-governing territory within the meaning of Chapter XI of the United Nations Charter. According to Article 73 of the UN Charter, this implies “a sacred trust” to uphold “the well-being of the inhabitants of these territories.” But the maxim of Thucydides is more powerful than the UN Charter. Indonesia’s 24-year war against the people of East Timor caused the largest loss of life relative to population since the Holocaust. Reputable and widely used demographic techniques have shown that thirty per cent of East Timor’s population died during the war.15 14 15

Radio Australia, ‘East Timor PM says foreign aid “squandered on consultants”’, 12 April 2010. Sarah Staveteig, ‘How Many Persons in East Timor Went “Missing” During the Indonesian Occupation?: Results from Indirect Estimates’, Interim Report IR-07-003, International Institute for Applied Systems Analysis (IIASA). (Austria: Laxenburg, 2007). See also Romesh Silva and

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The overwhelming majority of wartime deaths in East Timor were caused by starvation in a military-induced famine between 1977 and 1979.16 East Timor’s Truth Commission later established that the Indonesian military: resorted to all available means to overcome resistance to the invasion and occupation. In the years 1976, 1977 and 1978 these violations were widespread and systematic. … The means employed included chemical weapons which poisoned water supplies, killed crops and other vegetation, and napalm bombs and other incendiary devices, whose effect was to indiscriminately burn everything and everyone within their range, including men, women and child civilians … East Timorese women and girls who were held prisoners, or who were forced to work for members of [the Indonesian military], were routinely raped and forced into conditions of sexual slavery, including being ‘passed’ from one officer to another at the end of periods of duty in the territory.17

Illness and food shortages forced civilians to leave the hills and make their way to Indonesian forces in order to surrender. The surrendering population was first detained in transit camps and later dispatched to resettlement camps. The transit camps were often little more than huts made from palm thatch with no toilets. In many cases, the only shelter in the camps was under trees. No medical care was available. Since the detainees’ food sources had been destroyed and they had walked for days in order to surrender, they were already in a weakened state when they arrived at the transit camps. Diseases such as cholera, diarrhoea and tuberculosis ensured that most people who were sick died. Detainees were forbidden to grow or search for food themselves but were given a

16

17

Patrick Ball, Report by the Benetech Human Rights Data Analysis Group to the CAVR, The Profi le of Human Rights Violations in Timor-Leste, 1974-1999, 9 February 2006. For details, see Clinton Fernandes, The Independence of East Timor: Multidimensional Perspectives—Occupation, Resistance, and International Political Activism. (Brighton: Sussex Academic Press, 2011). Commission for Reception, Truth and Reconciliation, Final Report, Chapter 7.5: Violations of the Laws of War. (Dili, East Timor: CAVR, 2005).

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small amount of food on arrival. This food was often distributed after extorting family heirlooms, jewelry, traditional beads or sexual favours. In some cases, the detainees went into protein shock after eating the food, resulting in chills, fever, bronchial spasms, acute emphysema, vomiting and diarrhoea. After a period of three months (the exact duration in each camp depended on the prevailing policy there), the detainees were dispatched to resettlement camps. Sometimes they were not sent anywhere; the same transit camps were re-designated as resettlement camps. By late 1979, there were approximately 300,000 to 370,000 people in the camps. Once again, there were severe restrictions on movement as well as inadequate food, medicine, sanitation and shelter. Approximately thirty per cent of East Timor’s population would die in the mountains and the transit and resettlement camps. Not a single member of the Indonesian military has been brought to justice for these mass deaths. This should come as no surprise to those who acknowledge the truth of Thucydides’ maxim. What did the Australian government know about the catastrophe in East Timor? The answer to this question lies in reports about East Timor produced by officers of Australia’s Department of Foreign Affairs and Trade (DFAT). The reports would show in stark detail what Australia’s diplomats knew, and whether they aided and abetted the famine. Since the Archives Act 1983 provides for the declassification of government documents after thirty years, they ought to be made available to the public. But DFAT is refusing to release them, claiming that to do so would compromise Australia’s security, defence or international relations. Snippets of some of these documents provide an indication of the extent of Australia’s knowledge of the famine. By way of example, Mr. David Irvine has been Director-General of the Australian Security Intelligence Organisation (ASIO) since 2009. He was Director-General of the Australian Secret Intelligence Service (ASIS) from 2003-2009. However, in 1978, Mr. Irvine was First Secretary at the Australian Embassy in Jakarta and was briefed about the severity of the famine. For example, on May 24, 1978, Mr. Irvine and the new Ambassador, Tom Critchley, called on Indonesian Brigadier-General Adenan, DirectorGeneral for Foreign Relations and Security, Department of Foreign Affairs (Indonesia). Adenan advised them that supporters of Fretilin (the East Timorese resistance) were “suffering lack of both ammunition and

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food” and that those who had surrendered recently “were in poor physical condition” and that “some could not even stand”.18 A month later, on June 30, 1978, Ambassador Critchley called on General Mohammad Yusuf, Minister for Defence and Commander of the Indonesian Armed Forces. General Yusuf said that he had “just returned from East Timor” and that “one of the biggest problems was the 270,000 women and children to care for.” 19 Thus, Australian officials were given accurate advice from the Indonesian Defence Minister and Commander of the Indonesian Armed Forces about the size of the catastrophe. The Embassy went on to note: General Yusuf agreed that there was a lot of work to be done and the assistance of international voluntary agencies including the International Red Cross would be very welcome … General Yusuf has a reputation as a dull and taciturn officer but on this occasion he was very forthcoming and gave the impression that he was well briefed and in command of his subject—East Timor. Although other unimportant subjects were mentioned he returned to the East Timor problem.

In other words, there was an opportunity to offer humanitarian aid directly to the Indonesian government or to pressure it internationally to allow humanitarian aid in. But it was not until 16 months later—October 1979—that humanitarian aid finally began, with the International Committee of the Red Cross (ICRC) and CRS delivering aid. Six weeks later, Mr. D. Campbell and Mr. P. Alexander of the Australian Embassy visited West Timor in the context of an Indonesian aid proposal. The trip, which took place from 10-14 August 1978, involved not only visiting Kupang but traveling to Atambua not far from the East Timorese border. They reported on the situation in East Timor: [Censored] showed us some very recent photographs [Censored] of the condition of the refugees in Bobonaro. The photographs depicted many sick, starving and malnourished women and children, typical of famine scenes throughout the world. [Censored] said the condition of the refugees, many of whom had in any case arrived in a desperate condition, was extremely poor. The Indonesian authorities were 18 19

NAA: A1838 3006-4-3 Part 24, 11-14. NAA: A1838 3006-4-3 Part 24, 101-102.

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“doing almost nothing” to alleviate the situation … at least 1.5% of the refugees were dying monthly and that in some groups the death rate was around 8% per month.20

Research has also established that Australian ambassador Tom Critchley visited East Timor along with ten other foreign ambassadors from 6 to 8 September 1978. Mr. Critchley reported in confidence that the visit had been carefully controlled by the Indonesian authorities, who were clearly anxious that the tragic plight of many of the refugees seen should not be blamed on their administration.21 The ambassadors were briefed that approximately 125,000 people had come down from the mountains, and that as many as a quarter of them were suffering from cholera, malaria, tuberculosis and advanced malnutrition. According to an eyewitness, “the visiting ambassadors were conspicuously moved by the sight. A few shook their heads in disbelief. The ambassador of Papua New Guinea, Dominic Diya told me: ‘We are a poor country but I have not seen anything like this. I am shocked to see the conditions of the refugees.’” 22 The maxim of Thucydides prevails over official pieties. Without the Power element, Transparency, Fact-Finding and Accountability are mere slogans, along with another slogan that has become fashionable in recent years—R2P (the Responsibility to Protect). However, as a scholar-activist has argued in respect of R2P: The maxims that largely guide international affairs are not graven in stone, and, in fact, have become considerably less harsh over the years as a result of the civilizing effect of popular movements. For that continuing and essential project, R2P can be a valuable tool, much as the Universal Declaration of Human Rights has been. Even though states do not adhere to the UD, and some formally reject much of it (crucially including the world’s most powerful state), nonetheless it serves as an ideal that activists can appeal to in educational and organizing 20 21

22

A1838 3006-4-3 Part 24, 174. Clinton Fernandes, ‘International Civil Society as Agent of Protection: Responses to the famine in East Timor’, in Deborah Mayersen and Annie Pohlman (eds), Genocide and Mass Atrocities in Asia: Legacies and Prevention. (New York: Routledge, 2013). See also Commission for Reception, Truth and Reconciliation, Chega!, Vols 3 and 7 (Dili, 2005). Straits Times, ‘Land of suffering, hunger and disease’, 11 September 1978.

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efforts, often effectively. My suspicion is that a major contribution of the discussion of R2P may turn out to be rather similar, and with sufficient commitment, unfortunately not yet detectable among the powerful, it could be significant indeed.23

In this less pessimistic sense, slogans such as Transparency, Fact-Finding and Accountability might also serve as ‘ideals that activists can appeal to in educational and organizing efforts, often effectively.’ Similarly, ‘a major contribution of the discussion’ of Transparency, Fact-Finding and Accountability may also, ‘with sufficient commitment, unfortunately not yet detectable among the powerful, be significant indeed.’ It is in this sense that we turn to discuss Transparency, Fact-Finding and Accountability as Indonesian forces withdrew from East Timor in 1999. Transparency, Fact-Finding and Accountability after Indonesia’s withdrawal in 1999 On 27 January 1999, Indonesia’s President B.J. Habibie agreed to allow the East Timorese to vote on whether they wanted independence or greater autonomy within Indonesia. According to an agreement between Indonesia, Portugal and the United Nations, the ballot would be administered by the UN but Indonesia would retain sole responsibility for the maintenance of law and order. Meanwhile, the Indonesian military intensified a terror campaign under the guise of proxy forces, known as the ‘militia’, in order to compel the East Timorese to reject independence. The UN Security Council established the United Nations Assistance Mission in East Timor (UNAMET), enabling the ballot to occur on 30 August 1999. The results of the vote were announced on 4 September 1999: with 98% of registered voters participating, only 21.5% favoured special autonomy while 78.5% rejected it, effectively choosing independence. The Indonesian authorities immediately carried out a forced displacement campaign in East Timor, deporting approximately 250,000 people across the border into Indonesian West Timor. Indonesian forces destroyed approximately 70% of the buildings in East Timor, crip23

N. Chomsky, Statement to the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect, United Nations, New York, 23 July 2009. http://www.un.org/ga/president/63/interactive/ protect/noam.pdf.

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pled vital infrastructure, and killed more than 1,400 people. They also committed widespread rape, looting and arson. Indonesia’s first civilian defence minister, Juwono Sudarsono, unwittingly conceded that his country had committed state-sponsored terror, saying that senior military personnel “were just carrying out state policy.” 24 Under mounting international pressure, the UN Security Council established a multinational force, the International Force—East Timor (InterFET), with the power to restore security by force. As Indonesian forces were leaving East Timor, Indonesia’s National Commission on Human Rights established a special investigatory team known as KPP-HAM.25 The team paid special attention to gross violations of human rights such as genocide, massacre, torture, enforced displacement, crimes against women and children and scorched earth policies. It was empowered to investigate whether and to what extent the apparatus of State and/or other bodies, national and international, were involved in these crimes. It examined only the last nine months from January 1999 until the departure of Indonesian forces in September that year, not the 24-year occupation. KPP-HAM commenced its investigation on September 23, 1999. It completed its report on January 31, 2000. It found “evidence of crimes that could be classified as crimes of universal jurisdiction including systematic and mass murder; extensive destruction, enslavement, forced deportations and displacement and other inhumane acts committed against the civilian population”.26 The report urged the parliament and the government to “form a Human Rights Court with the authority to try the perpetrators of human rights violations and crimes against humanity” that occurred “in the past as well as those that have occurred in East Timor to the present.” It urged the “Government and the Attorney General” to ensure that crimes against humanity were investigated and punished “whoever is the perpetrator,” in a free and independent manner “without any interference whatsoever.” Some years later, an International Commission of Experts appointed by the UN Secretary General found that the KPP24 25 26

Interview with Jason Tedjasukmana, Time magazine, vol 155, no 8, 28 February 2000. Komisi Penyelidik Pelanggaran HAM di Timor Timur, or National Commission of Inquiry on Human Rights Violations in East Timor. Report of the Indonesian Commission of Investigation into Human Rights Violations, http://www.jsmp.minihub.org/Resources/2000/KPP%20Ham %20%28e%29.htm.

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HAM report was a “genuine and impartial effort to inquire into serious human rights violations, reflecting the firm commitment of its members to establish the facts.” The Commission said that its inquiry procedures “conformed to international standards relating to pro justicia inquiries.” 27 On 27 September 1999, the UN Commission on Human Rights condemned the “widespread, systematic and gross violations of human rights and international humanitarian law in East Timor” and called upon the UN Secretary–General to establish an international commission of inquiry into the events of 1999. This Commission reported that its members “were confronted with testimonies surpassing their imagination.” It recommended that the UN “should establish an international human rights tribunal” to bring perpetrators of serious violations to justice. It submitted its recommendations to the UN Secretary–General. From 4-10 November 1999, three United Nations thematic Special Rapporteurs visited East Timor. They recommended that the Security Council should consider the establishment of an international criminal tribunal in order to bring the perpetrators to justice. They called for prosecutions of those responsible, “both directly and by virtue of command responsibility, however high the level of responsibility.” They stated that an international criminal tribunal should be done preferably with the consent of the Indonesian government, but such consent should not be a prerequisite. Such a tribunal, they recommended, should have jurisdiction over all crimes under international law committed by any party in the Territory since the departure of the Portuguese in 1975. The only qualification they attached to their recommendation was that the Indonesian government would have to take steps “in a matter of months” to bring the perpetrators to justice. Under pressure from its military, the Indonesian government took its cue from this qualification. In order to avoid responsibility, it announced the establishment of a so-called Ad Hoc Human Rights Court in Jakarta. Proceedings were commenced against 18 suspects from a total of 22 identified by KPP-HAM. Ten of these 18 were military officers, five were police officers, two were civilian government officials and one was a militia leader. All 18 defendants were indicted for failing to prevent crimes against humanity, rather than for committing such crimes. The atmosphere in the courtroom was highly intimidatory.28 Witnesses 27 28

UN Doc. S/2005/458, May 26, 2005. This section relies on interviews with UN Trial Observers and NGOs monitoring the trials.

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enjoyed no sense of security. One of the witnesses was made to sit beside militia figurehead Eurico Guterres, himself a defendant in another trial. Indonesian military personnel enjoyed free access to the witness waiting room. A so-called ‘safe house’ for witnesses had a sign placed outside it announcing that it was a witness safe house. Indonesian soldiers from the units accused of committing crimes against humanity attended the proceedings of the Ad Hoc Court en masse, some of them carrying weapons whilst in the courtroom. When they were eventually called to the witness stand, witnesses were questioned for hours without respite. Throughout the proceedings, witnesses were ridiculed and intimidated, including by the prosecution. A witness who had suffered a serious disability as a result of an attack was laughed at by members of the prosecution and the defence. A platoon of Indonesian special forces personnel who had been bussed in for the occasion were seated in the public gallery. These soldiers shouted words of warning and intimidation at the witnesses and the judges during the proceedings. Numerous credible analyses29 have demonstrated that the prosecution called witnesses who were manifestly unable to provide evidence that supported its case. It never attempted to show effective control or a superior-subordinate relationship between those who carried out the prohibited acts and those accused of having command responsibility. It made irrelevant closing submissions and made no attempt to show what the KPP-HAM Report had concluded, namely that the violence was a direct result of Government policy. Judges received threats to their life both inside and outside the courtroom. Often, when a judge was about to deliver the verdict, armed soldiers in the courtroom would shout at them, leading them to be concerned about their own security. A judge in the Ad Hoc Court later conceded that the court had not made any significant contribution to strengthening the rule of law in Indonesia. The Ad Hoc Court was widely denounced as a sham. A Commission of Experts appointed by 29

D. Cohen, ‘Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta’, International Center for Transitional Justice Occasional Paper Series, August 2003; S. Linton, ‘Unraveling the First Th ree Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor’, Leiden Journal of International Law 17, 2004; ‘Report to the SecretaryGeneral of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in East Timor in 1999’, UN Doc. S/2005/458, May 26, 2005.

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the UN Secretary General concluded that the proceedings were “manifestly inadequate with respect to investigations, prosecution and trials, and … failed to deliver justice. The atmosphere and context of the entire court proceedings were indicative of the lack of political will in Indonesia to seriously and credibly prosecute the defendants.”30 Unsurprisingly, 12 of the 18 accused were acquitted at trial. All the others have since had their convictions overturned. The Ad Hoc court was widely denounced as a sham. Another source of legal authority arose out of the United Nations Transitional Administration in East Timor (UNTAET), which was established on 25th October 1999 by the UN Security Council.31 UNTAET had the authority for all legislative and executive matters in East Timor, including the administration of justice. It established the Special Panels for Serious Crimes, the Serious Crimes Unit and the Defence Lawyers Unit (DLU). There were formidable obstacles facing these institutions. Instead of conducting the prosecutions of suspected Indonesian war criminals at an international tribunal in an established venue such as The Hague, the Special Panels for Serious Crimes was established within the impoverished local structure of the Dili District Court. Similarly, the Serious Crimes Unit was established within the Office of the General Prosecutor, Longuinhos Monteiro. When the Serious Crimes Unit requested the Special Panels for Serious Crimes to issue warrants for Yayat Sudrajat (the military intelligence chief in East Timor) and Wiranto (the commander of the Indonesian military), the request was declined by a single judge of the Special Panels for lack of supporting evidence. The Serious Crimes Unit responded by filing supporting materials of 13,000 pages and 1,500 witness statements. The General Prosecutor publicly criticized the international judges on the Special Panels for failing to act on the arrest warrant against Wiranto, and signaled his intention to submit the warrant to Interpol. An international judge, Phillip Rapoza, then issued arrest warrants for both Yayat Sudrajat and Wiranto on 10 May 2004. Longuinhos Monteiro was then summoned to the office of President Gusmao and summarily informed that such actions would harm East Timor’s relationship with its powerful neighbour, Indonesia. The view of the government of East Timor was that it could not carry such a heavy diplomatic burden on its own, and that the UN should bear this responsibility. The 30 31

UN Doc. S/2005/458, May 26, 2005, p 88. Resolution 1272 of 1999.

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situation confronting the government of East Timor is understandable; in a schoolyard, a bullied child with no other allies is often forced to come to terms with its tormentor. In March 2005, the Indonesian authorities made another attempt to evade an international tribunal, forming a Commission on Truth and Friendship (CTF) with the government of East Timor. The CTF had originally stemmed from an idea of Jose Ramos-Horta, who proposed a panel of eminent persons from Asia (i.e. not limited to Indonesia or East Timor). Indonesia responded by engineering the CTF, which had several crucial differences to the original proposal. It was entirely bilateral; only Indonesian and East Timorese commissioners would preside over it, meaning that there would be no opportunity for multilateral involvement. It would have no power to compel testimony (or even the attendance) of witnesses. It would have no power to compel people or institutions to produce any documentary evidence. It would have no institutional independence from the two states. It would be unable to determine individual responsibility. It would have the power to recommend amnesties. This was, obviously, a way of absolving those who bore greatest responsibility for the crimes. Human rights organizations and other civil society groups in Indonesia, as well as those in East Timor, objected to this Commission. Its proceedings quickly descended into farce, with senior Indonesian leaders and officials claiming that the atrocities were everyone else’s fault but their own. On one occasion, the behaviour of Indonesian co-chairman Benjamin Mangkoedilaga resulted in all East Timorese commission members remaining silent in protest. The United Nations boycotted the CTF’s proceedings altogether, saying it did not condone amnesties regarding war crimes, crimes against humanity and genocide. UN Secretary General Ban Ki-Moon stated that the UN: cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them. Unless the terms of reference are revised to comply with international standards, officials of the United Nations will, therefore, not testify at its proceedings or take any other steps that would support the work of the CTF and thereby further the possible grant of amnesties in respect of such acts.32 32

UN, Secretary-General says UN officials will not testify at Timor-Leste Commission, 26 July 2007. http://www.un.org/News/Press/docs/2007/

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The international criticism had one small effect: the CTF refused to give any amnesties. It found that the Indonesian military, the Indonesian civilian government and anti-independence militias bore institutional responsibility for thousands of “gross human rights violations in the form of crimes against humanity” including “murder, rape, and other forms of sexual violence, torture, illegal detention and forcible transfer and deportation” against the East Timorese civilian population. The CTF had no power to prosecute the perpetrators. The most detailed attempt to examine what happened to the people of East Timor under the occupation remains the work of the Commission for Reception, Truth and Reconciliation in East Timor. The Commission, known by its Portuguese initials, CAVR (A Comissão de Acolhimento, Verdade e Reconciliação) was established as an independent statutory authority in July 2001 by the UN Transitional Authority in East Timor. It was mandated to inquire into human rights abuses committed by all sides between April 1974 and October 1999.33 Its official report, Chega! (Portuguese for ‘enough’), benefited from scientifically-defensible estimates of the number of East Timorese killed during the occupation. There had been numerous reports of mass killings and famine during the 24 years of Indonesian rule, but various apologists for the occupation had questioned estimates that up to 200,000 East Timorese may have perished. Chega! settled the matter definitively, thanks to the assistance of Benetech, a California-based nonprofit organization devoted to using technology in the service of humanity. Its Human Rights Data Analysis Group (HRDAG) worked with the CAVR to establish a firm foundation of fact, providing the most accurate and scientifically precise figures possible. It did so by building on a database of three independent sources: narrative statements, a retrospective mortality survey, and a census of public graveyards.34 The first source consisted of approximately 8,000 narrative testimonies in which patterns of abuses such as arbitrary detentions, torture, rape and massive property destruction were reported to the CAVR. In turn, the CAVR developed a Human Rights Violations Database, thus enabling it to perform the functions of community socialization and the

33 34

sgsm11101.doc.htm. UNTAET Regulation 2001/10. Report by the Benetech Human Rights Data Analysis Group to the CAVR, The Profile of Human Rights Violations in Timor-Leste, 1974-1999, R. Silva and P. Ball, 9 February 2006.

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promotion of truth-seeking, reconciliation and reception. The second source was a survey of 1,396 households that were randomly selected from East Timor’s approximately 180,000 households. Each sampled household gave information about their residence pattern and household members and relatives who died during the occupation. While these mortality surveys are standard procedure in governmental statistics, no truth commission had previously conducted one. The third source was the graveyard census database, developed by visiting 492 public cemeteries in East Timor and recording the name, date of birth and date of death for every grave for which the information was available. The researchers established that there were approximately 319,000 graves in the sample, of which about half had complete name and date information. Once again, although this is standard procedure in the field of historical demography, no truth commission had previously conducted one. Chega! concluded that the “minimum-bound for the number of conflict-related deaths was 102,800 (+/- 12,000).” To improve on the accuracy of this figure, Sarah Staveteig, a demographer at the University of California—Berkeley, applied standard demographic methods of indirect estimation and found that “a reasonable upper bound on excess deaths during the period [was] 204,000 (± 51,000).” Staveteig considered it “likely that 204,000 is a conservative upper-bound estimate on excess mortality.” 35 Chega! found widespread evidence of “crimes against humanity,” namely an underlying Indonesian governmental or organisational policy that directed, instigated or encouraged “certain inhumane acts carried out within a specific context, namely as part of a widespread or systematic attack directed against a civilian population”.36 The specific 35

36

Sarah Staveteig, ‘How Many Persons in East Timor Went “Missing” During the Indonesian Occupation?: Results from Indirect Estimates’, Interim Report IR-07-003 International Institute for Applied Systems Analysis (IIASA), Laxenburg, Austria. Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) defined the context as ‘when committed in armed confl ict, whether international or internal in character, and directed against any civilian population’. Article 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) defined the context as ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. Article 7 of the Statute of the International Criminal Court defines the context as ‘when committed as part of a widespread or systematic attack directed against any civilian population’.

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crimes committed by Indonesian forces were sexual violence, torture, enslavement, deportation or forcible transfer, arbitrary imprisonment, murder and extermination. All these processes outlined above serve to illustrate Chomsky’s point that “the maxims that guide international affairs are not graven in stone, and, in fact, have become considerably less harsh over the years as a result of the civilizing effect of popular movements.”37 The Indonesian National Commission on Human Rights developed as a result of struggles within Indonesia to resist the Suharto dictatorship and protect civil liberties in Indonesia and East Timor. Its inquiry was a solid contribution to the causes of Transparency and Fact-Finding. The other inquiries discussed above have also contributed to the causes of Transparency and Fact-Finding. Accountability is a different matter. The fact is that there has been no justice for the war crimes and crimes against humanity in East Timor. This state of affairs, too, is not graven in stone, although considerably more activism and other social and political changes will likely be needed first. The International Stabilisation Force (ISF) in East Timor On 20 September 1999, a multi-national peacekeeping force under a UN mandate entered East Timor. Known as InterFET (International ForceEast Timor), it secured the territory and handed it over to the United Nations Transitional Administration in East Timor (UNTAET) on 25 October 1999. East Timor gained its independence on 20 May 2002. Although it had its shortcomings, InterFET played an important role in stabilising and securing East Timor. Well-trained and well-disciplined Australian troops in InterFET and UNTAET were a clear contrast to the Indonesian military. In 2006, however, for reasons that are outside the scope of this chapter, conflict within elements of the East Timorese military and between the military and police force led to general violence and a breakdown of law and order. The government of East Timor requested international assistance. Australian troops once again deployed to East Timor as part of an International Stabilisation Force (ISF). Malaysia and New Zealand contributed personnel to the ISF under Australian command. Portugal also deployed troops but under independent command. 37

N. Chomsky, Statement to the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect, United Nations, New York, 23 July 2009.

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The situation was brought under control. All foreign troops were withdrawn at the end of 2012. Due to the Status of Forces Agreement between East Timor and the ISF member states, ISF personnel were exempt from local laws and judicial systems. The ISF coordinated with the UN and the government of East Timor but did not come under UN command. East Timorese citizens could not take effective action to resolve complaints against ISF personnel in either the East Timorese justice system or the UN system. Transparency, Fact-Finding and Accountability were the immediate casualties. A mundane issue such as road safety and vehicle accidents will serve to illustrate the point. One evening in July 2010, as I was driving with friends from Los Palos to Iliomar, I was surprised to see an ISF vehicle speeding past me in the opposite direction. The road was simply not good enough for such a speed, and there were no flashing lights or other signs to indicate that the vehicle was responding to an emergency. When I commented on how risky it seemed, my companions said that ISF troops usually speed and drive aggressively in the countryside. Later, when we stopped by the side of the road to buy fruit, I noticed that two men in the family that owned the fruit stand seemed ill. I asked how they were, and was told that they were restricted in their movements because they’d been seriously injured in a vehicle accident with Australian troops who were in the ISF. They showed me their injuries. Aghast, I asked if I could photograph them and bring the details of their injuries to the attention of journalists and parliamentarians back home in Australia. Their story made front-page and Page 2 news.38 The Department of Defence admitted that between 2008 and mid2010 Australian soldiers in East Timor had been in nine vehicle crashes in which civilians were injured. It paid no compensation to the victims because under the Status of Forces Agreement it was East Timor’s responsibility to do so. In the specific case of the men I had photographed, the facts are as follows: the men are Adelino Madeira, a 33-year-old father of two, and his 38-year-old brother Lourenco Madeira, a father of four. An Australian army vehicle collided with the motorcycle they were riding so hard that both needed hospitalization. Adelino had to be evacuated out of East Timor to Royal Darwin Hospital, where he received lifesaving surgery and stayed for nearly two months. Lourenco still needs 38

Lindsay Murdoch, ‘Hurt Timorese left with no recourse’, The Age, 6 August 2010.

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crutches to walk. They later received $US1,500 each from the government of East Timor but nothing from Australia. Their injuries are so severe that Adelino remains unable to resume his job as a school teacher. In a remote, poor community, that means there are many young children who will suffer because of a lack of education. Lourenco cannot work as a farmer—with obvious consequences for his childrens’ well-being. Until an Australian journalist asked questions about the accident, the Department of Defence had withheld all details of it from the Australian public. It continued to refuse to say whether Adelino and Lourenco were given an apology or even provided with a formal report into what had happened. This reinforces Mark Curtis’ concept of ‘unpeople’, that is creatures who look human, but are not really human. They aren’t actual people, and therefore they don’t merit elementary human rights. Accountability and the Maxim of Thucydides The core propositions of this chapter have been established: (1) if an operational incident results in harm to those without sufficient relative power— relative, that is, to those who are causing the harm—then Transparency, Fact-Finding and Accountability are unlikely to occur, and (2) it is also unlikely that there will be repercussions for those causing the harm. The record on investigations in East Timor conforms with great precision to the maxim of Thucydides: that “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” However, determined civil society action has resulted in a modest amount of Transparency and Fact-Finding. As to Accountability, the maxim is not graven in stone. If there is enough pressure, there may yet be justice for the people of East Timor. How much pressure there is, is for us to determine.

5 The UK in Basra and the Death of Baha Mousa Rachel Kerr

On 15 September 2003, Baha Da’oud Salim Mousa, an Iraqi civilian, died whilst in British custody at a military base and detention centre in Basra, Iraq. In the days and hours leading up to his death Mousa was subjected to numerous assaults inflicted by British soldiers, resulting in 93 separate external injuries. The post mortem reported that the precise cause of death was unknown but was either the net result of those injuries or postural asphyxia. Although the case gave rise to a court martial of seven soldiers, including the Commanding Officer in charge, a case brought by the family of the victim under the European Convention on Human Rights (ECHR), and two separate official inquiries, no one was held directly responsible for Mousa’s death. Ten years later, the ramifications of this sorry incident continued to resonate. For Baha Mousa’s family, it meant the death of a loved one, with all that entails. For the British Army, the system of military justice and civil-military relations in the UK, the process of dealing with the fallout of the case was ongoing. More broadly, the case provided further grist to the mill of those who opposed the war, highlighting doubts about the legitimacy of British involvement in Iraq and questioning the responsibility of the government, as well as about the future of military investigations. It also had implications in terms of the applicability of human rights law and the reach of international criminal justice. This chapter discusses the Mousa case and its ramifications in the context of thinking about approaches to investigating operational incidents—the theme of this volume. It considers the implications of the UK experience with the Mousa case in light of the three conference themes of law, justice and politics. First, I consider the legal framework governing British forces in Iraq. Mousa’s death was considered in three legal contexts—as a war crime David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 71 – 85.

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prosecuted in the military justice system in the court martial of Corporal Payne and others (R v. Payne), as a violation of the European Convention on Human Rights (ECHR) (Al Skeini and others v. Secretary of State for Defence) and in the context of an official inquiry into the case and its handling led by the Right Honourable Sir William Gage, which completed its work and issued its final report in September 2011. Each raised separate but related issues regarding the relationship between International Humanitarian Law and International Human Rights Law, the applicability of each to the conduct of British forces in Iraq in 2003/4, specifically, the rules governing the treatment of civilian detainees, criminal responsibility of the state versus that of individuals, and direct versus command responsibility. Second, I look at the question of whether justice was served by these proceedings. As already stated, in spite of proceedings in a number of forums, no one was found directly responsible for Mousa’s death although one soldier was convicted of inhuman treatment and Mousa’s family (and others) were paid £2.83 million in compensation by the British Government in 2008.1 The Judge Advocate at the court martial lamented this point, stating that it was a result of a ‘more or less closing of ranks’.2 The third issue is the intersection of law and politics. In a wider sense, the Mousa case, and others, had serious ramifications for the British Government and Army, in particular in relation to perceptions of the legitimacy of the conduct of military operations in Iraq, and in relation to the legitimacy of the war itself. There was a keen sense that, rather than being an isolated ‘rotten apple’ incident, the Mousa case reflected a pattern of abuse and therefore a more endemic problem. Allegations of misconduct by British forces fed into, and were fuelled by, a wider sense of malaise concerning the involvement of British forces in Iraq in the first place. These allegations, and the way they were (mis-)handled in particular, did nothing to allay public opposition and if anything made it more vehement, whilst in some quarters, there were protests that British soldiers were being used as scapegoats, even as the Government managed to avert direct censure for what many regarded as an illegal war. Finally, 1

2

‘MOD in £3m abuse pay-out to Baha Mousa and nine other Iraqi ‘torture’ victims’, The Telegraph, 10 July 2008. Online. Available HTTP: (accessed 19 March 2013). R v. Payne, Transcript, 13 February 2007, p. 4964.

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with other allegations making their way through the courts, and a new inquiry underway into alleged abuse (The Al-Sweady Public Inquiry) the repercussions of the Mousa case continued to be felt keenly ten years after his death. Law The Mousa case was one of a number of cases in which allegations of abuse or unlawful killing were made against British forces operating in Iraq in 2003/4 in the context of unprecedented legal scrutiny of the Iraq War.3 These allegations first emerged in the public domain in reports by non-governmental organisations (NGOs) such as Amnesty, Human Rights Watch and Redress, which focused for the most part on allegations of unlawful killing in shooting incidents and the use of banned weapons, except for the latter, which focused on the treatment of Iraqi civilian detainees.4 At around the same time, relatives of six Iraqis killed by British forces, including Baha Mousa’s family, brought a claim against the UK Government under the ECHR, seeking judicial review of the Secretary of State for Defence’s March 2004 decision not to conduct independent inquiries into their deaths, accept liability or pay compensation. In 2007, the case was brought to the European Court of Human

3

4

As Gerry Simpson notes, in anti-war demonstrations, US President George Bush and Prime Minister Tony Blair were characterized as ‘war criminals’, international lawyers wrote letters to the press warning their governments against embarking on an ‘illegal war’. Meanwhile, in the UK, cases were brought in which the legality of the war was challenged (Singh and MacDonald, 2002; CND v. Prime Minister, 2002; R (Gentle and another) v. the Prime Minister, 2008) and commissions of inquiry were launched into the use of intelligence on Iraq’s alleged weapons programs (the Butler Inquiry), the circumstances of former UN weapons inspector, Dr David Kelly’s death and the role of the media and government in the presentation of that intelligence (the Hutton Inquiry) and a broad-ranging inquiry into the UK’s involvement in Iraq from 2001-9 (the Chilcot Inquiry). Simpson, G., Law, War and Crime (Cambridge: Polity, 2007), p. 3. See, for example, Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, December 2003; Amnesty International, Killings of Civilians in Basra and al-Amara, AI Index: MDE 14/007/2004, May 2004; REDRESS, ‘UK Army in Iraq: Time to Come Clean on Civilian Torture’, October 2007.

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Rights in Strasbourg, and other cases followed in its wake.5 Finally, a number of investigations were carried out by the Royal Military Police Special Investigations Branch, some of which were subsequently passed to the Army Prosecuting Authority or, in one exceptional case, the Crown Prosecution Service and led to charges being brought.6 In January 2008, the Aitken Report (discussed below) stated that some 229 allegations of criminal activity were investigated, 20 of which resulted in court martial or were summarily dealt with by the chain of command.7 Some of these cases, including the case concerning the death of Baha Mousa (R. v. Payne) involved what was described as conduct outside the scope of normal military operations, which “could not be mitigated by British soldiers ‘in the heat of the moment’ or in the face of an immediate threat to their own safety; but rather which appeared to have been committed in a deliberate and callous manner.” 8 The first issue that arose in relation to these allegations was what body of law applied to British forces operating in Iraq? In 2003/4, there 5

6

7 8

In October 2007, the families of Iraqis killed by British forces in southern Iraq in May 2004 brought a case to the High Court against the Secretary of State for Defence on the basis that the failure to conduct an independent investigation violated Article 2 of the ECHR. The families of the victims alleged that the victims had not been killed in a firefight as the British Army maintained (the battle of Danny Boy) but rather had been subjected to torture and mutilation at the British Army base prior to their death. As a result of the ECHR challenge, a commission of inquiry was formed. It commenced public hearings 4 March 2013. Al Sweady and Abbas v. Secretary of State for Defence, 2007. See: http://www.alsweadyinquiry. org/index.htm (accessed 19 March 2013). The Williams case was different in that it resulted in a criminal investigation and prosecution, at the request of the APA, even though the CO had determined that Williams had acted in accordance with his ROE. Williams had shot Hassan Said, an Iraqi civilian, in a struggle when Said seemed to be trying to grab his colleague’s gun. At issue was whether Williams’ action had been ‘reasonable and proportionate’, based on his perception of danger. In April 2005, the case was dropped. For more detailed treatment of all of the cases concerning British forces in Iraq 2003/4, see, Kerr, Rachel (2008), The Military on Trial: The British Army in Iraq (Nijmegen: Wolf Legal Publishers). The Atiken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008. The Atiken Report, p. 2.

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were three main bodies of law that might be applicable. First, the Law of Armed Conflict (LOAC), or International Humanitarian Law (IHL), set out in international conventions and customary international law. Second, International Criminal Law (ICL), which has significant overlap with IHL. Many of the acts that are considered crimes under ICL are set out in the Rome Statute of the International Criminal Court, including the crime of aggression, which is not part of IHL. Finally, International Human Rights Law (IHRL), which is distinct from the previous two in so far as it imposes obligations on states rather than individuals and so does not give rise to individual criminal responsibility. Parts of all of these bodies of international law were incorporated into UK domestic law through the ratification of various treaties, and the adoption of the International Criminal Court Act, 2001 and the Human Rights Act, 1998. Such is the legal framework but the question of which set of laws applied to the conduct of British forces depended on the nature of the armed conflict and the jurisdictional reach of IHRL during the period in question. The death of Baha Mousa occurred in September 2003, during which time UK forces were engaged in Phase 3 of Operation Telic (stabilization and reconstruction), which lasted from 6 May 2003, when the Coalition Provisional Authority formally took charge to 28 June 2004, when sovereignty was restored to Iraq.9 During this period, therefore, Iraq was under formal occupation. This was confirmed in a letter to the President of the Security Council from the Permanent Representatives of the UK and the US to the UN on 8 May 2003 and formally affirmed in UN Security Council Resolution 1483, 22 May 2003. The UK stated that it was bound by the laws of armed conflict applicable to situations of military occupation, namely the relevant provisions of the 1907 Hague Regulations and the 1949 Geneva Conventions.10 The extent to which British forces were also obliged to comply with IHRL, including the ECHR was more contentious, as discussed below. The specific issue of the status and treatment of detainees was potentially problematic, since it was not clear which legal regime applied. 9 10

Phase 1 was planning and deployment; Phase 2 was major combat operations, which began 20 March 2003 and ended 1 May 2003. The duties of an Occupying Power are found primarily in Articles 42-56 of the 1907 Hague Regulations concerning the Laws and customs of War on Land, and Articles 27-34 and 47-78 of the Fourth Geneva Convention (1949) relative to the Protection of Civilian Persons in Time of War.

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Prisoners of War (POWs) were, of course, afforded detailed protections under the Third Geneva Convention (1929), but in order to benefit from those protections, a person must be designated a ‘privileged’ combatant. Members of regular armed forces are privileged combatants, as are members of irregular forces if they belong to an organised group and fulfil the requisite criteria; an ‘unprivileged’ combatant is someone who is directly participating in hostilities but does not fulfi l the above-mentioned criteria and therefore is not entitled to protection as a POW. It is this category of ‘unprivileged’ combatant that the US categorised as ‘unlawful combatant’ and confined to a ‘legal black hole’ at Guantanamo.11 In Iraq, of course, coalition forces encountered a range of ‘privileged’ and ‘unprivileged’ combatants as there were regular and irregular armed groups mixed with civilians who had joined the fray. Such civilians were not entitled to protection as POWs but they were, at least, entitled to protection under the Fourth Geneva Convention if they were interned or imprisoned for offences ‘solely intended to harm the Occupying Power’ or for ‘imperative reasons of security’.12 This is the situation in which Baha Mousa found himself when he was detained on 14 September 2003. As a civilian detainee, he was entitled to the normal protections afforded to civilians in times of military occupation; he was also entitled to the basic protections for civilian detainees or internees. The more contentious issue that arose in respect of Mousa, and others, was whether or not they were protected by International Human Rights Law, specifically, the ECHR, to which the UK was party. The UK position was that the ECHR did not apply extra-territorially—i.e. it did not apply outside the zone of signatories to the Convention. However, this view was challenged in 2004, when relatives of six Iraqi civilians killed by British forces brought a claim under the ECHR against the Secretary of State for Defence, alleging that he had failed to fulfi l his responsibility to conduct independent inquiries into their deaths and accept liability (Al Skeini v. Secretary of State for Defence, 2004). All six deaths occurred during the period of occupation and five of the six concerned allegations of unlawful killing in shooting incidents. In respect of all of these 11

12

The term ‘legal black hole’ was applied to the US base at Guantanamo, Cuba by Lord Steyn in a speech to the British Institute for International and Comparative Law, London, 25 October 2003. For the text of the speech, see Johan Steyn, ‘Guantanamo Bay: The Legal Black Hole’, International and Comparative Law Quarterly, 53, (2004): 1-15. 1949 Geneva Convention IV, Article 68, 78.

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incidents, preliminary inquiries in the military found that the soldiers concerned had acted within their Rules of Engagement and no further action was taken. The Mousa’s case stood out as the only one to die whilst detained by British forces, as a direct result of injuries inflicted by those forces. In its judgment issued in December 2004 and upheld on appeal in June 2007, the House of Lords held that the ECHR only applied to the Mousa case, where the victim was in the custody of British forces, and not to the other alleged incidents since they occurred outside the ‘legal space’ of the signatory states of the ECHR. The House of Lords ruling thus confirmed the British Government’s position. Not satisfied with this judgment, the families of the alleged victims took their case to the European Court of Human Rights in Strasbourg (ECtHR) and in a potentially very significant landmark ruling issued in July 2011, the ECtHR overturned the House of Lords ruling and found that UK forces operating outside of their military installations were in fact covered by the ECHR.13 This ruling was based on an exception to the territoriality principle. The first such exception was applied by the House of Lords in respect of Mousa and dictated that the ECHR applied because Mousa had been brought under the control of UK authorities when he was detained. The second exception to territoriality was deemed to be when, ‘as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside its national territory.’ This exception was applied by the ECtHR to the other five cases on the basis that: It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security 13

Judgment, Case of Al-Skeini and others v. The United Kingdom (Application no. 55721/07), 7 July 2011. For discussion, see Wells Bennett, ‘The Extraterritorial Effect of Human Rights: the ECHR’s Al-Skeini Decision’. Online. Available HTTP: (accessed 19 March 2013).

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operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.14

The Court went on to determine that the investigations conducted by the military into the alleged incidents were inadequate and found the UK in breach of Article 2 of the Convention. The implications of this decision are discussed below. Justice The immediate result of the House of Lords’ December 2007 ruling on Al-Skeini was that in 2008 the UK settled the damages claimed by Baha Mousa’s father and nine others who had been detained and ill-treated at the same time but had survived. A total of £2.83 million was shared amongst them.15 The Government also conceded that the Public Inquiry should be established, in May 2008. The inquiry was headed by Justice Sir William Gage and its terms of reference were: To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen’s Lancashire Regiment in Iraq in 2003, and to make recommendations.

The inquiry issued its Final Report on 8 September 2011. It gave a detailed description of the events of 14-16 September 2003 and condemned the ‘cowardly and violent’ behaviour of British soldiers.16 It also made 73 very 14 15

16

Judgment, Al-Skeini and others v. The United Kingdom, at 149. ‘MOD in £3m abuse pay-out to Baha Mousa and nine other Iraqi “torture” victims’, The Telegraph, 10 July 2008. Online. Available HTTP: (accessed 19 March 2013). Report of the Baha Mousa Inquiry, 8 September 2011. Part XVII: Summary of Findings. Online. Available HTTP:, http://www.bahamousainquiry.

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detailed recommendations which focused on obtaining greater clarity in guidance on dealing with civilian detainees and allowing for more robust reporting of incidents. The inquiry found that Mousa, aged 26, died in Basra on 15 September 2003 after being subjected to numerous assaults over 36 hours while in the custody of British soldiers (1 QLR). He, along with six others, was arrested the previous morning following a raid on the hotel where he worked as a receptionist (Operation Salerno). Inside the hotel, soldiers found a stockpile of weapons and bomb-making equipment and a large quantity of cash, all of which appeared to confirm their suspicions that the hotel was being used as a base for insurgents. Nine other Iraqis were detained with him. All of those detained were subjected to ill-treatment, including stress-positioning and hooding. At about 21.40hrs on September 15, 2003, following a final struggle and further assaults, Baha Mousa stopped breathing. He was pronounced dead at 22.05hrs. The exact cause of Mousa’s death was unknown but at the post mortem it was reported that his body had 93 visible injuries, including strangulation marks, broken ribs and a broken nose. The Mousa Inquiry Report identified Corporal Payne and others as being culpable and said that the commanding officer, Colonel Jorge Mendonca ought to have known what was going on. It also criticised Father Peter Madden and Dr Derek Keilloh, the Regiment’s Chaplain and medical officer for turning a blind eye. Keilloh was later subject to disciplinary proceedings. The impact of all of this was significant. The head of the British Army, General Sir Peter Wall, said that the case had cast a ‘dark shadow’ over the Army’s reputation.17 One of the main focuses of the inquiry was a detailed investigation into how the infamous ‘five techniques’, including stress positioning and hooding, banned for over thirty years, had come to be used by British forces in this case. These techniques, designed to prolong the ‘shock of capture’ and ready the victim for interrogation were effectively banned from use by UK forces in 1972 as a result of an inquiry

17

org/f_report/vol%20iii/Part%20XVIII/Part%20XVIII.pdf> (accessed 23 March 2013). For full and detailed discussion of the investigation, court martial and inquiry, see A. T. Williams, A Very British Killing: The Death of Baha Mousa (London: Jonathan Cape, 2012). ‘Baha Mousa’s death casts a shadow over British army, says top general’, The Guardian, 8 September 2011. Online. Available < http://www.guardian.co.uk/world/2011/sep/08/baha-mousa-shadow-british-army> (accessed 23 March 2013).

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into their use in Northern Ireland. The question was how had knowledge of that ban apparently been lost for a period in 2003? The inquiry pointed to a ‘corporate failure’ at the MoD and confirmed that the practice of hooding in particular was ‘unjustified and wholly unacceptable’. Even more damning, the inquiry concluded that the use of these techniques had created an environment in which abuse was allowed to take place. The case of Baha Mousa and its (mis-)handling also gave rise to concerns about the ability of the military justice system to deal with such allegations, in spite of the Aitken Report’s deeming it ‘fit for purpose’ in 2008.18 In July 2005, seven soldiers were charged in connection with Mousa’s death. On 19 September 2006, at the beginning of the court martial, Corporal Donald Payne pleaded guilty to inhumane treatment, but denied manslaughter and perverting the course of justice. The other six pleaded not guilty. On 14 Feburary 2007, charges were dropped against 4 accused, including Colonel Jorge Mondonca, who was absolved of any command responsibility on the basis that the abuse was a ‘one-off ’ occurrence which Col Mendonca had no reason to believe was taking place. The court martial ended a month later and the remaining soldiers were acquitted, except for Payne who was acquitted of manslaughter but convicted of inhuman treatment, to which he had plead guilty. Payne was imprisoned for one year and dismissed from the Army. He has the dubious distinction of being the first British soldier to be convicted under 2001 ICC Act. The fact that only one conviction resulted from the court martial was attributed to what the Judge Advocate described as a ‘more or less closing of ranks’. Also criticised was the lack of transparency in respect of other investigations which fuelled suspicions that the MoD was trying to cover-up other incidents.19 Phil Shiner, of Public Interest Lawyers (the 18

19

In February 2005, General Sir Mike Jackson as head of the Army ordered an internal investigation into allegations of war crimes. This was conducted by Brigadier General Jonathan Aitken and his report was issued in January 2008. The Aitken Report found that while changes are needed to rectify serious flaws in the way soldiers are trained, there was no evidence of systemic abuse and although it recommended changes to the system of military investigations to make it more efficient, on the whole, the military justice system was fit for purpose. The Atiken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008. Phil Shiner, ‘A cover-up of torture, racism, and complicity in war crimes’, The Guardian, 23 April 2007. For example, in the Al Ferkah (2005) case,

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firm that is representing the families of the victims in the ECHR cases), called the outcome a ‘travesty’. Meanwhile, Amnesty International and Redress both called for investigations of alleged abuse to be conducted by an impartial body, but supporters of the military justice system argued that this would be unfair and that soldiers’ conduct must be judged by their peers, ‘not as if they are walking down Watford High Street’. Colonel David Black of QLR said that soldiers need to operate without being worried about ‘over-zealous and remote officialdom’. In the wake of all the various proceedings, the question remains: Was justice done? In June 2007, Andrew Johnson in The Independent lamented: ‘Despite an interim payment of compensation by the MoD to the receptionist’s family, a three-year investigation and a six-month court martial of seven soldiers, costing £20 million, nobody has ever been found responsible for Mousa’s death’.20 Perhaps even more damaging, the suspicion that these cases represented only the ‘tip of the iceberg’ continued to dog the MoD. The Iraq Historic Allegations Team (IHAT) was established in November 2010 to investigate numerous other allegations of abuse of Iraqi civilians by British forces between March 2003 and December 2008. In June 2011, the IHAT was dismissed as a ‘shambles’ as news emerged that only one person had been interviewed in its first six months of operation.21 The IHAT also faced a legal challenge to its authority; in 2010, 128 Iraqi civilians brought a case under the ECHR alleging that it lacked the requisite independence due to its inclusion of members of the Royal Military Police who were involved in operations in Iraq (Ali Zaka Mousa and others v. Secretary of State for Defence). In November 2011, the Court of Appeal agreed that it was not sufficiently independent. RMP personnel were subsequently replaced with personnel from the Royal Naval Police instead.

20 21

seven British soldiers were accused of murder and violent disorder on the basis that they had meted out gratuitous violence resulting in the death of 18-year old Nadham Abdullah when on patrol in the village of Al Ferkah. The case was dismissed on the basis of lack of evidence. The Judge Advocate pointed to ‘serious and significant omissions’ in the investigation. ‘A bloody epitaph to Blair’s war’, The Independent, 17 June 2007. ‘Iraq Historic Allegations team probe “is a shambles”’, BBC News, 14 June 2011. Online. Available http://www.bbc.co.uk/news/uk-13757766, (accessed 23 March 2013).

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Politics The allegations made against UK forces and the way in which they were dealt with also had policy implications. On the one hand, the cases and their fallout should be understood in the context of the political and operational environment in which British forces were operating. In a wider sense, changes in the character of contemporary war, and changes in the character of reporting of contemporary war presented new challenges for those engaged in military operations: “one of the many darker ironies of twentieth century history is that, just as codification of laws respecting non-combatants achieved further refinements, a whole surge of revolutionary struggles, civil wars and insurgencies have made discriminate warfare more difficult than ever to implement.”22 On the other hand, it has been suggested that the conduct of war is now exposed to a ‘fury of judging’. The establishment of ad hoc international criminal tribunals and the International Criminal Court in the 1990s were the result of an increased emphasis, and commitment to, accountability for violations of international humanitarian law. Although the primary focus of these institutions was on the most egregious crimes, including crimes against humanity and genocide, they had jurisdiction for war crimes and the legal effect of the UK’s having ratified the UN Charter and adopted the International Criminal Court Act in 2001 was that it was now had additional obligations under international and domestic law, and, perhaps most importantly, a moral and political commitment to prosecute war crimes. The other aspect was increased and intense media scrutiny of military operations. As James Gow has observed, the rapid transmission of information from the battlefield to the public sphere put the media at the “crux of the legitimation process, framing discourse about the just character and rightfulness of both cause and conduct of war”.23 In this context, allegations of wrong-doing presented serious challenges to acquiring and maintaining public support for military action. One of the ways in which this is most apparent is with the power of images which can be transmitted instantaneously via various media. Salient photographs come to rep22

23

Paul Kennedy and George J. Andreopoulos, ‘The Laws of War: Some Concluding Reflections’, in Howard, M., George J. Andreopoulos and Mark R. Shulman, The Laws of War: Constraints on Warfare in the Western World (New Haven: Yale University Press, 1994), p. 215. James Gow, Defending the West (Cambridge: Polity, 2005).

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resent particular narratives; in the case of Baha Mousa, the twin images of the man alive with his family and the image of his badly beaten face taken after his death serve as tropes to his story, and in some ways, a shortcut to the story of the tragedy of civilian lives lost in Iraq.24 It is important to set these cases in the context of the political and operational circumstances of the Iraq War, in which both of these aspects played a role in that the ‘juridification’ of armed conflict was coupled with intense media scrutiny.25 The context compounded the challenge to the extent that, “What’s faced the British Army in Iraq has been more acute than anything for generations.” 26 Mousa’s death occurred in a context in which the deployment of British forces in the first place was widely perceived as illegitimate, and allegations of war crimes were tied up with debates about the rights and wrongs of the war, as illustrated in The Independent headline about Mousa, that it was a ‘Bloody epitaph to Blair’s War’.27 Ten years later, the Mousa case, coupled with the legacy of other allegations of abuse by British forces, and the Abu Ghraib scandal, continued to dominate assessments of the Iraq War and contributed to a sense of ambivalence, at best, among those who fought it.28 Conclusion By March 2013, ten years since the start of the war, with investigations still ongoing, the story of British abuse of Iraqi civilians was not over, although the Mousa case at least was now complete, even though no one was found directly responsible for his death. A new inquiry into alleged 24

25

26

27 28

For discussion of visual imagery and the Mousa case, see Whitty, Noel, ‘Soldier Photography of Detainee Abuse in Iraq: Digital Technology, Human Rights and the Death of Baha Mousa’, Human Rights Law 10:4 (2010): 689-714. For discussion, see Simpson, G., Law, War and Crime (Cambridge: Polity, 2007); and Simpson, G. ‘The Death of Baha Mousa’, Melbourne Journal of International Law 8 (2007): 340-355. General Sir Andrew Ritchie, cited in Forster, A., ‘Breaking the Covenant: Governance of the British Army in the Twenty-First Century’, International Affairs 82/6 (2006): 1046. ‘A Bloody Epitaph to Blair’s War’, The Independent, 17 June 2007. See, for example, ‘Iraq War: Ten Years On’, The Guardian, 19 March 2013. Online. Available (accessed 23 March 2013).

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abuse of Iraqi civilians by British forces opened on 4 March 2013 (Al Sweady Public Inquiry) and it was expected that more would follow in the wake of the challenges to the IHAT process. The impact of all of this was yet to be fully realised but, ten years on, a few reflections were possible. First, the experience of British forces in Iraq demonstrated that the ever-closer scrutiny of military operations by a public informed by media and NGO reports was unlikely to abate. Moreover, it confirmed the increasing tendency to the ‘juridification of war’ noted by Gerry Simpson, among others, in so far as legal arguments and inquiries were central to debates about the political legitimacy of the war.29 Third, dealing with all of these allegations incurred a huge cost financially; the cost to the Army’s reputation and to morale, recruitment and retention was less easy to quantify. Most damaging was the lingering suspicion that these were not ‘isolated, tragic incident[s]’ but evidence of a more endemic problem. However, although the Mousa case had serious political ramifications, legally it was the other ECHR cases that were potentially more groundbreaking and may have had more lasting impact. The application of the ECHR to Mousa was fairly uncontroversial; its application in the other cases was much more so given that it raised the spectre for the British Government (and others) of the extra-territorial application of not only the ECHR, but also other IHRL instruments. The current government’s response to this (among other issues), in March 2013, was to threaten to pull out of the ECHR.30 As of the time of writing, it remained to be seen whether or not this would be followed through, and whether others would follow suit, but in the wake of a handful of other cases brought against the MoD under the ECHR and the October 2013 publication of a new report arguing that Britain’s Armed Forces were under threat from ‘a sustained legal assault which could paralyse the effectiveness of

29 30

Simpson, G., Law, War and Crime. ‘A great day for British justice: Theresa May vows to take UK out of the European Court of Human Rights’, The Daily Mail, 2 March 2013. Online. Available (accessed 2 April 2013).

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the military with catastrophic consequences for the safety of the nation’ it was clear that the fallout continued to reverberate.31

31

‘Civilian lawyers have put Britain and its armed forces in danger’, The Telegraph, 18 October 2013. Online. Available http://www.telegraph. co.uk/news/uknews/defence/10389075/Civilian-lawyers-have-put-Britainand-its-Armed-Forces-in-danger.html (accessed 27 October 2013). Policy Exchange, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ 18 October 2013. Online. Available http://www.policyexchange.org.uk/publications/category/item/the-fog-of-law-an-introduction-to-the-legal-erosion-of-british-fighting-power (accessed 27 October 2013).

6 Haditha: A Case Study in Response to War Crimes Tom Ayres1

In November 2005, United States Marines were allegedly involved in the deaths of Iraqi civilians in Haditha, Iraq. Marines involved in the incident, members of the chain of command, and a serving Judge Advocate were later charged with criminal offenses under the US Military’s Uniform Code of Military Justice (UCMJ). This effort is not made as complete or comprehensive reconciliation of the facts or responses to the Haditha incident; the internet and contemporary accounts hold many differing accounts of the facts and responses. Instead, my aim is to present an analysis of what I believe the salient learning points are for those that study the Law of War, and to present lessons learned for Judge Advocates and other practitioners that advise commanders on the Law of Armed Conflict. This analysis will include a quick summary of generally undisputed facts and the known record of the UCMJ cases that followed the Haditha incident followed by a comparison and contraposition of two other, less well known, allegations of war crimes committed by US Soldiers in Iraq and Afghanistan thereby serving to illustrate some of the factors which should be considered when determining the handling and disposition of such incidents. Haditha Haditha, Iraq was not a nice or safe place to be assigned as a US Marine in 2005. I served in Ramadi Iraq in 2003 to 2004 in an Army unit, the 82d 1

The following is my unofficial expression of opinion. The views and opinions expressed here are my own and are not necessarily those of the Department of the Army, the US Army Judge Advocate General’s Corps, the Department of Defense, or any other agency of the US government.

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 87 – 97.

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Airborne Division, which was replaced by the 1st US Marine Division. I have traveled the roads from Baghdad, as you follow the highways west along the Euphrates River, through the cities of Fallujah, Ramadi, Haditha and finally to Al Qaim which is at the Syrian border. The flow of foreign fighters and Al-Qaida operatives from the border, along the Euphrates eastward toward Baghdad, was well known throughout this period. The challenge and danger the US Marines faced in 2005 was considerable. For instance, on August 3rd, 2005, the New York Times reported: “Fourteen marines were killed today when their troop carrier struck a gigantic roadside bomb in the western town of Haditha, marking one of the single deadliest attacks on American troops since the invasion here in March 2003.” 2 These roadside bombs were often called improvised explosive devices or IEDs for short. Though improvised or homemade, many used military munitions taken from the vast ammunition supply dumps left by Saddam Hussein’s Army. As the blast killing fourteen Marines demonstrated, these IEDs, though homemade, were often quite lethal and effective. Their deadly toll was also well known. Their primary target was US and Coalition Forces. However, innocent civilians were frequently caught and killed in their all too routine, and often indiscriminate, use. Therefore, on November 19, 2005, higher headquarters receiving the first report of an event in Haditha that 1 Marine and 24 civilians (to include eleven women and children) had been killed in an IED event would not have been completely surprised or skeptical. Though false, this was the first report from Marines on the scene through their own channels. How this initial report was received, and the extent to which questions were asked prior to making the event public by means of a press release would become a central issue in later investigations. In fact, the next day, November 20, 2005, in what would later be shown was a false and misleading synopsis, a Marine press release stated: A US Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small arms fire. Iraqi army sol-

2

Dexter Filkins and Eric Scmitt, The New York Times, found at http:// www.nytimes.com/2005/08/03/international/middleeast/03cnd-marines. html?pagewanted=all&_r=0.

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diers and Marines returned fire, killing eight insurgents and wounding another.3

The facts determined later, in both administrative and criminal investigations, were quite different. No civilians were killed by the IED. One US Marine was killed by the IED. Enraged, the Marines responded attacking buildings which they thought housed the attackers. They took few if any precautions to avoid civilian casualties as they used grenades and their rifles to ‘clear’ the houses. They killed 24 civilians in the process. When and where the initial reports became obscured became a subject for later investigations. In the aftermath of the incident, condolence payments, which amounted to $2,500 for each person killed, were authorized by the battalion commander, Lt. Col. Chessani. Condolence payments were not normally made when insurgents killed civilians; this anomaly became a factor in determining what members of the chain of command may have been aware of the false reports, or should have exercised greater diligence to determine if the initial reports were false. Nearly two months later, on February 10, 2006, a Time Magazine reporter, having received photos of the dead women and children from the residents of Haditha, presented them to the US command in Baghdad. On February 14, 2006, Lieutenant General Chiarelli, the Commander of Multi-National Corps-Iraq appointed an inquiry. By March, the military initiated a full criminal investigation conducted by the organization made famous in American television – the Naval Criminal Investigative Service (NCIS). There was also an administrative investigation headed by a two-star General Officer “focused on three aspects of the incident: official reporting of the events and follow-on actions by the chain of command; training of Marines in the Rules of Engagement and the Law of Armed Conflict; and whether the command climate in 3rd Battalion, 1st Marine Regiment encouraged the disciplined application of the Rules of Engagement and the Law of Armed Conflict.” 4 By the Summer of 2006, regret for the killings and a renewed emphasis of training in the Rules of Engagement and the Laws of Armed Conflict had been publicly made by commanders at each level of the chain of command, to include 3 4

http://www.pbs.org/wgbh/pages/frontline/haditha/etc/release.pdf. Colonel Stewart Navarre, Press Statement, “Haditha Iraq Investigation” December 21, 2006, found at http://www.washingtonpost.com/wp-dyn/ content/article/2006/12/21/AR2006122101169.html.

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the Commander in Chief, President George W. Bush: “Lt. Gen. Peter Chiarelli, commander of Multinational Corps Iraq, on Thursday [June 1, 2006] ordered American commanders to conduct core values training with all troops on moral and ethical standards on the battlefield. ‘This is just a reminder—for troops in Iraq or throughout our military—that there are high standards expected of them and that there are strong rules of engagement,’ Bush said…”5 The completion of the criminal and administrative investigations also resulted in criminal charges under the Uniform Code of Military Justice against eight Marines—the equivalent of an indictment being filed. On December 21, 2006, in a statement to the press, the Marines announced the following criminal charges: Marine Staff Sgt. Frank D. Wuterich is charged with unpremeditated murder, soliciting another to commit an offense and making a false official statement. Marine Sgt. Sanick P. Dela Cruz was charged with five counts of murder and one charge of a false official statement. Marine Lance Cpl. Stephen B. Tatum is charged with murder, negligent homicide and assault. Marine Lance Cpl. Justin L. Sharratt is charged with three counts of murder. Marine Lt. Col. Jeffrey R. Chessani, the commander of the 3rd Battalion, 1st Marines, was charged with three counts of violation of a lawful order and dereliction of duty. Marine Capt. Lucas M. McConnell has been charged with dereliction of duty. Marine Capt. Randy W. Stone was charged with failure to follow a lawful order and dereliction of duty.

5

Tom Raum, “Haditha Echoes Earlier Stains,” The Washington Post, June 1, 2006.

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Marine 1st Lt. Andrew A. Grayson is charged with dereliction of duty, making a false official statement and obstructing justice.6

The disposition of the criminal charges against the Marines has gained much critical attention. The torturous and lengthy path showed both the Marines’ determination to follow through on the crimes and the difficulty in doing so. In summary, the charges against the first four enlisted Marines were for participating in the killings, and the charges against the four Officers were for false reporting or dereliction of duty and a lack of diligence in investigating and reporting the killings. The case against the first enlisted Marine, Sergeant Cruz, was dismissed as he was given testimonial immunity, in essence, for turning State’s evidence. Despite the prosecution’s best efforts and having the benefit of Sergeant Cruz’s testimony, Lance Corporal Tatum was then acquitted at trial. The difficulty of prosecuting such crimes was manifest. As charges against Lance Corporal Sharratt were dropped, the Marine Commander, thenLieutenant General Mattis, issued the following signal statement, worth quoting at length here: The events of November 19, 2005 have been exhaustively reviewed by Marine, Army, and Naval Criminal Investigative Service investigators. An independent Article 32 Investigating Officer has considered all the facts and determined that the evidence does not support a referral to court-martial for LCpl Sharratt. Based on my review of all the evidence in this case and considering the recommendation of the Article 32 officer, I have dismissed the charges against LCpl Sharratt. LCpl Sharratt has served as a Marine infantryman in Iraq where our Nation is fighting a shadowy enemy who hides among the innocent people, does not comply with any aspect of the law of war, and routinely targets and intentionally draws fire toward civilians. The challenges of this combat environment put extreme pressures on our Marines. Notwithstanding, operational, moral, and legal imperatives demand that we Marines stay true to our own standards and maintain compliance with the law of war in this morally bruising environment. The experience of combat is difficult to understand intellectually and very difficult to appreciate emotionally. One of our Nation’s 6

Jim Garamone, “Marines Charge Eight in Connection With Haditha Deaths,” American Forces Press Service, December 21, 2006. Found at http://www.defense.gov/News/NewsArticle.aspx?id=2499.

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most articulate Supreme Court Justices, Oliver Wendell Holmes, Jr., served as an infantryman during the Civil War and described war as an ‘incommunicable experience.’ He has also noted elsewhere that ‘detached reflection cannot be demanded in the face of an uplifted knife.’ Marines have a well earned reputation for remaining cool in the face of enemies brandishing much more than knives. The brutal reality that Justice Holmes described is experienced each day in Iraq, where Marines willingly put themselves at great risk to protect innocent civilians. Where the enemy disregards any attempt to comply with ethical norms of warfare, we exercise discipline and restraint to protect the innocent caught on the battlefield. Our way is right, but it is also difficult. With the dismissal of these charges LCpl Sharratt may fairly conclude that he did his best to live up to the standards, followed by US fighting men throughout our many wars, in the face of life or death decisions made in a matter of seconds in combat. And as he has always remained cloaked in the presumption of innocence, with this dismissal of charges, he remains in the eyes of the law—and in my eyes—innocent.7

The charges against the Officers were similarly complicated. The charges against the Battalion Commander were vigorously pursued; however, the Navy Marine Corps Court of Criminal Appeals found that unlawful command influence in pursuing the charges such that the Court “harbor[ed] significant doubt about the fairness of this proceeding.”8 General Mattis also dismissed charges against the Judge Advocate alleged to have failed to properly investigate or report the incident: I am aware of the line that separates the merely remiss from the clearly criminal, and I do not believe that any mistakes Captain Stone made with respect to the incident rise to the level of criminal behavior… I have no doubt that he now understands the absolute necessity for objective inquiry into the combat actions of our Marines in such an environment, especially when innocent lives are lost.9 7 8 9

United States Marine Corps, Camp Pendleton Media Center, Press Release #07-015, dated August 9, 2007. “A Victory for Marine LtCol Chessani.” Found at http://www.thomasmore.org/news/victory-marine-ltcol-chessani. United States Marine Corps, Camp Pendleton Media Center, Press Release #07-016, dated August 9, 2007.

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The final court-martial was not completed until January 25, 2012, over six years from the date of the killings. As reported by the Los Angeles Times, Staff Sergeant Wuterich took responsibility for the killings and expressed regret to the Iraqi families: “Words cannot express my sorrow for the loss of your loved ones,” Wuterich said. “I know there is nothing I can say to ease your pain.” As the squad leader, Wuterich ordered his Marines “to shoot first, ask questions later” as they stormed two houses on Nov. 19, 2005, after a roadside bomb had killed one Marine and injured two others. “When my Marines and I cleared those houses that day, I responded to what I perceived as a threat. And my intention was to eliminate that threat in order to keep the rest of my Marines alive,” Wuterich said. “So when I told my team to ‘shoot first and ask questions later,’ the intent wasn’t that they would shoot civilians, it was that they would not hesitate in the face of the enemy.”10

Sergeant Wuterich received a federal criminal conviction without time in jail. Less than six months later, the Secretary of Defense launched a review of “how the military justice system handled alleged crimes by deployed troops against civilians in Iraq and Afghanistan”: “We know that over the last 10 years in Iraq and Afghanistan bad things have happened involving combat excesses and innocent civilians,” Panetta said in a statement announcing the appointment of a new subcommittee within the existing Defense Legal Policy Board to examine possible reforms of the Uniform Code of Military Justice. “The abuses have been rare among our professional fighting force,” Panetta said, “but they became huge flash points that threatened to undermine our entire mission and the foundation of our relationship with the host government and its people,” Panetta said.11

10 11

Tony Perry, “Marine Gets No Jail Time in Killing of 24 Iraqi Civilians,” Los Angeles Times, January 25, 2012. Richard Sisk, “Panetta Sets Up Military Review Justice Review Board.” On Military.com found at http://www.military.com/daily-news/2012/08/03/ panetta-sets-up-military-justice-review-board.html.

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Maiwand Now, as that review is on-going, let’s look, in a much more summary fashion, at two other incidences of killing of civilians in a combat zone by US soldiers and examine their dispositions. The first incident involves a group of soldiers whose actions were made infamous when photos of the soldiers posing with the bodies of dead Afghans were published in Der Spiegel and Rolling Stone.12 In summary, five soldiers were alleged to have killed three innocent Afghan civilians in the Maiwand District of Afghanistan. Investigations found that the soldiers faked combat actions and staged firefights killing an Afghan individual in each of three separate incidents. They also ‘planted’ weapons, or set off grenades which they said had been thrown by the Afghans, making their reports believable to members of the chain of command first on the scene. Despite speculation to the contrary, investigations determined the killings were the result of a small rogue group of soldiers led by a single Staff Sergeant: “The general consensus was, if we are going to do something that f[---]ing crazy, no one wanted anybody around to witness it…” 13 Even prior to the publication of the photos, the Army had already pursued investigations and court-martial actions in response to these killings. Upon the publication of the photos, the Army press release stated: “These court-martial proceedings speak for themselves. The photos appear in stark contrast to the discipline, professionalism and respect that have characterized our Soldiers’ performance during nearly 10 years of sustained operations.” 14 Ultimately, the leader of these actions, Staff Sergeant Gibbs was charged with murder, convicted, and sentenced to life in prison. A number of subordinates were charged with differing levels of crimes, but each charged with a part in the killings was convicted and received a lengthy prison sentence: Specialist Morlock was sentenced to 24 years in prison; Private First Class Holmes was sentenced to seven years in prison; Sergeant Bram received a five year sentence; and Specialist Winfield was given a three year prison sentence.

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Mark Boal, Rolling Stone, “The Kill Team: How US Soldiers in Afghanistan Murdered Innocent Civilians.” March 27, 2011. Ibid. Joel Millman and Dion Nissenbaum, “Soldier to Plead Guilty in Afghan Murder Case.” Wall Street Journal, March 22, 2011.

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Salahuddin Turning back to Iraq, the case of First Lieutenant (1LT) Michael Behenna shows a set of facts markedly different than the contrived and wanton killings in Maiwand, though influenced by and yet more detached from the heat of combat actions in Haditha. 1LT Behenna’s platoon, like the Marines in Haditha, suffered casualties from an IED while performing counterinsurgency operations in Salahuddin, Iraq. In 1LT Behenna’s case, two of his men were killed and another two wounded by a single IED. The insurgent thought responsible for the IED was detained, but eventually was returned to 1LT Behenna’s care to be repatriated to his village and released from detention. 1LT Behenna, responsible for the safety of his platoon, was troubled. According to one witness at his court-martial, “a young man near his breaking point, sleepless and haunted by ghastly images” of the soldiers killed under his leadership.15 Consequently, instead of returning the detainee to his village, 1LT Behenna, ordered his platoon sergeant to stay with the rest of the platoon, and he took the detainee off into the desert night into a culvert. The detainee was shot in the head and chest. 1LT Behenna was charged with premeditated murder. His defense team at trial asserted that he acted in self-defense and that he took the detainee into the culvert for questioning. A panel of seven Army officers nonetheless convicted 1LT Behenna of unpremeditated murder. He was sentenced by the same panel to 25 years in prison. His sentence was later reduced by the convening authority to 20 years.16 Conclusion These three short case studies leave several lessons for those that study the Law of War, and particularly Judge Advocates and other practitioners that advise commanders on the Law of Armed Conflict (LOAC). First, the level of combat and combat stress does and should matter. Combat impacts decision-making. Similarly, not every action in a combat zone is made in the heat of combat. The clear obligations of the LOAC have been formulated and adhered to over the years with the stress of combat 15

16

Joe Mozingo, “A Killing in the Desert: An unlikely witness provides one last hope for soldier in murder case.” Los Angeles Times, September 14, 2009. Ibid.

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fully in mind. This is the benefit of applying the LOAC: soldiers complying with obligations toward civilians no matter how they feel about them or how stressful the situation may be. Rather than applying Human Rights Laws dependent on the recognition of a specific set of individualized rights of civilians, specific to a given State, Nation or jurisdiction, soldiers apply the LOAC standards and obligations that are universally known and trained. The LOAC is not dependent on identification of individual rights of the population—it is about obligations—obligations the soldier must adhere to whether he likes or understands the civilians or not, and whether he suspects them of being the enemy or not. And though combat itself is not often reasonable or rational, the LOAC brings order to assessing an incident. It allows for the level of combat stress to impact how the situation is viewed after the fact, and should inform both the investigation and the disposition of a given case, but never sanction aberrations of the obligations. Second, all three incidents demonstrate the compelling and continuing necessity of training on the LOAC. This is certainly true for any force engaged in a counterinsurgency, particularly where the insurgents do not adhere to the LOAC. As General Mattis noted, the enemy’s lack of adherence further stresses those who do. It requires even more punctilious respect for those who seek legitimacy that adherence to these international standards give. And therefore, chains of command do well by repetition of training and explaining the LOAC. This training includes that the LOAC does not require reciprocity—it does not matter if the enemy adheres to it or not. This training also includes the obligation to report violations and the identification of channels to report violations by fellow soldiers, both within and outside of command channels if the chain of command does not respond to the reports. Third, these cases show the absolute necessity of fully and completely investigating any reported death of an innocent civilian. Likewise, armed forces, particularly in a counterinsurgency, do well to maintain full communications and frequent interactions with the press, NonGovernmental Organizations, Private Voluntary Organizations, and particularly the International Committee of the Red Cross. There is no room for myopia or a lack of diligence in investigating innocent deaths under the LOAC. Perhaps equally important to mission success, disregard of such reports would be disastrous to establishing or maintaining legitimacy in a counterinsurgency. Each outside organization is a valuable source of information. And, even if biased, they offer a window into

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perceptions or events that might have escaped notice. Following up on each of these reports is equally wise and appropriate. Fourth, these events show, in modern combat operations in a counterinsurgency, small unit leaders exercise incredible levels of autonomy. They operate in detached small groups in widely geographically dispersed areas. That factor is coupled and perhaps exacerbated by the incredible levels of combat stress and feelings of responsibility toward protecting the lives of the comrades under a junior leader’s charge. This stress and autonomy merits the need for continuing oversight and supervision of more experienced leaders. It is incumbent on supervising senior leaders to maintain a fingertip feel for the morale, levels of stress, and the need for reinforcement of training on the LOAC among each of their many autonomous small units. Finally, from my own vantage point and my personal experiences in Iraq and Afghanistan, I have seen leaders give just this type of attention to this issue. I have seen the discipline, professionalism, respect for and adherence to the LOAC that makes me proud to be a US Soldier. I have seen incredible exercises of restraint by Soldiers to protect civilian lives, and in some instances that restraint has cost a US Soldier’s life. However, there have also been mistakes and crimes that have cost innocent civilian lives. In every instance I know of, I can echo what was said by the Army officially upon the release of the Maiwand photos: .

[T]he Army will relentlessly pursue the truth, no matter where it leads, both in and out of court, no matter how unpleasant it may be, no matter how long it takes. As an Army, we are troubled that any soldier would lose his ‘moral compass’ as one soldier said during his trial. We will continue to do whatever we need to as an institution to understand how it happened, why it happened and what we need to do to prevent it from happening again.17

17

“Statement by the Army on Photographs Published by Rolling Stone.” US Department of Defense News Release Number 247-11, dated March 28, 2011, found at http://www.defense.gov/releases/release.aspx?releaseid=14367.

7 Investigating Violations of International Human Rights Law and International Humanitarian Law through an International Commission of Inquiry: Libya and Beyond Annemarie Devereux

On 25 February 2011, the Human Rights Council mandated the establishment of an International Commission of Inquiry (ICOI) to look into human rights violations allegedly occurring in the then named Libyan Arab Jamahiriya (Libya).1 One day later, the Security Council imposed sanctions against members of the Qadhafi family and other senior Governmental figures and an arms embargo on Libya. It also took the step of referring the situation of Libya to the Prosecutor of the International Criminal Court.2 As the situation intensified, the Security Council imposed a ‘no-fly zone’ over the territory and authorised the taking of ‘all necessary measures’ to protect civilians: what was to become the NATO intervention.3 This chapter looks in more detail at one of these responses to reported mass violations of human rights and, as an armed conflict developed, of serious violations of international humanitarian law: namely the establishment of the United Nations’ International Commission of Inquiry for Libya (ICOI-Libya).4 Perhaps spurred by their increased usage and 1

2 3 4

Human Rights Council resolution S-15/1 of 25 February 2011, A/HRC/ RES/S-15-1 (2011). Note that the name Libyan Arab Jamahiriya was used in the territory after the ‘Popular Revolution’ of 1973. Since September 2011, the country has been known again as Libya. In the remainder of this chapter, reference is made to Libya. Security Council resolution 1970 of 26 February 2011, S/RES/1970 (2011). Security Council resolution 1973 of 17 March 2011, S/RES/1973 (2011). The author notes her personal connection with the early stages of the ICOILibya, having served as the Commission’s Senior Legal Adviser for its first phase (April-June 2011). To ensure appropriate confidentiality, information about the ICOI-Libya is drawn from material on the public record, in

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 99 – 122.

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the dearth of comparative analysis, the operations of ICOIs have become the subject of more intense scrutiny and analysis in recent times.5 This chapter discusses the role of ICOIs in investigating human rights and humanitarian law violations and uses the example of the ICOI-Libya to highlight some of the legal and methodological challenges which arise in conducting such investigations. The discussion here deliberately encompasses violations of both human rights and humanitarian law, given the application of both sets of law in armed conflict6 and the potential dual characterization of many factual scenarios: such as unlawful killing of civilians/arbitrary deprivation of life, torture, rape and other forms of sexual violence. Given the focus on ‘operational incidents in a military context’ in this volume, particular attention is paid to investigating violations committed during armed confl ict. Whilst responding to the invitation to focus on the operation of the ICOI-Libya, examples will also be drawn from the larger body of ICOI reports to illuminate relevant points. This chapter addresses four topics in particular: 1. The history and role of ICOIs 2. The establishment of the ICOI-Libya 3. Select challenges in investigating violations during and after an armed conflict 4. The value and impact of such Commissions.

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particular the two reports of the ICOI-Libya. This chapter was presented whilst the author was a Visiting Fellow at RegNET, ANU in late 2012, and all opinions expressed are done so on a personal basis. Research projects on ICOIs are for instance being carried out under the auspices of the Harvard University’s Programme on Humanitarian Policy and Confl ict Research: Project on Monitoring, Reporting and Fact-Finding, and the Siracusa based International Institute of Higher Studies in Criminal Sciences (the latter working toward Guidelines for International, Regional and National Fact Finding Bodies to be finalised in late 2013). Initiatives have also been taken within the UN and the international community more broadly: see Report of the Secretary-General on the protection of civilians in armed conflict, 22 May 2012, S/2012/376, paras 66-67. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 178; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 240.

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1. The History and Role of ICOIs While the number of ICOIs has blossomed in recent years, the notion of an international fact finding investigation is far from novel. The Hague Conventions for the Pacific Settlement of Disputes provided for International Commissions of Inquiry to be established, upon the request of parties.7 These bodies were seen as facilitating the resolution of disputes through providing an independent assessment of contested matters in a private report to the parties. Additional Protocol I to the Geneva Conventions (applicable in international armed conflict) mandated the creation of an International Fact-Finding Commission to investigate certain breaches of international humanitarian law, with provision for State parties to accept the competence of the Commission and to request it to undertake an Inquiry.8 The International Humanitarian Fact-Finding Commission became operative in 1991, but has yet to be called upon by State parties to conduct an inquiry. What is distinct in relation to modern ICOIs vis-à-vis their IHL precedents is that ICOIs are based upon a fundamentally broader conception of interest in human rights and humanitarian law violations. Through ICOIs, the international community as a whole is staking its claim in having independent assessments of alleged violations. Established pursuant to the act of a duly empowered UN body or official, ICOI reports are generally made public and so accessible to all stakeholders, including the State(s) concerned, other States, victims, civil society and the United Nations itself. Rather than being the preserve of one body/official, such ICOIs have been created by the Security Council, General Assembly, Human Rights Council (or its predecessor the Commission on Human Rights) as well as by the Secretary-General and the High Commissioner for Human Rights, exercising their respective powers. Over the last 15 years, the Security Council has established ICOIs examining violations in rela7

8

Hague Convention for the Pacific Settlement of Disputes of 1899, Articles 9-14; Hague Convention for the Pacific Settlement of Disputes of 1907, Articles 9-35. Article 90 of Additional Protocol I to the Geneva Conventions. See Kenneth Keith, ‘International Humanitarian Fact Finding Commission: Its Potential’, Australian Journal of Human Rights 5 (1991): 101-108. As to the way in which the requirement of State consent has been an obstacle to the functioning of the IHFFC, see ICRC, Strengthening legal protections for victims of armed conflict: Draft Resolution and Report, October 2011, 13.

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tion to, for example, Cote D’Ivoire9 and Darfur,10 whilst the General Assembly established an equivalent body looking into contemporary events in the Occupied Palestinian Territories (OPT)11 and looking further into past atrocities in Cambodia.12 It is the Human Rights Council (and its predecessor the Commission on Human Rights) which, perhaps not surprisingly has been the most assiduous in creating ICOIs. From 1997 to the present, the HRC/CHR has employed this tool in relation to diverse situations, including the Sudan,13 the OPT,14 Libya, and Syria.15 9

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International Commission of Inquiry into allegations of serious violations of human rights and international humanitarian law committed in Cote D’Ivoire since 19 September 2002, established by the Security Council as reported in the Presidential Statement of 25 May 2004 , S/PRST/2004/17 (‘ICOI-Cote D’Ivoire’). International Commission of Inquiry on Darfur, established pursuant to Security Council resolution 1564 of 18 September 2004, S/RES/1564 (2004) (‘ICOI-Darfur’). United Nations fact-finding team to Jenin Refugee Camp, established pursuant to General Assembly resolution ES-10/10 of 7 May 2002, A/RES/ ES-10/10 (2002) (‘Jenin Fact Finding Team’). Group of Experts for Cambodia, established pursuant to General Assembly resolution 52/135 of 27 February 1998, A/RES/52/135 (1998). This Group was tasked with evaluating existing evidence and proposing ‘further measures’ to bring about national reconciliation, strengthening democracy and addressing individual accountability. High Level Mission on the situation of human rights in Darfur, established by the Human Rights Council under resolution S-4/101 of 13 December 2006, A/HRC/RES/S-4/101 (2006) (‘High Level Mission – Darfur’). The Human Rights Inquiry Commission to Investigate Violations of Human Rights and Humanitarian Law in the Occupied Palestinian Territories after 20 September 2000, established by the Commission on Human Rights under resolution S-5/1 of 19 October 2000, E/CN.4/RES/ S-5/1 (2000) (‘Human Rights Inquiry – OPT’) High-level fact finding mission to Beit Hanoun, established by the Human Rights Council under resolution S/3-1 of 15 November 2006, A/HRC/RES/S-3/1 (2006) (‘Beit Hanoun Fact Finding Mission’): United Nations Fact-Finding Mission on the Gaza Confl ict, established by the Human Rights Council under resolution S-9/1 of 12 January 2009, A/HRC/RES/S-9/1 (2009) (‘Gaza Confl ict Fact Finding Mission’) and the two subsequent Committees of independent experts to monitor and assess subsequent proceedings. International Commission of Inquiry for Syria (Syrian Arab Republic) was originally established by the Human Rights Council under resolu-

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The Secretary-General and the High Commissioner for Human Rights have also established ICOIs looking into violations during armed conflict, for instance, in relation to the ‘Flotilla incident’,16 and Sri Lanka17 as well as instituting ‘mapping exercises’ to conduct a survey of violations in a given context.18 In most cases, establishing the facts and circumstances concerning alleged violations is the first task allotted to ICOIs. Their reports detail individual cases investigated, and also identify patterns of violations. Violations may be placed in their broader historical context and factors contributing to the commission of violations may be highlighted. Given the nexus between the deprivation of human rights and conflict, ICOI reports may themselves assist in demonstrating the root causes of a particular conflict. Frequently, ICOIs are given an explicit accountability mandate: being asked to identify persons with responsibility for violations and crimes and make recommendations as to how to pursue accountability. In performing these roles, ICOIs have the potential to play a transformative role. Specifically, their monitoring and reporting of violations can have a deterrent effect as well as catalysing further reform. Without seeking to be exhaustive, such reform can include transitional justice initiatives such as further truth seeking, criminal justice investigations and prosecutions, and reparations for victims. ICOI reports can

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tion S-17/1 of 22 August 2011, A/HRC/RES/S-17/1 (2011) (‘ICOI-Syria’), and has been extended several times. It thus spans the period prior to and during the current armed confl ict. Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, established on 2 August 2010 (‘Flotilla Panel of Inquiry’). Th is was separate to the inquiry commissioned by the Human Rights Council: Flotilla International Fact Finding Mission established by the Human Rights Council under resolution 14/1 of 2 June 2010, A/HRC/RES/14/1 (2010) (‘Flotilla Fact Finding Mission’). Panel of Experts on Sri Lanka, established by the Secretary-General on 22 June 2010. Whilst the mandate did not refer to fact finding, it required the Panel to advise the Secretary-General in relation to accountability matters having regard to the “nature and scope of alleged violations”. For example, the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003. The terms of reference were approved by the UN Secretary-General, and the investigations carried out by OHCHR in cooperation with DPKO and UNDP.

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also spark institutional reform designed to prevent repetition of violations and inform both national and international stakeholders in tailoring post conflict strategies. 2. The Establishment of the ICOI-Libya The factual background leading to the Human Rights Council’s establishment of the ICOI-Libya is well known.19 In mid-February 2011, demonstrators in Libya took to the streets, calling for democratic reform and the toppling of the Qadhafi regime. Inspired in part by similar popular uprisings in neighbouring countries such as Tunisia and Egypt, the particular catalyst for the protests was the arrest of a well known lawyer and human rights defender, Fathi Terbil on 15 February. Protests began in Benghazi, but quickly spread to other parts of the country, including Tripoli and Misrata. Security forces were reported to be responding to protestors with live ammunition and mass arrests and disappearances, giving rise to concerns that the government was committing serious violations against its citizens. As those opposed to the Government took up arms, the situation developed into a non-international armed conflict. On 17 March 2011, the Security Council mandated international intervention in the form of a ‘no-fly zone’ and the taking of ‘all necessary measures’ to protect civilians.20 Airstrikes began on 19 March under the initial leadership of the UK, France and the Unites States. NATO took control of the military operations on 31 March. Hostilities continued until late October 2011, at which point the National Transitional Council (NTC) was effectively in control of the territory, making a Declaration of Liberation on 23 October 2011. By this point, the NTC had already been recognized as the Government of Libya in the General Assembly.21 The international military operation ceased on 24 October 2011. Concerned by reports of mass violations, the Human Rights Council resolved to establish the ICOI-Libya at a Special Session held on 25 February 2011. The ICOI-Libya was given a threefold mandate: – To investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, 19 20 21

The following description relies on information in the ICOI-Libya reports. Security Council resolution 1973 of 17 March 2011, S/RES/1973 (2011). By virtue of General Assembly resolution 66/1 of 16 September 2011, the credentials of representatives of the National Transitional Council were accepted as representatives of Libya. A/RES/66/1 (2011).

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To establish the facts and circumstances of such violations and of the crimes perpetrated and, where possible, to identify those responsible, and To make recommendations, in particular, on accountability measures, all with a view to ensuring that those individuals responsible are held accountable.22

Three eminent members were appointed to comprise the Commission: Professor M. Cherif Bassiouni (of Egypt, who was appointed the initial President of the Commission), Asma Kkader (of Jordan) and Philippe Kirsch (of Belgium/Canada, who assumed the Presidency in October 2011). Support was provided by a Secretariat team organised by OHCHR which included human rights officers, a legal adviser, security and administration and for the second phase, forensic pathology, military operations and sexual violence experts. Initially given a three month term, the Commission’s operations were extended until March 2012 as a result of unfolding events. Two reports were issued by the Commission: an initial report detailing the findings in the first phase (April-June 2011) and a Final Report submitted to the Human Rights Council in March 2012.23 The reports contain detailed findings about violations of human rights and humanitarian law, as well as the commission of international crimes by both sides of the non-international armed conflict. Established violations include the excessive use of force (against protestors), arbitrary deprivation of life/ unlawful killings, arbitrary detentions and enforced disappearances, torture and sexual violence. Specific IHL violations include attacks on civilians, civilian objects, protected persons and protected objects (including hospitals), indiscriminate attacks and failures to take sufficient precau22 23

A/HRC/RES/S-15/1 (2011), para 11. Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahriya, A/HRC/17/44, The edited version is dated 12 January 2012 and has been referenced here (‘ICOI-Libya Initial Report’). An advance unedited version was released on 1 June 2011. Report of the International Commission of Inquiry for Libya, A/HRC/19/68, Advance Unedited Version of 2 March 2012 (‘ICOI-Libya Final Report’). Note that the Final Report contains both a shorter final report (25 pages), together with a more comprehensive report attached as Annex 1 and termed the “Full Report”. (approximately 175 pages). In this chapter, the terms ‘short version’ or ‘long version’ of the Final Report are used to distinguish between the two versions.

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tionary steps to avoid and minimise civilian casualties and damage, the use of weapons in a manner prohibited by international law, the recruitment and use of child soldiers, and pillage. It is impossible to do justice to the detailed accounts of violations contained in the Commission’s reports. A flavour of the seriousness of the violations can be illustrated perhaps by some examples. In the section dealing with unlawful killings, for instance, the Commission examined one case of an informal detention centre adjacent to a military base in Yarmouk, Tripoli. It concluded: On 23 August 2011, as Tripoli fell, guards threw grenades into the warehouse and then began to fire through the door, killing dozens. As the prisoners were so tightly packed, however, some survived and managed to escape. Two days later, the guards burned the bodies of those killed. Of the 157 detainees, only 51 survivors were confi rmed.24

In another case, ‘scores’ of (captured) Qadhafi soldiers and alleged loyalists were executed at the Mahari Hotel in Sirte by Opposition forces (thuwar).25 Widespread torture was found to have occurred, particularly of persons in detention, by both sides of the conflict. One particularly evocative description used was of a person being hung like a ‘chicken roasting’: having been suspended by a bar passed through the arms and legs.26 The report details the Qadhafi forces’ use of unguided rockets and mortars against residential areas, as well as their use of cluster munitions and landmines (e.g. in the siege of Misrata),27 as well as the Opposition force’s indiscriminate firing of Grad rockets, amongst other weaponry, in Sirte.28 The Commission concluded that both the Qadhafi regime and the Opposition had committed crimes against humanity and war crimes.29 24 25 26 27 28 29

ICOI-Libya Final Report (short version), para 26. Ibid, para 31. The stated estimates of persons killed varied from 65 to 78. ICOI-Libya Final Report (long version), paras 154, 338. Ibid, paras 548, 600. ICOI-Libya Final Report (short version), para 79; ICOI-Libya Final Report (long version), paras 580, 601. In its Initial report, the Commission concluded that only the Government had committed crimes against humanity (see ICOI-Libya Initial Report, paras 247, 252). In its Final Report, the Commission concluded that both the Government and the Opposition had committed crimes against humanity: ICOI-Libya Final Report (short version), paras 118-121.

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The vast majority of the Reports deal with violations and crimes by either the Qadhafi regime or the Opposition forces. By virtue of its mandate to look at all violations committed by all parties, the Commission also investigated alleged violations involving NATO.30 The Commission concluded that NATO did not deliberately target civilians, but carried out “a highly precise campaign with a demonstrable determination to avoid civilian casualties”.31 At the same time, in relation to a small number of strikes, the Commission confirmed civilian casualties and considered NATO’s characterization of targets as ‘command and control’ or ‘troop-staging areas’ as “not reflected in evidence at the scene and witness testimony”.32 Ultimately, the Commission concluded that NATO’s response to the Commission had “not allowed it to draw conclusions on the rationale for, or the circumstances of the attacks”, recommending further NATO investigations.33 The full detail of the Commission’s findings in the two reports makes for salutary reading. For present purposes, I would like to focus more on some discrete legal and methodological challenges that arise in conducting such an investigation. 3. Select Challenges involved in Investigating Violations committed during an armed confl ict Undoubtedly, there has been significant progress since the issuance of Bassiouni’s exasperated cry in 2001 that “in fifty years, the most elementary aspects of standardized organization, planning, documentation, and reporting [for international fact finding] have not been developed.”34 Supporting institutions like OHCHR have, for instance, invested considerably in supportive methodologies and tools. Notwithstanding this, the current inter-institutional dialogue between academic institutions and practitioners and within the practitioner field is to be welcomed as a 30

31 32 33 34

To provide some perspective, the ICOI-Final Report (short version) contains just under 80 paragraphs dealing with violations. 7 paragraphs are devoted to NATO, with the remainder focused on the Qadhafi regime or Opposition. ICOI-Libya Final Report, summary. ICOI-Libya Final Report, (short version) para 89. Ibid, paras 89 and 122. M. Cherif Bassiouni, “Appraising UN Justice-Related Fact-Finding Missions,” Journal of Law and Policy 5 (2001): 40-41.

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means of building upon the experiences of the past and identifying areas that can be improved. Whilst there are a myriad of topics which could be discussed under the heading of ‘select challenges’ for investigating violations committed during an armed confl ict,35 within the confines of this chapter, I would like to focus on five in particular: 3.1 Interpreting the mandate; 3.2 Determining the applicable legal framework; 3.3 Conducting an investigation during and after an armed confl ict; 3.4 Addressing witness protection issues; and 3.5 Fulfilling an accountability mandate. 3.1. Interpreting the Mandate Rather than employing standard terminology when creating ICOIs, enabling resolutions vary considerably. Even the task of ‘fact-finding’ itself, is not described in a standardized fashion. One can find language in mandates asking ICOIs to ‘investigate’ violations,36 and/or to ‘establish the facts and circumstances’,37 ‘to develop accurate information regarding events’38 or to ‘provide conclusions on evidence of grave breaches…’.39 Some mandates identify particular international crimes to investigate, whilst others refer more generally to ‘crimes committed’.40 35

For a helpful overview of issues, see Théo Boutruche, “Credible FactFinding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice,” Journal of Conflict and Security Law 16 (2011): 105-140. 36 This formulation was used in the mandates for the Gaza Confl ict Fact Finding Mission and the Flotilla International Fact Finding Mission. 37 This formulation appears, for example, in the mandates of the ICOI-Libya and ICOI-Syria. 38 This formulation appears in the mandate of the UN Fact-Finding Team to Jenin Refugee Camp. 39 See for instance, the mandate given to the Commission of Experts on Yugoslavia, established pursuant to Security Council resolution 780 of 6 October 1992, S/RES/780 (1992). 40 The ICOIs for Libya and Syria for instance request the Commissions to look into crimes committed, whereas other Commissions refer to specific crimes - such as the ICOI-Darfur mandate referring specifically to genocide.

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The mandate provided to the ICOI-Libya was certainly ‘open’ in several respects. First, the mandate provided a geographic restriction (referring to Libya), but did not provide a specific temporal framework. The Commission took the view that it thus included “violations before, during and after the demonstrations witnessed in a number of cities in Libya in February 2011”.41 No end point was specified: either in the original mandate or in the renewal resolution - such that the Commission examined violations until the end of its reporting period. Similarly, the mandate did not specify whose actions were to be examined. The Commission determined that the mandate required it to “consider actions by all parties that might have constituted human rights violations throughout the territory of Libya”.42 This included both the Qadhafi regime and the Opposition, but also included the NATO forces involved in action pursuant to Security Council resolution 1973. In relation to the future development of ICOIs, attention might profitably be focused on having a set of model precedents for mandates which could be tailored for a specific context. The model precedents could outline the desirable categories of information as well as provide draft language. Given the political context of decision making by intergovernmental bodies in particular, it may not be imaginable that States would agree to completely relinquish their discretion or limit the range of negotiated outcomes through having ‘pre-determined mandate resolutions’. However, identifying ‘best practices’ for mandate resolutions in a form readily accessible to those involved in the drafting process, might encourage greater uniformity in the features included and consistency in the choice of language, and thus ultimately greater clarity in the mandates provided to ICOIs. 3.2. What is the legal framework which should be applied? A key initial question for any Commission in undertaking its investigation and analysis is: what is the applicable legal framework for the Commission’s operations? The mandate given to the ICOI-Libya referred to the Commission investigating ‘all violations of international human rights law’ in the territory of Libya as well as asking the Commission to establish the ‘facts and circumstances of such violations and of the crimes perpetrated’. Given the situation’s deterioration from peacetime to armed 41 42

ICOI-Libya Initial Report, para. 4. Id.

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conflict, the Commission determined that it was necessary to employ also the framework of international humanitarian law (IHL) as the lex specialis in times of armed conflict. The Commission also interpreted ‘crime’ in light of international criminal law, noting the Security Council’s referral of events in Libya to the International Criminal Court. Further sub-questions arose for the Commission’s determination. Noting some of these questions and the nature of the ICOI-Libya response serves to demonstrate the concrete challenges faced in determining and applying the legal framework as well as to highlight the contributions ICOIs make to the broader discussion of contested legal issues. When did the non-international armed confl ict commence? In order to know when to begin applying IHL, it is necessary to pinpoint when the relevant confl ict began. In the case of the non-international armed conflict in Libya, the Commission looked to the definitions of noninternational armed conflict provided for in IHL. Additional Protocol II to the Geneva Conventions (to which Libya was a party), speaks of conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.43 The Commission also noted jurisprudence from the ICTY (Tadic), adopting a more liberal definition of non-international armed conflict attaching to Common Article 3 of the Geneva Conventions.44 By the time the ICOI-Libya issued its Initial Report in June 2011, significant consensus existed that a non-international armed conflict had commenced in Libya. However, no other international organization or official (eg the ICRC or the Prosecutor of the ICC) had advanced a specific date for the commencement of the conflict.45 Data was more readily available concerning the intensity of the confl ict and how the opposition forces had gained territorial control than many aspects of

43 44 45

Article 1 of Additional Protocol II to the Geneva Conventions Relating to the Protection of Victims in Non-International Armed Confl ict (‘APII’). Prosecutor v Tadic, Jurisdiction Decision, ICTY (Appeals Chamber), Decision of 2 October 1995, para 70. ICOI-Libya Initial Report, para 52.

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the organization of the armed groups.46 Acknowledging these limitations, the Commission reached the preliminary view that by or around February 24, 2011, a non-international armed conflict had developed sufficient for the purposes of APII and Common Article 3 to the Geneva Conventions.47 How should the international military intervention be characterized? An issue specific to the ICOI-Libya was the need to classify the international military intervention authorized by the Security Council. Was the intervention part of the same conflict occurring in Libya? What effect, if any, did it have on the nature of the existing conflict (and thus the legal regimes applicable)? Or was it a separate conflict? The Commission reached the view that the military intervention to protect civilians was a separate armed conflict between the intervenors and the Qadhafi forces: classifying it as a co-existing international armed conflict.48 How to deal with Non-State Actors? Viewing its mandate to look at the actions of all parties whose actions may constitute violations, the question arose for the ICOI-Libya as to which law should be applied to non-State actors, in particular the Opposition authorities and armed forces. The application of international humanitarian law to all parties to a[ny] conflict is uncontroversial. Similarly, international criminal law could apply across the board to State and nonState actors. This left, however, the question of the proper application of international human rights law. Acknowledging the extent to which this law binds non-State actors remained contested as a matter of international law, the Commission considered it was “increasingly accepted that where non-state groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory”.49 In the specific context of Libya, the Commission took the approach that since the National Transitional Council had been “exercising de facto control over territory akin to that of a Governmental authority”, the Commission 46 47 48 49

Ibid, para 55. Id. Ibid, para 56. Ibid, para 62.

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would examine allegations of human rights violations committed by it and its forces. 3.3. Conducting an Investigation during and after an armed conflict Investigating violations of human rights and humanitarian law during an armed conflict presents myriad challenges. Add to the situation a UN mandated no-fly zone and international aerial bombardment and the difficulties are immense. In the case of the first-phase of the ICOI-Libya, travel to and within Libya was severely restricted. The Commission was able to travel to Eastern Libya (Benghazi, Tobruk and Al Bayda), and had a brief visit to Tripoli and Az-Zawiyah50 (for which a suspension of the NATO bombings had to be negotiated).51 Whilst information was collected within Libya, the Commission’s ability to conduct site visits and access many witnesses in Libya was significantly constrained as a result of the armed conflict(s). Extensive gathering of information could occur outside Libya, including through speaking with those displaced in Tunisia and Egypt. The Commission was able to draw conclusions concerning a range of violations, though it also indicated areas requiring further investigation: e.g. whether attacks on civilian objects and other protected objects (such as mosques, or in some cases, hospitals and medical units) had been intentional; whether prohibited weapons, child soldiers or mercenaries had been used, and the extent of any sexual violence related violations. During the second phase of the Commission’s work (June 2011 to March 2012), due to personnel and security/logistical complications outlined in the report,52 the field investigations took place largely after the cessation of hostilities (primarily December 2011, January 2012). During this phase, the Commission was able to engage in more lengthy field investigations. It was thus able to access significantly more sites (including sites of battles and places of detention), and garner more data. The 50 51

52

Ibid, para 7. Philippe Kirsch, ‘The Work of the International Commission of Inquiry for Libya’ in New Challenges for the UN Human Rights Machinery – What Future for the UN Treaty Body System and Human Rights Council Procedures?, edited by M. Cherif Bassiouni and William A. Schabas, (Mortsel, Intersentia, 2011) Section IV: Challenges. ICOI-Libya Final Report (long version), para 9.

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Commission reported that witnesses were “much more willing to provide information in the knowledge that the Qadhafi Government was no longer in power.” 53 The Commission was also assisted during the second phase by a specialist military adviser, a forensic pathologist and an expert in sexual violence. The result is a more detailed, comprehensive report. In each phase of its investigation, the ICOI-Libya referred to its taking a “cautious approach in assessing” information which it collected. Reliance was placed “where possible on its own observations and first hand accounts”.54 While account was taken of information from media and NGO sources, the Commission relied primarily on evidence it gathered and its observations. The final report reflects the fruits of the greater access to witnesses and places post the conflict: in particular with more detailed treatment of allegations and corroboration from other sources, such as video evidence, medical reports, site visits and/or other witness testimony. To provide a concrete example, in relation to some reports of torture, for instance, the Commission was able to verify witness statements through viewing the wounds and scars of the victims or through medical reports examined by the Commission’s forensic pathologist; and/ or visiting several of the sites where events allegedly occurred and finding evidence consistent with the accounts.55 The Commission was also able to reach conclusions on matters left open in the Initial Report. In relation to allegations that Qadhafi forces had used dum-dum bullets or white phosphorous, for instance, the Commission in its Final Report concluded that such weapons had not been used.56 Drawing attention to both phases of the ICOI-Libya investigation dispels the myth that investigations are only possible after a conflict has finished; whilst underlining the difficulties associated with fact finding during a conflict. Reports issued during a conflict have the potential to play a distinct role (vis-à-vis those issued after a conflict), allowing particular opportunities to deter the ongoing commission of violations, and inform international responses to a conflict. The ideal timing for an ICOI will depend much on the specific context, but if resources permit, having an investigation which spans the periods during and after conflict, brings evident advantages. 53 54 55 56

Ibid, para 805. ICOI-Libya Final Report (short version), para 6. See for instance, ICOI-Libya Final Report (long version), para 329. ICOI-Libya Final Report (short version), para 90.

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Even in a post-conflict environment in which the various authorities are cooperative with the ICOI, a Commission can encounter difficulties in accessing all relevant information. There continue to be cases where information is not provided or insufficient information is provided by those with knowledge of the relevant facts. In the case of the ICOILibya for instance, the Commission lacked access to the autopsy report of Muammar Qadhafi despite repeated requests.57 It also considered that it did not have sufficient detail concerning particular air strikes by NATO to draw conclusions.58 Such examples highlight the need for continued efforts to encourage cooperation with ICOIs—whether that be by way of developing protocols for dealing with classified information, or looking at other ways within the international regime of strengthening cooperation: e.g. might the Security Council become more involved in calling on State(s) to cooperate with ICOIs, even when the ICOIs have been established by other bodies? A different type of investigation challenge arises with respect to sexual violence allegations. The ICOI-Libya drew conclusions on the basis of its interviews with victims and witnesses of sexual assaults.59 At the same time, the Commission in its Final Report described sexual violence allegations as one of the most difficult for the Commission to investigate given the “prevailing culture of silence, the lack of reliable statistics, the use of torture to extract confessions and the political sensitivity of the rape issue”.60 Challenges surround investigation of sexual violence in most contexts and considerable work has been undertaken by academics and practitioners in identifying ‘best practice’ for these investigations. However, given the limited time ICOIs are in operation, their nature in parachuting in and out of country contexts, and that they do not necessarily have built up relationships of trust with referral and support services, the difficulties are compounded. It is to be welcomed that Commissions (including the second phase of the ICOI-Libya) include experts on sexual violence as part of the Secretariat. Further work, however, is vital to refine methodologies and processes so as to ensure that ICOIs are in the best position to investigate these violations.

57 58 59 60

Ibid, para 32. Ibid, para 89. See for instance, Ibid, paras 65-70. Ibid, para 70.

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3.4. Addressing Witness Protection Issues In accordance with the ‘do no harm’ principle, witness protection must be afforded the highest priority in undertaking investigations. This includes everything from carrying out risk assessments; providing sufficient information to potential witnesses about the process (to inform their choice as to whether to provide information); choosing who to interview, as well as where and how interviews are to be conducted; maintaining confidentiality; seeking consent for the use of and/or sharing of information; making decisions as to which cases to detail in a public report, and making referrals for witnesses in need of specific protection.61 The ICOI-Libya noted the Commission’s mindfulness of avoiding any actions which would endanger victims and witnesses, with specific reference made to interviews being carried out in private in general, and taking the general decision not to name victims and witnesses in the report.62 Witness protection is not a matter, however, which ceases with an ICOI’s operations. It is important for adequate processes to be in place to ensure information is kept appropriately secure when material is handed over to the institution with responsibility for the records. Later requests for information collected by a Commission—for example, by the International Criminal Court or a national authority—require an updated risk assessment to be undertaken to ensure that any sharing of information does not endanger witnesses, even in circumstances where witnesses have previously indicated their consent to such sharing. It is also important to ask what measures can be instituted to monitor the situation of witnesses who have cooperated with an ICOIs and respond to threats where they arise? This is not an issue peculiar to ICOIs. It arises equally with respect to persons who cooperate with any UN human rights body or process: whether it be a field mission, Special Rapporteur, treaty body, or the Council itself (e.g. in the Universal Periodic Review process). It is encouraging to see attention being given to this topic through an annual report by the Secretary-General on cases of alleged reprisals.63 This 61

62 63

For useful guidance on protection of victims and witnesses, see “Protection of Victims and Witnesses and other Cooperating Persons”, in OHCHR, Manual on Human Rights Monitoring, (New York and Geneva, 2011), HR/P/PT/7/Rev.1. ICOI-Libya Final Report (long version), para 9. Co-operation with the United Nations, its representatives and mechanisms in the field of human rights, 13 August 2012, A/HRC/21/18.

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report, and the cases and responses outlined there (including exchanges of letters with the State, meetings between officials or simply publicizing the alleged victimization) rightly put an emphasis on State responsibility to protect witnesses and to hold accountable those who threaten or take retailiatory action against persons cooperating with the UN. For an ICOI operating in a country in which there is/will be a human rights field presence, the human rights presence may be able to take on the function of monitoring the wellbeing of witnesses and/or responding to reported threats within the bounds of their capabilities. Field presences regularly work on such protection issues in collaboration with national authorities, NGOs and other international actors (including diplomatic missions, peace missions, other UN agencies and Special Procedures of the Human Rights Council). A study might usefully be undertaken of the extent to which witness protection from ICOIs is integrated into forward planning and action of UN operations, including combined planning with local organizations, to identify best practices and outstanding gaps. It is to be hoped that work continues on further mechanisms which could be established (e.g. standing arrangements with other actors, standard protocols, international contact numbers) to increase the options available for those facing victimization as a result of having cooperated with ICOIs and similar bodies. 3.5. Fulfilling an Accountability Mandate The ICOI-Libya was asked to identify those responsible for violations and crimes, where possible, and to make recommendations, “in particular on accountability measures”, with a view to “ensuring that those individuals responsible are held accountable”. In relation to the first task, ICOIs face the question of whether they will name persons considered responsible for violations and crimes in their public reports. In their Final Report, the ICOI-Libya considered that it was in a position to name some persons believed to have responsibility for the commission of international crimes (war crimes and/or crimes against humanity), but did so by providing a confidential list to the High Commissioner for Human Rights “for onward transmission to the appropriate international or national investigative or judicial mechanisms”,64 rather than including the names in the public report. The reasons for adopting the sealed list route were explained in the following terms: 64

ICOI-Libya Final Report (long version), para 760.

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The Commission has decided not to include the names of these individuals in the report (apart from senior figures who are publicly known) and has replaced their names with numbers. This is to prevent risk of harm to those who are held in custody and to avoid jeopardising the fair trial rights of any persons who may be brought to trial in the future.65

Despite the fact that the mandates of ICOIs might give the contrary impression (i.e. that Commissions will publicly name alleged perpetrators), submitting a sealed list has in fact been the most common response of other ICOIs asked to identify perpetrators. The ICOI-Darfur in 2004 was the first Commission to provide detailed reasoning for its decision to do so, and this reasoning is worth recalling. Three factors were mentioned.66 Firstly that it would be “contrary to elementary principles of due process or fair trial” to make the names public. Secondly, that the Commission had not been vested with prosecutorial or investigative powers, and had confined itself to collecting reliable information about persons. If names were to be published, this could “lead to premature judgements about criminal guilt that would not only be unfair to the suspect, but would also jeopardize the entire process undertaken to fight impunity”. Thirdly, that confidentiality was necessary to protect witnesses and prospective witnesses. Evidential issues (the desirability of corroboration) and due process (giving alleged perpetrators the right to respond to allegations) are also highlighted in the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (2005).67 Although some stakeholders may be disappointed by the reticence of Commissions in this respect, it remains of critical importance to prioritize witness protection and due process amongst the considerations to be taken into account in determining whether to publicly ‘name names’. It is also important to recall that identifying perpetrators is not the only ‘accountability’ related function undertaken by ICOIs. In relation 65 66 67

Id. ICOI-Darfur Report, submitted by the Secretary General to the Security Council on 1 February 2005, S/2005/60, paras 526, 528, and 529. Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (2005), adopted by the Commission on Human Rights, E/CN.4/2005/102/Add.1, Principle 9: Guarantees for Persons Implicated.

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to the ICOI-Libya, for instance, a range of recommendations were made with a view to holding those responsible accountable.68 These included calling upon the Libyan Government to investigate violations and prosecute alleged perpetrators, irrespective of their location or affi liation, while affording them all their rights under international law. It was also recommended that the Libyan Government establish an independent investigation into the fate of all missing persons, and take steps to prevent the recurrence of violations. NATO was called upon to carry out further investigations into the air strikes which led to civilian casualties (and to make payments for civilian losses). The international community was called upon to assist the Libyan authorities to obtain extradition of alleged perpetrators of serious crimes who may be in their territory, while ensuring that their basic rights were protected. On a more conceptual level, the ICOI-Libya stressed that the term accountability should not be reduced to criminal prosecutions alone, referring also to disciplinary measures, administrative procedures and victim compensation measures.69 In this context, it is instructive also to recall the approach of the Sri Lanka Panel of Experts who stated: Accountability goes beyond the investigation and prosecution of serious crimes that have been committed; rather it is a broad process that addresses the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity. Consistent with…international standards…accountability necessarily includes the achievement of truth, justice and reparations for victims.70

4. The Value and Impact of ICOIs It is perhaps too early to reach a conclusion as to the full impact of the ICOI-Libya. In an immediate sense, its reports, submitted in June 2011 and March 2012 respectively, provide significant detail of the patterns of violations and highlight particular steps necessary to stop ongoing violations, address victims’ rights, and prevent the repetition of violations. Findings of the Commission have been referred to in documents submitted in the course of current ICC proceedings71 and UNSMIL reports have 68 69 70 71

ICOI-Libya Final Report (short version), paras 127-135. ICOI-Libya Final Report (long version), para 763. Report of the Panel of Experts on Sri Lanka, dated 31 March 2011, iv. See for example, Observations on behalf of victims on the Government of

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made mention made of the importance of supporting authorities to implement recommendations of the ICOI-Libya.72 The Human Rights Council called upon the new authorities of Libya to implement the recommendations of the ICOI addressed to it,73 and it is to be hoped that other UN mechanisms will also keep the issue of accountability and proper institutional responses on the agenda. Either directly, or indirectly (through the continuing discussion of transitional justice), it is important for the issues raised by the ICOI to be taken forward in the Security Council, e.g. as part of the discussion of Libya and UNSMIL. Equally, it will be helpful for the findings and recommendations of the ICOI-Libya to feature in reviews by appropriate human rights treaties bodies and/or special mechanisms and to be integrated into topics for Libya’s next Universal Periodic Review appearance before the Human Rights Council.74 It is clear that an ICOI does not and cannot replace the need for ongoing investigations and comprehensive action in relation to truth seeking, prosecutions (at domestic or international level), institutional reform or reparations. Nonetheless ICOIs can and do play an important role in catalsying further action in these areas. Some ICOIs have been a crucial first step in a process leading to the establishment of an international tribunal (as in case of the Yugoslavia Commission of Experts)75 or the referral of a country situation to the ICC (eg the ICOI-Darfur). There is an increasing tendency for Security Council members to take into account the work of ICOIs in their consideration of country situations, e.g. as seen in 2012 in relation to the Human Rights Council mandated ICOI-Syria.76

72 73 74

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Libya’s application pursuant to Article 19 of the Rome Statute, 4 June 2012, ICC-01/11-01/11, para 41. See for instance, Report of the Secretary-General on the United Nations Support Mission in Libya, 1 March 2012, S/2012/129, para 71. Human Rights Council resolution 19/39 of 23 March 2012, A/HRC/ RES/19/39 (2012), para 3. Note for instance, the way in which the ICOI-Guinea was integrated into the documents for Guinea’s UPR: Report of the Working Group on the Universal Periodic Review: Guinea, A/HRC/15/4, 14 June 2000. The Commission of Experts on Yugoslavia, established by the Security Council under Resolution 780 of 6 October 1992, S/RES/780 (1992). Its final report was submitted to the Security Council by the Secretary General in May 1994. On 22 March 2012, the Security Council held an Arria-formula meeting to meet with members of the ICOI-Syria: See Security Council Report: April

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In order to maximize the utility of ICOIs, it is evident that active follow up is needed. Follow up is not automatic, but requires political will, careful planning and dedicated resources. Without such efforts, ICOI reports are at risk of languishing to become ‘historical markers’, referred to in order to illustrate the absence of action (as in ‘despite being recommended by the ICOI…’). So, what are the possibilities in this regard? To date, the most common form of follow up action taken by mandating authorities has been to request further ‘monitoring and reporting’. This has involved requesting an official or body to monitor implementation of the recommendations.77 On occasion, a new body or mechanism has been established to undertake the task. Following the Gaza Conflict Fact Finding Mission, for instance, two Committees of Independent Experts were established by the Human Rights Council to monitor and assess any proceedings instigated by either Israel or Palestine.78 In the case of the ICOI-Syria, the Human Rights Council decided to appoint a new Special Rapporteur to monitor the situation.79 Of course follow up is not the preserve of the commissioning body alone. Ideally, follow up involves an integrated response of the international community and domestic authorities. One country situation which is illuminating in this respect is the follow up to the Independent Special Commission of Inquiry for Timor Leste of 2006 (‘ISCOI-Timor Leste).80 Whilst the ISCOI-Timor Leste addressed an internal crisis, rather than an armed conflict, the general approach to its follow up remains instruc-

77

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2012, available online at http://www.securitycouncilreport.org/monthlyforecast/2012-04/lookup_c_glKWLeMTIsG_b_8032097.php. An example is Human Rights Council resolution 15/1 of 29 September 2010 (A/HRC/RES/15/1) which requested the High Commissioner for Human Rights to provide a report on the status of implementation of the conclusions of the Flotilla Fact Finding Mission. Committee of Independent Experts established pursuant to Human Rights Council resolution 13/9 of 23 March 2010, A/HRC/RES/13/9; and resolution 15/6 of 29 September 2010, A/HRC/RES/15/6. Human Rights Council resolution S-18/1 of 2 December 2011, A/HRC/ RES/S-18/1, para 10. The Independent Special Commission of Inquiry for Timor Leste was established under the auspices of the High Commissioner for Human Rights following an invitation from the Minister for Foreign Affairs of Timor Leste to the Secretary-General. The Secretary-General requested the High Commissioner establish such a body on 12 June 2006.

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tive. The ISCOI-Timor Leste Report was endorsed by a Parliamentary resolution on 9 January 2007.81 The Security Council resolutions granting and extending the mandate of the peace missions in Timor Leste specifically recalled the importance of implementation of the recommendations of the ISCOI.82 An international Prosecutor was appointed (funded by OHCHR) and worked within the Prosecutor-General’s Office on these cases.83 Updates on the progress of cases were included in each report of the Secretary-General to the Security Council concerning the Mission. Whilst there has been a relatively low conviction rate for prosecutions commenced,84 the extent of implementation of recommendations relating to investigations, reparations and institutional reform remains much higher than seen in many other contexts. It would be a useful research project to examine the impact of ICOIs on the ground, including but not limited to, the extent of implementation of ICOI recommendations. Such a study could also examine whether there are novel follow up mechanisms modelled on other UN processes which could be crafted using existing powers of inter-governmental bodies to encourage more national ownership and implementation: Would requiring the State(s) concerned to report back within a fi xed period on the steps it has taken in response to the ICOI body lead to any higher implementation? In the oft-neglected area of reparations, is there any room within the sanctions regime to link the unfreezing of assets to reparations85 or at least create incentives for States to devote

81 82 83 84

85

Noted in the Preamble of Security Council resolution 1745 of 22 February 2007, S/RES/1745 (2007). See for instance: Security Council resolution 1745 of 22 February 2007, and later resolutions governing UNMIT. See OHCHR in Timor Leste, available at: http://www.ohchr.org/EN/ Countries/AsiaRegion/Pages/TLSummary0809.aspx. As of September 2012, seven trials had been held, resulting in 9 convictions and 43 acquittals: Report of the Secretary General on the United Nations Integrated Mission in Timor Leste (for the period from 7 January through 20 September 2012), 15 October 2012, S/2012/765. The suggestion of using assets frozen as a result of Security Council sanctions for reparations was canvassed in a workshop convened by the Permanent Mission of Portugal and OCHA on the Security Council’s role in enhancing accountability, see Report of the Secretary-General on the protection of civilians in armed conflict, S/2012/376, para 70.

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more resources for reparations? Are there further steps which international institutions could take to encourage real change? Conclusion ICOIs like that of the ICOI-Libya can and do make an important contribution to understanding the scale and pattern of violations of human rights and humanitarian law and related international crimes committed within a given context, and to the pursuit of accountability. Their independence, professionalism, and tie in with international processes are key to their ‘added value’. There are a range of ways in which the international, academic and practitioner communities can seek to strengthen the operations of ICOIs including in relation to improving the clarity of mandates, facilitating ICOI’s access to information, and further refining methodologies and processes (including for witness protection). Furthermore, to ensure maximum impact of ICOIs, concerted attention must be directed to ensuring active follow up aimed at stimulating actions to address violations and victims’ rights, and to prevent the commission of future violations.

8 Ethics or Politics? The Palmer Commission Report on the 2010 Gaza Flotilla Incident Deane-Peter Baker

Few recent operational incidents have so dominated international headlines than the so-called ‘Gaza Flotilla Incident’, in which a flotilla of civilian vessels en route to Gaza were intercepted by the Israeli Defense Force, resulting in the death of eight Turks and a dual US and Turkish citizen. As with any incident involving Israel and the IDF, the operation was mired in controversy from the outset. Investigations into operational incidents are difficult at the best of times, but are considerably more vexed when strong currents of international politics come into play. Both Israel and Turkey launched commissions of inquiry into the incident, and (unsurprisingly) reached diametrically opposed conclusions regarding Israel’s culpability for the deaths that occurred. The United Nations then stepped into the fray by forming ‘The Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident’, also known as the Palmer Commission (after the Commission’s Chairperson, former Prime Minister of New Zealand Sir Geoffrey Palmer). The commission was intended to help normalize relations between former allies Turkey and Israel, which had deteriorated sharply as a result of the incident. In July of 2011 the Palmer Commission Report was completed, but was not released until September 2011 because of concerns that it would in fact exacerbate the rift between the two nations.1 These concerns turned out to be well founded. Though the Commission’s report issued a ‘rapprochement’ that suggested that Israel was guilty of wrongdoing in the execution of the boarding of the flotilla vessels, particularly the MV 1

Neil MacFarqhar and Ethan Bronner, “Report Finds Naval Blockade by Israel Legal but Faults Raid”, New York Times 1 September 2011, accessed 9 March 2012 http://www.nytimes.com/2011/09/02/world/middleeast/02flotilla.html?page wanted=all.

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 123 – 145.

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Mavi Marmara (the vessel on which the fatalities occurred), Turkey was incensed at the Commission’s finding that the naval blockade of Gaza was a legal and legitimate security measure.2 Israel refused to offer an apology to Turkey, despite international pressure to do so.3 The asymmetry of the Commission’s ‘rapprochement’ is striking. Despite acknowledging that “Israeli Defense Forces personnel faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection” and that “Three soldiers were captured, mistreated, and placed at risk by those passengers” while “Several others were wounded”,4 “some seriously”,5 the Panel makes no parallel demand for compensation for the Israeli injured, or even a ‘statement of regret’, from the organizers of the flotilla. Why this asymmetry? Given the considerable anti-Israeli sentiments that dominated international discourse in the aftermath of the Gaza flotilla incident, it is worth considering whether the Palmer Commission’s conclusions were shaped by political pressure rather than by perspicuous ethical analysis. The Panel’s conclusions are in line with the congruence of international political sentiment regarding the incident, but do the Panel’s arguments adequately support its findings? In what follows I focus on the reasoning behind the Commission’s conclusions vi (‘Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable’) and viii (‘The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable’). I set aside the question of whether or not the flotilla passengers were mistreated by Israeli security forces in the aftermath of the boarding operation. While mistreatment of this kind, if it occurred, is certainly morally problematic, the Palmer Commission’s ‘rapprochement’ 2

3

4 5

Barak Ravid, “Turkey to refer Israel’s blockade of Gaza Strip to The Hague” Haaretz, 3 September 2011, accessed 9 March 2012 http://www. haaretz.com/news/diplomacy-defense/turkey-to-refer-israel-s-blockadeof-gaza-strip-to-the-hague-1.382330. Reuters “Israel refuses to apologise to Turkey over Gaza flotilla raid”, 18 August 2011, accessed 9 March 2012http://www.guardian.co.uk/ world/2011/aug/18/israel-refuses-apologise-gaza-raid. Panel, 59-60. Panel, 56.

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takes most of its force from the suggestion of wrongdoing in the deaths and injuries that occurred in the course of the boarding operation, and so that is the focus of this chapter. Analysis Part One ‘Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and with no final warning immediately prior to the boarding was excessive and unreasonable’

The Panel found Israel’s maritime blockade of Gaza to be legal, that it was “reasonable in the circumstances for the Israeli Navy to conclude that the vessels of the flotilla intended to proceed to Gaza”,6 and that it was appropriate to enforce the blockade by force if necessary. Indeed, the Panel argued that enforcing the blockade was “a clear legal requirement”.7 The Panel nonetheless expressed itself dissatisfied that “the enforcement was executed appropriately”,8 a dissatisfaction that lead to its finding vi, reproduced above. Though the Panel’s account of the reasons for that dissatisfaction is somewhat disjointed, the following seem (in the order expressed) to be the primary concerns in this regard: 1. The time and place of the raid. 2. The fact that the raid was executed by surprise, without immediate prior warning. 3. The failure to use ‘lesser measures’, short of boarding, to enforce the blockade. 4. The decision to continue to execute the boarding operation after the initial resistance was encountered.9 I will consider each concern in turn.

6 7 8 9

Panel, 52. Panel, 52, italics added. Panel, 52. Panel, 52-53. The Panel also expresses the concern that ‘the operation should have been better planned and differently executed’. I have not addressed this as a separate concern, as it encapsulates both the points listed above as well as many of the other concerns raised by the Panel.

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‘The time and place of the raid’

The Palmer Commission expressed itself to be unhappy with the time of the raid (4.30 a.m.) and the place of the raid (sixty-four nautical miles from the blockade zone).10 The Panel’s objection to the place of the raid, though not explicitly stated, seems to be essentially temporal—the implication is that the Panel believed the distance involved meant that the IDF had time to attempt measures short of boarding to enforce the blockade. Indeed, the clearest general statement of the Panel’s concern here is that the IDF action constituted “too heavy a response too quickly”.11 In this respect the ‘time and place’ objection collapses into the ‘lesser measures’ objection, and only carries weight if the ‘lesser measures’ objection stands. If it turns out that, pace the Panel, the IDF was not at fault for not attempting to use ‘lesser measures’ short of boarding, then the ‘time and place’ objection carries no weight. ‘The fact that the raid was executed by surprise, without immediate prior warning’

Surprise is an important tool of both military forces and law enforcement agencies. The kinds of operations that these state servants undertake are often more likely to succeed if the element of surprise is in their favour. It is therefore difficult to understand the Palmer Commission’s unhappiness with this aspect of the operation—it seems far more rational to consider the IDF’s decision to attempt a surprise boarding as a moral positive in that, from a planner’s perspective, this would seem to have offered a greater chance of securing the MV Mavi Marmara without significant resistance (and therefore without significant casualties). That events did not turn out this way does little to undermine the legitimacy of planning for surprise. The Panel seems to have found the element of surprise objectionable in part because of its assessment that “the decision to commence the take-over operation by surprise just before dawn was motivated by the desire to avoid publicity as much as by operational considerations,” which, the Panel argues, “was reinforced by the communication blackout imposed against the Mavi Marmara.” 12 This concern seems to ignore 10 11 12

Panel, 52. Panel, 52. Panel, 53.

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the fact that is that it is very difficult in such situations to distinguish between ‘operational considerations’ and the ‘desire to avoid publicity’. There were several other ships in the flotilla that were also boarded, and it is unlikely that the IDF had the capability to board each one simultaneously, so a communications blackout would have been an obvious way of ensuring that the ships did not warn one another of what was happening. Given the potential benefits of the element of surprise mentioned above, this seems entirely logical and ethically sound. Perhaps, then, the ‘surprise’ objection is best read as expressing a different concern. The concern that the boarding operation took place ‘without immediate prior warning’ might suggest that the Panel’s concern here was over the ‘failure’ to employ ‘lesser measures’, short of boarding, to stop the MV Mavi Marmara. Perhaps the idea here is that, had the IDF given a last warning that they were about to board the MV Mavi Marmara and detain the passengers and crew, that would have caused the activists to turn back from their attempt to breach the blockade. Given indications from the participants in the Gaza Flotilla up to that point, however, this must be considered to have been very unlikely, and therefore when weighed against the potential advantages of the element of surprise, must be considered to carry considerably less moral weight. ‘The failure to use “lesser measures', short of boarding, to enforce the blockade’

Much of the Palmer Commission’s dissatisfaction with the IDF’s decision ‘to board the vessels with such substantial force at a great distance from the blockade zone’ focuses on the Panel’s assessment that there were measures available to try to stop or redirect the ships of the flotilla that should have been attempted before resorting to the more drastic step of boarding the vessels. In the lexicon of just war theory, the concern expressed here is that the principle of necessity was violated—force was employed where it need not have been. In particular, the Panel stresses that: – – –

The vessels were never asked to stop or to permit a boarding party to come on board. No efforts were made to fire warning shells or blanks in an effort to change the conduct of the captains. No use was made of such measures as “firing ‘skunk bombs’ or water from water cannons, forcing the vessels to change their

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course or stop by means of missile ships, crossing bows, … and ‘white lighting’”.13

In response to this concern, according to the Panel’s report, the Israeli Point of Contact emphasized that “the possibilities for performing a ‘cold stop’ of the vessels had proven to be impractical” given the size of the Mavi Marmara and the number of passengers and vessels in the flotilla.14 The Panel, however, expressed itself ‘unconvinced’ given that “some of [these] measures … have been used successfully by the Israeli Navy subsequent to the incident”.15 What are we to think of this? Given the potential value, operationally, of the element of surprise, if there were no compelling reasons to think that these ‘lesser measures’ would be likely to have any success, then it might reasonably be concluded that their use would simply have escalated tensions and potentially increased the preparation of countermeasures on the flotilla vessels, thereby significantly exacerbating, rather than improving, the situation. So then, what might we consider the likely effectiveness of these measures to have been? The Panel claims that some of these measures were used successfully by the IDF in subsequent and relevantly similar incidents. In particular, in a footnote, the Panel references an event that occurred on May 16, 2011, when a Malaysian-flagged vessel headed for Gaza was intercepted by an Israeli patrol boat. According to the newspaper report cited, an Israeli Navy spokesperson described the event thus: A navy patrol boat contacted the vessel, which claimed to be heading for the Gaza shores. Once it crossed into Israeli naval territory and didn’t answer calls to turn back, warning shots were fired in the air and it returned to El-Arish.16

13 14 15 16

Panel, 52. Panel, 52-53. Panel, 53. The web page referenced by the Panel’s report is, unfortunately, no longer accessible. However, the AFP article “Israel fires at Malaysian Aid Ship” May 16 2011, accessed February 3 2012 http://www.news24.com/World/ News/Israel-fires-at-Malaysian-aid-ship-20110516 seems to be the same report referenced by the Panel.

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This description might well be taken as sound evidence of the effectiveness of warning shots in such cases. However, further reading of the report raises important doubts. Also quoted is Malaysian journalist Alang Bendahara, who was a passenger on the intercepted vessel, the MV Finch. According to Bendahara, The Israeli naval vessel fired a warning shot at us upon approaching and asked us to leave the waters but the ship’s captain refused and the Israelis fired again, circling the MV Finch before firing twice more … At that point they threatened the ship’s captain that they would board the vessel and we were forced to turn back, it was lucky that no one was injured.17

Bendahara added that “Two Egyptian naval vessels were monitoring us and they escorted us once we were in Egyptian waters.” 18 By Bendahara’s account, then, it was the threat of boarding that was ultimately effective, not the warning shots. Perhaps, therefore, it was the threat of boarding that the Panel had in mind when singling out this incident, rather than the warning shots (though it is warning shots that are specifically mentioned in the Panel’s report). Even if that were so, the facts that i) the boarding of the MV Mavi Marmara and the resultant casualties had taken place only a year prior to this incident, and ii) the MV Finch reportedly had only 12 passengers and crew on board (as compared to the approximately 560 on board the MV Mavi Marmara), make the circumstances of the interception of the MV Finch sufficiently disanalogous to those surrounding the interception of the MV Mavi Marmara as to cast doubt on the validity of any comparisons in this regard. Then there is the question of the role played in the later incident by Egyptian patrol boats. In a different account of the event,19 another journalist, Mohd Faizal Hassan, who was also on board the MV Finch during the incident, made no mention of any threat by the Israelis to board the ship but instead pointed to the apparently decisive role of the Egyptian Navy. According to the report,

17 18 19

Ibid. Ibid. BERNAMA, “Israel Fires Warning Shots at M’sian Ship” FMT News May 16, 2011 accessed February 3rd 2012 http://www.freemalaysiatoday. com/2011/05/16/israel-fires-warning-shots-at-msian-ship/.

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the Egyptian navy was heard telling the Israelis on the radio: “Stop firing. They are in Egyptian waters.” Upon realising the presence of Egyptian naval forces, the Israelis departed.20

This seems again to be a factor in the outcome of this event (which concluded with the Egyptian vessels escorting the MV Finch to the Egyptian port of El-Arish) that makes it significantly disanalogous to the interception of the MV Mavi Marmara. The Panel’s use of this event as support of their view that the IDF was culpably negligent in not employing ‘lesser measures’ is, therefore, not compelling—particularly given what would reasonably have been seen as the potential advantages of a surprise boarding. For an operational planner, the likely benefits of a surprise boarding operation, especially the reasonable expectation of a lower risk of casualties to own forces and the ships’ passengers, would have been clear. Weighing these benefits against the unlikely, but possible, success of the employment of ‘lesser measures’ would have been no easy task. It is important that we realize that, in assessing the decision that was made, it is extremely difficult for us not to be affected by our knowledge of how things actually turned out. As the Nobel Prize winning psychologist Daniel Kahneman points out, Hindsight bias has pernicious effects on the evaluations of decision makers. It leads observers to assess the quality of a decision not by whether the process was sound but by whether its outcome was good or bad. … We are prone to blame decision makers for good decisions that worked out badly and to give them too little credit for successful moves that appear obvious only after the fact. There is a clear outcome bias. ... Action that seemed prudent in foresight can look irresponsibly negligent in hindsight.21

Putting ourselves in the shoes of the Israeli decision-makers on that fateful day helps us to somewhat counter the effect of hindsight bias. In doing so we see that the decision could easily and reasonably have gone 20 21

Ibid. Daniel Kahneman, Thinking Fast and Slow (New York: Farrar, Straus and Geroux, 2011), 203.

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either way, and can therefore hardly be considered to be culpably negligent, as the Panel seems to suggest. ‘The decision to continue to execute the boarding operation after the initial resistance was encountered’

The Panel’s unhappiness with the circumstances surrounding the decision to board the MV Mavi Marmara relates also to the decision to continue the boarding operation after significant resistance was first encountered. The Panel expressed its concurrence with … the comment in the Israeli report that the operation should have withdrawn and reassessed its options when the resistance to the initial boarding from the speedboats occurred. Having an alternate plan when clear resistance was first shown might have avoided the events that subsequently unfolded.22

We must take care, here, to avoid the genetic fallacy, i.e. judging the merits of an argument on the basis of its origins rather than on its face. The fact that the Israeli report raised this criticism does not, in itself, make the criticism valid. So what, then, are the relevant facts? According to the Panel, the following description of the boarding is not in dispute: The take-over began with an attempt to board from two speedboats. These withdrew when faced with resistance from Mavi Marmara passengers. IDF naval commandoes were then landed on the vessel by fast-roping from three helicopters. Starting at 4.29 a.m. 15 IDF personnel began to fast-rope onto the roof of the vessel from the first helicopter and met with violent resistance from a group of passengers. At 4.36 a.m., a further 12 IDF personnel began to land on the roof from the second helicopter, and at 4.46 a.m., 14 began to land from the third. The bridge was secured and at 5.07 a.m. further personnel were landed from the speedboats. The take-over was completed at approximately 5.17 a.m.23

The first noteworthy point here is that the commander of the boarding operation did adapt the plan ‘when clear resistance was first shown’. The 22 23

Panel, 54. Panel, 54 - 55.

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speedboats were withdrawn, and the plan switched to having the first IDF Naval Special Forces (Shayatet 13, or S’13) teams arrive on board the MV Mavi Marmara by fast-rope heliborne delivery. This is clearly not the sort of ‘alternate plan’ the Panel seems to have had in mind. While not stated explicitly, it seems that the Panel believes that at this point the mission commander should have put the boarding operation on hold, and instead attempted some means other than boarding. But what might this alternative plan have entailed? By this point the mission commander had concluded (reasonably, as I argue above) that measures short of boarding would have been unlikely to have been effective. Why, then, would the commander, on meeting unexpected, but not yet extreme, resistance from those onboard the MV Mavi Marmara, have decided to resort to those measures that s/he had already concluded would be ineffective? If anything, the passengers’ ‘success’ at repelling the boarding operation would have made them even less likely to respond to warning shots and the like. Given that, as the Panel concedes, the Israelis had both a right and, in fact, a legal duty to maintain the blockade,24 it is hard to image what, other than continue the boarding operation, the Israeli commander might reasonably have done. It is also far from obvious that, even given the initial resistance, the Israeli commander could have been expected to foresee that the resistance would reach the intense levels it did once S’13 operators were actually on board the vessel. Certainly, once the fast-rope insertion had commenced and the first S’13 operators were taken captive—which seems to have happened in a matter of minutes or less—there could have been no question of stopping the boarding operation. No competent and honourable military or law enforcement commander would contemplate abandoning his or her men to an angry violent mob were there something he or she could reasonably do about it. At that point of the boarding operation, continuing the operation was not only not ethically questionable, but in fact ethically mandatory. Analysis Part One: Conclusion In the first part of this chapter I have analyzed the Palmer Commission’s reasons for its conclusion that ‘Israel’s decision to board the vessels with such substantial force at a great distance from the blockade zone and 24

“For Israel to maintain the blockade it had to be effective, so it must be enforced.” Panel, 52.

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with no final warning immediately prior to the boarding was excessive and unreasonable’. I have considered in turn the claims that the following aspects of the decision to board were inappropriate: the time and place of the raid; the fact that the raid was executed by surprise, without immediate prior warning; the failure to use ‘lesser measures’, short of boarding, to enforce the blockade; and the decision to continue to execute the boarding operation after the initial resistance was encountered. Each of these claims is unconvincing. While we should all wish that different decisions had, in fact, been made on that day, and that the outcome had been a far more positive one, those decisions, given what was known by the Israeli commander at the time, cannot accurately be construed as ‘excessive and unreasonable’. As such, this aspect of the Panel’s analysis is, on its own, an inadequate basis to support the implication of wrongdoing in the Panel’s directives that “[A]n appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences” and that “Israel should offer payment for the benefit of the deceased and injured victims and their families”. Perhaps, however, the implication of wrongdoing is sufficiently supported by the Panel’s claim that ‘The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable’. It is to this claim that I now turn. Analysis Part Two ‘The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable’

In finding viii, the Panel held that: The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable. Nine passengers were killed and many others seriously wounded by Israeli forces. No satisfactory explanation has been provided to the Panel by Israel for any of the nine deaths. Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.25

25

Panel, 4-5.

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In the analysis leading up to this finding, the Panel makes clear its suspicion that the S’13 operators who boarded the MV Mavi Marmara used force in an inappropriate manner. Unfortunately the Panel nowhere makes clear what exactly the supposed wrongdoing involved, and the Panel is instead content with listing aspects of the Israeli use of force that it is troubled by. So what, then, is it that makes the Panel so sure that the Israeli S’13 operators used force inappropriately? As best as I am able to reconstruct it, the Panel’s implied argument seems to as follows: 1. The number and severity of the deaths and injuries that occurred on the MV Mavi Marmara was greater than should be expected if force had been used appropriately by the boarding force; 2. The nature of the injuries sustained by the deceased and injured passengers suggests wrongdoing on the part of the boarding force; 3. Israel’s explanation of how the deaths and injuries occurred is insufficiently specific and detailed, which suggests a cover-up of wrongdoing on the part of the S’13 operators who conducted the mission; THEREFORE 4. It is reasonable to assume wrongdoing on the part of the Israeli boarding force. In what follows I will assess each of these reasons in turn, and then evaluate whether any of them singly or in combination is sufficient to establish a reasonable assumption of wrongdoing on the part of the boarding force. ‘The number and severity of the deaths and injuries that occurred on the MV Mavi Marmara was greater than should be expected if force had been used appropriately by the Israeli boarding force’

This claim can usefully be understood as the view that the Israeli forces who secured the MV Mavi Marmara were guilty of using force in a disproportionate manner. The principle of proportionality is a central part of the jus in bello rules of just war theory. It is also a central principle of the use of force in law enforcement operations, so we need not attempt to decide here which category is most appropriate to address this incident. The principle of proportionality requires that those employing force use enough, but not too much, force—enough, that is, to secure the legitimate objective of the operation, and no more. The Panel’s cry of ‘too much’ can

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be clearly heard in statements such as this: “… the Panel is struck by the level of violence that took place during the take-over operation.”26 What is the basis of the Panel’s view that the Israeli use of force was disproportionate? Beyond gesturing at the number of activists who were killed and injured in the boarding operation, the Panel is silent as to why this toll should be considered disproportionate. This is, perhaps, because throughout its report the Panel treats concerns about proportionality and discrimination as if they were the same. They are not, and I will address the question of the discriminate use of force below. The concept of the proportional use of force is notoriously difficult to apply. Most commentators agree that this principle is clearly relevant in cases of extreme excess, but that there is no established basis for evaluating proportionality in the more common cases where the conclusion is not glaringly obvious to all rational and well-intentioned observers.27 Given the Israelis’ large-scale use of non-lethal weapons including stun and smoke grenades, beanbag rounds and paintball rounds (acknowledged by the Panel), and the ferocity of the violence with which the boarding force was met (also acknowledged by the Panel), this case does not fall into the category of obvious extreme excess. Consequently, because of the difficulty of objectively evaluating proportionality in non-obvious cases, this does not seem to be an assessment that the Panel can hold with sufficient certainty to warrant its corresponding censure. Military personnel—indeed, anyone—may legitimately use lethal force if that is necessary to protect ‘life and limb’. Even though the Panel seems hesitant to embrace the idea that the bullet wounds sustained by two of the Israeli S’13 operators were the result of fire directed at them by activists (presumably the Panel is open to the alternative explanation that the bullet wounds were the result of ‘blue on blue’ fire from the Israelis themselves), there still seems little question that the violence directed at the boarding party was potentially life-threatening. As the Panel states, in addition to the firearms they took from the S’13 hostages, the activists who resisted the boarding where armed with “iron bars, staves, chains, and slingshots, and there is some indication that they also used knives.”28 26 27

28

Panel, 55. See, for example, Michael Gross’s discussion of the principle of proportionality in his book Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict, (New York: Cambridge University Press 2010), 163 - 166. Panel, 55.

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The Panel emphasizes that these activists were opposed by “seventyone fully armed naval commandoes”,29 perhaps implying that such an impressive force should have been able to handle the activists without having to resort to lethal force. This, however, neglects the fact that the initial boarding was undertaken by a far smaller force, and—according to early Israeli reports—most of the fatalities occurred during the first minutes of the boarding operation when the first Israelis to fast-rope to the ship were overwhelmed by the attacking activists.30 The serious injuries sustained by the Israeli casualties are also indicative of the life-threatening nature of the violence they faced. It cannot be said that defensive lethal force was clearly disproportionate to the threat, and without more specific detail (an issue I will address below), there is therefore insufficient basis to conclude that the Israeli use of force was disproportionate. ‘The nature of the injuries sustained by the deceased and injured passengers suggests wrongdoing on the part of the Israeli boarding force’

The Panel expends considerable ink on whether or not, and when, live ammunition was fired from the Israeli helicopters and speedboats. The Panel seems to lean towards the view that live fire did likely emanate from the helicopters (though it is unclear at which point in the boarding process this happened) and is confident that live fire did come from the speedboats.31 What is not made explicit is the significance of this question. For it must be obvious that the Israelis could quite legitimately, using live ammunition, have fired warning shots from either the boats or the helicopters prior to or during the boarding. The fact that only nine fatalities occurred, despite the highly trained Israelis firing a self-reported 308 live rounds, suggests strongly that warning shots were, indeed, employed. The Israelis could likewise have legitimately employed lethal or wounding fire from either the helicopters or the speedboats where necessary to save the life of one of their comrades. While discriminating and accurate

29 30 31

Panel, 53. Yaakov Katz, “We had no Choice”, The Jerusalem Post, June 4 2010, Accessed July 8 2010 http://www.jpost.com/Israel/Article.aspx?id=177445. Panel, 54-55.

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fire from helicopters and boats is difficult, it is by no means impossible,32 and special operations forces practice shots of this kind regularly. Given the lack of explicit argument, we can only surmise that the Panel’s concern here is that the Israeli fire from the helicopters and speedboats, and the Israeli use of live ammunition in general, was indiscriminate. The principle of discrimination is another central plank of the jus in bello, and like proportionality is also a central feature of the ethics of the use of force in the law enforcement context. Care must be taken to be clear on what is meant by ‘indiscriminate’ here. Certainly wild and un-aimed fire would qualify, but so would precisely aimed fire directed at individuals not liable to be killed. The key element of the principle is that force may only be directed at those who are liable to attack, generally those who have forfeited their right not to be attacked by becoming engaged in harm of sufficiently significant magnitude. In the context of the boarding of the MV Mavi Marmara, any activists on board who were engaged in harm or attempted harm against the boarding party were liable to be targeted with (proportionate) force. Those not directly involved, or those who had been secured by the Israeli boarding party and who were therefore no longer a threat, were obviously not liable to be targeted with force. Is there, then, any evidence that the Israeli use of live fire during the boarding of the MV Mavi Marmara was indiscriminate? There is witness testimony to that effect from activists who were on board the vessel, but the Committee wisely does not take that testimony as, in itself, persuasive evidence. Given the emotionally charged circumstances, and the strong antipathy of the activists toward Israel, the likelihood of false testimony must be considered to be high. Likewise, the Committee does not take Israeli eyewitness accounts into serious consideration (though there is a noteworthy asymmetry in the Committee quoting activist witness reports, but none from the Israeli side). What seems to have weighed most heavily in the Committee’s assessment is the nature of the injuries sustained by the activist casualties. In their finding viii, the Committee emphasizes that

32

See for example, Lee Ferran “Navy SEALs’ Simultaneous Headshots on Somali Pirates Were Procedure”, ABC News, April 19 2009, accessed 2 March 2012 http://abcnews.go.com/International/story?id=73 25633&page=2#.UJNTWcXCZ8E.

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Forensic evidence showing that most of the deceased were shot multiple times, including in the back, or at close range has not been adequately accounted for in the material presented by Israel.33

The Panel expressed “particular concern” 34 over the following specific details of injuries sustained by deceased activists: “[s]even of the nine persons killed received multiple gunshot wounds to critical regions of the body”; “[f]ive of those killed had bullet wounds indicating they had been shot from behind” including “three with bullet wounds to the back of the head” and one “killed by a shot to the right temple”; “Two people were killed by a single bullet wound” one “by a single shot between the eyes” and another “by a shot to the base of the throat”. Of particular concern seems to be the case of Furkan Doğan, who the Panel reports “was shot at extremely close range” and “sustained wounds to the face, back of the skull, back and left leg.” In this case, unusually, the Panel ventures something like an explicit account of the perceived wrongdoing, stating that the nature of these injuries “suggests he may already have been lying wounded when the fatal shot was delivered, as suggested by witness accounts to that effect.” The Panel also expresses concern that “[n]o evidence has been provided to establish that any of the deceased were armed with lethal weapons” and adds that “[v]ideo footage shows one passenger holding only an open fire hose being killed by a single shot to the head or throat fired from a speedboat.” 35 Is there clear evidence here of wrongdoing? Consider each of these details in turn. First there is the fact that “[s]even of the nine persons killed received multiple gunshot wounds to critical regions of the body”. This is, in itself, hardly a damning fact. As I wrote in my initial assessment of this incident:

33 34 35

Panel, 58. Ibid. Panel, 59-60. Because I have addressed the question of live fi re from helicopters, and because the Panel states that the evidence is inconclusive, I have here set aside the Panel’s bullet point, which reads “Some of the witness accounts appended to the Turkish report say that two passengers on board were killed by shots from the first helicopter prior to the actual boarding taking place although by no means all the witnesses say this. On the material before it, the Panel cannot conclude whether the deaths occurred in this way.”

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The autopsies36 conducted by Turkish authorities on those killed on board the MV Mavi Marmari indicate that all were killed by 9mm rounds (barring one projectile that appears to have been a malfunctioning non-lethal munition), … According to the autopsy report, the activists who were killed were shot a total of 30 times. At first glance that seems like a lot, … [b]ut in fact this means that each activist was shot, on average, three times. Add this to the fact that the autopsies report that five of the nine deceased were shot in the head, and this suggests that the Special Forces operators were mostly following the ‘two in the chest, one in the head’ principle in engaging their opponents. The limited ballistic capabilities of the 9mm round make this principle virtually axiomatic for any trained operator engaging a target perceived to be life-threatening.37

The second area of concern is that “[f]ive of those killed had bullet wounds indicating they had been shot from behind.” Presumably the assumption here is that this indicates those killed in this way were not killed while violently attacking the shooter (in a manner reasonably considered to be life-threatening)—after all, it is difficult, if not impossible, to attack someone with your back turned to them. But what this overlooks is the fact that, to be legitimate, the shots that killed these activists need not have been fired by the individual or individuals being attacked by the activists in question. We can easily imagine a scenario in which a S’13 operator has been knocked to the deck and is being assaulted repeatedly and in a life-threatening manner by activists wielding metal bars and the like. Under such circumstances, would it be legitimate for another S’13 operator to shoot one or more of those activists in the back if there were no other reasonable way for him to intervene (because, perhaps, he is on one of the speedboats, or is separated from his teammate by other activists intent on harming him)? Of course it would be. The mere fact of being shot in the back does not establish that the subject was not at that moment a legitimate target for lethal force. Does it make a difference 36

37

Reuters, “Autopsy Shows Gaza Activists Were Hit 30 Times: Report”, ABC News, June 4 2010, accessed July 12, 2010 .http://abcnews.go.com/ International/wirestory?id=10831013&page=2. Deane-Peter Baker “Tactical Ethics: An evaluation of the Israeli naval commando assault on the MV Mavi Marmara”, in Thomas Copeland (ed.) Drawing a Line in the Sea: Israel and the Gaza Blockade Lanham, MD: Lexington Books, 2011.

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that three of those shot from behind were shot in the head, and one was shot in the right temple? It’s hard to see why shot placement should make any difference. Indeed, in the imagined scenario, a head-shot could well be the only option available, as anything aimed lower could endanger the S’13 operator lying on the deck. The same point applies regarding the activists who were killed by a single shot between the eyes and a single shot to the base of the throat, respectively. The mere fact of shot placement cannot in itself be a reason to presume wrongdoing. The Panel raises several concerns regarding the death of Furkan Doğan. First, there is the issue that he “was shot at extremely close range”. Again, this is not in itself an indicator of wrongdoing. Most of the weapons the activists had at their disposal required their operators to move into close physical proximity to their target. Therefore it should be no surprise that any wounds they received from those they were attacking were delivered at close range. What of the fact that Doğan “sustained wounds to the face, back of the skull, back and left leg?” The Panel believes that the nature of these injuries “suggests he may already have been lying wounded when the fatal shot was delivered, as suggested by witness accounts to that effect.” Without being a forensic scientist (a feature I share with the members of the Panel), it is difficult to know just what sets of circumstances might have led to these injuries. It seems at least feasible that Doğan’s injuries could be explained by a scenario in which, while in the throes of some act of life-threatening violence, he came under fire from more than one S’13 operator. Indeed, without an undisturbed crime-scene and the involvement of a team of professional and unbiased forensic investigators one must question just how strongly we can take the nature of his injuries as ‘suggesting’ wrongdoing. Much seems to rest on eyewitness testimonies that, according to the Panel, indicate that Doğan was killed while lying wounded on the deck. It is worth considering whether, without those testimonies, the Panel would have developed the same suspicion of wrongdoing in this case. There are good general reasons to be circumspect about these and other eyewitness accounts of this incident. First, there is general evidence that eyewitness memory may be significantly less reliable under circumstances of high stress.38 Second, there is the impact of what psychologists call the ‘misinformation effect’, the well supported finding that “expo38

See, for example, C.A. Morgan III et al. “Accuracy of eyewitness memory for persons encountered during exposure to highly intense stress” International Journal of Law and Psychiatry 27 (2004) p. 265.

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sure to misleading postevent information can lead eyewitnesses to report items and events they never actually saw.” 39 These would be reasons for circumspection even if we could be certain of good faith on the part of the witnesses. But, given the politically charged circumstances, it does not seem unreasonable to say that the witnesses’ good faith is far from certain, particularly given that, as a US citizen, Doğan’s death was the most politically charged of the fatalities. The Panel’s point that “[n]o evidence has been provided to establish that any of the deceased were armed with lethal weapons” seems to ignore the fact that the lack of this specific evidence, does not establish that those killed were not armed. The question of whether or not they were armed is simply unanswered. That said, given the context, it is not unreasonable to think that those killed may well have been armed. Furthermore, it would be a mistake to think that the weapons employed by the activists on board the MV Mavi Marmara were not ‘lethal’ weapons. People have been killing one another with “metal bars, slingshots, chains and staves” 40 (not to mention the likely use of knives and captured firearms) since time immemorial. What remains is the Panel’s claim that “[v]ideo footage shows one passenger holding only an open fire hose being killed by a single shot to the head or throat fired from a speedboat.” 41 This is unquestionably troubling. Still, there are important questions that need answering. First, is it certain that the passenger was hit with a live round and actually killed, rather than with a disabling nonlethal round? The fact that the Panel seems unclear as to whether the passenger was hit in the head or the throat suggests a lack of resolution in the video. This might make a strike by something like a nonlethal paintball round difficult to distinguish from a hit by a conventional bullet. It is noteworthy that, despite what appears to be clear video evidence of an activist stabbing a member of the Israeli boarding party,42 the Panel chooses to remain circumspect as to whether knives were employed by the activists in their attacks on the 39

Maria S. Zaragoza, Robert F. Belli, and Kristie E. Payment, “Misinformation Effects and the Suggestibility of Eyewitness Memory” in M. Garry & H. Hayne (eds.) Do justice and let the sky fall: Elizabeth F. Loftus and her contributions to science, law, and academic freedom (Hillsdale, NJ: Lawrence Erlbaum Associates, 2006), 36. 40 Panel, p. 104. 41 Panel, p. 60. 42 http://www.youtube.com/watch?v=k4lspU3_RXM.

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S’13 operators, conceding only that there is ‘some indication’ that knives were used.43 Why then is the footage of this passenger apparently being killed by a shot to the head or throat treated as so definitively showing Israeli wrongdoing? If the video does show this to be a lethal strike, this still does not necessarily mean that the death was intended. In the aftermath of the incident Haluk Ince, chairman of the council of forensic medicine in Istanbul, reported that one of the casualties was killed by “a container including many types of pellets” that was “found … intact in the brain” of the victim.” 44 The most likely explanation for this seemingly exotic munition is that it was a malfunctioning nonlethal projectile. If the person in the video was the person killed by this projectile, it seems possible that this was a tragic accident caused by a malfunctioning non-lethal munition fired at the passenger in order to cause him to cease targeting the boarding party with a fire hose. If so, this tragic death was an unforeseeable accident, and therefore not something that the Israeli who fired the weapon can be held morally accountable for. Even if the person in the video was in fact killed, and was killed by a 9mm round rather than by what appears to be a malfunctioning nonlethal munition, that still does not mean that the death was necessarily the result of a culpable act. It remains to be ascertained that the lethal shot was not fired a) accidentally, or b) in response to a threat to life or the threat of serious injury caused by the activist’s wielding of the fire hose.45 In short, while the footage to which the Panel refers here must undoubtedly be disturbing to watch, it is, on its own, insufficient to show wrongdoing on the part of the Israeli boarding party. It is worth noting that the Panel implicitly but clearly assumes that all of the gunshot wounds sustained by the activists were the result of 43 44

45

Panel, 57. Reuters, “Autopsy Shows Gaza Activists Were Hit 30 Times: Report”, ABC News, June 4 2010, accessed July 12, 2010 .http://abcnews.go.com/ International/wirestory?id=10831013&page=2. Like the water cannon sometimes employed by police forces to disperse crowds (a practice now banned in the United States and elsewhere), fire hoses can cause significant injury. In September 2009 a German protester hit in the face by a water cannon suffered permanent eye damage causing near total blindness (see “Blinded Stuttgart 21 protestor wants apology’’, The Local, December 28 2010, accessed February 3 2012 http://www.thelocal.de/society/20101228-32075.html)

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shots fired by the IDF. Given that the Panel does not question the fact that firearms fell into the hands of activists when three of the S’13 operators were taken hostage,46 the possibility that some of those gunshot wounds could have been caused by activist fire must at least be considered. There is a noteworthy asymmetry between the Panel’s reticence to accept that the gunshot wounds sustained by some of the Israeli casualties were necessarily caused by shots fired by the activists (presumably because they believe these injuries may have been the result of ‘blue on blue’ fire) and their unquestioned assumption that all of the activists’ gunshot wounds were caused by shots fired by Israelis. To conclude, while the deaths of those killed on board the MV Mavi Marmara are unquestionably to be regretted, the case presented in support of the Panel’s insinuation of wrongdoing on the part of the S’13 operators who conducted the operation is far too thin to support such a serious implication. ‘Israel’s explanation of how the deaths and injuries occurred is insufficiently specific and detailed, which suggests a cover-up of wrongdoing on the part of the S’13 operators who conducted the mission’

The final claim of the Palmer Commission’s argument that the Israeli forces may reasonably be considered to be guilty of wrongdoing in the course of the boarding of the MV Mavi Marmara focuses on the Panel’s view that despite the investigation and conclusions reached in Israel’s report, … there has been no adequate explanation provided for the nine deaths or why force was used to the extent that it produced such high levels of injury.47

Certainly we should agree with the Panel that the lack of a well supported and unambiguous account of the circumstances of the deaths is “greatly to be regretted”.48 However, given the less than compelling case the Panel makes in support of its suspicions of Israeli wrongdoing, we should be somewhat more circumspect about taking this lack of information as being indicative of an Israeli cover-up. 46 47 48

Panel, 57. Panel, 57 - 60. Panel, 57.

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Taken on its own merits, how likely is it that the seeming inadequacy of the information provided by Israel to the Panel regarding the circumstances of the deaths that occurred on the MV Mavi Marmari is evidence of a cover-up of wrongdoing? As noted by the Panel, “The Israeli Point of Contact sought to explain to the Panel that the chaotic circumstances of the situation, made it ‘difficult to identify specific incidents described by soldiers as related to a specific casualty from among the nine activists who died during the takeover.’” 49 This is not an unreasonable explanation. There can be little question of the chaotic nature of the events that took place that morning and, as I have noted, the kind of stress that those events put those involved under has been shown to negatively affect the trustworthiness of memories thus formed. Even if conducted in good faith, the Israeli investigation could well have been hampered by this and other factors (in-grained reluctance by special forces operators to reveal operational information, reluctance to make available information that might be wrongly perceived as being indicative of wrongdoing, internal politics etc.). While the cover-up theory is certainly a possible explanation for the lack of an ‘adequate’ explanation for the deaths that occurred, without further reasons to suspect Israeli wrongdoing that possibility alone is not sufficient to embrace it. But as we have seen above, the other reasons given or implied by the Panel to reinforce the suspicion of wrongdoing on the part of the Israeli boarding party turn out, on analysis, to be not particularly compelling. Analysis Part Two: Conclusion In part two of this chapter I have assessed the reasons given or implied by the Palmer Commission in support of their finding that ‘The loss of life and injuries resulting from the use of force by Israeli forces during the take-over of the Mavi Marmara was unacceptable’. I have considered in turn the claims that: the number and severity of the deaths and injuries that occurred on the MV Mavi Marmara was greater than should be expected if force had been used appropriately by the Israeli boarding force; the nature of the injuries sustained by the deceased and injured passengers suggests wrongdoing on the part of the Israeli boarding force, and; Israel’s explanation of how the deaths and injuries occurred is insufficiently specific and detailed, which suggests a cover-up of wrongdoing on the part of the S’13 operators who conducted the mission. Close con49

Ibid.

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sideration showed these claims to be inadequate to sustain the claim that it is reasonable to assume wrongdoing on the part of the Israeli boarding force. Conclusion The Palmer Commission’s reasoning in support of its view that “[A]n appropriate statement of regret should be made by Israel in respect of the incident in light of its consequences” and that “Israel should offer payment for the benefit of the deceased and injured victims and their families” is, on close analysis, clearly lacking. While this does not in itself show that the Panel was influenced by the political climate that dominated the international scene in the aftermath of the ‘Gaza Flotilla Incident’, this is a clear possibility. On a charitable interpretation, the Panel may perhaps have been driven by a desire to ‘balance’ its finding that the blockade was legal: a finding which was certain to incense Turkey. What is certainly clear is the considerable difficulty that investigations into operational incidents conducted by outsiders are likely to face in gathering sufficient credible evidence to reach defensible conclusions, a condition which favours the likelihood of political considerations playing a significant role in the conclusions reached.

9 The Challenges of Green-on-Blue Investigations in Afghanistan Clive Williams1

My career background until 2002 was Australian Military and Defence intelligence. Since leaving Defence in 2002 I have been a Visiting Fellow and Visiting Professor at the Australian National University and, additionally since 2006, an Adjunct Professor at the Centre for Policing, Intelligence and Counter Terrorism at Macquarie University. During this time I have also worked in 15 countries, including Afghanistan, India and the UAE. My main research focus has been on terrorism and insurgency related issues. This interest has taken me twice to Afghanistan with the International Security Assistance Force (ISAF) for off-the-record background visits in August/September 2009 and April 2012. Some of my observations and impressions, necessarily given without attribution, are based on those visits. Other perceptions are based on confidential inhouse presentations by Afghanistan experts at meetings I have attended of the Council for Asian Terrorism Research (CATR) (now re-named the Council for Asian Transnational Threat Research) held in Asia once or twice a year since 2005. I have also made use of official documents, journals, media reporting, and other research sources where appropriate. This chapter covers: – The background to green-on-blue incidents – Attacks on Australians – Causative factors, and implications – Investigative/Inquiry challenges – Conclusions

1

This chapter covers incidents until 30 November 2012.

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 147 – 167.

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The background to green-on-blue incidents In this chapter, “green” refers to the Afghan National Security Forces (ANSF), mainly the Afghan National Army (ANA) and Afghan National Police (ANP), while “blue” refers to ISAF uniformed personnel and contract staff. According to The Long War Journal,2 during the period 1 January 2008 to 30 November 2012, at least 123 ISAF personnel were killed in green-on-blue attacks and the same number (123) wounded. It lists the attacks and fatalities for ISAF (including US forces) as follows: – 2008 Two attacks with two ISAF deaths. – 2009 Five attacks with 12 ISAF deaths. – 2010 Five attacks with 16 ISAF deaths. – 2011 15 attacks with 33 ISAF deaths. – 2012 (to 30 November) 42 attacks with 60 ISAF deaths. The period since 1 January 2011 has accounted for more than 73 percent of the total deaths. Seven of the 2011/2012 ISAF deaths were Australian Army personnel. In 2012 so far (30 November), 16 percent of all ISAF deaths in Afghanistan have been due to green-on-blue incidents.3 The US Department of Defense’s numbers differ slightly from those above. It lists the following: – 2007 Two attacks with two ISAF deaths – 2008 Two attacks with two ISAF deaths – 2009 Six attacks with 10 ISAF deaths – 2010 11 attacks with 20 ISAF deaths – 2011 21 attacks with 35 ISAF deaths – 2012 (to 17 August) 31 attacks with 39 ISAF deaths4

2 3

4

The Long War Journal is a US website that has particular expertise in the analysis of events in Pakistan, Afghanistan and Iraq. Bill Roggio and Lisa Lundquist “Green-on-blue attacks in Afghanistan: the data” in The Long War Journal at http://www.longwarjournal.org/ archives/2012/08/green-on-blue_attack.php#ixzz2DfNQtjQ p [viewed 30 November 2012]. CBS News “Mother seeks answers in ‘green on blue’ attack” 17 August 2012 accessed at http://www.cbsnews.com/8301-18563_162-57495797/motherseeks-answers-in-green-on-blue-attack/ [viewed 30 November 2012].

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A typical green-on-blue attack involves a lone male Afghan in military or police uniform opening fire on unsuspecting ISAF personnel at a base area or checkpoint. He is then killed by return fire, captured, or flees the area. Such attacks have occurred mainly in the south and north east of Afghanistan, with most occurring in the Pashtun heartland areas of Helmand and Kandahar (31 attacks out of the nationwide total of 69 attacks spread over 18 provinces).5 ISAF information on green-on-blue incidents is “security classified”, but in November 2012 The Long War Journal reported the following incidents for 2012: Jan. 8, 2012: An Afghan soldier killed an ISAF soldier and wounded three others in southern Afghanistan. According to The New York Times, the Afghan soldier shot a US soldier during a volleyball game at a US base in Qalat district in Zabul. The attacker was shot and killed by another US soldier. Jan. 20, 2012: An Afghan soldier killed four ISAF soldiers in eastern Afghanistan. According to AFP, the attacker shot and killed four unarmed French soldiers and wounded another 15 at their base in Kapisa province, a fifth soldier later died of his wounds. The attacker was apprehended. Jan. 31, 2012: An Afghan soldier killed an ISAF soldier in southern Afghanistan. According to the Associated Press, the incident occurred at a base in the Marjah district in Helmand province; the Afghan commander said it was an accident but the shooter was detained. Feb. 20, 2012: A member of the Afghan Uniformed Police killed an ISAF soldier in southern Afghanistan. According to The Associated Press, gunmen in Afghan police uniforms opened fi re on NATO troops in the Spin Boldak of Kandahar province, killing one Albanian soldier and wounding two international troops, one of whom was Albanian. Eleven policemen suspects were arrested.

5

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Feb. 23, 2012: An Afghan soldier killed two US troops at Forward Operating Base (FOB) Lonestar in Jalalabad in Nangarhar province. According to the Los Angeles Times, the incident occurred at a base in the Khogyani district; hundreds of anti-US protesters had gathered outside the base following the recent burning of Korans. After the shooting, the attacker escaped into the crowd. Feb. 25, 2012: An Afghan policeman gunned down two US military officers in the Interior Ministry in Kabul before escaping. March 1, 2012: An Afghan soldier and a teacher opened fire on NATO troops at Company Outpost (COP) Sangsar in Zhary district in Kandahar province, killing two ISAF soldiers, and wounding two more, before being killed in return fi re. March 2, 2012: An Afghan soldier attacked ISAF soldiers at Camp Morehead in Kabul; no casualties or injuries were reported. March 14, 2012: An Afghan interpreter hijacked an SUV, wounding a British soldier, then attempted to run down a group of US Marines, including a major general, at the Camp Bastion airfield in Helmand province, just before Secretary of Defense Leon Panetta’s plane was scheduled to land. The attacker crashed his truck and then set himself on fire; the attacker’s brother and father, also interpreters, were both detained, as was another person said also to be an interpreter, according to The Associated Press. March 26, 2012: An Afghan soldier killed two British troops, and wounded another ISAF service member, in an attack in Lashkar Gah, the capital of Helmand province. The attacker was killed by return fi re. March 26, 2012: An ISAF service member died following a shooting incident in eastern Afghanistan. The service member was approaching an ALP

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checkpoint in Rowzah district in Paktika province when he was shot by an alleged member of the Afghan Local Police, The New York Times reported. The attacker was killed by return fi re. April 16, 2012: An Afghan soldier attacked ISAF soldiers in Dand district in Kandahar province; no casualties or injuries were reported. April 25, 2012: An Afghan Uniformed Policeman wounded two ISAF soldiers in an attack in Zharay district in Kandahar province. April 26, 2012: An Afghan commando killed a US Special Forces soldier and an Afghan interpreter in an attack in Shah Wali Kot in Kandahar province. The attacker, as well as an Afghan special forces soldier, was killed by return fire. The Taliban claimed the attacker was “an insurgent infi ltrator called Zakerullah,” according to Reuters. May 6, 2012: An Afghan soldier killed one US Marine and wounded another in Tarekh Naver in the Marjah district of Helmand province, according to The Associated Press. The attacker was killed by return fi re. May 11, 2012: An Afghan soldier killed a US soldier and wounded two others in an attack in Kunar province. The attacker fled to the Taliban, and on Aug. 7 the Taliban released a video showing him being welcomed as a hero. May 12, 2012: Members of the Afghan Uniformed Police killed two British soldiers and wounded two more in an attack in Lashkar in Helmand province. One of the attackers was killed and another escaped. June 18, 2012: An ISAF soldier was killed by “three individuals in Afghan Police uniforms” in the south. According to The Associated Press, the gunmen fired a rocket-propelled grenade at US soldiers in the Zhari district of Kandahar province, killing one and wounding nine more

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before fleeing. The next day, an Afghan policeman ‘facilitated’ an insurgent attack on a base in the Shah Wali Kot district in Kandahar province; the attackers, who were clad in Afghan military uniforms, wounded “fewer than 10 US troops.” July 1, 2012: Three British military advisers were killed, and another member of ISAF personnel was wounded, in an attack by an Afghan Civil Order policeman in Helmand province. According to the Los Angeles Times, attack occurred in the Nahr-e-Saraj district and the assailant was shot and wounded following the attack. July 5, 2012: Five ISAF personnel were wounded in an attack by an Afghan soldier in Sayyidabad in Wardak province. The attacker, fled. The Taliban included a photo of the alleged attacker, Muhammad Wali, in a Twitter posting on Sept. 16. July 22, 2012: A member of the Afghan National Police killed three civilian trainers who worked for ISAF in Herat province, and wounded another. The attacker was killed. July 23, 2012: Two ISAF soldiers were wounded in an attack in Ghormach district in Faryab province. The attacker was killed by ISAF troops. Aug. 3, 2012: An Afghan Local Policeman wounded one ISAF soldier in an attack at a base in Panjwai district in Kandahar province. Aug. 7, 2012: Two Afghan soldiers killed a US soldier and wounded three others in Shwak district in Paktia province before defecting to the Taliban. According to the Army Times, the attack took place at a military base in Paktia.

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Aug. 9, 2012: US troops killed an Afghan soldier who was attempting to gun them down at a training center in Methar Lam district in Laghman province; two US soldiers were wounded by the attacker. Aug. 10, 2012: Three US soldiers were killed and one was wounded in an attack by an Afghan Local Police commander and his men in Sangin district in Helmand province. The Afghan police commander fled after the attack. Aug. 10, 2012: Three US Marines were killed and one was wounded in an attack by an Afghan worker in Garmsir district in Helmand province. The attacker was captured. Aug. 13, 2012: A policeman wounded two US soldiers in an attack in Achin in Nangarhar province. The attacker fled. Aug. 17, 2012: An Afghan soldier shot and wounded two NATO soldiers in Zharay in Kandahar province; the attacker was killed. Aug. 17, 2012: An Afghan Local Police officer killed two US soldiers during a training exercise on an Afghan base in Farah province, and wounded another ISAF soldier. The two slain soldiers were with Marine Corps special operations; one of the soldiers was a Marine and the other was a Navy corpsman, according to Marine Times. The attacker was killed by nearby troops. Aug. 19, 2012: A member of the Afghan Uniformed Police turned his weapon on a group of ISAF soldiers in southern Afghanistan, killing one soldier, and wounding another soldier and an interpreter. The incident occurred in the Spin Boldak district of Kandahar province, and the district police chief has since been fired for negligence and lack of control over his personnel, according to AFP. The attacker was killed by return fire.

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Aug. 27, 2012: An Afghan soldier killed two ISAF soldiers in an attack in Alignar in Laghman province. The attacker was killed by ISAF soldiers. According to Reuters, the soldiers from Combat Outpost Xio Haq were killed when their convoy was attacked by a gunner named Welayat Khan on an Afghan Army convoy that was passing by. The other Afghan soldiers reportedly lowered their weapons after the attack for fear of getting shot. Minutes after the attack, a US helicopter shot Khan as he attempted to flee. A local Taliban commander claimed after the incident that Khan was ‘their man’ and that he had been trained by the Taliban for the attack. Aug. 28, 2012: An Afghan soldier shot and killed three Australian soldiers in an attack at a base in Tarin Kot in Uruzgan province. Two more Australian soldiers were wounded in the attack. According to Australia’s ABC news agency, the attacker, a recent recruit named as Sergeant Hikmatullah, climbed over the base’s fence after the attack and ran away. The Taliban included a picture of Hikmatullah in a Twitter posting on Sept. 16. Sept. 15, 2012: A member of the Afghan Local Police opened fire on a group of British soldiers in the Gereshk district in Helmand province, killing two soldiers and wounding two more. The attacker was killed in return fire from another British soldier. The Taliban later claimed that the attacker was an Afghan soldier named Gul Agha, who “work[ed] in the occupier’s base in the area of Maljir in Naqilo.” Sept. 16, 2012: An Afghan policeman opened fire on a group of Coalition soldiers in the Mizan district in Zabul province, killing four soldiers and wounding two more. The attacker was killed in return fire from another soldier; several other Afghan policemen were wounded. The Taliban later claimed that the attack had been carried out with the aid of seven Afghan policemen who were retaliating for the fi lm ‘Innocence of Muslims.’

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Sept. 16, 2012: An Afghan soldier opened fire on a vehicle being driven inside Camp Garmser, a shared base in Helmand province; six NATO troops and a foreign civilian worker were wounded in the attack. The attacker thought the vehicle contained NATO troops. Another Afghan soldier took the attacker into custody after disarming him. Sept. 29, 2012: An Afghan soldier opened fire on Coalition forces in the Sayyidabad district in Wardak province. One US soldier and a civilian contractor were killed, and two US soldiers were wounded. Th ree other Afghan soldiers were also killed in the firefight, and several others were wounded. According to the Washington Post, the firefight began when an Afghan soldier shot the senior US soldier in a 20-man patrol that had gathered to collect biometric data from civilians at a checkpoint manned by Afghan soldiers. When the US troops returned fire, “[a]nother Afghan soldier at the checkpoint opened fire on the Americans, killing a US civilian contractor and wounding two other American soldiers [and] ... [s]oon, Afghan soldiers and possibly insurgents began firing at the Americans from several directions.” Oct. 13, 2012: A uniformed employee of the National Security Directorate killed one US soldier and a US State Department employee in a suicide attack at an NDS office in Maruf district in Kandahar province. The attacker, an eight-year employee of the NDS, was a local Maruf man who had moved his wife and children to Pakistan the week before the attack. Also killed in the attack were the deputy NDS chief for Kandahar and three other Afghans. The number of wounded was not reported. Oct. 25, 2012: An Afghan policeman shot and killed two US soldiers at a police headquarters in Khas Uruzgan in Uruzgan province. According to ToloNews, the attacker was “a trusted member” of the police force who had been on the force for ‘some months.’ The attacker escaped. The Taliban claimed the attack the following day and said the attacker had joined them.

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Oct. 30, 2012: An Afghan policeman shot and killed two British soldiers in Helmand province. The policeman escaped after gunning down the British troops. Nov. 10, 2012: Two Afghan soldiers opened fire on Spanish troops from the Provincial Reconstruction Team in Muqar district in Badghis province. The two Afghan soldiers were captured; one was wounded. One Spanish soldier was wounded in the attack. Nov. 11, 2012: An Afghan soldier opened fire on British troops in the Nad Ali district in Helmand province. One British soldier was killed and one was wounded. The Afghan shooter was wounded in return fire.6

It would probably be testing the stamina of the reader to list incidents before 2012, but I believe it important to list 2012 incidents to give the reader a feel for the nature of green-on-blue attacks that occur on a regular basis. Attacks on Australians Due to the unavailability of consistent detailed ISAF data on green-onblue incidents in Afghanistan, I will now focus mainly on the Australian incidents which have been well covered in the Australian media and in Australian Department of Defence briefings. As noted earlier, seven Australian soldiers have been killed and 12 wounded as a result of four green-on-blue attacks in 2011 and 2012. The Australian Defence Force (ADF) listed its battle casualties in Afghanistan, to December 2012, as 39 personnel killed and 245 wounded. The seven killed in green-on-blue attacks account for 18 percent of the total killed, which is higher than the ISAF average.7 The first attack occurred on 30 May 2011, when ANA soldier Shafied Ullah shot Lance Corporal Andrew Gordon Jones from a watch tower at 6 7

Ibid. Department of Defence “Battle Casualties in Afghanistan” accessed at http://www.defence.gov.au/op/afghanistan/info/personnel.htm [viewed 1 December 2012].

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COP Mashal in the Baluchi Valley in Uruzgan. Shafied Ullah then fled the scene. Lance Corporal Jones died in the operating theatre at Tarin Kot. On 19 June 2011, Shafied Ullah was shot and killed by a US Special Forces team after a warning was given for him to surrender at his home village in Khost Province, close to the Pakistan border. On 29 October 2011, ANA soldier Sergeant Darwish Khan opened fire on ADF personnel following the morning parade at FOB Sorkh Bed in Shah Wali Kot in northern Kandahar. Captain Bryce Duff y and Corporal Ashley Birt died at the scene; Lance Corporal Luke Gavin died during surgery. In addition, seven Australian soldiers were wounded, one Afghan interpreter was killed, and two other Afghan interpreters and an ANA soldier were wounded. Darwish Khan was shot dead by two Australian soldiers at the scene. Disturbingly the Inquiry Officer concluded that “There is evidence to suggest other individuals within [redacted] were aware of his intent prior to the incident”.8 On 8 November 2011, ANA soldier Mohammad Rozi shot and wounded three Australian soldiers at Patrol Base Nasir in the Charmestan Valley (to the north east of Tarin Kot). Rozi is an Uzbek, originally from the remote Hazar Sumuch District in northern Takhar province of Afghanistan. Rozi escaped and is now believed to be with the Afghan Taliban in Pakistan. On 29 August, 2012, ANA Sergeant Hekmatullah shot and killed three Australian soldiers and wounded two at Patrol Base Wahab in the Baluchi Valley region of Uruzgan. Those killed were Sapper James Martin, Lance Corporal Stjepan Milosevic, and Private Robert Poate. Sergeant Hekmatullah fired a weapon into a group of Australian soldiers from close range before fleeing the Patrol Base on foot. He remains at large.9 NATO sources said that Sergeant Hekmatullah had shown “plenty of warning signs” and was part of an undisciplined unit that

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Inquiry Officer Inquiry Report—Matter Concerning Joint Operations Command dated 27 July 2012 accessed at http://www.defence.gov.au/coi/ reports/Inquiry percent20Report percent20Into percent20Green percent20on percent20Blue percent20Incidents percent2029 percent20Oct percent20and percent2008 percent20Nov percent2011.pdf [viewed 30 November 2012]. “Afghan manhunt likely to fail” The Canberra Times 1 September 2012 accessed at http://article.wn.com/view/2012/09/01/Afghan_manhunt_ likely_to_fail/ [viewed 1 December 2012].

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should have been brought into line. He had no known Taliban links.10 The Afghan commanding general, Brigadier General Zafar, claimed Hekmatullah was a Taliban infiltrator who enlisted using false documents. “He had a fake ID card, fake recruitment papers and had recently transferred to our brigade…” 11 Causative factors, and implications Turning to causative factors, Major General Stephen Day, Deputy Chief of Staff Plans, ISAF Joint Command, on 31 July 2012 stated: “Firstly, most green on blue [incidents] are caused by misunderstanding or personal dispute … Some of the green-on-blue incidents, though less in number, are the result of infiltration by our opponents, and some of them have turned existing ANSF members against us.” 12 In May 2011, a US Army team led by a behavioural scientist compiled a survey that indicated many Afghan security personnel found US troops “extremely arrogant, bullying and unwilling to listen to their advice.”13 I was told on several occasions in Afghanistan that Pashtun are well known for taking offence if spoken to harshly or embarrassed in front of other Afghans. Their reaction may be immediate, or may be “slow burning”, awaiting a convenient opportunity to right the perceived wrong. An ISAF study noted that “About 11 percent of the ‘insider attacks’ are because of Taliban infiltration into the Afghan security forces … The majority of the attacks, they said, are for other reasons, including grudges and conflicts between NATO and Afghan forces.” 14 10

11 12

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Jeremy Kelly, “Digger killer ‘a Taliban plant’” The Australian 13 November 2012 accessed at http://www.theaustralian.com.au/national-affairs/ defence/digger-killer-a-taliban-plant/story-e6frg8yo-1226515447293 [viewed 1 December 2012]. Ibid. Press Briefing by Major General Stephen Day, Deputy Chief of Staff Plans, ISAF Joint Command 31 July 2012 accessed at http://www.nato.int/ cps/en/natolive/opinions_89364.htm [viewed 30 November 2012] “Infi ltration Or Bad Blood Behind Afghan Attacks?” Associated Press, Kabul, Afghanistan August 17, 2012 accessed at http://news.yahoo.com/ infi ltration-bad-blood-behind-afghan-attacks-203535823.html [viewed 30 November 2012]. “Two Americans Killed by Afghan Recruit” by Graham Bowley and Richard A. Oppel Jr. in The New York Times, August 17, 2012 citing a recent

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Later in August 2012, ISAF commander General John Allen disagreed with a recently released Pentagon report which said about 10 percent of the green-on-blue attacks are being carried out by Taliban infiltrators. Allen said 25 percent is now more realistic.15 While the Taliban usually claim responsibility for green-on-blue incidents, they have in the past initiated relatively few of them. Most, at around 40 percent, seem to be due to stresses of various kinds, 15 percent to pressure put on individuals by the Taliban, and 10 percent to Taliban disguised in Afghan uniforms. The cause of the remaining 35 percent is unclear, but cultural differences and other grievances seem to play a large part, sometimes driven by well-publicized ISAF ‘mistakes’.16 These mistakes have included the accidental burning of Korans at Bagram Airbase, US personnel urinating on or abusing Taliban corpses, the alleged Bales massacre of 16 Afghan civilians, other torture and homicide cases, and ISAF air strikes that have killed civilians. The ADF inquiry following the death of Lance Corporal Jones noted “Statements by the COP Commander and the CO MTF2 [Commanding Officer Mentoring Task Force 2] highlight that there is a constant but manageable tension between AS [Australian] and ANA forces, especially within mentoring locations. Tensions existed due to cultural differences [redacted] and due to different levels of professionalism [redacted].” 17 Lieutenant Colonel Gavin Keating who had been an adviser with the ANA noted in 2011 that “Most of the deliberate ‘green on blue’ incidents … seem to be more based on Afghans motivated by personal grievances and acting during moments of apparent insanity. The ready availability of drugs and weapons, years of living under trying conditions

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16 17

ISAF study accessed at http://www.nytimes.com/2012/08/18/world/asia/ two-americans-killed-by-afghan-recruit-in-green-on-blue-assault.html?_ r=0 [viewed 30 November 2012]. The Australian 24 August 2012 “Taliban behind 25 percent of insider attacks: US” quoting General Allen, accessed at http://www.news.com. au/breaking-news/world/taliban-behind-25-of-insider-attacks-us/storye6frfkui-1226457093876 [viewed 30 November 2012]. My estimate based on publicly available data. Lieutenant Colonel [redacted] “Inquiry into the facts and circumstances associated with an incident that resulted in the death of Lance Corporal Andrew Gordon Jones in Afghanistan on 30 May 2011” dated 2 March 2012 accessed at http://www.defence.gov.au/coi/reports/Report-120302-CDFIOI-into-death-of-LCPL-Jones.pdf [viewed 30 November 2012].

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and generally high levels of psychological stress all tend to produce a fertile environment for random acts of violence against ISAF personnel…A related friction point was the different force protection regimes maintained by the ANA and ISAF. The Afghans accept considerably more personal risk, particularly when moving around the battlefield, than is tolerated by the force protection regulations mandated by most ISAF nations. It is difficult for advisers to serve ‘shona ba shona’ (shoulder-byshoulder) with their Afghan colleagues when prohibited from travelling with them by national policies … the deliberate infiltration of the ANA’s ranks remains an enduring threat and not one that is easy to counter. It should be noted, in this respect, that the [ANA] Corps’ officers were very protective of their assigned advisers and aware of the threats posed by either discontented soldiers or infi ltrators.” 18 Since President Obama announced that Afghans would be responsible for their own security by the end of 2014, there has been increased pressure on ISAF to make the ANA combat-capable. The ANA has about 200,000 active personnel (at June 2012), to be built up to 260,000 by 2015. There are 4,000+ ISAF trainers involved in training the ANA. But it is not just a simple matter of surging the ANA to 260,000. The increase is being offset by high desertion and attrition rates, with some Afghan units down to 60 percent of their establishment strength. It can be likened to filling a bucket with a hole in the bottom. ANA enlisted personnel I spoke to in 2009 at the Kabul Military Training Center were unhappy about a number of issues: low pay, no guaranteed leave, being unable to see or contact their wives and children—who were usually in another part of the country, being unable to visit their family and village to help plant the poppy crop (around November) and harvest it (around March), weak leadership, lack of suitable military equipment, Taliban pressures, government corruption etc. The desertion/attrition and surge challenges have had two significant impacts on Afghan force development: first the need to take in and retain more recruits a month—which means lowering the bar on stand-

18

Lieutenant Colonel Gavin Keating “Living in the Twilight Zone Advising the Afghan National Army at the Corps Level”, Australian Army Journal • Volume VIII, Number 3 pp7-20 accessed at http://www.army.gov.au/Ourfuture/DARA/Our-publications/Australian-Army-Journal/~/media/Files/ Our percent20future/DARA percent20Publications/AAJ/2011Summer/ AAJ_Vol8_No3_Summer2011.ashx [viewed 30 November 2012].

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ards; second, increased field-mentoring, with 5,000 ISAF soldiers mentoring ANA units. Security vetting has reportedly been stepped up to try to weed out Afghan recruits with Taliban links and Taliban sympathies—in part to prevent green-on-blue and green-on-green incidents, but, as noted, prior Taliban connections seem to account for only a small percentage of green-on-blue incidents. The ANP is currently 149,642, to be built up to 157,000 by October 2012. It comprises: – Afghan Uniformed Police (AUP): 84,000 – Afghan Border Police (ABP): 22,200 – Afghan National Civil Order Police (ANCOP): 16,500; and – Others: (Intel, MOI HQ , Anti-Crime/ CID, Counter Narcotics, Fire, Medical): 18,200 In addition there are: – Afghan Local Police: 13,000, to grow to 30,000 The ANP are of variable quality but since they often operate in Taliban and warlord controlled areas without ANA protection are usually corrupt and unpredictable in their reaction to ISAF personnel. Trainees are also unpredictable and are only issued with plastic AK-47s when foreign trainers are involved. It seems likely that the increase in green-on-blue attacks during 2011 and 2012 has occurred because of: – President Obama’s drawdown announcement. – The surge in ANA and ANP training and mentoring—resulting in increased opportunities for such attacks. – Increased pressure and encouragement from the Taliban. There is also no doubt a desire by some rural Afghans to ingratiate themselves and their families with the Taliban—who they expect to be the dominant element in their home areas post-2014. Some of the other sources of tension between ISAF and the ANSF relate to ISAF trainers and mentors’ general concerns about Afghan troops which include poor hygiene, poor discipline, treachery, thieving, unreliability, illiteracy, technical incompetence, corruption, lack of motivation, attitude to women and animals, and drug taking. To make it harder to bridge the gap there is the language issue.

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On the other hand, many ANSF members view ISAF as infidels and uninvited occupiers of their land - lacking in cultural sensitivity, causing civilian casualties, disrespecting their women, trespassing on their property, not able to handle hardship, and arrogant in their dealings with Afghans. In the case of the Australian incidents: The first could have been linked to Shafied Ullah’s family situation [details redacted in the Jones Inquiry report] and the killing of Shafied Ullah’s brother by coalition forces; the second, Darwish Khan’s attack, seems to have been religiously/ideologically-motivated; Mohammad Rozi’s motivation for the third incident seems to have been a desire to gain ‘hero’ status with the Taliban, and; the fourth seems to have been religiously/ideologicallymotivated. In the Darwish Khan case, the ADF inquiry found that the shooter was targeting Australians but appeared not to have any connection to the Taliban insurgency.19 The Inquiry noted “There is no evidence to indicate a connection between Derwish [sic] and an insurgent individual or group prior to the incident. [Redacted] … There is no evidence to suggest that the shooting was connected as part of a broader strategy with other insider threat events prior to or subsequent to the incident.” 20 Rozi was similarly seen to have initiated his attack without any outside encouragement, but was helped to escape, presumably by an insider [detail redacted].21 As noted earlier, the fourth case is still under investigation. The main problem created by such incidents is the erosion of trust between ISAF and the ANSF, and a decline in home support for ISAF’s mission, which leads to casualty aversion in-theatre and undermines ISAF’s ability to work effectively with the ANSF. Last year, some German troops refused to go out in the field with Afghans following a green-on-blue incident that killed three Germans. US military personnel at bases where there are both US and ANA personnel no longer fraternize with them in off-duty hours and carry loaded weapons at all times. The ‘Guardian Angel’ program means that one or more ISAF soldiers now acts as Close Personal Protection (CPP) 19

20 21

The Sydney Morning Herald 23 November 2012 at http://www.smh.com.au/ opinion/political-news/slaying-of-diggers-premeditated-20121123-29xii. html#ixzz2DTS03gsa [viewed 30 November 2012]. Inquiry Officer Inquiry Report—Matter Concerning Joint Operations Command Op Cit p 16. Ibid p 19.

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for ISAF military personnel during training activities and meetings with Afghan officials. France has accelerated its withdrawal program following the January 2012 incident which resulted in the death of five French soldiers. “A spokesman for the Afghan military says a soldier who killed four French troops was angry about a video purporting to show US marines desecrating the bodies of Taliban insurgents.” 22 Green-on-blue cultural problems in Afghanistan suggest that ISAF needs to be as discerning about who works with Afghan units, as it is about who is being recruited into the ANSF. Australian soldiers in past campaigns have been well regarded for their empathy with local security forces, largely due to our diggers’ egalitarian attitudes. This was particularly noticeable in South Vietnam, Somalia and East Timor. But we cannot take that for granted in Afghanistan. For example, Afghans have complained about our soldiers wearing sunglasses when talking to them. Given the range of ANSF expansion problems, it seems doubtful the ANSF will be capable of safeguarding Afghan national security after 2014 without considerable ongoing ISAF support and engagement. A longer term issue concerns who will provide that support and engagement. The US is keen to share that burden with others, including Australia. Some Australian military support seems likely for the long haul. The reality therefore is that Australians will be training and mentoring the ANSF for many years to come, and those trainers and mentors will continue to be at risk—possibly greater risk—of green-on-blue attacks by disaffected Afghans. Investigative/Inquiry Challenges Following the first three Australian incidents, then-Australian Defence Minister Smith noted: “When an Australian soldier is killed in combat an Inquiry Officer Report is prepared in order to determine the circumstances surrounding the death and any lessons learnt … any decision to publicly release an Inquiry Officer Report rightly comes after weighing the wishes of the family members about publication and the public inter22

“Afghan soldier killed four French troops after watching US ‘desecration’ video.” Associated Press The Guardian, 25 January 2012 accessed at http:// www.guardian.co.uk/world/2012/jan/25/afghan-soldier-french-marinesdesecration [viewed 30 November 2012].

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est in the release of the report wider than family members and affected persons to the general public.” 23 The Department of Defence makes the following points in relations to administrative inquiries: The principal aim of ADF administrative inquiries is to inform internal decision-making. In all cases, these inquiries are established to provide accurate and reliable information concerning the facts surrounding an incident or situation so that an informed decision can be made to help avoid a similar recurrence, to improve safety and to assist the Defence Force to maintain its operational capability. ADF administrative inquiries are conducted under the authority of the Defence Act 1903. There are a number of forms these inquiries can take, each with different legal requirements and varying degrees of formality or procedural complexity. The most common types of inquiry appointed to inquire into deaths or other serious matters concerning the ADF are CDF Commissions of Inquiry, Inquiry Officer Inquiries and Boards of Inquiry. CDF Commissions of Inquiry (COI) are established primarily to inquire into deaths of ADF members that appear to have arisen out of, or in the course of their service. A COI can only be appointed by the Chief of the Defence Force and must be presided over by a civilian with judicial experience. They may be constituted by a President alone and are generally conducted in public. Inquiry Officer Inquiries may be appointed by the Chief of the Defence Force, a Service Chief, commanding officer, formation commander or other authorised senior officer to inquire into any matter concerning Defence that is under their command or control. Inquiry Officer Inquiries are generally conducted in private without formal hearings. Boards of Inquiry have been superseded by COI for inquiries concerning the death of an ADF member. However, they may be established to inquire into other incidents, for example an accident or injury, or damage to a Defence asset. A Board of Inquiry 23

Paper presented by the Minister for Defence Stephen Smith MP on Afghanistan, tabled in conjunction with a Ministerial Statement on 9 February 2012 accessed at http://www.minister.defence.gov.au/2012/02/09/ minister-for-defence-statement-paper-presented-by-the-minister-fordefence-on-afghanistan-tabled-in-conjunction-with-a-ministerial-statement-on-9-february-2012/ [viewed 30 November 2012].

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may be appointed jointly by the Secretary of Defence and the Chief of Defence Force, the Chief of the Defence Force, a Service Chief or authorised senior commander. Boards of Inquiry may be conducted in public.24

Following the first Australian green-on-blue incident the process followed by Australia was to establish an Australian Defence Force Investigative Service (ADFIS) investigation immediately after the incident, followed by a broader ranging Inquiry. The ADF Inquiry reports on the first three green-on-blue incidents have been publicly released. All were partially redacted. The Jones Inquiry noted: “The inquiry team did not deploy to the MEAO [Middle East Area of Operations].” “…some witnesses continued to be emotionally affected by the incident … conducting the inquiry interviews brought some of these emotions to the surface … early attendance at the crime scene is invaluable, however they [investigators] require a sustained period at the site and ready access to witnesses in order to capture evidence before it is lost … there is considerable risk to the completeness of and timeliness of both ADFIS investigations and Inquiries Officer inquiries if there are constraints placed on ADFIS when capturing the initial evidence.” “The ANA at COP MASHAL supported the ADFIS investigation however there were issues with the manner in which questioning was conducted.” [Most of the page was redacted.]25 The then-Defence Minister noted in February 2012: “The CDF has put in place a number of measures to address the deficiencies identified in the lack of resources and priority attached to processing Inquiry Officer reports within Defence. In addition to giving priority to closer oversight of the progress of reports, the steps underway to remediate the issues within the Commission of Inquiry Directorate are: – Appointing a high calibre and experienced senior Army lawyer to lead the Directorate; 24

25

What types of administrative inquiries does the ADF conduct? Accessed at http://www.defence.gov.au/coi/appointed.htm [viewed 30 November 2012]. Lieutenant Colonel [redacted] “Inquiry into the facts and circumstances associated with an incident that resulted in the death of Lance Corporal Andrew Gordon Jones in Afghanistan on 30 May 2011” dated 2 March 2012 accessed at http://www.defence.gov.au/coi/reports/Report-120302-CDFIOI-into-death-of-LCPL-Jones.pdf [viewed 30 November 2012].

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Appointing a non-legal Chief of Staff to provide oversight, prioritisation and monitoring of all matters that are referred to, and processed within, the Directorate; Assigning additional legal staff resources to the Directorate and strictly caveating their duty statements; Drafting a new CDF Directive and developing a dedicated chapter in the Administrative Inquiries Manual; and Placing the Directorate under the oversight of the recently appointed Director General Strategic Issues.” [In addition] “A regular Inquiry Watch Group has been established under a One Star Officer to coordinate efforts across Defence to progress combat inquiries and reduce delays.” 26 Conclusions

The green-on-blue attacks seem set to continue but will probably level off in 2013, or may even reduce with less contact between ISAF and ANSF personnel and more safeguards in place. This situation could change in 2014, and after, when there is increased pressure to achieve and sustain ANSF combat-readiness. The cultural gap and perceptions of why ISAF forces are in Afghanistan will continue to undermine the fragile trust relationship that is fundamental to effective military cooperation. Green-on-blue incidents will continue to be difficult to investigate for a number of reasons. These include: – Investigators’ inability to adequately access and remain at the scene of incidents due to operational reasons. – Difficulty of access to the perpetrator’s fellow soldiers or police – or his family members who may live in remote and poorly secured areas of Afghanistan. – Difficulty of access to perpetrators in Afghan custody. – Language issues and a lack of competent interpreters. – Crime scenes not being adequately preserved and recorded (not apparently the case with the Australian deaths). – Inexperienced and sometimes poorly qualified (from an investigative perspective) Inquiry Officers. – Lack of access to possibly relevant security classified material. – Fellow soldiers of the victims and ISAF witnesses being rotated out of theatre. 26

Minister for Defence Stephen Smith MP, Op Cit.

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Perpetrators rarely being secured alive. Inadequate post-mortem investigations (not usually the case with Australian deaths). Inquiries being given a low priority in an operational environment. Military investigating officers reluctant to find fault with current systems. A weak Afghan policing and judicial system.

In relation to the conduct of green-on-blue investigations and inquiries, they need to be: – Conducted as soon as possible after the incident; – Well resourced, with competent investigative staff; – Conducted at least partly in-theatre; – Engaged with the ANSF unit involved; – Considerate of potentially traumatized persons. Finally, Inquiry reports should be transparent and publicly available— any report redactions should be minimized and only made for compelling security or family reasons.

10 The Tension between Secrecy and Transparency: Investigations in the ‘Wiki Age’ David W. Lovell

The ‘operational incidents’ on which the contributors to this collection have focused are diverse. Without doing too much damage to their extensive range, we may summarize these types of incidents as those where there is a prima facie case that international laws or rules of engagement have been breached, or matériel has failed, or proper procedures have been circumvented such that either the lives of non-combatants or one’s own forces have been lost or put at serious risk, or the good order and functioning of a military unit is in jeopardy. The purpose of formal investigations in this realm is quite properly multi-faceted: to discover what happened and why, to assign responsibility (and recommend punishment, if appropriate1), and to learn the lessons to avoid a repetition of such failures. Before we even reach this stage, it must be noted, there are issues of jurisdiction to confront, though in countries with robust legal traditions and respect for international legal norms and institutions these issues are less problematic than elsewhere. Once jurisdiction has been clarified, logic suggests, and recent history confirms, that there are two major complications to the smooth creation of a virtuous feedback loop. First, where there is much at stake, there is also the potential for (inter alia) dishonesty or ‘cover up’, so that investigations are blocked, or distorted, or secretive, or inconsequential. And the stakes are indeed often high, for operational incidents are more or less damaging to mili1

In the United Kingdom, the Board of Inquiry process was established in the Army Act 1955; Board of Inquiry investigations are about preventing a recurrence, but they are not permitted to make recommendations regarding disciplinary action; see John Cooper, Inquests (Oxford: Hart Publishing, 2011), 157.

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 169 – 195.

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tary organizations, the officers that staff them, and the governments that deploy them. They may, for example, undermine the justice of undertaking a particular military campaign; they may identify serious deficiencies in preparation and training, operational procedures, or equipment (including procurement); they may end the careers of military officers; they may put at risk the budgets and very existence of particular operational units; and they may cause a government political or diplomatic harm, including bringing its legitimacy into question. Effectual investigations require honesty and courage from investigators at the very least. Though it may be more difficult in the international, than in the national, arena to initiate and pursue an investigation, the investigative teams assembled there tend to demonstrate these virtues to a very high degree. Second, the public availability of large amounts of information about particular incidents—whether from official sources, NGOs, investigative journalists, academics, or ‘whistleblowers’—means that investigations are increasingly played out in public. What I have called the ‘Wiki Age’—where the technological ability to share information, including classified information, is massively enhanced—poses a challenge to governments’ routine and often unnecessary secretiveness; and it tests the credibility of government recourse to the rubric of ‘national security’, a term whose currency has been debased by cynical abuse. Yet despite a flood of information, the court of public opinion is not always well informed either about particular incidents or about the issues in dispute; vivid photographic and video images that have accompanied some of the operational incidents examined in this book, for example, supply urgency to the conduct of investigations, ensuring that they are difficult to sideline, but may obstruct the dispassionate analysis required of them. And in the public sphere genuine information vies with innocently- or maliciously-inspired misinformation. This chapter explores how these two major complications—one that prioritizes secrecy and control of information, the other that prioritizes its free flow—have impacted on investigations into operational incidents, and identifies the benefits and risks of the publicity that operational investigations will increasingly confront in the ‘Wiki Age’. Let me first be clear about the limits of my brief. I make no judgments here about the justice of particular military campaigns, or the strategic approach to them, or the leadership within them (including whether such leaders have been given the appropriate resources to prosecute the campaign). These are all legitimate and important issues, and they help explain the motivations of ‘whistleblowers’ and the passion that opera-

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tional incidents sometimes arouse. My focus here is rather on the ways that operational incidents have been publicly exposed and debated. Nor do I want to explore the ethical dimensions of the operational incidents outlined below. For the most part they present, as my colleague Stephen Coleman would say, ‘tests of integrity’ rather than ‘ethical dilemmas’; that is, they are situations where the people involved knew what was the right thing to do, but (arguably in some cases, certainly in others) did not do it. This includes not just the commission of a wrong, but the subsequent ‘closing of ranks’ and cover-up to prevent the emergence of the truth. As Coleman notes, “Understanding why it is that people fail tests of integrity … is an extremely interesting issue in terms of moral psychology”;2 but it is not an area in which I am qualified even to speculate. It is, however, pertinent for this discussion to make an observation about the availability of evidence that pertains in part to issues of moral psychology: where soldiers have the means to do so, they often record their wrongdoing in the form of photographs and videos, generally described as ‘trophies’. And, increasingly, military operations themselves are officially recorded for a range of compliance and other purposes, making those recordings available for inquiries, but also subject to Freedom of Information requests and potentially the subject of unauthorized disclosure, or ‘leaking’. The point of this observation is to ground the notion that operational incidents nowadays tend to enter the public sphere accompanied by images that shock and inflame, by allegations of cover-up (with an almost reflex analogy to ‘Watergate’), and by the sound of political axes being ground. In this chapter, I will first examine the ways a number of contemporary operational incidents have emerged into the public arena, and then discuss the tendency of governments and their militaries to secrecy and its consequences for public trust. I will then outline the challenges to secrecy and to good public debate presented by the advances in information technology of the ‘Wiki Age’. I conclude with some reflections on the balance between secrecy and transparency in the investigation of operational incidents.

2

Stephen Coleman, Military Ethics: An Introduction with Case Studies (Oxford: Oxford University Press, 2012), 6.

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The public exposure of operational incidents The notoriety of the operational incidents discussed here is due not just to their deviation from proper procedure, nor their callous disregard for human life, but especially to the sensationalism of their public exposure. In many of these cases, the exposure came during the investigation, rather than prior to it, but however that may be, exposure raised public interest in and demands for forthright investigations and severe punishments. In every case, the scale of the misconduct is amplified by the fact that it did not take place ‘in the heat of battle’, though battle-related fatigue and stress cannot be excluded from the equation. Canadian peacekeepers in Somalia in 1993 In March 1993, Canadian soldiers—from the Canadian Airborne Regiment (CAR) that had been posted as part of a UN peacekeeping force in Somalia—tortured and killed a Somali teenager, 16 year old Shidane Abukar Arone, who was in their custody. Nine soldiers were charged, and two received prison sentences. In November 1994, more than a year later, photographs of this act were exhibited as part of courtmartial proceedings and were widely published. Because of allegations by a doctor at the compound of a cover-up of evidence by senior military officers, Canada’s Defence Minister ordered a public inquiry. The final report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia was published in mid-1997 (after having been peremptorily hastened by the Canadian government). It concluded that the events that led up to the killing of Shidane Arone, including the shooting of Somali intruders into the Canadian compound earlier that same month as well as videotape of repugnant ‘hazing’ activities within the CAR, represented not a case of ‘a few bad apples’, but a systemic failure of leadership: [L]eadership errors in the Somalia mission were manifold and fundamental: the systems in place were inadequate and deeply flawed; practices that fuelled rampant careerism and placed individual ambition ahead of the needs of the mission had become entrenched; the oversight and supervision of crucial areas of responsibility were deeply flawed and characterized by the most superficial of assessments.3 3

Canada, Department of National Defence, Report of the Somalia Commission

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The details of what the Commission called a ‘dubious interpretation’ of the Rules of Engagement that led to the death in custody are not central to my brief. More relevant is the Commission’s criticisms of the delays and difficulties it faced in gaining information from the Canadian Department of National Defence, the failure of the DND’s public affairs directorate “to comply with our order for disclosure and ... [attempt] to destroy Somalia-related documents that we had requested”,4 and that the evidence of some senior military officers and civil servants seemed to be characterized by ‘evasion and deception’. There was, the Commission stated, “a natural and inevitable heightening of suspicion of a cover-up that extends into the highest reaches” of government and Defence. This case highlights the effects of graphic pictorial evidence, which is worth a brief digression. The release in 1994 of the trophy picture of Shidane Arone, close to death, was followed by the televising of amateur video in January 1995 of hazing in the CAR. The latter prompted the establishment of the Commission of Inquiry to whose findings I have just referred. The video, made before Arone’s death, ultimately led to the disbanding of the CAR. In a Masters thesis written at McGill University in 1997, Martha Armstrong connected this outcome with the growing penetration of camcorders and the so-called ‘democratization’ of newsgathering. (In 1996, camcorders were found in 23% of American households and 16% of Canadian households).5 Video technology has subsequently become more sophisticated, more portable, and more or less universal in developed countries: virtually every ‘smart phone’ is also a video recorder. As Armstrong noted, two videos have spurred the development of this type of ‘witnessing’: Abraham Zapruder’s fi lm of the 1963 Kennedy assassination, and bystander footage of Rodney King’s beating by Los Angeles policemen in 1991 during a traffic stop.6 Both of them reinforced the view that the authorities’ version of events was not to be trusted. Armstrong’s argument is that it was “not so much the content of the videos [the ‘hazing’], but their mediation—their broadcast across

4 5

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of Inquiry, ‘Executive Summary’ (1997), accessed August 9, 2012, http:// www.dnd.ca/somalia/somaliae.htm. Canada, Report of the Somalia Commission of Inquiry, ‘Openness and Disclosure’. Martha Armstrong, “A Tale of Two Videos: Media Event, Moral Panic and the Canadian Airborne Regiment” (MA diss., McGill University 1997), 2n. Armstrong, “A Tale of Two Videos”, 3.

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Canada and particularly in other countries—that brought an end to the Airborne”.7 What might now be added to this analysis is that the World Wide Web, particularly through platforms such as YouTube, are themselves powerful forms of ‘mediation’, and that television has lost its primary role in both filtering and broadcasting amateur video. The British Army in Basra 2003: The Baha Mousa Public Inquiry Baha Mousa, an Iraqi civilian and hotel receptionist, died in the custody of British soldiers in Basra in September 2003. Like all deaths in custody in Western armies (as with the Canadian case, above), this death was formally investigated. Court Martial proceedings were brought against seven members of 1 Queen’s Lancashire Regiment, with one soldier being sentenced to a term of imprisonment. In 2008, and following proceedings by Baha Mousa’s father supported by a number of NGOs, a public inquiry under the chairmanship of Sir William Gage was announced by the Secretary of State for Defence, reporting in September 2011.8 The issues that led to the Inquiry centred first on the practice of ‘conditioning’ detainees, a process designed to prolong the shock of capture and thus enhance the possibilities of intelligence gathering, but which may include hooding, sleep deprivation and stress positions—a process which, after a number of inquiries, the British officially abandoned in 1972—and second on the evident ‘closing of ranks’ by many of those involved to protect their mates. The Inquiry concluded: that Baha Mousa died after an ‘appalling episode of serious gratuitous violence’ by members of 1QLR; that senior officers bore considerable responsibility for the events; that the Ministry of Defence bore responsibility for failing to prevent ‘conditioning’ techniques being used on prisoners; and that there was a ‘lack of moral courage to report abuse’ within the Regiment. In this case, the photograph of a dead Baha Mousa may have outraged the public, but it was not a direct catalyst for the Inquiry. (Indeed Kate Allen, director of Amnesty International UK, had raised concerns about the conduct of British troops with Defence ministers in 2004.) In a curious sidelight to this story some British soldiers who had served with the Queen’s Lancashire Regiment were charged with faking 7 8

Armstrong, “A Tale of Two Videos”, 4. Baha Mousa Inquiry, Report of the Baha Mousa Public Inquiry (2011), accessed August 9, 2012, http://www.bahamousainquiry.org.

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photographs of mistreatment of Iraqi soldiers to sell to a British newspaper. Piers Morgan, with strongly anti-war views, resigned as editor of The Daily Mirror in May 2004 for publishing photos of Iraqi prisoner abuse that had been staged. At around the same time, The Boston Globe apologised for publishing staged photographs of US soldiers apparently raping Iraqi women. Photography, it must be said, is not in every case a reliable witness, and it can be staged or edited for good intent or ill. Abu Ghraib prison 2004 In a case that is so well-known it requires little introduction, American military police, as well as CIA officers and private contractors, abused detainees at Abu Ghraib prison in 2003-2004. The initial investigation was undertaken by Major General Antonio Taguba, and his report was classified ‘Secret’. A number of soldiers of the 320th Military Police Battalion were charged with prisoner abuse. These incidents were not secret, but they gained little public attention. Thus, in January 2004, US Central Command made public that an official investigation had begun into prisoner abuse; in February, it reported that 17 soldiers had been suspended. But the public furor began when the Taguba report, accompanied by photographs, was released by the CBS television program ‘60 Minutes II’ on 28 April 2004 and a couple of days later when an article by Seymour M. Hersh was published online in The New Yorker magazine. A number of soldiers were subsequently charged and convicted in courts martial, imprisoned and/or discharged from service. The publicity led to a larger debate about the torture of detainees, and the directions being given by political leaders to US service personnel. Hersh’s description of the origin of this investigation highlighted the existence of damning photographs that would quickly produce worldwide revulsion and further undermine the justification for the US invasion of Iraq: on January 13th [2004], a military policeman presented Army investigators with a computer disk containing graphic photographs. The images were being swapped from computer to computer throughout the 320th Battalion. The Army’s senior commanders immediately understood they had a problem—a looming political and public-relations disaster that would taint America and damage the war effort.9 9

Seymour M. Hersh, “Chain of Command: How the Department of Defense mishandled the disaster at Abu Ghraib”, The New Yorker

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What made this investigation even more reprehensible from a public perspective was that much of the information was held in confidence within the Pentagon, and there were delays to processing Taguba’s report. (There are suggestions that the report prematurely ended Taguba’s military career.) The threat of exposure by CBS television ultimately forced its release. US Secretary of Defense Donald Rumsfeld, on record as an initial promoter and strong defender of the US Freedom of Information regime, seemed none too pleased about the publicity. As he said to the Senate Armed Services Committee a week later, on 6 May 2004: We’re functioning … with peacetime restraints, with legal requirements in a wartime situation, in the information age, where people are running around with digital cameras and taking these unbelievable photographs and then passing them off, against the law, to the media, to our surprise, when they had not even arrived in the Pentagon.10

Helicopter attack in Baghdad, 2007: ‘Collateral Murder’ In July 2007, two US Army Apache helicopters over Baghdad directed cannon fire at a group of men. Two were armed, most were not. Two of the unarmed were war correspondents for Reuters news agency. Eight men were killed. When a van came to pick up the wounded, a further airstrike occurred in which three more men were killed, and two children inside the van were wounded. The helicopters had earlier that morning been engaged by small arms fire in the same neighbourhood. Reuters unsuccessfully requested information in 2007 about the airstrike under the US Freedom of Information Act, including the cockpit gunsight footage. The military did not reveal how the Reuters staff were killed, and stated that they did not know how the children were injured. The US military concluded that the actions of the soldiers were in accordance with the law of armed conflict and its own Rules of Engagement. (WikiLeaks has subsequently released the classified ROEs.) But in April 2010 WikiLeaks released the classified US military video under their

10

(May 17, 2004), accessed August 12, 2012, http://www.newyorker.com/ archive/2004/05/17/040517fa_fact2?currentPage=all. Donald Rumsfeld, cited “Iraqi prisoner abuse ‘un-American,’ says Rumsfeld”, The Washington Times (May 7, 2004), accessed August 12, 2012, http://www.washingtontimes.com/news/2004/may/7/20040507-1159016736r/?page=all#pagebreak.

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own title, ‘Collateral Murder’, including—in a longer version—the firing of three missiles from one of the helicopters into a building believed to contain armed men. The footage is indeed powerful, but it has been criticized, and not just for its title, as ‘emotional manipulation’ (by US comedian Stephen Colbert in an interview with Julian Assange on 12 April 2010).11 It has often been pointed out that the video provides no context for the operations and engagements of that day. But significantly for our purposes, the WikiLeaks release of the footage spurred a huge mainstream media reaction. Indeed, Jualian Assange explained that “the promise we make to our sources is that ... we will attempt to get the maximum political impact for the materials they give to us.” 12 For many Americans, the ‘Collateral Murder’ video release was the first they had heard of WikiLeaks. As Mitchell writes, “Now WikiLeaks had fully arrived—as a concept, as an organization, as a media fi xture in America. For the week following the video’s release, the word ‘wikileaks’ showed the greatest growth around the world as a search term measured by Google Insights.” 13 Haditha (2005), Mahmudiyah (2006) and Maywand (2010) killings Brief mention of three additional operational incidents will help to make the point that Wiki age technology may not always reveal an incident, but has begun to play a major role in its dissemination. In the first incident in November 2005, in Haditha, Iraq, 24 unarmed men, women and children were killed by US Marines. Evidence uncovered by the media,14 but based on a video of the bodies by a member of the Hammurabi Human Rights Group, contradicted the original military report that the deaths were the consequence of a roadside bomb, and led to a proper military inquiry. Almost a year after the original incident charges were laid against 11

12 13 14

Cited Greg Mitchell, “Stephen Colbert Interviews Glen Greenwald—and Julian Assange”, The Huffington Post (February 25, 2011) accessed August 12, 2012, http://www.huffingtonpost.com/greg-mitchell/stehen-colbert-vsglenn-g_b_828079.html. Cited Mitchell, “Stephen Colbert Interviews Glen Greenwald”. Greg Mitchell, The Age of WikiLeaks: From Collateral Murder to Cablegate (and Beyond) (New York: Sinclair Books, 2011). Tim McGirk, “Collateral Damage or Civilian Massacre in Haditha?” Time (March 19, 2006), accessed August 18, 2012, http://www.time.com/ time/world/article/0,8599,1174649,00.html.

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the soldiers, but after a six-year prosecution none of the Marines was sentenced to a term of imprisonment. In January 2012, the last defendant was convicted of one count of negligent dereliction of duty.15 In the second incident in March 2006, a 14 year old girl was raped and murdered after her family was murdered in the village of Mahmudiyah. Five US Army soldiers of the 502nd infantry regiment were charged and eventually convicted over the following three years. But while the true nature of the incident was revealed by a soldier in June 2006,16 in July a graphic video of the tortured bodies of two US soldiers from the same unit was released by insurgents on the grounds that this was revenge for the rape and murder of the girl. The video focused attention on the incident. In the third incident, the Maywand District murders in 2010, five US Stryker Brigade soldiers were charged with the premeditated murder of three Afghan civilians and with souveniring body parts, as well as photographs, as ‘trophies’. Photographs published by Der Spiegel magazine in March 2011 had been leaked from the trial, and led to a US Army apology for the distress the photos may have caused. Likewise, Jeremy Morlock’s calm confession to one murder was leaked to the American Broadcasting Company on 27 September 2010, and then aired on YouTube.17 (In the case of Robert Bales, a US soldier charged with 17 counts of murder of Iraqi civilians in March 2012, after the so-called Kandahar massacre, there seems to have been no involvement by Wiki technology.) Secrecy, national security, and public trust Many issues emerge from the investigations of the operational incidents just cited, but I shall focus on two. The first concerns government attempts to control information, and the increasing citizen cynicism and 15

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Staff Sergeant Frank Wuterich pleaded guilty to ‘negligent dereliction of duty’ in a plea deal that saw him avoid jail; see Tony Perry, “Marine gets no jail time in killing of 24 Iraqi civilians”, Los Angeles Times, January 25, 2012 (http://articles.latimes.com/2012/jan/25/local/la-me-haditha-20120125; accessed October 17, 2013). Julie Rawe with Bobby Ghosh, “A Soldier’s Shame”, Time Magazine July 9, 2006 (http://content.time.com/time/magazine/article/0,9171,1211562-2,00. html ; accessed October 17, 2013). “Army Specialist Jeremy Morlock Confesses to Murdering Afghan Civilian‬ ” (2010), accessed February 4, 2013, http://www.youtube.com/watch?v=H95n MGheSaU.

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disbelief about official statements. The second, examined in the next section, is the threat to government information control from the technological developments that define the ‘Wiki Age’. There has been a dramatic increase in popular suspicion of large institutions in modern society, including and especially governments. It may have begun with US President Eisenhower’s 1961 thoughts on leaving office about the growing influence of the ‘military-industrial complex’, but it appears to have set in by the time the Warren Commission reported (in September 1964) on the assassination of President John F. Kennedy. The Watergate break-in in 1972 and subsequent cover-up and denials confirmed for many that public officials could not be trusted.18 In the academic literature—a type of ‘lagging indicator’—there has been an explosion in discussions of ‘trust’, including in the BBC’s Reith Lectures of 2002 by Onora O’Neill, A Question of Trust.19 Little has changed subsequently: witness the recent inquiries in the UK into the banks (concerning the manipulation of the LIBOR rate)20 and the newspapers (concerning eavesdropping on the telephone calls and voice-mail of ordinary people in the news as well as celebrities, and the relationships between politicians, police and the press).21 Add to this recent revelations from former 18

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The standard, and perhaps still the best, account of the Watergate affair is Bob Woodward and Carl Bernstein, All the President’s Men (NY: Simon and Schuster, 1974). Onora O’Neill, A Question of Trust (Cambridge: Cambridge University Press, 2002). LIBOR, the ‘London Interbank Offered Rate’, refers to a much-relied-upon interest rate set by London banks and administered by the British Bankers’ Association, which was reported in mid-2012 to have been manipulated by traders at those banks for many years. An independent review by the Managing Director of the UK Financial Services Authority, Martin Wheatley, reporting later in 2012, made a number of recommendations which were accepted by the UK government. In particular, the UK government has now legislated to regulate the LIBOR, and to criminalize the manipulation of its rates. The Leveson Inquiry (‘An Inquiry into the Culture, Practices and Ethics of the Press’) was established by British Prime Minister David Cameron in mid-2011 to investigate the practices of the press, specifically the News of the World, owned by News Corporation. Lord Justice Leveson’s report, published in November 2012, made a number of recommendations about regulation of the press which are still being legislated and hotly debated. (See: http://www.levesoninquiry.org.uk/; accessed October 17, 2013.)

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US intelligence contractor turned whistleblower, Edward J. Snowden, about extensive government surveillance, in the United States, Britain and elsewhere, of private email and other electronic communication.22 As government rhetoric about ‘transparency’ increases, so too does citizen cynicism. Secrecy surrounding operational incidents in a military context may be our focus, but it is part of a larger problem: what James Michael calls the ‘routine secrecy’ of government.23 Richard Crossman, the British Labour Party cabinet minister and diarist, used the expression ‘Real British Disease’ to ‘describe the obsession with secrecy and confidentiality in this country’.24 But it is not peculiarly British. One of the founders of the study of sociology, Max Weber, thought that the propensity to secrecy was a characteristic of bureaucracy. Weber argued that Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of ‘secret sessions’: in so far as it can, it hides its knowledge and action from criticism.25

It is not just hierarchy, status and control by bureaucracy that is at issue; the accountability of democratic government is also at stake. Robertson has put the position succinctly: “A political system which requires that a clearly identifiable group of elected representatives take responsibility for all the actions of the State provides a strong incentive to that group

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In 2013, Snowden revealed details of classified mass-surveillance programs by both British and US governments. Facing charges of espionage, he fled the United States and has been granted asylum in Russia. Snowden’s revelations point to extraordinarily sophisticated and intrusive National Security Agency surveillance of Americans’ telephone and internet usage. The political fallout continues, as this is being written, but the basic dilemma of privacy versus national security is unchanged. James Michael, The Politics of Secrecy (Harmondsworth: Penguin, 1982), 8. Cited Michael, The Politics of Secrecy, 12. Max Weber, From Max Weber: Essays in Sociology (edited and translated H.H. Gerth and C. Wright Mills, London: Routledge and Kegan Paul, 1948), 233.

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to control the dissemination of information, since no information about their actions will be neutral politically.” 26 National security considerations make the problem of government secrecy even larger. National security has been a preoccupation in the West since at least the Second World War, heightened by the advent of the Cold War and the fear of nuclear annihilation. The growing presumption in favour of government transparency—evidenced by the US Freedom of Information Act of 1966, and similar, subsequent legislation in countries all over the world27—has yet to penetrate the security area. The original US FOIA included a specific exemption for national security information, and provided no way to challenge a decision to withhold information in the name of national security, no matter how ‘cynical, myopic, or even corrupt that decision might have been’ (as Supreme Court Justice Potter Stewart said in a 1973 case).28 And despite President Clinton’s 1995 Executive Order declassifying national security information, the FBI was granted a blanket exemption.29 And, of course, secrecy has become a watchword of the ‘war on terror’, with the relative openness of western societies often considered to be a potential vulnerability.30 Information about the operations of war is increasingly controlled, and disseminated, by governments. Small chance now of the reporting of a William Howard Russell, whose eyewitness accounts of the Crimean War brought down the Earl of Aberdeen’s government in 1855.31 This 26 27

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K.G. Robertson, Public Secrets: A Study in the Development of Government Secrecy (London: Macmillan, 1982), 2. In the UK, a similar law to the FOIA was adopted in 2000, but was implemented only at the beginning of 2005; by the end of 2004, 59 countries had adopted right to information laws (Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age (Cambridge: Cambridge University Press, 2006), 7, 15). Cited Roberts, Blacked Out, 55. Wallace Eberhard, “The Threat from Within: Balancing Access and National Security”, in Access Denied: Freedom of Information in the Information Age, eds Charles N. Davis and Sigman L. Splichal, (Ames: Iowa State University Press, 2000), 216. The presumed identity between security and secrecy needs to be questioned; the free flow of information may even be argued to improve security (e.g. Roberts, Blacked Out, 42). Peter Cosgrove, “Inconvenient Truths: The Military and the Media”, in The Information Battlefield: Representing Australians at War, ed. Kevin

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attempt at control derives both from a desire to shield citizens from incidents that may turn their hearts (and votes) against the prosecution of a war, as well as from a legitimate desire to protect military plans or operations from being revealed to the enemy. The first view gained ground during the US involvement in the Vietnam War. Vietnam is often considered the world’s first major conflict covered in close detail by journalists, and not always in ways that the US and the Free World Military Forces thought helpful.32 From that War, three iconic but deeply troubling photographs have emerged: of a Buddhist monk publicly immolating himself in protest at the South Vietnamese government’s treatment of Buddhists; of South Vietnam’s national police chief Nguyen Ngoc Loan about to execute a suspected Viet Cong member in the streets of Saigon with a revolver; and of a small girl—nine year old Kim Phuc— running, screaming from a napalm strike on a village. By highlighting difficulties in the campaign, and identifying atrocities, journalists were considered by many in the US Administration to be undermining the anti-communist cause. The issue here was chiefly about the visual effect of war being beamed nightly into the living rooms of Americans,33 and the narrative of horror and hopelessness that these pictures conveyed. Subsequently, the Americans in particular became chary of allowing relatively free access to journalists in war zones where they operated; in the Gulf War of 1990-91 and then in the invasion of Iraq in 2003, many journalists were ‘embedded’ in military units, where they had limited access to others but also were thought to develop a more favourable impression of the soldiers with whom they worked. The impression of hostility between the military and the press is not assisted by the UK Ministry of Defence’s 2001 Manual of Security (classified ‘Restricted’), which was posted on the WikiLeaks website in 2009.34 That manual, according to Fowler “put journalists in the same category as

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Foster (Melbourne: Australian Scholarly Publishing, 2011), 1. Peter Braestrup, Big Story: How the American Press and Television Reported and Interpreted the Crisis of Tet 1968 in Vietnam and Washington (New Haven: Yale University Press, 1983). The Australian experience was somewhat different; see Chelsea Mannix, “A ‘Living Room War’? Australian Television Coverage of the Vietnam War”, in The Information Battlefield, 100—107. Ministry of Defence, “Manual of Security”, accessed August 22, 2012, http:// wikileaks.org/wiki/UK_MoD_Manual_of_Security_Volumes_1,_2_ and_3_Issue_2,_JSP-440,_RESTRICTED,_2389_pages,_2001.

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foreign intelligence services, criminals, terrorist groups and disaffected staff when it came to posing threats to the security of the country.”35 Nor is it assisted in regard to Australia’s operations in the war in Afghanistan where, as Kevin Foster has recently declared: By strictly controlling the access of independent media to the ADF area of operations, bringing the production of news “in-house” via its deployable field teams, feeding the media a regular stream of upbeat press releases celebrating territorial gains and training milestones, the ADF has largely obviated the need to compete for public approval by shutting off potential counter-narratives of the war at the source.36

The NGO ‘Article 19’ adopted “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” in 1995, as a way to establish some guidelines in this area. These Principles accept that freedom of expression may be restricted for a ‘legitimate national security interest’: 2. (a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.37

Protecting governments from embarrassment or from exposure of wrongdoing is not legitimate. But perhaps the major problem is not so much that illegitimate restrictions take place, but that secrecy practices are ad

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Andrew Fowler, The Most Dangerous Man in the World: the inside story on Julian Assange and the Wiki Leaks secrets (Melbourne: Melbourne University Press, 2011), ix. Kevin Foster, ‘Beyond the Front Lines: Dispatches from the Information Battlefield’, in The Information Battlefield, xiv-xx. Article 19, “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” (1996), accessed August 22, 2012, http://www.article19.org/data/fi les/medialibrary/1803/joburg-principles. pdf.

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hoc. Even before the events of 11 September 2001, Eberhard had argued that: Secrecy under the rubric of national security is controversial, expensive, inefficient, pervasive and probably out of control. Millions of documents are classified yearly ... The need to protect some information is not questioned, but government policy in this area is best described as ‘in disarray’.38

The Wiki Age Into this contemporary mix of government secrecy and citizen cynicism we now add rapidly developing communications technologies that enable easier access to, and dissemination of, information. The situation itself, broadly understood, is not new. Communications technologies have ever troubled governments, not to mention established religious authorities. With the development of the printing press, for example, came government attempts to control and censor, along with the Roman Catholic Church’s ‘Index of Forbidden Books’, first published in 1559. In the seventeenth century, John Milton published—without a license—his Areopagitica (1644) in protest at the English Parliament’s reintroduction of licensing of printers and hence control over what was published. He insisted on the freedom of expression for truth as well as falsehood, declaring: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”. The struggle between governments and printers over ‘inappropriate’ material is a theme in European history from the sixteenth century onwards. Australia itself, as Nicole Moore has recently documented, has a long history of censorship,39 sometimes for politically provocative publications and more often for ‘pornography’ (the latter a term which, like ‘national security’, is hotly contested). In the twentieth century authoritarian governments tried very hard to control the means of communication, from the Soviet state registering typewriters40 to the so-called ‘Great Firewall of China’, a term developed to describe the Chinese government’s attempt to censor what its citizens 38 39

Eberhard, “The Threat from Within”, 196. Nicole Moore, The Censor’s Library: Uncovering the Lost History of Australia’s Banned Books (St Lucia: University of Queensland Press 2012). 40 Robert Conquest, Tyrants and Typewriters: Communiqués from the struggle for truth (Lanham MD, Lexington Books, 1989).

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can access on the Internet. The development of communications technologies means also that extensive surveillance by government of its citizens is being matched by ‘sousveillance’: individuals recording activities from their personal perspectives, and sometimes analyzing in this way the behaviour of authorities, such as police. Information itself has become central to our economy and our way of life, developing out of, and superseding, industrial society. The socalled ‘information society’ is a place where “the creation, distribution, diff usion, use, integration and manipulation of information is a significant economic, political, and cultural activity”. The rise of the Internet, in particular, is potentially profound, with the capability to transform society.41 The development of ‘social media’—the ability of web-based and mobile technologies to host a dialogue—provides a major impetus for exposing operational incidents. Yet while much of the ‘witnessing’ that emerges from social media has the advantage of immediacy, it tends to lack context. Newspapers at least are accountable for their stories: the reputation of their mast-heads is ultimately at risk. The contest between new and traditional methods of news gathering and dissemination, especially in situations of conflict, still has a long way to run. With the Internet, information is virtually free; it requires little effort to obtain; large documents can be sifted quickly and easily. The first Wiki, or collaborative website to which many people can contribute, was developed in the mid-1990s; WikiLeaks was officially launched in 2007. In the area of exposing secrecy, WikiLeaks is joined by the likes of the ‘Secrecy News’ blog (2012),42 published by the American Federation of Scientists; ‘WantToKnow.info’ (2012),43 dedicated to revealing coverups (but generally from already-open sources); and the Electronic Frontier Foundation (2012),44 which opposes legislation in the courts that seeks to limit online free speech (‘defending your digital rights’) joined

41 42 43 44

Christian Fuchs, Internet and Society: Social Theory in the Information Age (New York: Routledge, 2008). http://www.fas.org/blog/secrecy/. http://www.wanttoknow.info/. https://www.eff.org/.

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by ‘Liberty’ (2012)45 in the UK (‘Protecting Civil Liberties; Promoting Human Rights’) and Electronic Frontiers Australia (2012).46 The stated goal of WikiLeaks is: to bring important news and information to the public. We provide an innovative, secure and anonymous way for sources to leak information to our journalists … One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth.47

Its founder, Jualian Assange, described his role in 2009 as ‘exposing injustice’.48 WikiLeaks has a broad remit. It has published documents not just relating to ‘War, killings, torture and detention’, and to ‘Diplomacy, spying and (counter-)intelligence’, but also to religious organizations, government and corporate transparency, and corruption, finance and taxes. Its sponsorship of the so-called ‘Cablegate’—perhaps the ‘biggest single leak in history’,49 containing thousands of documents from US embassies around the world—earned the wrath of the US government. In its scale and audacity, it has been likened to the publication by the new Bolshevik rulers of Russia in 1917 of secret treaties50 that revealed plans by Britain and France to carve up the Middle East, though nothing similar has come from ‘Cablegate’. US Vice-President, Joe Biden, called Assange a ‘high-tech terrorist’, and Assange believes that the United States will, if it has the opportunity, bring him to trial on espionage charges. Much of the ‘Cablegate’ release has allegedly been sourced to a disgruntled intelligence officer in the US Army, Private Bradley Manning, who in August 2013 was convicted in a military court of, inter alia, violating the Espionage Act (though he was acquitted on a potentially capital crime of ‘aiding the enemy’) and sentenced to 35 years in prison.51 45 46 47 48 49 50

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http://www.liberty-human-rights.org.uk/index.php. https://www.efa.org.au/. http://wikileaks.org/About.html. Cited Micah Sifry, WikiLeaks and the Age of Transparency (Melbourne: Scribe, 2011), 17. (Fowler 2011). Leon Trotsky, “Statement by Trotsky on the Publication of the Secret Treaties,” November 22, 1917, in Soviet Documents on Foreign Policy, Vol. 1 (1917-1924), ed. Jane Degras (Oxford: Oxford University Press, 1951). Julie Tate, ‘Judge sentences Bradley Manning to 35 years’, The Washington

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The accessibility of larger amounts of electronic intelligence to wider circles of people—a product of the backlash against the selfish approach to intelligence sharing that was thought to have failed to prevent 9-11— meant that Manning, sitting in Iraq, was able to access and easily copy vast amounts of intelligence from a range of US government agencies. Official embarrassment aside, whether this undigested lump of information has put people’s lives at risk is unclear, though Robert Manne52 described the disclosure as ‘unforgivable’. Whether it has revealed any operational secrets that would put US military lives at risk is also unclear. Patrick Cockburn, a columnist from Britain’s The Independent on Sunday, cites a US diplomat in Kabul as saying that ‘We are not going to learn the biggest secrets from WikiLeaks because these have already been leaked by the White House, Pentagon or State Department’.53 WikiLeaks is no pioneer in the realm of leaking, or of using contemporary communications technologies to make unauthorized disclosures: it is decades, perhaps centuries, behind politicians and government officials themselves, as Cockburn’s informant confirms. Leaking official information is commonly done by officials themselves, including especially politicians, either to boost the vanity of the leaker or to embarrass his or her political opponents. Emphasizing the record of WikiLeaks testifies to the provocative style of its actions thus far, and especially to the publicity around Julian Assange.54 But WikiLeaks is just one element of the early phases of the ‘Wiki Age’. (The allegations of sexual assault against Assange, and the manoeuvres around his current attempted extradition from Britain to Sweden for questioning, have diverted attention away from the main

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Post August 21, 2013; http://articles.washingtonpost.com/2013-08-21/ world/41431547_1_bradley-manning-david-coombs-pretrial-confinement; accessed October 17, 2013). Robert Manne, “The Cypherpunk Revolutionary”, The Monthly (March 3, 2011), http://www.the monthly.com.au/print/3081. Cockburn, “How Julian Assange’s private life helped conceal the real triumph of WikiLeaks”, The Independent on Sunday, July 1, 2012, 36. The relationship between WikiLeaks and the press, and their different approaches to the release of sensitive information, are discussed by Bill Keller, executive editor of The New York Times, in his ‘Dealing with Assange and the WikiLeaks secrets’, January 2011, http://www.nytimes. com/2011/01/30/magazine/30Wikileaks-t.html?pagewanted=all& _r=0 (accessed October 18, 2013).

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story.) And my emphasis perhaps does not do justice to the steady work of many other NGOs that have exposed operational incidents, helped to bring pressure to bear to ensure that they are investigated, and conducted investigations of their own to ensure that all witnesses are heard. The International Committee of the Red Cross, for example, concluded in its confidential February 2004 report to the Coalition Forces that it had documented “serious violations of International Humanitarian Law relating to the conditions of treatment” of detainees.55 Human Rights Watch likewise reported in June 2004 that Abu Ghraib was not an isolated incident, but “resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside. Administration policies created the climate for Abu Ghraib”.56 Governments are not passive observers in this new age. They have been quick to take up digital methods of data management, and are increasingly trying to regulate and surveil. In the UK, laws to monitor emails, telephone calls and text messages have been mooted, on the basis of combating crime and terrorism, according to the BBC in April 2012.57 In July, a discussion paper from the Australian Attorney-General’s Department proposed changes to expand surveillance of electronic data, especially in the realm of social media, for security reasons and to counter crime.58 Public debate and operational incidents By one means or another, we are confronted with a wealth—arguably a surfeit—of information. Has it increased the quality of public debate; has 55

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ICRC, “Report of the International Committee of the Red Cross on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation”, accessed August 18, 2012, http://www.globalsecurity.org/ military/library/report/2004/icrc_report_iraq_feb2004.htm. Human Rights Watch, The Road to Abu Ghraib (2004), accessed August 18, 2012, http://www.hrw.org/sites/default/fi les/reports/usa0604.pdf. BBC, “Email and web use ‘to be monitored’ under new laws” (April 1, 2012), accessed August 20, 2012, http://www.bbc.co.uk/news/uk-politics-17576745. Attorney-General’s Department, “Equipping Australia Against Emerging and Evolving Threats” (July 2012), accessed August 20, 2012, http://aph.gov. au/Parliamentary_Business/Committees/House_of_Representatives_ Committees?url=pjcis/nsl2012/additional/discussion%20paper.pdf.

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it brought governments more to account for their actions; has it assisted particularly in giving us robust investigations into operational incidents? On these questions, we might say that the jury is still out. In the meantime, there are three types of responses that are worth noting. The first is the development of what has been described as ‘sofa’ government, where official decisions are made with minimal record-keeping and without proper process, so as to preserve secrecy;59 the phrase was developed to criticize the government of Tony Blair and, without further evidence, I will not pursue it here. The second is to ‘shoot the messenger’, a reaction that is not limited to targeting Assange, as I shall demonstrate below. The third is the opportunity publicly to vent all manner of vile and uninformed sentiments occasioned by the information revealed. In sum, and so far, the benefit to public debate seems meagre. In terms of ‘shooting the messenger’, consider the case that Australian journalist John Martinkus recently related about the filming of a 2005 operation in Afghanistan by the US 173rd Airborne and a team of US Army Psychological Operations specialists. The photojournalist Stephen Dupont filmed the Americans burning the bodies of two dead Taliban fighters and broadcasting messages over loudspeakers to incite the Taliban to further fighting. “Not only was the soldiers’ behaviour offensive [to Muslims], it was also illegal” under Article 120 of the 1949 Geneva Convention, which states that the dead are to be honourably buried.60 The footage was shown in Australia on SBS Dateline on 19 October 2005, and was picked up by international news services and rebroadcast by hundreds of television stations. By the next day it was a major story in the world’s newspapers. US Afghanistan Commander, Major General Jason Kamiya announced an immediate investigation by the US Army’s Criminal Investigation Division. He indicated that there were clearly “some deficiencies in psychological operations and training”.61 But the 59

Review, 30 Year Rule Review (2009), accessed August 22, 2012, http:// www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf, 23; “’Sofa government’ should never run the country again”, Telegraph (December 12, 2009), accessed August 22, 2012 http://www.telegraph.co.uk/comment/6798166/Sofa-government-should-never-run-the-country-again. html. 60 John Martinkus, “Information Warfare: The Politicisation of the Australian Media and Coverage of the War in Afghanistan”, in Information Warfare, 52. 61 Cited Martinkus, “Information Warfare”, 55.

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reaction of bloggers and commentators to the messengers, Dupont and Martinkus, was disturbing. Soon they were dubbed Stephen ‘Taliban’ Dupont, and John ‘the American hater’ Martinkus.62 The CID investigation led to disciplinary action against four American soldiers, but Martinkus was refused accreditation by US forces in Afghanistan the following year. Micah Sifry, founder of the Personal Democracy Forum, believes that the Internet makes possible much greater openness on the part of governments and corporations. Yet, according to him, most politicians try to use the internet to “consolidate their power” rather than to “empower others”.63 Technology does not automatically translate into citizen engagement. Access to the internet—very much like the right to vote—does not make citizens ‘active’. Will citizens use these resources, or will they simply become passive consumers? In a British government-initiated independent review of the ’30year rule’, whereby government records are released after 30 years by The National Archives, the Review opted in 2009 for a halving of the period of secrecy. The Chairman, Paul Dacre, opined: in my own case, what tipped the balance for a robust reduction was the hope that this might make a small but significant contribution to a more mature democracy in which there is a greater trust between the electors and the elected ... Certainly, the possibility that my own sons will have greater opportunities to understand the working and thinking of the governments they elect, will, I believe, make them more responsible citizens.64

These hopes for the development of better informed, and consequently more responsible, citizens are raised and then dashed at regular intervals. Social media—sometimes described as ‘joined up thinking’—has the potential to make a difference to political campaigns, particularly to mobilize people.65 Late in 2010, the Arab Spring began, and ultimately 62 63 64 65

Cited Martinkus, “Information Warfare”, 56. Sifry, WikiLeaks and the Age of Transparency, 126. Review (2009), iv. This was challenged in a well-known article by Gladwell, who argued that the “weak ties” of social media were sufficient for building networks of people, but not for bringing about social change. See Malcolm Gladwell, “Small Change: Why the Revolution Won’t be Tweeted.” New Yorker (4

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the networks of people brought together by social media led to the toppling of governments in Tunisia and Egypt. In Australia, more than 600,000 Australians have signed up for petitions for ‘GetUp! Action for Australia’, which describes itself as “An independent movement to build a progressive Australia and bring participation back into our democracy”.66 But whether the numbers are real, and who decides GetUp!’s campaigning priorities, are unclear. The level of discussion within social media is mixed but, from my random sampling, is generally poor. It is a merit of social media that one’s messages cannot be edited or selectively quoted; but it may also be a distinct disadvantage. For example, to the confession made by US soldier Jeremy Morlock that he killed an unarmed Afghan, a confession leaked on YouTube, one comment string goes as follows: Look I know Jeremy and hes actually a very good guy but when your pumped full of drugs and sent out to fight what else do you expect to happen? I support him and hope his sentence is reduced!! Im praying for you Jeremy!!

To which one response is: And I hope somebody will rape you soon in the ass... You moron look like the neighbor of a serial killer who says: “Well, he always said Hello to me”. Pussy!

Another comment is this: so he waxed a afgan,,, so what. the crime wasnt commited on american soil... i say no crime. or time.

The lengthy commentary on this confession is a mixture of racism, amorphous anger, misunderstanding of the issues, and a general free-for-all of abuse, as commentators avoid the issues and turn on one another. Whatever good points are made are lost amidst the abuse. Mediated through traditional current affairs platforms, or unmediated in computer blogs and social media sites, public debate in Australia

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October 4, 2010), accessed August 20, 2012, http://www.newyorker.com/ reporting/2010/10/04/101004fa_fact_gladwell. http://www.getup.org.au/.

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leaves much to be desired. Dr Ken Henry, former Secretary of Australia’s Department of Treasury, and now Executive Chair of the ANU’s Institute of Public Policy, declared in 2012: I can’t remember a time in the last 25 years when the quality of public policy debate has been as bad as it is right now … There is an insufficient understanding of the issues that Australia confronts. There is a role for deeper analysis, there’s a role for deeper thinking and there’s a role for a much higher quality of public debate and all of this needs to happen before governments make and announce decisions.67

Henry was referring, in part, to the tendency of governments to make policy announcements ‘on the fly’. Academics, he charged, had retreated from ‘real world’ debates; policy developers do not have the time to “reflect deeply about the policy issues that they are grappling with”. A better outcome would emerge, he argued, “after the community had a good understanding of the circumstances that Australia is confronting and a good understanding of why a response to an issue is required”. I do not think this situation is vastly different in other liberal democracies. Perhaps the best-founded lesson we can draw is a cautious one: the public availability of information is no guarantee of it being used well. Conclusion: secrecy versus transparency It is worth beginning this summary by noting that we are in the very early stages of the ‘Wiki Age’. The distributed computer network that comprises the Internet has been publicly accessible only since the 1980s, and wireless access to that network became widespread within the last decade, with the first BlackBerry device released in 2002, and the first iPhone in 2007. Google, with its increasingly sophisticated searching capabilities, was launched only in 1998; Facebook emerged in 2004; YouTube in 2005; and WikiLeaks in 2007. Developments are proceeding at a rapid rate, and their ultimate potential is only just being glimpsed. This technological revolution has begun to redefine the ways we do many things in commerce, education, family and leisure, not to mention warfighting, and there is a plausible case to be made that it is changing our very social relationships. Governments, both democratic and authoritar67

Ken Henry, “Future Proofing”, ANU Media Release (August 14, 2012), accessed August 20, 2012, http://news.anu.edu.au/?p=16401.

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ian, have responded to this expansion of the availability of information by trying to control it and dominate governance of the Internet under the rubric of cyber- or information-security.68 From what we have seen thus far of the intersection of Wiki Age technology and the investigation of operational incidents, we may hazard a few preliminary points. The first is that social media has generally not initiated the investigations of operational incidents, but has added pressure to governments and militaries to come to decisions and release their results. Second, this pressure seems to derive chiefly from the dissemination of graphic and shocking images in photographs and videos, rather than from the printed word. Third, while the Internet provides a space for established NGOs and informed commentators who have an interest in the conduct of military operations, allowing a ready amplification of their voice, by the same token it allows a platform for the mischievous, the fanatical, and the unhinged. Fourth, and consequently, while a mass of information has become widely available it amounts to a cacophony of voices of varying qualities and strengths. Information still requires interpretation. (Just how this can happen in a commercially-viable way is the major preoccupation today of major quality newspapers worldwide.) Indeed, whether the ‘new’ media has added much to the analysis of the operational incidents mentioned in this chapter is arguable, with traditional investigative reporters still playing important roles in sifting evidence, weighing competing interpretations, and constructing explanatory narratives. It is significant in this respect that in its earlier phases WikiLeaks developed links with a group of respected mainstream newspapers so that leaked documents were able to be analysed prior to the public avalanche of information. While technological change enhances transparency, it does not answer some of the enduring issues around secrecy: its utility and justification; and its reasonable limits. Julian Assange has declared a ‘war on secrecy’. But is secrecy itself always an evil, and openness always beneficial? Even journalists themselves—purveyors of information par excellence—are staunch defenders of the confidentiality of their sources. And uploading a photo or video may have consequences out of all proportion to the act revealed, especially if it is one of the countless everyday acts 68

See, for example, the Russian and Chinese sponsored ‘International Code of Conduct for Information Security’, produced in September 2011, for the consideration of the United Nations. http://www.rusemb.org.uk/policy contact/49 (accessed October 18, 2013).

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of thoughtlessness or impropriety to which we are all prone. Leaking official documents is not always neutral; like secrecy itself, this leaking is—or can become—part of a game of political advantage. Despite Daniel Ellsberg’s staunch support for WikiLeaks, the ‘Pentagon Papers’ leak that Ellsberg engineered in 1971 is rather different from ‘Cablegate’. Ellsberg intended to hold the US government to account for its deception of the American people over the war in Vietnam; he withheld certain information so as not to embarrass the US government in its dealings with foreign governments. It takes but a moment of thought to confirm that freedom of expression and information is not a license. Freedom of speech is limited by considerations of libel, slander, obscenity and incitement. The Universal Declaration of Human Rights affirms freedom of opinion and expression, as does the International Covenant on Civil and Political Rights, but they limit such rights by respect for the rights and reputations of others or by the protection of national security or public order. There are also legitimate grounds for having a restricted space in which to be candid and even provocative in the formulation of policy (or other decisions), because publicity would unhelpfully complicate the process by limiting options, by alerting opportunists and speculators, or by getting decision-makers to play to special interests. Democratic governments, from whom we might expect better, tend to take these legitimate bounds for secrecy or confidentiality, and stretch them beyond credulity in an almost routine attempt to conceal information that may damage them. Whether they resort to reasons of ‘national security’ or ‘commercial-inconfidence’, it is generally impossible for an outsider—an ordinary citizen—to know whether the reasons are valid. Let us return to the central issue. Soldiers face difficult situations; they make significant sacrifices. They deserve a rigorous approach to investigating operational incidents if and when they occur. And however much we admire those who are prepared to put themselves in harm’s way to defend us, they are not above criticism. Secrecy misplaced protects the guilty or the negligent, and it may be a barrier to operational analysis that could ultimately save soldiers’ lives. But exposure, too, has its drawbacks: if investigations are conducted more publicly, we must be careful to protect them from all the tricks of political debate in modern democracies. Above all, investigations must be conducted with thoroughness and integrity; thoroughness takes time, and integrity is more easily demonstrated if the reasoning is publicly defensible.

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We must be on guard against government deception and cover-up as well as absolutist versions of free speech. The fundamental challenge remains: to sustain an appropriate balance between the demands of confidentiality and candid decision-making processes on the one hand and the demands of proper public scrutiny and accessibility to information on the other. It is a tension that will endure. The introduction of ‘Wiki Age’ technology means that the balance has shifted, often appropriately, towards transparency, but it does not mean that the tension is resolved.

11 The Emerging Paradigm for Operational Incident Investigation Rob McLaughlin

The last decade has witnessed the proliferation of a bewildering array of national and international experiences in relation to investigating and responding to critiques of operational conduct. The 196 substantive chapters in ten volumes of the ‘Bloody Sunday’ (or Saville) Inquiry,1 published on 15 June 2010, represented 12 years and 190 million Pounds of reporting and analysis of the events of 30 January 1972 in Londonderry, Northern Ireland. Yet despite its exhaustive redress of the clear faults with the original Widgery Report,2 it has still been criticized in some sectors as ‘incomplete’.3 The MV Mavi Marmara incident of 31 May 2010, off the 1

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Report of the Bloody Sunday Inquiry, 2010—available at http://webarchive. nationalarchives.gov.uk/20101103103930/http:/report.bloody-sundayinquiry.org/. Report of the Tribunal appointed to inquire into the events of Sunday, 30 January 1972, which led to loss of life in connection with the procession in Londonderry on that day, April 1972, HL 101, HC 220—available at http://cain.ulst.ac.uk/ hmso/widgery.htm. The Widgery Report has been criticised as insufficient (it was published just 11 weeks after Bloody Sunday) and inadequately balanced (even partisan)—see, for example Angela Hegarty, ‘The Government of Memory: Public Inquiries and the Limits of Justice in Northern Ireland’ (2002) 26:4 Fordham International Law Journal 1148, particularly at 1165-1171 For example, see David Williams, ‘Bloody Sunday Inquiry: Ex-Paras hit back over verdict, saying “Saville has made our Colonel a scapegoat”’, Mail Online, 17 June 2010—at http://www.dailymail.co.uk/news/article-1287073/ Bloody-Sunday-Inquiry-Saville-Colonel-Derek-Wilford-scapegoat.html. This particular complaint concerned (as related by a number of Parachute Regiment soldiers who were involved in the operation) ‘the “missing minutes” that Martin McGuinness … then a prominent figure in the

David W. Lovell (ed.), Investigating Operational Incidents in a Military Context: Law, Justice, Politics. © 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-27709-0. pp. 197 – 220.

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coast of the Gaza Strip, has generated four separate high level reports— by the UN Human Rights Council,4 a UN Secretary-General appointed panel (the Palmer Inquiry),5 a Turkish Government appointed panel,6 and an Israeli Government appointed panel (the Turkel Commission)7— with the latter inquiring into both the incident itself and, then in a second Report, the associated and broader issue of the Israeli military justice system. Human Rights Watch and Amnesty International have published detailed reports in relation to specific operational incidents. Indeed NGO reports on Israeli use of cluster munitions during operations in Lebanon in 2006 are often credited as an important catalyst for the post-2006 impetus which galvanized international action to ban cluster munitions being taken outside the Certain Conventional Weapons forum, leading to the rapid negotiation and signing of the Oslo Convention.8 Several jurisdictions have witnessed judicial or quasi-

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Provisional IRA and Adjutant of the organisation’s Derry Brigade—failed to account for after Lord Saville said he believed he had been armed with a sub-machine gun. The report is incomplete because of this and other points surrounding arms caches which would have put forward a clearer picture’ of the operating context on the day (they are reported as having said). General Assembly, Human Rights Council, Report of the International Fact-Finding Mission To Investigate Violations of International Law, Including International Humanitarian and Human Rights Law, Resulting From The Israeli Attacks On The Flotilla Of Ships Carrying Humanitarian Assistance, UN doc A/HRC/15/21 (27 September 2011). Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011)—at http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf. Turkish National Commission of Inquiry, Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010 (February 2011)—at http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-%20UN% 20Copy.pdf. The Turkel Commission, particularly Report (Part 1) of the Public Commission to Examine the Maritime Incident of 31 May 2010 (January 2011)—at http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20 -%20UN%20Copy.pdf. For example, Human Rights Watch, Flooding South Lebanon: Israel’s use of Cluster Munitions in Lebanon in July and August 2006—available at http://www.hrw.org/sites/default/fi les/reports/lebanon0208webwcover.pdf; see the series of reports available via the Cluster Munitions Coalition website - http://www.stopclustermunitions.org/campaign-resources/reports/.

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judicial (often in the form of commissions of inquiry) engagement with specific issues, and in some cases precise incidents, of operational conduct—from detention and transfer arrangements,9 through LOAC briefing and training (including on issues such as hooding of detainees),10 to use of lethal force or failure to act to prevent a specific killing.11 Each of 9 10

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The Queen (on the application of Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). The Report of the Baha Mousa Inquiry (The Gage Report), V0l II, Part VI (Teaching and Training), 2001, eg at para 6.34: ‘I find that taken as a whole the evidence from soldiers who had undergone initial and/or annual LOAC training demonstrated significant areas of concern about the standards of LOAC training. The evidence of some witnesses gave the impression that the training was formulaic, outdated, and potentially suffered from the seriousness of the subject matter being undermined by the style of the video teaching material. I also recognise that there was some evidence that the simple showing of the LOAC video in particular was heavily relied upon to fulfi l the requirement to deliver annual LOAC training.’; para 6.55: ‘I also note that the MoD’s argument to the effect that LOAC training did not specifically refer to the prohibition on the five techniques might be justifiable as there were dangers in giving specific examples of what might amount to inhumane treatment, was in truth unsupported by any positive evidence. No evidence was submitted by the MoD to demonstrate that the absence of reference to the prohibition on the five techniques in the LOAC training had been considered and rejected because of a perceived danger of enumerating only some cases of what amounts to inhumane treatment. In my opinion there is more than a hint of an after-the-event rationalisation in the MoD’s arguments in this regard.’- at http://www.bahamousainquiry.org/f_report/vol%20ii/Part%20VI/Part%20VI.pdf . On hooding in particular, see Part VIII of the Report—at http://www.bahamousainquiry.org/f_report/vol%20ii/Part%20VIII/Part%20VIII.pdf. With respect to the UK, see Al Skeini and Others v United Kingdom (55721/07), Judgment (Grand Chamber), 7 July 2001, paras 33-71, for example—at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-10560 6#_Toc360788151; see also recent orders by the UK High Court that deaths of civilians allegedly killed by UK forces during operations in Iraq must be further examined—R (Ali Zaki Mousa and Others v Secretary of State for Defence No.2 [2013] EWHC 1412 (Admin) at (for example) para 215; with respect to The Netherlands, see The State of the Netherlands v Hasan Nuhanovic (2013) Supreme Court of The Netherlands (6 September 2013), at para 3.18.3, for example (English translation available at - http://www. asser.nl/upload/documents/20130909T125927-Supreme%20Court%20 Nuhanovic%20ENG.pdf); with respect to Denmark, see for example,

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these acts of scrutiny has been attended by a range of unique and highly context specific problems—such as access to classified information, the disclosure of which is a matter of legal and political sensitivity given that the source or origin of the intelligence may be an international operating partner State.12 However, each act of scrutiny also arguably shares, with other scrutiny projects linked to very different operational contexts, a range of more common systemic challenges: such as the trade-off between the needs of public operational security and transparency; and perceptions of responsiveness and meaningful consequence. Outline My overall aim in this chapter is to briefly describe and examine some of the factors exerting formative and fundamental influences over the evolution of serious incident investigation as a paradigm, and to draw some conclusions as to consequences for paradigm evolution. My underpinning assumption is that these factors will continue to be distinctly recognizable within the paradigm for the foreseeable future, and the shaping influence they exert is not reversible. Indeed, at some stage in the next decade, they will most likely have become mainstreamed and thus no longer appear remarkable. It is proper to state upfront, of course, that although I do not seek to harass with my personal views as to the ethical or moral legitimacy, or otherwise, of these phenomena, it is inevitable that some indications will creep into view through the course of my analysis. To facilitate my analysis, this chapter is organized into two parts. In part one, I will briefly examine the nature of four primary context drivers which I believe to be playing a crucial role in shaping the way in

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http://cphpost.dk/news/international/afghan-civilian-death-trial-refusedkey-evidence; with respect to Columbia, see for example, http://www.bbc. co.uk/news/world-latin-america-14055765; with respect to Australia, see for example, ‘Transcript of Proceedings: Pre-Trial Directions Hearing, Friday 20 May 2011’—available at http://www.defence.gov.au/foi/docs/ disclosures/321_1011_20may11.pdf. For example, the issue of a Public Interest Immunity Certificate granted by the UK Foreign Secretary in relation to ‘seven short subparagraphs’ in an open access judgment of the Divisional Court, which disclosed intelligence material sources from the US - The Queen on the Application of Binyam Mohamed v The Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65.

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which operational incidents are conceptualized, managed, expressed, and assessed through a fundamentally legal prism. I have previously examined three of these factors13—the influence and effects of law, technology, and the capacities of alternative investigating and assessment agents such as NGOs—and thus in this chapter, I seek only to briefly summarize my arguments in relation to each. I will then examine a further context driver which is now of equal significance in shaping the evolution of operational incident investigation: interconnectedness. With these context drivers given some shape and colour, in the second part of this chapter I will outline three propositions I believe to be emerging paradigmatic ‘maxims’ within the domain of operational incident investigation, primarily as a consequence of the operation of law, technology, NGO capacities, and interconnectedness upon the evolution of this paradigm. Context Drivers Law There is little doubt that there is, quite simply, now significantly more law—or at least more well defined law—applying to operational conduct. As new (or renewed) law is ratified, crystallized, and thrown open for detailed debate (the ICC Statute, the Oslo Convention, and analysis of ‘civilian taking a direct part in hostilities’ and ‘Organised Armed Group’ targetability, for example) the operational law interpretation and application task has increased both in scope and complexity. One inevitable result is that there are periods of confusion and legal permeability as new concepts are settled, or as the relevant interpretive communities discuss and determine how old concepts apply to novel, or forgotten, operational contexts. The debate over the targetability or otherwise of Afghan ‘drug barons’ was a case in point, generating a degree of operational uncertainty as differing interpretations amongst operational partners were debated and subsequently accommodated. There is little doubt, for example, that early NATO discussions reflected an initial view that drug barons with financial links to the insurgency were assessed as targetable with lethal

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Rob McLaughlin, ‘The Changing Character of Public Legal Scrutiny of Operations’ in Pete Pedrozo and Daria Wollschlaeger (eds), International Law and the Changing Character of War (2011) 87 International Law Studies 416.

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force under LOAC based rules.14 Equally clearly, this initial policy solidarity quickly crumbled under the harsher light of ISAF contributing State legal review, with the US maintaining a liberal view,15 whilst other ISAF partner States, and other interpretive communities, maintaining a variety of narrower views.16 The settled accommodation appears to be 14

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See, for example: NATO Press Release, ‘NATO steps up counter-narcotics efforts in Afghanistan’, 10 October 2008, where the NATO Secretary General reported that ‘[B]ased on the request of the Afghan government, consistent with the appropriate United Nations Security Council resolutions, under the existing operational plan, ISAF can act in concert with the Afghans against facilities and facilitators supporting the insurgency, in the context of counternarcotics, subject to authorization of respective nations’ (my italics) - at http:// www.nato.int/cps/en/natolive/news_50120.htm; Paul Ames, ‘Nato troops can attack Afghan drug barons’, The Independent, 10 October 2008 at http://www.independent.co.uk/news/world/asia/nato-troops-can-attackafghan-drug-barons-957541.html. A US Senate Report clearly linked the issue of drug criminality and targetable support to the insurgency in Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents - A Report to the Committee on Foreign Relations, United States Senate, 10 August 2009, p15: ‘The precise rules are classified, but two US generals in Afghanistan said that the ROE and the internationally recognized Law of War have been interpreted to allow them to put drug traffickers with proven links to the insurgency on a kill list, called the joint integrated prioritized target list. The military places no restrictions on the use of force with these selected targets, which means they can be killed or captured on the battlefield; it does not, however, authorize targeted assassinations away from the battlefield.’—available at http://www.fas.org/irp/congress/2009_rpt/afghan. pdf. That the US position on the NATO policy was that they could target drug barons with lethal force is certainly how the issue was reported in the media (see, for example, James Risen, ‘US to Hunt Down Afghan Drug Lords Tied to Taliban’, The New York Times, 9 August 2009, at http:// www.nytimes.com/2009/08/10/world/asia/10afghan.html?_r=0), and certainly how it was understood in the academic community (see, for example, Dapo Akande, ‘US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous Precedent?’, EJIL Talk, 13 September 2009 at http://www.ejiltalk.org/usnato-targeting-of-afghan-drug-traffickers-anillegal-and-dangerous-precedent/). See, for example: Susanne Koelbl, ‘Battling Afghan Drug Dealers: NATO High Commander Issues Illegitimate Order to Kill’, Speigel Online, 28 January 2009, at—http://www.spiegel.de/international/world/battlingafghan-drug-dealers-nato-high-commander-issues-illegitimate-order-to-

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one of national caveats, allowing interpretations to range between the US view, and the more conservative view that drug barons who give only financial support, but who were otherwise not targetable because of some other CDPH or OAG status or activity (which is targetable), remain in the eyes of the relevant law criminals to be dealt with in accordance with law enforcement rules. These debates—and more particularly, the concurrent operational application of the law underpinning these debates— take place within nuanced political, operational, and legal contexts. It is entirely unsurprising that they therefore become a highly partisan endeavour given intense focus because they are generating simultaneous operational and legal consequences. Second—and this is perhaps a point which is proving one of the most significant drivers of evolution within the paradigm—the pool of ‘relevant’ law through which operational incidents are investigated and assessed is now reaching far beyond the traditional confines of LOAC and human rights law. The law governing how an incident is investigated is now just as critical an avenue for assessment and critique as the law applicable in actually assessing the incident itself. For all of their significance, or otherwise, in terms of directly assessing operational conduct, it is highly relevant that the window into the European Convention on Human Rights and the European Court for Human Rights, in the Al-Jeddah 17 and Al-Skeini 18 cases (for example), was not primarily the fact of continued detention or loss of life, but rather in fact whether the killings were investigated in an ECHR compliant manner. Third, the law governing the consequences of an operational incident can no longer be narrowly construed as limited to LOAC, human rights law, military disciplinary codes, and criminal codes. Indeed, whole of government legal arrangements regarding disclosure, process compliance, and review of government/executive action have become a core legal enabler for more detailed incident review. UK and Canadian

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kill-a-604183.html; Dan Karpenchuk, ‘NATO troops to go after Afghan drug lords’, ABC News, 7 February 2009, noting the Canadian view on the required level of linkage before a drug baron could become lethally targetable under LOAC—at http://www.abc.net.au/news/2009-02-07/natotroops-to-go-after-afghan-drug-lords/286182. Al Jeddah v United Kingdom (27021/08) Judgement (Grand Chamber) 7 July 2011—at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001105612#{“itemid”:[“001-105612”]}. Al Skeini Case, n 10.

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detention practices in Iraq (for the UK) and Afghanistan (for both) were subject to a range of judicial review mechanisms—the Baha Mousa Inquiry19 (Iraq) and the Maya Evans case20 (Afghanistan) in the UK, and the Amnesty International and British Columbia Civil Liberties Association cases (Afghanistan) in Canada.21 Two legal factors have facilitated this shift in emphasis from opacity to transparency. The first is that many courts now appear to be significantly less deferential to the Executive in terms of reading themselves out of review jurisdiction on the basis of ‘political issues’, command power, or poly-centricity grounds.22 The Supreme Court of the Netherlands’ recent decision in the Nuhanovic Case, evidences this trend clearly and unambiguously: The exercise of judicial restraint of this kind in such a review … would mean that there would be virtually no scope for the courts to assess the consequence of the conduct of a troop contingent in the context of a peace mission, in this case the conduct of which Dutchbat and hence the State are accused. Such far-reaching restraint is unacceptable.23

The flip side of this trend has also been recently given clear and succinct expression. In the Foreword to a recent report by respected UK thinktank Policy Exchange, Moses LJ of the UK Court of Appeal, succinctly summarized the nub of this concern as:

19 20 21 22

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Baha Mousa Inquiry Report, n 10. Maya Evans Case, n 9. See Attorney General of Canada v Amnesty International Canada and British Columbia Civil Liberties Association (2009) FC 918. For example, in Hicks v Ruddock [2007] FCA 299, per Tamberlin J, where he dealt with the Commonwealth’s claim of non-justiciability regarding decisions about the provision or otherwise of certain forms of assistance for an Australian national detained in GTMO; Smith and Others (FC) (Appellants) v The Ministry of Defence (Respondent) [2013] UKSC 41, where the majority held that ‘combatant immunity’ did not necessarily operate to strike out negligence claims regarding deaths incurred in combat operations, and that it was not necessarily unfair, unjust, or unreasonable to extend the Ministry of Defence’s duty of care to cover some combat situations. The State of the Netherlands v Hasan Nuhanovic (2013), n 11, at para 3.18.3.

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how what is described as ‘judicial creep’ … threatens the ability of the armed forces to exercise that essence of professional military skill, the ability to act with flexibility and instinct within the framework of a superior commander’s intent. Judicial intervention, the authors assert, breaks the necessary chain of command between private and commander-in-chief, and reduces the necessary space for a commander’s judgment, described as Nelson’s ‘sea-room’. In forthright but reasoned tones, the authors seek to show the deadening (sometimes literally) effect of civilian, particularly judicial, oversight, or as they would put it, hindsight, over the conduct of combat operations.24

The second legal factor facilitating this shift in emphasis is the increasing reach of FOI and other transparency obligations and mechanisms, which have facilitated disclosure of information that previously was not readily available in the public domain. One example is the Australian Defence Force policy of proactively placing most (but not all) redacted Inquiry Officer Reports regarding service deaths into the public domain, rather than awaiting FOI requests.25 Although it has not led to an instance of judicial review, the Australian Public Interest Advocacy Centre’s (PIAC) large scale, FOI-facilitated, project focused on Australian detention operations in Iraq and Afghanistan26 has contributed to nuanced and informed debate.27 This project has also enabled linkages to be drawn between (for 24

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Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange, 2013, p7— at http://www.policyexchange.org.uk/images/publications/the%20fog%20 of%20law.pdf. Readily available at http://www.defence.gov.au/coi/index.htm. Public Interest Advocacy Centre, Military Detention: Uncovering the truth—at http://military.piac.asn.au/. There have been calls by politicians and former political and military leaders for a Royal Commission or some form of Parliamentary review of the decision to commit the ADF to combat operations in Iraq in 2003, and the subsequent conduct of operations after the invasion—for example, the Invasion of Iraq Royal Commission (Restoring Public Trust in Government) Bill 2004 (at http://www.comlaw.gov.au/Details/C2004B01581). There have been recent and ongoing calls for a public inquiry by other eminent groups (see http://iraqwarinquiry.org.au/who-we-are/) and former political leaders, including former PM Malcolm Fraser (http://www.abc.net.au/ news/2012-08-16/an-calls-for-australian-inquiry-into-iraq-war/4201748).

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example) Australian operations and previously unrelated public disclosures in the UK, regarding incidents in the Iraqi western desert in April 2003. Indeed, the linkages between UK and Australian documents in relation to the death of Tanik Mahmud on 12 April 2003 are a case in point; captured by Australian forces on 11 September, Mahmud died after being transferred into RAF custody.28 FOI, and associated legal processes, have thus played a critical role in placing within the public domain a good deal of detailed operational information, and this newly ascendant, positive impetus towards greater transparency is a fundamental driver in the evolving operational incident investigation paradigm. Technology Technology is a critical context driver in a number of ways. The first and most obvious means by which technology drives context and incident assessment is via communications technology. Any observer possessing a mobile phone with a camera, and internet connectivity, can upload raw footage of a vehicle checkpoint incident within minutes. The footage could be viral within minutes after that. Indeed, the incident could easily have gained political level attention, via independent media and networked communities of interest, before the initial report has even passed from the unit in charge of the checkpoint, to the next two or three levels in the chain of operational control. There is little doubt, for example, that the publication of Abu Ghraib detention photographs sparked more determined internal US investigations; similarly, the publication, in early September 2008, of mobile phone video footage of the aftermath of the 22 August airstrike on Azizabad in Afghanistan was clearly highly significant in the ISAF Commander’s decision to undertake a second, higher level, investigation into the incident.29 28

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See, for example, Ian Cobain, ‘British servicemen suspected of murdering Iraqi civilians’, The Guardian, 12 September 2010—available at http://www. theguardian.com/uk/2010/sep/12/iraqi-citizen-murders-servicemen-suspects; see also the official Australian documents linked to this issue available at http://military.piac.asn.au/documents/search?keys=Tanik+Mahmud. Carlotta Gall, ‘Evidence Points to Civilian Toll in Afghan Raid’, New York Times, 7 September 2008—available at http://www.nytimes. com/2008/09/08/world/asia/08afghan.html?pagewanted=all . The initial ISAF claim was that 5-7 civilians and 30-35 militant had been killed— see American Forces Press Service, ‘Coalition in Afghanistan Completes

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But technology is also a driver in other ways. One of these is as an expectation management challenge. As public discourse is saturated with technical detail—and sometimes completely uncontextualised assertions about the precision, accuracy, or discrimination which technology can allegedly achieve—a concomitant public expectation has evolved which views any error, mistake, or unanticipated consequence as a culpable failure. The at times misinformed debate about Precision Guided Munitions (PGM) and airstrikes from altitude during the Kosovo operation is but one example.30 Another is the sometimes alarmist rhetoric employed when conducting legal analyses of unmanned vehicles (‘killer drones’) and autonomous and semi-autonomous systems (‘killer robots’).31 It is a fact of operational life that legal nuance can be lost in, obscured by, or defined in terms of, such rhetorical labelling.

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Investigation into Aug. 22 Engagement’, 2 September 2008, available at http://www.defense.gov/news/newsarticle.aspx?id=50999. The mobile phone footage, and reports by the local doctor, clearly cast doubt upon these claims. See, for example, ‘US orders new review into Afghan civilian deaths’, Sydney Morning Herald, 8 September 2008, where the likely impact of the video footage upon the decision is specifically noted—available at http://www.smh.com.au/news/world/us-orders-new-review-into-afghancivilian-deaths/2008/09/08/1220725898500.html. The new US investigation determined that 33 civilians (including 12 children), 22 Taliban fighters, and 10 other people whose status was undetermined, had been killed—see, Matthew Weaver, ‘US military admits killing 33 civilians in Afghanistan airstrike’, The Guardian, 9 October 2008—at http://www.theguardian. com/world/2008/oct/09/afghanistan.usa. Michael Schmitt, ‘Precision attack and international humanitarian law’, (2005) 87 / 859 International Review of the Red Cross 445 at, for example, 445, 449-450. Cristof Heyns, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/23/47—available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G13/127/76/PDF/G1312776. pdf?OpenElement) employs the neutral terminology of ‘lethal autonomous robotics’ (LAR); many awareness campaigns are based around a ‘ban killer robots’ motif—see, for example, Human Rights Watch at http:// www.hrw.org/topic/arms/killer-robots; Campaign to Stop Killer Robots at http://www.stopkillerrobots.org/.

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Alternative assessors Until relatively recently, States held close to a monopoly on operational incident investigation and assessment. Similarly, interpreting and applying the law to discrete operational incidents was generally considered to be the sovereign preserve of States and their agents. Although there have always been non-state experts (the ICRC, some NGOs, academics) who could provide highly credible, authoritative, and precise incident assessments, States have traditionally held both a share of expertise, but also a close hold on the ‘facts’ which are vital to detailed, nuanced, precise, and thus potentially consequential, legal analysis of incidents. There are now, however, a range of non-state interpreters of the applicable law who have real influence. Whether this development is primarily a consequence of erosion of the restricted access which States once held on particularised incident information, or because—in the past—alternative assessors of such conduct tended to be more deferential to States, is in many ways moot. For decades, the only real counterpoint to this dominance has been investigative journalists.32 Now, however, there are (within the international system) at least three further, highly credible, alternative investigator and assessor communities that have become ever more closely and publicly engaged with the analysis of specific operational incidents. The first of these is the community of International Organizations and their agents (such as special rapporteurs, and some international tribunals), which/who conduct credible, influential, and detailed investigations. The UN Secretary-General has appointed highly credible and competent panels to investigate issues ranging from the final stages of the conflict with the LTTE in Sri Lanka,33 to the Mavi Marmara incident off the Gaza Strip.34 The ICJ, ICC, ICTY and ICTR, amongst other international tribunals, have likewise made significant contributions to the investigation, analysis, and assessment of operational incidents in conflict zones. 32

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It was, for example, the dogged investigative work of journalist Seymour Hersch that brought the war crime of My Lai into the public domain. His first report was published on 12 November 1969. Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, available at - http://www.un.org/News/dh/infocus/ Sri_Lanka/POE_Report_Full.pdf. Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, n 5.

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The second of these highly credible alternative investigators is the ICRC, which has always conducted influential, detailed, and nuanced investigations, but which has generally consciously limited its communication of results to States.35 There are some indications that this traditional approach of speaking truth to power behind closed doors is changing, as the ICRC takes increasingly public stands on a select range of issues such as conflict characterization: as with Libya and Syria.36 Additionally, as unauthorized electronic and internet based disclosures increase in likelihood and scope, once confidential ICRC reports on specific incidents or practices—such as the ICRC report on its visits to 14 ‘high value detainees’ held at GTMO, dated 17 February 2007, and addressed to the CIA Acting General Counsel—are now subject to increasing levels of likelihood that they will find their way into the public domain.37 The third newly powerful community of credible alternative investigators and reporters consists of NGOs, some of which have the resources, access, and influence to produce credible, detailed, and influential alternative investigation reports. HRW reports on Israeli cluster munitions use during the 2006 Lebanon operation38 (amongst other NGO reports), and on airstrikes in Afghanistan (including a database of 35

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See for example, the account of the ICRC’s role in encouraging (or approving of) changes in UK detention practices in Southern Iraq in 2003, as set out in the Baha Mousa Report, Part VIII, n 10. On Libya, see ICRC, Report Prepared for the 31st International Conference of the Red Cross and Red Crescent Movement, 28 November—1 December 2011, dated October 2011, at p6—‘The recent situations of civil unrest in North Africa and the Middle East have in contexts such as Libya degenerated into NIACs, opposing government forces to organised armed opposition movements’—at http://www.rcrcconference.org/docs_upl/en/31IC_IHL_ challenges_report._EN.pdf; On Syria, see ICRC Annual Report 2012, p 443-447 (Syrian Arab Republic), at p444—‘The ICRC informed the Syrian authorities and armed groups that, in its view, the type and intensity of the armed confrontations and their humanitarian consequences had reached a level where the rules of IHL and customary law applicable to non international armed confl ict needed to be respected’—at http://www.icrc.org/eng/ assets/fi les/annual-report/icrc-annual-report-2012.pdf. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007, available at - http://assets.nybooks.com/media/ doc/2010/04/22/icrc-report.pdf. Flooding South Lebanon: Israel’s use of Cluster Munitions in Lebanon in July and August 2006, n 8.

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civilian casualties),39 for example, are very detailed and explicit, based in independent collection and analysis of evidence. Indeed, HRW was able, through its own additional evidence gathering, assessment, and application of expertise, to provide a detailed response to the summary of the official US report into the 22 August 2008 Azizabad incident (the Callan Report), which had itself been made publicly available.40 Similarly, the 2012 Stanford University / NYU Report, Living Under Drones, contains detailed accounts (including independently gathered witness statements) of three specific drone strikes alleged to have resulted in civilian casualties.41 The recent Amnesty International report, ‘Will I be Next?’: US Drone Strikes in Pakistan, similarly includes independently gathered and assessed evidence relating to several specific strikes.42 Such alternative investigators and their reports consequently present a significant challenge to official investigations, which until quite recently were often the only credibly detailed reports in the analytical and assessment marketplace. Interconnectedness Operational incidents are now routinely public property. But they are now also often multi-State property. Many operational incidents cannot be readily ring-fenced into a single national discourse, or legal investigative paradigm. A single targeting operation may involve assets or information from—and thus hold potential consequences for—several States, 39

See, for example, Human Rights Watch, “Troops in Contact”: Airstrikes and Civilian Deaths in Afghanistan, September 2008—for example the detailed statistics represented in the civilian deaths graph on p14, available at http:// www.hrw.org/sites/default/fi les/reports/afghanistan0908web_0.pdf. 40 See Brad Adams, Letter to Secretary of Defence Robert Gates on US Airstrikes in Azizabad, Afghanistan, 14 January 2009 - available at http://www.hrw. org/news/2009/01/14/letter-secretary-defense-robert-gates-us-airstrikesazizabad-afghanistan. 41 International Human Rights and Confl ict Resolution Clinic at Stanford Law School, and Global Justice Clinic at NYU School of Law, Living Under drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, 2012, pp56-73, available at http://www.livingunderdrones.org/ wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf. 42 Amnesty International, ‘Will I be Next?’: US Drone Strikes in Pakistan, 2013— available at http://www.amnestyusa.org/sites/default/fi les/asa330132013en. pdf.

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each of which may view the issues in a unique and particularized manner. This tension is played out in a very direct way in terms of the different approaches States take to information sharing when it is for the purpose of incident investigation as opposed to facilitation of operational conduct. One illustration of this was the simmering political and diplomatic tension provoked by a UK Coroner’s demands to be able to deal with vital evidence—in this case, US gun camera footage and transcripts—when investigating the blue-on-blue incident that resulted in the death of a UK Guardsman when his armoured vehicle was mistakenly attacked by US aircraft in Iraq.43 This is information that would have been readily shared in almost any other operational context, but not in the context of transparent incident investigation. In a more indirect way, this tension is also played out in terms of the use to which pooled supporting enablers are put, and how ‘responsibility’ is apportioned when these pooled enablers become mixed in an incident. An Afghan citizen who lost five relatives in a US missile strike has instituted proceedings against the UK Serious Organised Crime Agency (SOCA) and the MOD on the basis that information sourced or vetted or analysed by UK intelligence enablers in Afghanistan was used in compiling the ‘kill list’ upon which the strike was based. The existence of a potential link between UK intelligence enablers and the US ‘kill list’ was disclosed by military officials giving evidence to the US Senate Committee on Foreign Relations, and linkages were then drawn with ISAF incident reports.44 43

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Part of the UK Military Board of Inquiry Report is available at http:// webarchive.nationalarchives.gov.uk/20121026065214/http://www.mod. uk/NR/rdonlyres/887DE696-1DB9-4512-AF8E-2ECFED455356/0/boi_ lcpl_hull.pdf. See, for example, Gaby Hinsliff, ‘Families fight plan for secret inquests in friendly-fire deaths’, The Observer / The Guardian, 6 April 2008—available at http://www.theguardian.com/uk/2008/apr/06/military.iraq. Nick Hopkins, ‘Britain faces legal challenge over secret US ‘kill list’ in Afghanistan’, The Guardian, 9 August 2012—available at http://www. theguardian.com/world/2012/aug/09/legal-challenge-kill-list-afghanistan. The relevant US Senate Report is Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers, n 15, at, for example, p15. The ISAF link included ISAF NEWS Release 2010-08-CA-134 ‘Assessment of civilian casualties in Takhar complete’, 12 September 2010—at http:// www.isaf.nato.int/images/stories/File/SEPTEMBER%202010/201009-CA-134-Assessment%20of %20civilian%20casualties%20in%20

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Three propositions as to ongoing evolution of the Operational Incident Investigation Paradigm Calls for transparency will increasingly focus on investigative process as the last remaining area of relative opacity in incident investigation It is clear that transparency has rapidly evolved in relation to two of the three core legal dimensions of operational incident investigation: Disclosing the outcome of the investigation; and the public nature of most consequential proceedings based upon the outcome of investigations—such as prosecutions. The third panel of this legal triptych— although the first in time—is the investigative or fact-finding process itself: What law actually governed the investigative process; who conducted it; how did they collect the evidence; and who did they report to? It is this aspect, I believe, where calls for greater transparency are already coalescing. One highly visible example—albeit within the context of sexual assault in the US military—is recent US Congressional indications that the power, under the Uniform Code of Military Justice, of certain commanders (convening authorities) to overturn a conviction must itself be reviewed.45

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Takhar%20complete.pdf. The UK law firm Leigh Day (acting for Habib Rahman, who lost five relatives in a missile strike in Rustaq District, Afghanistan, on 2 September 2010) reported on 17 July 2013 that they had lodged proceedings in the UK High Court in relation to this claim—see http://www.leighday.co.uk/News/2013/July-2013/Afghan-Kill-List-LegalChallenge. For a Congressional Research Service prepared background note on this issue, see Barbara Salazar Torreon, Military Sexual Assault: a Chronology of Activity in Congress and Related Resources, Congressional Research Service, 30 July 2013—available at http://www.fas.org/sgp/crs/natsec/R43168.pdf. With respect to the Uniform Code of Military Justice, see 10 USC §869 Art 60 (c)1: ‘The authority under this section to modify the fijindings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority’… (c)3: ‘Action on the findings of a courtmartial by the convening authority or other person acting on the sentence is not required. However, such person, in his sole discretion, may— (A) dismiss any charge or specification by setting aside a finding of guilty thereto; or (B) change a finding of guilty to a charge or specification to a finding of

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As noted above, many of the operational incidents that have entered the UK civil court system have done so—in the first instance at any rate—via the window of whether the investigative process was ECHR compliant, rather than on the basis of the actual incident per se. Indeed, the UK MOD Iraq Historic Allegations Team (IHAT) has had to deal with a broad range of investigative process issues as equally as it has had to deal with substantive allegations as to criminal conduct. These have ranged from the ever evolving ECHR-based jurisprudence as to what constitutes an independent and impartial investigation, through to UK Court decisions expressing concern as to IHATs independence given the involvement of Royal Military Police members,46 which itself led to a policy decision to replace the RMP members with Royal Naval Police members.47 This is a vexed issue, and the immediately apparent answer—that it is simply a matter of better explaining the particular national system engaged in the investigation (for 90% will continue to be nationally based)—is arguably insufficient. This is because one consequence of greater transparency of investigation outcomes is that there is now a heightened public perception, indeed expectation, that operational incident investigations will apportion blame, or lead directly and expeditiously to a secondary outcome, based upon the investigation report, which will apportion blame. It can be challenging and unsatisfactorily legalistic to respond to such pressures by explaining that the primary focus of initial operational incident investigation is generally about establishing what happened and what needs to be done to prevent recurrence.48

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guilty to an offense that is a lesser included offense of the offense stated in the charge or specification’. Regarding proposals for amendment, see R Chuck Mason, Sexual Assaults Under the Uniform Code of Military Justice (UCMJ): Selected Legislative Proposals, Congressional Research Service, 6 September 2013—available at http://www.fas.org/sgp/crs/natsec/R43213. pdf - potential avenues for reform include limiting the power of commanders to determine whether or not to proceed with a prosecution in the fijirst instance. The Queen on the application of Ali Zaki Mousa v Secretary of State for Defence and Another [2011] EWCA Civ 1334, per Maurice Kay LJ, paras 34-38 See Ian Cobain and Richard Norton-Taylor, ‘Royal Military Police removed from Iraq prisoner abuse inquiry’, The Guardian, 26 March 2012—at http:// www.theguardian.com/uk/2012/mar/26/royal-military-police-removediraq-inquiry. See, for example, Defence (Inquiry) Regulations 1985 (Commonwealth). In

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Explaining that the apportionment of blame is better left to follow on processes more suited to collecting evidence to the criminal standard, and protecting the rights of the suspect or accused, is too readily liable (however incorrectly) to be perceived as avoidance, obfuscation, and dissipation. There is, consequently, often a significant—and in some cases central—disjuncture between actual purpose and public perceptions of purpose. This needs to be mitigated. But this response only really offers transparency of process in a superficial sense. It is often unfair, and almost always unpalatable, but for many States the challenge that ‘investigating your own’ equals opacity and cover-up will not be easily assuaged by explaining why and how incidents are investigated. I do not believe that this is a universal concern— there is little evidence that would indicate any serious doubt in the ability of the US military to fully investigate its own, even though sometimes things go wrong. Indeed, the fact that investigations that have initially gone wrong or been derailed by some act of the investigator, but that these flaws have been discovered and remedial action taken, is proof that trust in the US military investigative system is not, in general, misplaced. The fact that the (at that time) allegedly wrongful conduct of a Marine JAG officer (amongst others) in not carrying out a proper investigation in relation to the deaths of 19 civilians in November 2005 in Haditha, was traced via a review process and the incident then reinvestigated, provides a case in point.49 To some extent, this is attributable to the higher levels of experience and trust in investigations which the US military has garnered, and because it enjoys an economy and credibility of scale. For

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relation to Inquiry Officer Inquiries, for example, Reg 74 requires ADF members to answer questions in all but the most limited circumstances. This compellability (with a subsequent requirement that the statements not be used in evidence in a disciplinary proceeding, except in very narrowly defined situations) is entrenched precisely because the purpose of this inquiry process is to find out what occurred, and (if required by the Appointing Authority) to make recommendations regarding prevention of reoccurrence. To achieve this aim, there is a trade-off between compellability of evidence and consequential criminal or disciplinary use of that evidence. The subsequent report by Major General Bargewell is available at http:// warchronicle.com/DefendOurMarines/Documents/BargewellReport/000_ MG_Bargewell_15-6_(Haditha_Report).BATES.pdf—see, for example (at pp 10-12), his findings in relation to opportunities for, or red flags which should have indicated the need for, follow-on inquiries.

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many others, however, I think the call will become increasingly strident. But responses need to be balanced carefully against the fact that investigations do need to be conducted under a single coherent—and thus usually national—body of law and procedure. This is a critical keepsake. So what can be offered to meet the calls for more procedural transparency? The most efficient, and most meaningful change, in my view, would be routinely to employ external observers—acting as transparency agents—in relation to application of process. This does not require that investigative processes be open to the glare of camera lights as journalists follow each interview and evidence collection step—that would be patently unworkable and unjust. Rather, what this form of transparency presages is an independent guarantor—someone or some agency that is not of the military, perhaps not even of the State, who is publicly recognized as an agent who has nothing to gain or lose by standing up during and after an investigation process to confirm, or otherwise, that it has been properly conducted. It is, in effect, transparency once removed from an unworkable direct public access to every step in an investigative process. James Goldrick’s proposal in relation to empowering observers or subject matter experts, from unimpeachable non-military walks of life (or indeed from other States) as part of the process, must be looked at very seriously. Such subject matter experts are not beholden to the investigating authority, and thus have an automatic claim to a degree of independence and impartiality in observing the application of the process. This is a level of perceived independence which internal investigators (short of judicial officers) will always have difficulty asserting in the face of distrust or scepticism, regardless of the facts. That such observers may not be adequately seized of the specific context is not an insurmountable hurdle—it is rather a challenge to be addressed. It is absolutely vital to ensure that context be communicated and applied; it is equally vital to recognize that this is possible.50 This approach can and does work. Both phases of the Turkel Commission utilized external subject matter experts as observers; the Saville Inquiry into Bloody Sunday used non-UK Commonwealth judges as external members; ISAF in Afghanistan have occasionally had Afghan Government, ICRC or NGO observers inside the tent on some 50

The NZDF’s recent experience with Court Martial judges with no military background generally appears to have been that it is indeed possible to provide sufficient levels of military or operational context appreciation through briefings, familiarization, and the presentation of evidence.

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investigations.51 The angst and challenges this step will engender must not be underestimated. But it is difficult to envisage a viable alternative methodology which will adequately and realistically meet legitimate calls for greater procedural transparency at the investigative stage. The scope of what is included within the concept of ‘an operational incident’ will continue to expand The parameters of the concept of ‘an operational incident’ already reach well beyond the actual incident per se, encompassing associated issues such as training, command and control,52 and equipping.53 To some extent, this has come about simply ‘because it can’ in that as more information becomes available via communications technology, FOI, and litigation, it has become ever more possible to link disparate, often nationally focused, elements of information into a broader picture. This is what has occurred with information in relation to SOCA and Rahman (a UK litigation which rests in part upon US disclosures). Another example, as noted previously, was the iterative convergence between FOI based information release secured by PIAC in Australia, and information that emerged during the Baha Mousa inquiry hearings in the UK. As noted above, PIAC had obtained documents relating to Australian Special Forces operations in Western Iraq in 2003. The Baha Mousa inquiry exposed information concerning the death of an Iraqi 51

52

53

See generally, Second Lieutenant Brendan Groves, ‘Civil-Military Cooperation in Civilian Casualty Investigations: Lessons Learned from the Azizabad Attack’ (2010) 65 Air Force Law Review 1. For some US military thinking on the need for independent observers/investigators, in a very different context, see, for example, Major Timothy M Cox, ‘Promoting Integrity from Without: A Call for the Military to Conduct Outside, Independent Investigations of Alleged Procurement Integrity Act Violations’(2010) 66 Air Force Law Review 225. For example, Inquiry Officer’s Report into the Facts and Circumstances Surrounding a Shooting Incident in Afghanistan that Resulted in the Deaths of [names ADF members] and Injuries to Other Australian Soldiers on or about 29 Aug 12 (dated 28 Feb 13), para 15, findings 6-7 (intelligence advice and preparation, and training for the mission), findings 17-18 (tactical command decisions)—available at http://www.defence. gov.au/coi/reports/IOReportInsiderAttack29Aug12.pdf. For example, Smith and Others (FC) (Appellants) v The Ministry of Defence (Respondent), n 22.

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detainee, in a UK aircraft, after a handover from an operating partner, all within the same timeframe. Combined, PIAC has argued that these very separate and nationally focused information releases serve to build a more holistic picture of an incident which was not previously publicly understood to have involved Australian forces. In essence, the PIAC claim is that it was Australian forces who had originally apprehended the detainee who later died in UK custody and thus that Australia holds some residual but unfulfilled responsibility to inquire. This convergence of national packets of information also, PIAC claims, indicates that Australia must therefore have known of the secret detention facility (‘H1’) where the detainee was held and loaded into the UK aircraft.54 A third example arises out of Australian operations in Oruzgan, Afghanistan. For some time, Australian authorities did not respond to requests for information about the numbers of Australian apprehended detainees handed over to the Dutch detention system in accordance with existing arrangements, citing operational security as the reason for nondisclosure. Yet almost simultaneously, Dutch authorities released exactly this information under a Dutch FOI process.55 States, militaries, decision makers, and investigators must recognize that it is now an operational fact of life that this high level of interconnectedness of information, and access to information, will continue to make post-incident operational security a difficult ‘sell’ in the face of calls for greater transparency. The clear lesson is that as otherwise very separate packets of national information are disclosed, it should be anticipated—indeed expected—that someone, somewhere, will marry that national information with other sets of national information, all now readily accessible on the internet. This enables the building of plausible, comprehensive, and even relatively accurate reconstructions of operational incidents from this much broader array of sources. A second way in which the parameters of ‘operational incident’ will continue to be pushed outwards is that operational enablers will increasingly become the hook by which a State or its force elements become 54 55

See notes 10, 26-28. Subsequent to the departure of Dutch forces from Oruzgan Province in Afghanistan, when Australian Forces took on full responsibility for their own detention operations, the Australian Minister for Defence publicly disclosed detention figures—see, for example, Hon Stephen Smith, MP (Minister for Defence), ‘Ministerial Statement on Afghanistan’, Hansard, House of Representatives, Thursday 24 November 2011, p 13742 at p 13743

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entangled in other State’s incidents. The SOCA-Rahman litigation in the UK—concerning the role, and alleged culpability, of UK intelligence enablers in a US targeting operation—is but one indicator of this trend. The concept of ‘incident’ will thus increasingly be defined so as to include not just the incident and the planning, command and control, and training attendant upon it,56 but also the precursor enablers which may simply have (in the Rahman example) fed into the general information pool from which staff officers drew intelligence as they planned the strike. The first and most obvious consequence of this development will be complexity. This complexity is evident in procedural terms—multinational evidence, sensitivities, and processes. It is also evident in substantive terms of incident analysis, particularly as the variables and inputs considered relevant start to move outwards from the incident itself, past the first ring of planning, command, and resourcing issues directly around the incident, and into second and third order incident enablers and inputs such as a general information pool. The second consequence will thus be radically increased resource and time requirements, for complexity almost always brings with it an exponential increase in both. This will be necessary to assuage public and political perceptions as to what constitutes a sufficiently ‘thorough’ operational incident investigation. Operational incident investigations will increasingly remain open ended affairs Operational incident investigation reports will continue be completed, and recommendations will continue be acted upon. To do otherwise is to invite systemic paralysis. But it must now be accepted that, increasingly, it will simply not be possible to achieve expeditious and conclusive outcomes. This is already proving to be a very real, and immensely frustrating, fact of operational life. To some extent this development is driven by risk aversion and concerns that the clean-up after a manifestly inadequate inquiry will be much more expensive and painful than having taken a little extra time initially: the Widgery-Saville dynamic. The Azizabad example points towards the supplementary consequences that attend this risk—the distraction of highly public and very high profile retractions, erosion of trust in the existing investigative system, the succour given to the adversary, and so on. The desire to cross ‘t’s’ and dot ‘i’s’ in order to mitigate this possibility will continue to grow and will, I 56

See notes 52-53.

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believe, become almost overwhelming. This is, I think, an inexorable and inevitable outcome unless and until the zero risk/zero defect mentality many States currently have in terms of incidents and incident response is leavened by the reintroduction of some degree of discretionary risk acceptance. This remedy need not necessarily be seen to be incompatible with the requirements of increased procedural transparency. Indeed, the presence of a credible observer who can sensibly defend decisions taken as to discretionary risk issues (such as the point at which interviewing an ever expanding pool of remotely associated witnesses reaches a point of diminishing, but excessively costly, return) offers one potential pathway through this apparent conundrum. But the most significant driver of this prediction is simply, but undoubtedly, that additional information will out over time, and that as it does, calls for further inquiry will become the norm. An Israeli NGO, ‘Breaking the Silence’, for example, specializes in collecting and publicizing highly detailed and particularized statements about IDF operational conduct.57 As reports such as these trickle into circulation, they inevitably feed calls for renewed inquiry on the basis that previous inquiries did not have available to them the full suite of evidence, and thus may have come to erroneous conclusions. Three years after the publication of the Saville Report on Bloody Sunday, and 41 years after the incident itself, it has been reported that as many as 20 former British military personnel are being investigated for unlawful killings and criminal injury as a result of operations on 30 January 1972.58 It is almost impossible to put an end date on inquiry into operational incidents, or on immediately consequential outcomes such as prosecutions. The ramifications of this in terms of certainty and finality—of both process and of findings—are almost incalculable. Barring an arbitrary and highly unsatisfactory time limitation approach, there is no easy way to mitigate this consequence. But it must nevertheless be anticipated and planned for. 57

58

See, for example, the testimony of former IDF personnel in relation to operations in Gaza in 2009: Breaking the Silence: Soldiers’ Testimonies from Operation Cast Lead, Gaza 2009—at http://www.breakingthesilence.org. il/wp-content/uploads/2011/02/Operation_Cast_Lead_Gaza_2009_Eng. pdf. See, for example, Tom Whitehead, ‘Anger as Bloody Sunday soldiers could face criminal prosecution’, The Telegraph, 21 October 2013—at http:// www.telegraph.co.uk/news/uknews/northernireland/10391993/Anger-asBloody-Sunday-soldiers-could-face-criminal-prosecution.html.

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Conclusion It is highly probable that over the next decade, the emerging paradigm for operational incident investigation will be beset with a litany of complexities, frustrations, and errors. It will become a significant public lightning rod for pubic expressions of disquiet regarding impartiality, independence, and outcomes. It will entail significant human, institutional, legal, financial, and reputational costs and consequences. The shape of this emerging paradigm is beholden to many factors, but not least among them are: The increasingly legal terms in which the discourse, process, and outcomes of operational incident investigation is conceptualized; the facilitating and expectation creating effects of advancing information technology; the presence within the paradigm of significant new investigative agents; and the radical effects of ever growing interconnectedness. The iterative effects of these—and other—influences are pushing and pulling the traditionally State-based and inwardly-focused operational incident investigation paradigm into new ad hoc accommodations with reality. Within the paradigm, there are newly empowered interpretive communities which play increasingly vital roles, and newly vocal and informed constituencies which must be convinced as to integrity and appeased as to outcome. This evolution should be pragmatically accepted as a core component of operational reality, not rebelled against as an unwelcome intrusion of spurious benefit. The only viable option for States wishing to re-exert some contextual and consequential control over the paradigm is to take what action they can to shape this evolution now. Most immediately, they must take action in terms of pursuing a coherent set of quick, public, high return, process transparency improvements, the most achievable and immediate of these being to introduce or formalize process transparency insurance and assurance measures, such as external observers. This needs to be done regardless of whether they are privately felt to be necessary; that ship has already sailed.

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Index

Abu Ghraib 83, 175–6, 188, 206 See also Iraq War abuse civilians 15, 83–4, 93, 159 human rights 66–7 imagery 18 ‘national security’, use of term 18, 170 power, exercise 19 reporting, failure 174 Taliban corpses 159 See also Abu Ghraib; Aitken Report; AlSweady; Mousa; public debate: Australia; staged photographs accountability commitment, legal / moral 82, 103n17, 108, 116–19, 122, 142 confl ict, priority 14 democratic government 180 established via investigation 21 ICOIs 103–8, 116–19, 122 ideal 59–60, 68–70 individual 102n12, 105, 116–17, 142 Indonesia, withdrawal from East Timor (1999) 60–68 news journalism 185 Power element, necessary condition 51, 55, 59 recommendations 15, 16, 103, 105, 116–19 Thucydides, maxim 70 acid bombs 36, 38 Ad Hoc Human Rights Court or TimorLeste (Jakarta, Indonesia) 62–4 pro justitia 62

Adenan, Rossalis Rusman, DirectorGeneral, Foreign Relations and Security, Department of Foreign Affairs (Indonesia) 57 ADF see Australian Defence Force ADFIS see Australian Defence Force Investigative Service adversarial mode, judicial system 46–7, 218 Afghan Civil Order police 152 Afghan National Army (ANA) 148, 156, 157, 159–62, 165 Afghan National Police (ANP) 17, 148–56 See also green-on-blue incidents Afghan National Security Forces (ANSF) 148, 158, 161–3, 166, 167 Afghan police see Afghan National Police Afghanistan Australian involvement 9–10, 183, 191, 205–6, 216n52, 217 green-on-blue incidents 17, 147–66 drug barons see Law of Armed Confl ict: targetability International Security Assistance Force (ISAF) 2, 17, 148–54, 156, 158–63, 166, 202 Maya Evans case 204 Maywand 94–5, 97 media control 183, 189–91, 206–7, 211 operational incidents, frequency 2, 3 procedural transparency 215–17 war crimes 16, 87, 93 See also airstrikes; atrocities; detention: incident review Agha, Gul (Afghan soldier) 154 see also green-on-blue incidents

242

Index

airstrikes 104, 176, 206–7, 209–12 See also international human rights, violations Aitken Report 74, 80, 80n18 Al Ferkah case, 2005 (village, southern Iraq) 80n19, 81 see also operatinal incident investigation, challenges al Qaim (Iraqi town Syrian border) 88 al-Assad, Bashar (President, Syria) 6 Albania 149 Alexander, P. (Australian Embassy) 58 Ali Zaka Mousa and others v. Secretary of State for Defence (ECHR) 81 See also Mousa Al-Jeddah case 203 Allen, John (General, ISAF commander) 159 Allen, Kate (Director, Amnesty International UK) 174 Al-Skeini case 77, 78, 203 Al-Sweady Public Inquiry (Al Sweady and Abbas v. Secretary of State for Defence, 2007, UK) 73 America 3, 88–91, 155, 173, 175–6, 178, 182, 185, 190, 194, 206 American Broadcasting Company 178 Amnesty International (NGO) 73, 81, 174, 198, 204, 210 Amnesty International and British Columbia Civil Liberties Association cases (Canada) 204 ANA see Afghan National Army ANP see Afghan National Police ANSF see Afghan National Security Forces anti-war 73, 175 Arab Spring 190 see also social media arbitrary deprivation of life 100, 105 arbitrary imprisonment see detention Archives Act 1983 (Australia) 57 Areopagitica (John Milton, 1644) 184 See also censorship; freedom of expression; transparency Armstrong, Martha 173–4 Army Times 152 Arone, Shidane Abukar 172–3 See also Commission of Inquiry into the Deployment of Canadian Forces to Somalia

arson 61 ASIO see Australian Security Intelligence Organisation ASIS see Australian Secret Intelligence Service Assad see al-Assad assessor advice 25–7, 208 cf. Counsel Assisting 24 See also Mainguy Report; subject experts Associated Press 149–51 atrocities. See international human rights, violations Attorney-General’s Department, Australia 188 Audette, Louis 25, 26 See also Mainguy Report Australia Court-Martial (1942) 28 Australian commandos, 10, 54, 55 Australian Defence Force (ADF) 11, 12, 13, 21, 26, 156, 157, 159, 162, 164, 165, 183, 205, 213–14n48, 216n52 reviews of ADF 12 vehicle collisions, East Timor 69 Australian Defence Force Investigative Service (ADFIS) 165 Australian Public Interest Advocacy Centre (PIAC), 205–6, 216, 217 Australian Secret Intelligence Service (ASIS) 57 Australian Security Intelligence Organisation (ASIO) 57 Ayres, Tom, Brigadier-General 15, 88–97 (Ch. 6, author) Azizabad, Afghanistan (US airstrike, 22 August) 206, 210, 216, 218

B Baghdad, Iraq 88, 89, 176 Baker, Deane-Peter 16, 123–45 (Ch. 8 author) See also Gaza Flotilla Incident Bales, Robert (massacre, 16 Afghan civilians) 159, 178 Ban Ki-Moon (UN Secretary General) 65 Basra, Iraq 15, 71–85 (Ch. 5), 174 military base 71

Index Bassiouni, M. Cherif (initial President, ICOI-Libya) 105, 107, 112 battle of Danny Boy 74n5 see also Al Sweady Behenna, Michael (First Lt.) 95 see also Salahuddin; war crimes Belfast, Northern Ireland 32, 48 Bendahara, Alang 129 Biden, Joe (Vice-President, US) 186 Birt, Ashley (Corp.) 157 Blaazer, David 14, 31–49 (Ch. 3 author) Black, David (Col., QLR) 76, 81 Blair, Tony (Prime Minister, UK, 1997–2007) 42, 73, 81, 83, 189 Blom-Cooper, Louis (counsel, NICRA) 46 Bloody Sunday 14, 31–49 (Ch. 3), 197, 215–19 ballistic evidence 40, 42 Bloody Sunday Justice Campaign 39, 41 First Battalion, Parachute Regiment (1 Para) 35, 37, 39, 41, 47 Good Friday Agreement 14, 42 Report of the Bloody Sunday Inquiry 34, 197 Saville Inquiry 14, 34n7, 36n9, 42–9, 197, 215, 218, 219 sectarian violence 32, 33, 35 Troubles 14, 31, 33, 41 Widgery Inquiry 14, 36–46, 49, 197 Widgery-Saville dynamic 218 blue-on-blue incident 211 boarding operation see Gaza Flotilla Incident Bobonaro, East Timor 58 Bogside, Derry, Northern Ireland 34, 35, 37, 40, 47 Boston Globe 175 Bram, David (Staff Sergeant) 94 Breaking the Silence (Israeli NGO) 219 British Army 14, 31, 33, 35, 36, 71, 74, 83, 174 British Embassy 36 Brockway, A. Fenner, Baron 35 Buddhists 182 burning Taliban bodies 189–90 US 173rd Airborne; US Army Psychological Operations specialists 189

243

See also journalists Bush, George, Sr. (President, US) 73n3 Bush, George W. (President, Commander in Chief, US) 90, 188

C Cablegate 177, 186, 194 Callan Report 210 Cambodia 102 Camp Morehead, Kabul 150 Campbell, D. (Australian Embassy) 58 Canadian Airborne Regiment (CAR) 172–3 Canadian peacekeepers, Somalia 172–4 failure of leadership 172 hazing 172, 173 CAR see Canadian Airborne Regiment See also Canadian peacekeepers, Somalia Carvalho, M. de A. Ferreira de (Governor, Portuguese Timor) 53 Catholicism 32–4, 45, 55, 184 minority 33 Ulster 45 Catholic Relief Services (CRS) 58 CATR see Council for Asian Transnational Th reat Research CAVR see Commission for Reception, Truth and Reconciliation CBS television 175, 176 Chief of Defence Force (CDF) Commissions of Inquiry (Australia) 164 censorship 184 see also freedom of expression; opacity; transparency Charge of the Light Brigade (1854) 19 Chega! (Portuguese for ‘enough’) 59, 66, 67 chemical weapons see weaponry Chessani, Jeff rey R. (Marine Lt. Col.) 89, 90, 92 See also Haditha incident Chiarelli, Peter (Lt. Gen., commander, Multinational Corps, Iraq) 89, 90 See also Haditha incident child civilians 10, 56, 58, 61, 65, 70, 88, 89, 106, 155, 160, 176, 177, 206–7n29 child soldiers 112 China 4, 184–5, 193n68 cholera 56, 59

244

Index

Chomsky, Noam 60, 68 civil rights 14, 33–5, 45, 47 civil society action 15, 59–60, 65, 70 civilians East Timor, killings / terror 56, 61, 66–7, 69 Gaza Flotilla Incident 123 green-on-blue attacks 152, 155, 159, governmnet influence 5 Iraqi / Afghan, unlawful killings, abuse 15–16, 71–6, 79, 81, 83–4, 87–9, 91–4, 96–7, 99, 100, 159, 162, 174, 178, 199n11, 206n28, 206–7n29, 209–10, 214 see also Haditha incident; Kandahar massacre; Maywand; Mousa Libya 104–7, 111–12, 118 mandate to protect 9–10, 111 offences against 1 oversight, operational incident investigations 205 taking a direct part in hostilities 201 unarmed, fatally shot 14, 32–4, 37, 40, 48 see also Bloody Sunday Clausewitz, Carl P. G. (Major-General, Prussia: On War) 25 Clinton, Bill (President, United States) 181 Clinton, Fernandes 14, 51–70 (Ch. 4, author) Coalition Forces 88, 188 Coalition Provisional Authority 75 Cockburn, Patrick 187 COI see Chief of the Defence Force Colbert, Stephen 177 see also ‘Collateral Murder’; Wikileaks Coleman, Stephen 171 see also operational incidents: ‘tests of integrity’ Coleraine, Northern Ireland 39 ‘Collateral Murder’ see Wikileaks Combat Outpost Xio Haq 154 See also green-on-blue incidents Commission for Reception, Truth and Reconciliation, East Timor (A Comissão de Acolhimento, Verdade e Reconciliação: CAVR) 54, 56, 66 Commission on Human Rights, UN see United Nations Commission on Human Rights

Commission of Inquiry into the Deployment of Canadian Forces to Somalia (1997) 172 Commission on Truth and Friendship, East Timor 65–6 compellability 214 compensation 69, 72, 73, 81, 118, 124 condolence payments 89 confessions 114, 178, 191 Connelly, Susan (Sister, Mary Mackillop Institute, Sydney) 55 conspiracy 37, 41, 43–7 See also cover-up Cooper, Ivan (Northern Ireland MP, civil rights activist) 35 COP (Combat Outpost) Mashal, Baluchi Valley, Uruzgan Province 157, 165 Cote D’Ivoire 102 Council for Asian Transnational Threat Research (CATR) 147 court martial 28, 29, 71, 72, 80, 81, 91, 93, 94, 95, 175, 212, 215n50 cover-up 80, 134, 143–4, 171, 172, 173, 179, 195, 214 Watergate 179 See also conspiracy; decision-making, administrative: information security; opacity Cranbourne, Robert Gascoyne-Cecil (5th Marquess of Salisbury, Secretary of State for Dominion Affairs) 52, 53, 54 See also East Timor: invasion, WWII crime see crimes against humanity; war crimes Crimean War 181 crimes against humanity 2, 3, 61, 62, 63, 66, 67, 68, 82, 106, 116 Critchley, Thomas K. (Australian Ambassador, Indonesia) 57, 58, 59 Cromwell, Oliver 29 Crossman, Richard 180 CRS see Catholic Relief Services CTF see Commission on Truth and Friendship Curtin, John (Prime Minister, Australia) 52–4 Curtis, Mark 51, 70

Index

D Dacre, Paul 190 Daily Mirror 175 Darfur, South Sudan 4, 102, 108, 117, 119 Dash, Samuel 39, 40 Day, Stephen (Major General, Deputy Chief of Staff Plans, ISAF Joint Command) 158 death see killings decision-making, administrative 15, 40, 45, 47, 73, 109, 164, 205n27, 206 See also decision-making, operational information security 115, 117, 163, 181, 188-9, 192–5, 204–5, 217 See also censorship; cover-up; conspriracy; freedom of expression; opacity; transparency decision-making, operational 2, 13, 23–6, 95, 109, 164, 195 204n22 215, 215n52, 219 Bloody Sunday 34, 37, 45, 47 Gaza Flotilla Incident 124–7, 130–33, Haditha 92 See also mistake Defence Force Discipline Act 10, 12 Defense Legal Policy Board 93 Dela Cruz, Sanick P. (Marine Sgt.) 90 See also Haditha incident Democratic Republic of the Congo 3, 4, 103 democratization 173 Department of National Defence, Canada (DND) 172, 173 deportation 66, 68 Der Spiegel 94, 178 dereliction of duty 90, 91, 178 Derry 32, 33, 35, 47, 198 Derry Brigade 198 Derry Young Hooligans 47 desertion 160 detainees 56, 57, 72–6, 78–9, 95, 106, 174–5, 188, 199, 209, 217 See also detention detention Australian involvement 205, 217 Abu Ghraib 175, 206, 266 arbitrary 66, 68, 105

245

civilians 56, 66 Fourth Geneva Convention 76 GTMO 209 human rights violations 105–6, 113, 186 ICC Act (2001) / Donald Payne 80, 174 incident review / commissions of inqiry 112–13, 198–9, 203–5, 209 International Committee of the Red Cross 9 Mousa 71, 76–8 Salahuddin 95 see also Behenna soldiers 1 UK practices 71, 204, 209n35, 217 Devereux, Annemarie 16 Devlin, Bernadette (republican Westminster MP) 35 DFAT see Department of Foreign Affairs and Trade disaster relief operations 1 disciplinary proceedings 79, 214 DLU see United Nations Transitional Administration in East Timor DND see Department of National Defence ‘do no harm’ principle 115 Donaghey, Gerald 36, 38 drug barons see Law of Armed Confl ict: targetability Dupont, Stephen 189, 190 see also burning Taliban bodies; journalists Dutch detention system 217 Dutchbat (Dutch Battalion, UN peacekeeping, former Yugoslavia) 204 violation, Portuguese neutrality 52–4 duty of care 10, 204n22 Dyilo, Thomas Lubanga 3 See also International Criminal Court

E Earl of Aberdeen (George HamiltonGordon, Prime Minister, United Kingdom) 181 East Timor / Timor Leste 15, 51–70 (Ch. 4), 120–21, 163 East Timorese 55–7, 60, 65–9 forcible transfer 66, 68

246

Index

guerrilla war 54 invasion by Indonesia 1975 15, 55–9, 66–8 invasion, WW II 52–5 refugees 58, 59 resistance 56, 57 Status of Forces Agreement 69 Truth Commission 56, 67 United Nations thematic Special Rapporteurs 62 ‘unpeople’ 51, 70 See also Commission for Reception, Truth and Reconciliation; Commission on Truth and Friendship (CTF); National Commission of Inquiry on Human Rights Violations in East Timor (KPP-HAM United Nations Assistance Mission in East Timor (UNAMET) Eastern Libya see Libya ECHR see European Convention on Human Rights ECtHR see European Court of Human Rights, Strasbourg Egypt 104, 105, 112, 191 navy 130 Eisenhower, Dwight (President, United States, 1953–61) 179 El-Arish, North Sinai, Egypt 128, 130 Electronic Frontiers Australia 186 Ellsberg, Daniel 194 embedded see journalists enslavement see international human rights, violations; National Commission of Inquiry on Human Rights Violations in East Timor Espionage Act, US 186 See also Manning Euphrates River 88 European Convention on Human Rights (ECHR) 11, 71–7, 81, 84, 203, 213 Article 1 78 Article 2 74n5, 78 European Court of Human Rights, Strasbourg (ECtHR) 77 evidence gathering, application admissibility 28, 214 anonymous 44 atrocities 61, 67, 102, 174, 177

collusion 2, 80, 144, 172, 174 criticism 6, 12, 40–41, 43–9, 63–5, 80–81n19, 91, 107, 137, 140–41, 144, 165, 199n10 digital 171, 173, 211 green-on-blue incidents 157, 162, 165 false testimony 88–91, 137, 144, 173 forensic 23, 38, 40, 42, 105, 113, 133, 138, 140, 142 improvements 18, 113, 117, 209–10, 214–19 journalism 171, 177, 186, 193, 215 legal mandate 102n12, 108–9, 117, 212 partisan / political application 25, 44–5, 145, 211 professional 26 see also assessor advice; subject experts Tribunals of Inquiry (Evidence) Act, 1921 (UK) 36 See also fact-finding; operational incident investigation; transparency

F fact-finding 8, 13, 15, 51–70 (Ch. 4), 100–103, 107, 108, 113, 198, 212. See also accountability: Power element Fallujah, Iraq 88 Farah Province, western Afghanistan 153 Fernandes, Clinton 14–15, 51–70 (Ch. 4 author) Flotilla incident see Gaza Flotilla Incident FOIA see Freedom of Information force, disproportionate use 134, 135, 136 See also Gaza Flotilla Incident forcible transfer see East Timor Ford, Robert (Major General, Commander of Land Forces, Northern Ireland) 47, 48 Foster, Kevin 182, 183 freedom of expression 183–4, 194 See also transparency Freedom of Information 171, 176, 181 Freedom of Information Act, US (1966) 176, 181 French soldiers 25, 149, 163 Fretilin 57 see also East Timor

Index

G Gage, William (Gage Report) 72, 78, 174–5, 199n10, 209n35 See also Mousa: legal contexts Garmsir district, Helmand Province 153 Gavin, Luke (Lance Corporal) 157 Gaza Flotilla Incident (31 May 2010) boarding operation 125, 127, 131–6 four separate reports (Palmer Inquiry; Turkel Commission (Israel); Turkish Government; UN Human Rights Council) 198 see alsoHuman Rights Council, UN genetic fallacy 131 hindsight bias 130 IDF naval commandos 131 MV Mavi Marmara 7, 16, 124, 126–7, 129–32, 134, 137–44, 197, 208 outcome bias 130 Palmer Commission Report 16, 123–45, 198 Palmer Inquiry (UN Secretary-General) 198, 198n5, 208, 103 Turkel Commission (Israel) 2, 6–8, 198, 215 Turkel Commission (Israel), second report 2, 7 Turkish Government-appointed panel 198, 198n6 UN Human Rights Council 198, 198n4 violent resistance 124–6, 131–3 See also International Commission of Inquiry; International Humanitarian Law Gaza Strip 3, 124, 198, 208 Gaza War 6 Geneva Conventions, Common Article 3 67n36, 110 Geneva Protocol (1925) 1 genocide 3, 61, 65, 82, 108n40 See also atrocities; international human rights, violations; killings Ghoutta, Syria 6 see also weaponry: sarin gas Gibbs, Calvin (Staff Sergeant) 94 Goldrick, James (Rear Admiral, Ret.) 13, 14, 21, 22, 24, 26, 28, 215

247

Goldstone Inquiry 6 Gombo, Jean-Pierre Bemba 3–4 Congolese militia 4 See also International Criminal Court Good Friday Agreement see Bloody Sunday Gow, James 82 Grayson, Andrew A. (Marine 1st Lt.) 91 see also Haditha incident ‘Great Firewall of China’ 184 ‘great game’ 5 green-on-blue incidents 17, 147–67 (Ch. 9) attacks on Australians 147, 156–8 background 148–56 causative factors 158–63 definition 17 operational incident investigation 163–7 See also International Security Assistance Force (ISAF); operational incident investigation, challenges grenades, use see weaponry GTMO see Guantanamo Bay Naval Base Guantanamo Bay Naval Base, Cuba (GTMO) 76, 204, 209 guerrilla war see East Timor Gulf War 182 see also Iraq Gusmao, Xanana (Prime Minister, East Timor) 55, 64 Guterres, Eurico 63

H H1 (secret detention facility, Iraq) 217 see also detention Habibie, Bacharuddin Jusuf (President, Indonesia) 60 Haditha incident (2005) 15–16, 87–93, 95–7, 177–8, 214 incident summary 87–9 indictments 90–93 lawful order, failure to follow 90 Law of Armed Confl ict (LOAC) 95–7 See also International Security Assistance Force (ISAF); operational incident investigation, challenges Hague 1, 64, 75, 101, 124 Hague Conventions for the Pacific Settlement of Disputes 101

248

Index

Hassan, Mohd Faizal 129 hazing see Canadian peacekeepers Heath, Edward (Prime Minister, United Kingdom) 36, 41–2, 45 Hekmatullah (Sergeant) 17, 154, 157, 158 see also green-on-blue incidents helicopter attack, Baghdad see Wikileaks Helmand Province, Afghanistan 149–56 Henry, Ken (Executive Chair, ANU Institute of Public Policy) 192 Hersh, Seymour M. 175 HMAS Voyager, sinking (1st Australian Royal Commission) 24 Holmes, Oliver Wendell, Jr. 92 Holmes, Andrew (Pt. 1st Class) 94 Holocaust 55 Hoyt, William 34n7 HRC/CHR see Human Rights Council, UN HRDAG see Human Rights Data Analysis Group HRW see Human Rights Watch human rights see European Convention on Human Rights; Human Rights Council, UN; Human Rights Watch; international humanitarian law; international human rights, violations; United Nations Commission on Human Rights; Universal Declaration of Human Rights; ‘unpeople’ Human Rights Council, UN (HRC/ CHR) 16, 99, 101–5, 116, 119–20, 198 Human Rights Data Analysis Group (HRDAG) 56, 66 Human Rights Violations Database 66 Human Rights Watch (HRW) 73, 188, 198, 207, 209, 210 humanitarian aid 58 see also International Committee of the Red Cross humanitarian consequences of confl ict 209n36 humanitarian law see international humanitarian law humanitarian relief operations 1n1

I ICC see International Criminal Court ICL see international criminal law

ICOI see International Commission of Inquiry ICRC see International Committee of the Red Cross ICTY see International Criminal Tribunal for the former Yugoslavia IED see Improvised explosive device IHAT see UK MoD (Ministry of Defence) Iraq Historic Allegations Team IHL see international humanitarian law IHRL international human rights law IHT see Iraq Historical Team Iliomar see East Timor: vehicle crashes illegal war 72, 73 imprisonment see detention improvised explosive device (IED) see weaponry 88–9, 95 Ince, Haluk 142 incendiary devices 56 Independent, The 54, 81, 83, 120, 187, 202, 216 Independent Special Commission of Inquiry for Timor Leste 2006 (ISCOITimor Leste) 120, 121 Independent on Sunday 187 ‘Index of Forbidden Books’, 184 See also freedom of expression; opacity; transparency Indian Rebellion (1857) 19 Indonesian forces 56, 60, 61, 68 infi ltrators see insurgents insurgents 79, 89, 95, 96, 151–2, 155, 159, 160, 162, 163, 178, 202n15 Inquiry Officer Inquiries / Reports 13, 157, 162–6, 205, 213–14n48, 216n52 See also operational incident investigation inquisitorial judicial process 23, 47 interconnectedness see operational incidents InterFET see International Force—East Timor International Commissions of Inquiry (ICOI) ICOI-Darfur 102, 117, 119 ICOI-Libya 99–100, 104–19, 122 see also Libya (ICOI) ICOI-Syria 103, 108, 119, 120

Index investigation challenges during confl ict 107–12 post-confl ict investigation 112–15 role 101–4 torture 100, 105–6, 113–14 value 118–22 witness protection 115–6. See also operational incident investigation International Committee of the Red Cross (ICRC) 9, 58, 96, 101, 110, 188, 208, 209, 215 International Covenant on Civil and Political Rights 194 International Criminal Court, United Nations (ICC) 3, 4, 5, 10, 67, 75, 80, 82, 99, 110, 118, 119, 201, 208 ICC Statute 201 International Criminal Court Act, 2001 75 jurisdiction 10 prosecutions 3–4 international criminal law (ICL) 7, 11, 75, 110–11 International Criminal Tribunal for the former Yugoslavia (ICTY) 67, 110, 208 International Force—East Timor (InterFET) 61, 68 international human rights, violations atrocities 3, 53, 59, 65, 102, 182 detention 105–6, 113, 186 enslavement 61, 68 See also detention; East Timor; Gaza Flotilla Incident; Haditha; International Commissions of Inquiry (ICOI); Mousa; torture international human rights law (IHRL) 4, 7, 16, 72, 75, 84, 101–21 (Ch. 7) international humanitarian law (IHL) 1, 4, 6, 7, 9, 62, 72, 75, 82, 99, 101–21 (Ch. 7), 188, 207, 209 international human rights law, cf. 72 lex specialis 110. See also Laws of Armed Confl ict international humanitarian law (IHL), violations derogation from international human rights, state interest 8 state duty to investigate 7

249

three relevant bodies of law: international human rights law; international criminal law; laws of state responsibility 7–8 international justice 2 International League for the Rights of Man 39 International Security Assistance Force (ISAF) 2, 17, 147–66 (Ch. 9), 202, 206, 211, 215 green-on-blue killings, numbers 148 personnel 17, 148–9, 152, 160–61. See also green-on-blue incidents International Stabilisation Force, East Timor (ISF) 68–9 IRA see Irish Republican Army Iraq see Iraq, war; war Iraq Historical Team (IHT) 81, 84 See also UK MoD Iraq Historic Allegations Team (IHAT) Iraq, war atrocities 3, 15–16 civilian combatants 76 civilian deaths see civilian: Iraqi / Afghan; killings ECHR application 77–8 ICOIs, alleged weapons programs 73n3 ISAF invasion / occupation (March 2003–December 2011) 2, 15 Operation Telic 75 Salahuddin 95 UK 2003–4 war involvement, legitimacy 71–3, 74–5, 77, 203–4, 209 US, laws of war 89–93, 95–6, 97 See also detention; green-on-blue incidents; Haditha; Iraq Historical Team (IHT); Mousa; transparency; UK MoD Iraq Historic Allegations Team (IHAT); war: conduct, juridification; war crimes Irish nationalists 32, 41, 44 Irish Republican Army / paramilitaries (IRA) 11, 14, 33–7, 41, 45, 197–8n3 Irvine, David (Director-General, ASIO) 57 ISAF see International Security Assistance Force

250

Index

ISCOI-Timor Leste see Independent Special Commission of Inquiry for Timor Leste 2006 ISF see International Stabilisation Force Israel see Gaza Flotilla Incident

J Jamahiriya see Libyan Arab Jamahiriya Johnson, Andrew 81 Jones, Andrew Gordon (Lance Corp.) 156–7, 159, 162, 165 Jones Inquiry see Jones journalists 70, 129, 189–90, 208 embedded 2, 182 judicial creep 205 judicial intervention 205 juridification of war see war jus in bello (law governing conduct of warfare) 7, 16, 134, 137 See also Law of Armed Confl ict (LOAC) justification for warfare ( jus ad bellum) 2, 175 See also just war theory just war theory 127, 134 Justice Denied (Samuel Dash) 39, 40 See also Bloody Sunday

K Kabul, Afghanistan 150, 158, 160, 187 Kabul Military 160 Kahneman, Daniel 130 Kamiya, Jason (US Afghanistan Commander, Major General) 189 Kandahar, Pakistan 149–55, 157, 178 massacre 178 Kapisa Province, eastern Afghanistan 149 Keating, Gavin (Lt. Col.) 159–60 Keilloh, Derek (Chaplain, 1QLR) 79 See also Mousa Kennedy assassination 173 Kerr, Rachel 15, 71–85 (Ch. 5 author) Khan, Welayat 154, 157, 162 See also green-on-blue incidents Khas Uruzgan, Uruzgan Province 155 Khogyani district 150 Khost Province 157 Kiir, Salva (President, South Sudan) 3

kill list see Law of Armed Confl ict killer drones see weaponry killer robots see weaponry killings Afghanistan 94, 178, 206–7n29 ADF redaction, Officer Reports 205, 216n52 Bloody Sunday 32, 34, 36, 38, 40–42, 44–5, 48 civilian 89, 94, 206–7n29, 211, 214 See also Haditha East Timor 55–7, 59, 61, 66–7, 69 Gaza Flotilla Incident 16, 123, 125, 133, 134, 138n35, 140–44 Gibraltar Inquest 11 green-on-blue incidents (ISAF) 148, 157, 159, 162–4, 165n25, 166–7, 173–4, 177, 178n15, Haditha, Iraqi civilians 16, 87–92, 214 Iraqi 189, 199, 206, 216–117 Iraqi civilians 15, 73–6, 80n18, 88–93, 95 Libya 100, 105–6 mass graves, South Sudan 3n4 Maywand 94, 96 Mousa 15, 71–6, 78–81, 83 Nadham, Abdullah 81 operational incidents 1, 10, 211 Troubles, Northern Ireland 31–2 See also atrocities; Australia Court-Martial of 1942; Bloody Sunday; Canadian peacekeepers; Gaza Flotilla Incident; genocide; green-on-blue incidents; Haditha; international humanitarian law, violation; Laws of Armed Confl ict; Mahmudiyah; Maywand; unlawful killings Kim, Phuc 182 King, Rodney 173 Kirsch, Philippe (initial President, International Criminal Court) 105, 112 Kitson, Frank (Brig.) 48 See also Bloody Sunday Kkader, Asma 105 Kosovo 207 KPP-HAM see National Commission of Inquiry on Human Rights Violations in East Timor Kunar Province 151

Index Kupang, Indonesia 58

L Labour Party 180 Lancashire Regiment 78, 174 Lashkar Gah 150 Lashkar, Helmand Province 151 Law of Armed Confl ict (LOAC) 1, 75, 89, 95, 96, 97, 199, 202, 203 kill list 202n15, 211 law of war 87, 91, 95, 202 targetability, Afghan drug barons 201, 202n15, 202–3n16, 203 law of war see Law of Armed Confl ict (LOAC) lawyers, support role in investigation 23-5 See also assessor advice; Mainguy Report Leggatt, Bill (Lt. Col.) 52, 53 lethal force 1, 10, 135, 136, 139, 199, 202 LIBOR see London Interbank Offered Rate Libya (ICOI) confl ict characterisation 111, 209 confl ict date 110–11 Eastern (Benghazi, Tobruk, Al Bayda) 104, 112 establishment 104–7 ICOI mandate 16, 99, 104–5, 108–9, 116–18 impact 118–22 International Criminal Court (ICC) 3–4, 99 legal structure 109–10 witness protection 115–16 See also International Commission of Inquiry: Libya-ICOI; international humanitrian law, violation Libyan Arab Jamahiriya 16, 99, 104 historical definition 99n1 See also Libya Living Under Drones (Stanford University / NYU Report) 210 LOAC see Law of Armed Confl ict Londonderry 14, 32, 34, 37, 38, 39, 197 See also Derry London Interbank Offered Rate (LIBOR) 179n20

251

Long War Journal 148, 149 Los Angeles Times 93, 95, 150, 152, 178 loss of life 16, 37, 54, 55, 124, 133, 197, 203 See also killings

M Macau 52 Machar, Riek (Vice-President, South Sudan) 3 MacLellan, Patrick (Brigadier) 34, 43, 45, 47 See also Bloody Sunday Madden, Peter (Fr.) 79 Madeira, Adelino 69 Royal Darwin Hospital 69 see also Australian Defence Force: vehicle collisions Mahari Hotel, Sirte 106 Mahmud, Tanik 206 Mahmudiyah (village, incident, 2006) 177, 178 See also war crimes; killings; operational incidents Mainguy Report 24–5 See also assessor advice Malaysia 68 Mali 3, 4 Maljir, Naqilo 154 mandate to protect 9 Mangkoedilaga, Benjamin (Indonesian co-chairman, Commission on Truth and Friendship) 65 Manne, Robert 187 Manning, Bradley (Pt.) 186, 187 See also Cablegate manslaughter 9, 10, 80 Marine Times 153 Marines, US 15, 16, 87, 88, 89, 90, 91, 92, 93, 95, 150, 153, 177, 178 Marjah district, Helmand Province 149, 151 Marmara see MV Mavi Marmara Martinkus, John 189, 190 See also burning Taliban bodies; journalists Maruf district, Kandahar Province 155 Mary Mackillop Institute 55 mass arrests 34, 104

252

Index

mass insubordination 24 see also Mainguy Report; mutinies Mattis, James (Marine Commander, Lt. General) 91, 92, 96 See also Haditha incident maxim of Thucydides see Thucydides Maxwell, Alan Victor (Justice, NSW Supreme Court) 28, 29 Maya Evans Case 199, 204 Maywand killings (2010) 94–7, 177, 178 trophies 178 Winfield (Specialist) 94 McCann and Others v. The United Kingdom 11 see also killings: Gibraltar Inquest McConnell, Marine Capt. Lucas M. 90 See also Haditha incident McKinney, Michael 44, 45 McLaughlin, Rob 18, 197–220 (Ch. 11 author) MEAO see Middle East Area of Operations mediation (digital media) 17, 173, 174, 191–2 See also transparency; Wiki Age Mendonca, Jorge (Colonel) 79, 80 Menzies, Robert (Prime Minister, Australia) 24 Middle East Area of Operations (MEAO) 165 Military Police 41, 74, 81, 175, 213 military-induced famine 56 military-industrial complex 179 military justice system 2, 10, 12, 15, 16, 71–2, 80, 80n18, 81, 93, 198 See also Uniform Code of Military Justice (US) Milosevic, Stjepan (Lance Corporal) 157 see also green-on-blue incidents Milton, John see Areopagitica Ministry of Defence (MoD), United Kingsom 72, 78, 80, 81, 84, 182, 199, 211, 213 misconduct 72, 172 Mission on the Gaza Confl ict 6 mistake 19, 22-4, 29, 92, 97, 141, 159, 207, 211

error of judgement 22 See also decision-making, operational mistreatment 124, 175 see also International Humanitarian Law Mitchell, Greg 177 MoD see Ministry of Defence (UK) Monteiro, Longuinhos (General Prosecutor, Indonesia) 64 Moore, Nicole 184 Morgan, Piers 175 Morlock, Jeremy (Army Specialist, UK) 94, 178, 191 See also civilians: killings mortality survey 66 Moses, Alan George (LJ, UK Court of Appeal) 204 Mousa, Baha Da’oud Salim 71–85 (Ch. 5) ECHR 71–7, 81, 84, 213 investigation transparency, influence 174–5, 203–4, 216 justicial outcomes 78–81 law / politics intersection 82–3 legal contexts (war crime; violation of ECHR; Gage Report) 73–8, 199n10, 203–4 torture and death 71, 79, 174, 209n35 See also Gage; operational incident investigation; operational incident investigation, challenges Multi-National Corps-Iraq 89 murder 28, 37, 41, 61, 66, 68, 81, 90, 94, 95, 178 mutinies 19, 24 MV Finch 129, 130 MV Mavi Marmara see Gaza Flotilla Incident

N nail bombs see Bloody Sunday napalm bombs see Bloody Sunday narrative 66, 182 narrative testimonies 66 National Commission on Human Rights, Indonesia 61, 68

Index National Commission of Inquiry on Human Rights Violations in East Timor (KPP-HAM: Komisi Penyelidik Pelanggaran HAM di Timor Timur) 61, 62, 63 See also East Timor National Council for Civil Liberties 39 national security 18, 163, 170, 178, 180, 181, 184, 194 National Transitional Council 104, 111 Nations Transitional Administration in East Timor, 68 NATO see North Atlantic Treaty Organization Naval Criminal Investigative Service (NCIS) 89, 91 Navy Egypt 129–30 Israel 125, 128–9 see also Gaza Flotilla Incident Japan 54 Royal Australian Navy (RAN) 21, 24, 27, 28 Royal Canadian Navy (RCN) 24, 25 Royal Navy, United Kingdom (RN) 25, 27 United States 92, 153 NCIS see Naval Criminal Investigative Service 89 necessity principle 127 negligent dereliction of duty 178 Nelson, Horatio (Lord Admiral) 205 neutrality, Portuguese 52–4 New South Wales Supreme Court 28 New York Times 88, 123, 149, 151, 158, 187, 202 New Yorker magazine 175 NGOs see non-government organizations Nguyen, Ngoc Loan (national police chief, South Vietnam) 182 NICRA see Northern Ireland Civil Rights Association non-government organizations (NGOs) 6, 9, 18, 31, 62, 73, 84, 113, 116, 170, 174, 183, 188, 193, 198, 201, 208–9, 215, 219 North Atlantic Treaty Organization (NATO) 99, 104, 107, 109, 112, 114, 118, 149–50, 153, 155, 157–8, 201–3

253

Northern Ireland 14, 31–4, 37, 39, 41, 42, 47, 48, 80, 197 See also Bloody Sunday Northern Ireland Civil Rights Association (NICRA) 34, 38, 40, 43, 44, 46 NTC see National Transitional Council 104 Nuhanovic Case 199n11, 204 See also judicial intervention NZDF see court martial

O Ó Dochartaigh, Niall 47–8 Obama, Barack (President, United States) 160, 161 Occupied Palestinian Territories (OPT) 102 Office of the United Nations High Commissioner for Human Rights (OHCHR) 103, 105, 107, 115, 121 OHCHR see Office of the United Nations High Commissioner for Human Rights Old Bailey (Central Criminal Court of England and Wales, London) 46 On War (Clausewitz) 25 opacity 204, 212, 214 See also secrecy Operation Salerno 79 Operation Telic 75 operational incident investigation 197–220 (Ch. 11) definition 13 evolution 200, 203, 206 Freedom of Information 206 interconnectedness 18, 201, 217, 220 management, influencing factors 5, 87, 117, 201–5, 220 maxims: law, technology, NGO capacities, interconnectedness 201, 212 paradigm 200–201, 203, 206 210, 212, 220 purpose 169 state monopoly 208 virtuous feedback loop 18, 167 See also operational incident investigation, challenges operational incident investigation, challenges

254

Index

culture of silence 114, 169 impassioned assessment 18, 25, 170 independent interpretations, variation 6–7 insufficient will, partiality 3, 10–12, 17, 25, 64, 81, 116, 120, 203 legal / jurisdictional complexity 4, 10, 17, 218–19 lacking appropriate mechanisms 3, 16, 116, 119–21, 205 lack of reliable evidence 114, 144 national precedence 4–5 non-democratic states 5 non-expert assessment 25–7, 49, 208 see also assessor advice; subject experts political influence 2, 5, 6, 14, 16, 19, 42, 45, 64, 82, 109, 120, 124, 141, 145, 175, 180–81, 203, 204, 211 public access, information 17, 170–71, 175, 185, 187, 190, 194, 250, 206 public pressure 18, 170, 175, 177, 190, 194 torture to extract confessions 114 See also cover-up; operational incident investigation; operational incidents operational incidents ‘boundary’ issues, cause 4 causes / management 17, 22, 87, 89, 97, 103, 130, 133, 147, 158–63 definition 1–2, 17, 169 organizational reviews, frequency 12 ‘tests of integrity’ 171 See also Bloody Sunday; green-onblue incidents; Haditha; Mousa; operational incident investigation; operational incident investigation, challenges OPT see Occupied Palestinian Territories Oruzgan Province 217 Oslo Convention 198, 201 outcome bias see Gaza Flotilla Incident

P Paktia, military base 152 Palestine 120 Palmer Commission Report see Gaza Flotilla Incident

Panetta, Leon (Secretary of Defense, US, 2011–13) 93, 150 See also Haditha incident paradigm see operational incident investigation paramilitaries 14, 36, 38, 40, 43 Pashtun, Afghanistan 149, 158 Payne, Donald (Corporal) 72, 74, 79, 80 See also R v. Payne peacekeeping 15, 68, 172 special constables 1n1 Pearl Harbor 52 Pentagon Papers 194 Personal Democracy Forum 190 PGM see Precision Guided Munitions PIAC see Australian Public Interest Advocacy Centre Plato 7 Poate, Robert (Pt.) 157 police 1, 17, 23, 62, 68, 142, 149–56, 166, 175, 179, 182, 185 policeman see police Policy Exchange (UK think-tank) 204, 205 Portuguese neutrality 52, 53, 54 Portuguese Timor 52, 53, 54 Power element see accountability POWs see prisoners of war Precision Guided Munitions (PGM) 207 prisoner abuse 175, 176, 213 civilian detainees 72–3, 76, 79 See also abuse: civilians; detainees prisoners of war (POWs) 76, 188 privacy vs. national security 180n22 see also sectretiveness ‘propaganda war’ 42 see also operational incident investigation, challenges: political influence protest marches 32, 34 Protestantism 32, 33 Provincial Reconstruction Team, Muqar district, Badghis Province 156 psychologist 49, 130 public debate, Australia 191 Public Interest Lawyers 80 punishment 3, 4, 17, 37, 169

Index

Q Question of Trust, A (Onora O’Neill) 179 see also secretiveness; transparency

R R v. Payne 72 R2P see Responsibility to Protect racism 80, 191 Rahman, Habib see SOCA-Rahman litigation raid Australian Special Operations Task Group, Sorkh Morghab, Afghanistan (2009) 9–10 Gaza Flotilla Incident 123–6, 133 see also Gaza Flotilla Incident Operation Salerno (2003) 79 see also Mousa US airstrike, Azizabad, Afghanistan (2008) 206 Ramadi, Iraq 87–8 Ramos-Horta, Jose 65 RAN see Royal Australian Navy rape 61, 66, 100, 114, 178, 191 See internstionional humanitarian rights, violation; torture Rapoza, Philip (chief international judge, Special Panels for Serious Crimes in East Timor, 2006) 64 RCN see Royal Canadian Navy Redress (NGO) 73, 81 refugees see East Timor Report of the Bloody Sunday Inquiry see Bloody Sunday Republic, The (Plato) 7 Responsibility to Protect (R2P), 59–60, 68 Reuters (news agency) 124, 139, 142, 151, 154, 176 rioters 34, 35, 36 see also Bloody Sunday RMP see Royal Military Police roadside bomb see weaponry: improvised explosive device (IED) rocket-propelled grenade see weaponry Rolling Stone (magazine) 94 Rome Statute 3, 10, 75, 119 Royal Australian Navy (RAN) 21, 22, 24, 26, 28, 29

255

Royal Canadian Navy (RCN) see Navy Royal Military Police (RMP) 74, 81, 213 Royal Navy see Navy Royal Ulster Constabulary (RUC) 33–4 Rozi, Mohammad 157, 162 See also green-on-blue incidents RUC see Royal Ulster Constabulary rules of engagement 17, 77, 89, 90, 169, 173, 176 Rumsfeld, Donald (Secretary of Defense, US) 176 Russell, William Howard 181

S sacred trust see United Nations Charter Saddam, Hussein 88 Said, Hassan 74n6 Saigon, Vietnam 182 Salahuddin, Iraq 95 de Sampaio, L. Teixeira (Secretary-General, Portugal) 53 Santayana, George 19 sarin gas see weaponry Saville Inquiry see Bloody Sunday SBS Dateline 189 scapegoat 44, 72, 197n3 Secrecy News 185 secretiveness 17, 169–71, 174–87, 217 bureaucratic propensity 180 Secretary-General see United Nations Secretary-General sectarian violence see Bloody Sunday Senate Armed Services Committee (US) 176 Service Police (Australia) 11, 12 sexual slavery 56 sexual violence 66, 68, 100, 105, 112, 113, 114 See also rape Sharratt, Justin L. (Marine Lance Cpl.) 90–92 See also Haditha incident Shiner, Phil (Public Interest Lawyers) 80 shona ba shona (‘shoulder by shoulder’) 160 See also green-on-blue incidents siege of Misrata 106 Sifry, Micah 186n48, 190 See also Personal Democracy Forum

256

Index

Simpson, Gerry 73n3, 83n25, 84 Smith, Stephen (Foreign Minister, Defence Minister, Australia) 55, 163–4, 166, 217n55 Snowden, Edward J. 180 See also secretiveness; whistleblowers SOCA (Serious Organised Crime Agency, UK) 211, 216, 218 SOCA-Rahman litigation 212, 216, 218 social media 9, 185, 188, 190, 190n65, 191, 193 joined-up thinking 190 See also Arab Spring sociologists 49 soft law 7 soldiers Australian, deaths 17n28 British, Bloody Sunday 32, 35–48 contemporary autonomy / responsibillity 19, 48, 176 duty of care, civilians 9–10, 32, 37 excessive force 16, 32, 37 see also Gaza Flotilla Incident incriminating evidence 171–2, 175, 178, 182–3, 189–91 individuals, blame 14, 15, 36, 39, 44–8, 72 mistreatment of enemy 1 unreliable testimony 2, 14, 36, 38–43, 47, 144, 167, 175 witness intimidation, Indonesia 63–4 see also Australian Defence Force: vehicle collisions; greenon-blue incidents; Law of Armed Confl ict; Mousa; torture Somalia 163, 172, 173 Sorkh Morghab incident (Afghanistan) 9, 10. See also raid ‘sousveillance’ 185 South Sudan 3 see also Darfur sovereignty 4, 75, 77, 208 special constables see peacekeeping Spin Boldak, Kandahar Province 149, 153 staged photographs 94, 175. See also journalists; Maywand; Mousa Status of Forces Agreement see East Timor Statute of Westminster, UK 28

Staveteig, Sarah 55, 67 Stewart, Potter (Supreme Court Justice, US) 181 Stone, Randy W. (Marine Capt.) 90, 92. See also Haditha incident subject experts 18, 24–7, 61–3, 102n12, 102n14, 103n17, 105, 108n39, 113, 114, 118–20, 147, 208, 210, 215. See also assessor advice; Mainguy Report Sudarsono, Juwono (initial civilian defence minister, Indonesia) 61 Sudrajat, Yayat (military intelligence chief, East Timor) 64 Supreme Court of the Netherlands 204 Syria 3, 5, 6, 102, 103, 108, 119, 120, 209 systemic issues accountability 21 Bloody Sunday, causes 46, 47 Bloody Sunday, failure of high-level responsibility 47, 49 Canadian peacekeepers, failure of leadership 172 inquiries, systemic challenges, security and transparency 200 institutional problems 13, 21 Mousa, abuse 80 See also decision-making, administrative; decision-making, operational; operational incident investigation

T Taguba Report 175, 176 Taliban 9, 151, 152, 154, 155, 157, 158, 159, 160, 161, 162, 163, 189, 190, 202, 207 Tatum, Stephen B. (Marine Lance Cpl.) 90, 91 See also Haditha incident technology 18, 66, 171, 173, 177–8, 193, 195, 201, 206–7, 216, 220 television 31, 43, 89, 174, 175, 176, 189 Tennyson, Alfred Lord 19 Terbil, Fathi 104 terror counter-terrorism 33, 147, 181, 188 state-sponsored terror 32–3, 60–61 terrorism 33, 147 terrorists 11, 183, 186

Index ‘war on terror’ 181 theory see conspiracy; cover-up; just war theory Thucydides, maxim 15, 51, 55, 57, 59, 68, 70 Time Magazine 89, 178 Tobruk, Libya 112 Toohey, John 34n7 torture East Timor 61, 66, 68 green-on-blue investigations 159 International Commissions of Inquiry 100, 105-6, 113–14 Mousa 71–4, 78, 80 postural asphyxia 71 prohibition, non-derogable 8 secrecy vs. transparency 172, 175 178, 186 see also Wiki Age sexual violence 105. See also atrocities; green-on-blue incidents; international human rights, violations; Mousa transparency East Timor 60–68, 69 external observers 215 increasing government / corporate 181, 186, 204–6 investigations, increasing 18, 211–20 government rhetoric, public cynicism 170, 180 green-on-blue Inquiry reports, redaction 167 idealism 60 investigation, general principle 8, 15, 18, 27 legal reasoning 6 powerless victims, improbability 51, 55, 59, 69, 70, 80 secrecy, balance 171, 192–5 security, balance 200 self-investigation 214 US Freedom of Information Act (1966) 181. See also East Timor; operational incident, investigation; Thucydides; Wiki Age trials, judicial Assange, US threat of terrorism trial 186 Defence Force Discipline Act 9–10

257

East Timor, KPP-HAM 62–4, 121n84 green-on-blue suspects, Afghan legal system 17 Haditha 91, 95, 97 ICOI –Darfur 117 ICOI-Libya 117 International Criminal Court 3–4 Maywand 97, 178 Northern Ireland, internment without trial 33 Saville Inquiry, legalism 46 See also Bloody Sunday; Haditha; International Commission of Inquiry Tribunals of Inquiry (Evidence) Act 36, 46 Tripoli 104, 106, 112 trophies see Maywand killings; ‘Wiki Age’ Troubles see Bloody Sunday Truth Commission see East Timor tuberculosis 56, 59 Turkel Commission see Gaza Flotilla Incident Turkey 123, 124, 145 government 6 Tuzo, Harry Craufurd (General, GOC Northern Ireland) 48

U UCMJ see Uniform Code of Military Justice (US Military) Uganda 4 UK Court of Appeal 204 UK detention practices see detention UK Financial Services Authority 179 UK MoD Iraq Historic Allegations Team (IHAT) 81, 213 Ullah, Shafied (ANA soldier) 156, 157, 162. See also green-on-blue incidents UN Security Council 60, 61, 64, 75 UN Security Council Resolution 1483 75 UNAMET see United Nations Assistance Mission in East Timor unauthorized disclosures see Wiki Age Uniform Code of Military Justice (US Military) 16, 87, 93, 212, 213

258

Index

United Nations 5, 6, 10, 55, 60, 62, 64–5, 68, 99, 101–2, 115, 119, 121, 193, 202 See also United Nations Commission on Human Rights; United Nations Secretary-General; United Nations Transitional Administration in East Timor (UNTAET) United Nations Assistance Mission in East Timor (UNAMET) 60 United Nations Charter, Article 73, ‘sacred trust’ 55 United Nations Commission on Human Rights 62, 101–2 See also International Commissions of Inquiry United Nations Secretary-General 16, 62–3, 65, 100, 101, 103, 115, 119–21, 123, 198, 208 United Nations Transitional Administration in East Timor (UNTAET) 64, 66, 68 Defence Lawyers Unit (DLU) Serious Crimes Unit 64 Special Panels for Serious Crimes 64 See also East Timor Universal Declaration of Human Rights 59, 194 Universal Periodic Review process 115 University of California—Berkeley 67 University of Limerick 41 unlawful killing Bloody Sunday 219 ICOI-Libya 100, 105–6 Mousa 15, 73–4, 76 See also Bloody Sunday; ICOI-Libya; killings; Mousa unmanned vehicles see weaponry: drones ‘unpeople’ see East Timor UNTAET see United Nations Transitional Administration in East Timor unwillingness see operational incident investigation, challenges

V victimization see International Commission of Inquiry: witness protection Viet Cong 182 Vietnam War 182

virtuous feedback loop see operational incident investigation

W Wall, Peter (General, Chief of the General Staff, British Army) 79 Walsh, Dermot 39, 41, 42 WantToKnow.info see Wikileaks war Afghanistan 183 civil 82, 92 Cold War 181 conduct, juridification 82, 84 contemporary changes 82, 181, 201–2 Gaza (2009) 6 guerilla 54 Gulf War 182 Indonesia, 24-year war against East Timor 55–6, 64–5, 68 information control 181–3, 186–95 Iraq 15, 71–3, 76, 81, 83 law 87, 91, 95 see also Law of Armed Confl ict Peloponnesian 51n2 see also Thucydides ‘propaganda war’ (Northern Ireland) 42, 45 public relations 175–6 see also transparency; Wiki Age ‘war on terror’ 181 World War I 35 World War II 15, 31–2, 52, 55, 181 See also anti-war; war crimes; just war theory; justification for warfare war crimes 3, 8, 11, 15, 16, 54, 65, 68, 71, 80–83, 87, 106, 116, 208 See also crimes against humanity Warren Commission 179 water cannon see weaponry Watergate 171, 179 weaponry acid bombs 36, 38 aerial bombardment 52, 54, 112 baton rounds 34 bomb-making equipment 79 chemical weapons 5, 6, 56 cluster munitions 198 CS gas 34 drones (unmanned aerial vehicles) 207, 210

Index dum-dum bullets 113 Grad rockets 106 grenades 9, 89, 94, 106, 135 gunfi re 9, 36, 38, 40, 74, 88, 149, 150, 153, 154, 156, 176, 197–8n3, 211 gunshot wounds 138, 142, 143, half-bricks 38 improvised explosive device (IED) 88–9, 93, 95, 177 killer robots 207 nail bombs 36, 38, 40 napalm bombs 56 nuclear annihilation 181 petrol bombs 36, 38 poisoning, chemical agent 6 Precision Guided Munitions (PGM) 207 rocket-propelled grenade 151 sarin gas 6 skunk bombs 127 stones 36, 38 water cannon 35, 127, 142 See also Bloody Sunday; Gaza Flotilla Incident Weber, Max 180 see also secretiveness West Bank 3 West Timor 52, 58, 60 whistleblowers 170–71, 180 Widgery Inquiry see Bloody Sunday Wiki Age 17, 18, 169–95 (Ch. 10) BlackBerry device, 1st 2002 192 definition 170 iPhone, 1st 2007 192 increasing transparency 181, 186, 195 information use, technological advance 170–1, 173, 177, 179, 184–5, 187, 192, 193, 195 secrecy / transparency balance 171, 192–5 trophies 171, 178 unauthorized disclosures 171, 187 World Wide Web 174, 182, 185 See also transparency; WikiLeaks WikiLeaks 176–7, 182, 185–7, 190, 192–4 ‘Collateral Murder’ (video) 176, 177 helicopter attack, Baghdad (2007) 176–7 WantToKnow.info 185

259

Wilford, Derek, Lt. Col. 35, 38, 41, 43–5, 47–8, 197n3 See also Bloody Sunday Williams case 74n6 Williams, Clive 17, 147–67 (Ch. 9 author) Wiranto (commander, Indonesian military) 64 witness protection 108, 115, 116, 117, 122 witnesses 40, 42, 45, 46–8, 63, 65, 112–17, 138, 141, 165, 166, 188, 199, 219 World Wide Web see Wiki Age Wuterich, Frank D. (Marine Staff Sgt.) 90, 93, 178 See also Haditha incident

Y Yarmouk, Tripoli military base 106 YouTube 174, 178, 191, 192 Yugoslavia Commission of Experts 119 See also Internation Commissions of Inquiry Yusuf, Mohammad (Minister for Defence, Commander, Indonesian Armed Forces) 58

Z Zafar (Brigadier General) 158 Zakerullah (insurgent) 151 Zapruder, Abraham 173 See also Canadian peacekeepers, Somalia