Malcolm Turnbull will give a formal national apology on October 22 to victims of child sexual abuse, as part of the federal response to the royal commission.
Outlining the government’s detailed response on Wednesday, the Prime Minister said that Western Australia had now agreed to sign on to the redress scheme so there will be a fully national scheme from July 1.
Victims will be entitled to up to A$150,000, with average payments of $76,000. The maximum is lower than the $200,000 recommended by the commission, but the average will be higher. There will be a low evidentiary standard.
The government will set up a new National Office for Child Safety within the Social Services department, which it says will “work across government and sectors to develop and implement policies and strategies to enhance children’s safety and prevent future harm”.
But Turnbull was unspecific when questioned at a news conference about how to deal with one current big issue of child safety – protecting at risk children in some Indigenous communities. There has been recent controversy about whether too many or too few children are being removed from families. The issue has been highlighted by some high profile alleged rapes.
Turnbull said he had discussed the problem with the Northern Territory chief minister.
Asked about the level of removal of children he said: “the safety of children has to be paramount. It’s difficult to generalise about this because every case is different.” He pointed to the duty of parents and neighbours to ensure children’s safety. “If you … believe a child is being abused, don’t turn a blind eye.”
The government has opened consultations on the content of the national apology and the form of the ceremony.
The commission made 409 recommendations. Of these 84 relate to redress matters. Of the remaining 325, 122 are directed wholly or partly to the federal government, which has accepted 104 of them. It has noted the other 18, which mostly overlap other jurisdictions and will need more consideration. It has not rejected any recommendation.
The government said in a statement it expected non-government institutions would indicate what action they would take on recommendations of the commission and report annually in December, along with all governments. The government will report its progress annually for five years with a comprehensive review after a decade.
“Where institutions decide not to accept the royal commission’s recommendations they should state so and why”.
Speaking at his news conference Turnbull said: “The survivors that I’ve met and the personal stories that have been told to me have given me but a small insight into the betrayal you experienced at the hands of the people and institutions who were supposed to protect and care for you.”
“Now that we’ve uncovered the shocking truth, we must do everything in our power to honour the bravery of the thousands of people who came forward.”
“The royal commission has made very clear that we all have a role to play to keep our children safe – governments, schools, sporting clubs, churches, charitable institutions and, of course, all of us.”
In addition, every state and territory has committed to join the National Redress Scheme. Australia’s major churches and youth organisations have also joined the scheme.
The timing of the announcement meets a commitment of the Council of Australian Governments to respond to the recommendations of the Royal Commission’s final report by June 2018. However, the apology, the lead item of this announcement, will not be issued until October 22, 2018, to coincide with national children’s week.
The Royal Commission made 409 recommendations in total. Of these, 84 deal with redress, which the government is addressing in the National Redress Scheme, due to commence next month. Of the remaining 122 recommendations directed at the Australian government, 104 have been accepted and 18 remain under review. None has so far been rejected.
Survivors of abuse consistently state that they want recognition and redress for the past harms and injustices that were done to them.
One of the most disturbing elements in the history of child sexual abuse is our capacity, as a society, to be in denial. As I have written elsewhere, we have myriad techniques of keeping disturbing knowledge at bay: there are many ways of not knowing.
We can deny that something happened, we can deny that we understood what happened, and we can deny the legal and moral implications that follow an event. All of these forms of denial are seen in the history of child sexual abuse.
Thankfully, all of these forms of denial were combated by the Royal Commission. You could say it was a momentous exercise in recognition: it brought horrific abuses into public consciousness; it treated survivors of abuse with great dignity and respect; and, it made a comprehensive series of recommendations to deal with the legal and moral implications of the public recognition of this history of abuse.
Through its 57 public case studies, 8,013 private sessions, and over 68,000 calls, letters and emails received, the commission established beyond any doubt the reality and the gravity of Australia’s history of institutional abuse.
Recognising this history brings legal and moral implications for its redress. So far, the government has responded with uncharacteristic alacrity in accepting and implementing the key recommendations of the Royal Commission.
But justice for historic offences is not simple, and I await with interest the responses of child sex abuse survivor groups to the government’s announcement.
For most people, justice looks like punishment for the guilty. The Royal Commission has referred over 2,500 matters to police for investigation. In recent times, we have seen some prominent cases go to trial, including the most senior Roman Catholic yet to face charges of child sex crimes, Cardinal George Pell.
The National Redress Scheme is the flagship instrument of redress emerging in the wake of the Royal Commission. Legislation has passed the lower house and is now before the Senate. It proposes average payments to victims of $76,000, with maximum payments of $150,000.
These amounts are lower than amounts typically awarded in civil courts in Australia, and significantly lower than settlements awarded in some international jurisdictions.
However, the lower standards of evidence required to be awarded a settlement through the redress scheme, relative to standards in criminal or civil law, and being able to avoid cross-examination in court, may make this option more attractive for many survivors. The redress scheme provides access to counselling and psychological services, and provides an option for survivors to receive a direct personal response from the responsible institution.
Australian jurisdictions are also reforming laws to make it easier to sue churches and other institutions.
The establishment of a National Office for Child Safety, along with a raft of national standards and safety frameworks, is heartening.
The fact is, though, that most of the institutions in which the majority of the historic abuse unearthed by the Royal Commission occurred no longer exist. The institutions of “care” run by churches and the states – orphanages, missions, boarding schools – have largely been disbanded.
Ironically, most current child removal and child trauma can be found at a site for which we have already had an apology, but for which redress has been woefully inadequate. The 1997 Bringing Them Home report into the Stolen Generations opened up public inquiry into child abuse in Australia.
The comprehensiveness of the Child Abuse Royal Commission, and the government’s promised response, is heartening. But as the Stolen Generations apology painfully illustrates, apologies without action become empty, bitter words.
Let’s hope that the apology to victims of institutional abuse, to be delivered in October, is well crafted, and sincerely delivered. And that substantial redress is delivered.
No one should be surprised that the Home Affairs department, with its ambitious minister Peter Dutton and his activist secretary, Mike Pezzullo, is feeling its oats. When Malcolm Turnbull granted Dutton his wish for a mega department, it was obvious how things would go.
Now we are seeing a power play which has set Dutton and Foreign Minister Julie Bishop at odds, and raised questions about striking the right balances in a cyber age that brings new threats but also new invasive technology to counter them.
The issue immediately at hand is whether Home Affairs can drag the Australian Signals Directorate – a defence-aligned organisation which spies electronically on foreign targets – into the fight against a broad range of crime in Australia.
As the head of ASD, Mike Burgess, succinctly put it in a draft note for Defence Minister Marise Payne, Home Affairs wants legislative change “to enable ASD to better support a range of Home Affairs priorities”.
The latest move, as documented in bureaucratic correspondence leaked last weekend – everyone assumes in order to blow up the proposal – came from Pezzullo. But Pezzullo was formalising a plan foreshadowed by Dutton as soon as he was sworn into the Home Affairs portfolio.
In December Fairfax reported Dutton saying that ASD would be used more in Australian investigations into terrorism, drug-smuggling, child exploitation and other cross-border crimes.
Put in the simplest terms, under the plan the Australian Federal Police, ASIO and similar agencies would collect the data, as they do now, while an empowered ASD could supply the technical capability to disrupt or prevent the crime online.
After publication of the leaked correspondence in the Sunday Telegraph, headlined “Secret plan to spy on Aussies”, Pezzullo, Defence Department secretary Greg Moriarty, and Burgess issued an opaque statement that, when you cut through the bureaucratise, indicated the option for a wider use of ASD was on the table.
Meanwhile Bishop told reporters “there is no plan for the government to extend the powers of the Australian Signals Directorate so that it could collect intelligence against Australians or covertly access private data”.
That would appear to be true, but it is also true Dutton had already flagged publicly a proposal to expand ASD’s remit, and the Burgess draft note clearly stated that the Home Affairs department had advised it was briefing its minister to write to the Defence Minister.
The fine distinction between expanding ASD powers but it not collecting intelligence on Australians is where the confusion lies, and that will need to be carefully laid out.
Bishop and Dutton have a record as sparring partners. The two ministers contrast in style but both are tough operators who don’t take a backward step. This is the second matter on which they’ve recently clashed – the other was Dutton’s desire to bring in white South African farmers on the basis they were subject to “persecution”.
Dutton, announcing this week AFP deputy commissioner Karl Kent as the first Transnational Serious and Organised Crime Coordinator within Home Affairs, told a news conference that the capacities of various agencies had to be looked at “including obviously … the capacity of ASD”.
Dutton stressed any change would have safeguards. “As for some claim that there’s going to be some spying taking place on Australian citizens, it’s complete nonsense,” he said.
“If there was to be any look at ways in which we could try and address the cyber threat more effectively, it would be accompanied by the usual protections, including warrant powers”, ticked off by the attorney-general or the justice system.
Defending his position on Thursday, Dutton talked about child exploitation, a guaranteed hot button, pointing out that people were conveying “images of sexual acts against children in live-streaming on the internet.
“We’ve got to deal with that threat. We have the ability, potentially, to disrupt some of those servers. At the moment the ASD … could disrupt that server if it was in operation offshore, but not if it was operating out of Sydney or Melbourne,” he said.
It is believed that Defence is unimpressed with the move on ASD, from July 1 a statutory agency but traditionally in its bailiwick. But it is Bishop who is most obviously taking the issue on, even though her portfolio is not directly involved.
For Bishop, the exercise has flouted the manner in which such a major bid for change should be handled, leaving most ministers blindsided.
Home Affairs’ case receives some support from a recent submission to the parliamentary joint committee on law enforcement by David Irvine, former head of ASIO and now chairman of the Cyber Security Research Centre, a body set up to promote industry investment in cyber security research.
Irvine writes: “Both national security threats and criminal activity exploit the internet in similar ways. Both need to be countered or managed using similar investigative tools and techniques.”
“Australia’s national capacity to counter threats and criminal activity using cyber investigative tools is relatively under-developed, uncoordinated and fragmented”, making it “difficult for agencies to cope with the pace of technical change,” he says.
Irvine argues for a new body to provide “expert technical cyber investigative services in support of law enforcement and national security investigations”, done by Commonwealth and state agencies.
He says such a body might fall within Home Affairs “but it would depend extensively upon the offensive and defensive cyber operational skills of the Australian Signals Directorate, and its offshoot the Australian Cyber Security Centre”.
The tug of war over ASD may have some way to run but with cyber risks becoming an increasing preoccupation, at this stage Dutton and Pezzullo appear to have a head start. It is now a question of where Malcolm Turnbull will come down. It is hard to see him saying no to Dutton.
But the implications of any extension of ASD’s remit should be fully debated sooner rather than later. As the Inspector-General of Intelligence and Security Margaret Stone wrote earlier this year, a change to ASD’s “focus for its covert or intrusive intelligence related activities to people and organisations inside Australia would be a profound one”.
The pros and cons of the Dutton bid need a lot of public airing before the government reaches a conclusion, rather than that conclusion being presented as a fait accompli.
According to the proposal, the government agency would licence, monitor and regulate production and sale, and regularly review the regulations. The agency would be the sole wholesaler, buying from producers and selling to retailers it licences.
The proposed policy includes some safeguards that reflect lessons we’ve learned from alcohol and tobacco. These include a ban on advertising, age restrictions, requiring plain packaging, and strict licensing controls. Under the proposal, tax revenues would be used to improve funding to the prevention and treatment sector, which is underfunded compared to law enforcement.
In Australia, cannabis possession and use is currently illegal. But in several states and territories (South Australia, ACT and Northern Territory) a small amount for personal use is decriminalised. That means it’s illegal, but not a criminal offence. In all others it’s subject to discretionary or mandatory diversion usually by police (referred to as “depenalisation”).
In a recent opinion poll, around 30% of Australians thought cannabis should be legal. Teenagers 14-17 years old were least likely to support legalistaion (21% of that age group) and 18-24 year olds were most likely to support it (36% of that age group).
Opponents of legalisation are concerned it will increase use, increase crime, increase risk of car accidents, and reduce public health – including mental health. Many are concerned cannabis is a “gateway” drug.
The “gateway drug” hypothesis was discounted decades ago. Although cannabis usually comes before other illegal drug use, the majority of people who use cannabis do not go on to use other drugs. In addition, alcohol and tobacco usually precede cannabis use, which if the theory were correct would make those drugs the “gateway”.
There is also no evidence legalisation increases use. But, studies have shown a number of health risks, including:
around 10% of adults and one in six teens who use regularly will become dependent
regular cannabis use doubles the risk of psychotic symptoms and schizophrenia
teen cannabis use is associated with poorer school outcomes but causation has not been established
driving under the influence of cannabis doubles the risk of a car crash
smoking while pregnant affects a baby’s birth weight.
What are the arguments for legalisation?
Australia’s official drug strategy is based on a platform of harm minimisation, including supply reduction, demand reduction (prevention and treatment) and harm reduction. Arguably, policies should therefore have a net reduction in harm.
But some of the major harms from using illicit drugs are precisely because they are illegal. A significant harm is having a criminal record for possessing drugs that are for personal use. This can negatively impact a person’s future, including careers and travel. Decriminalisation of cannabis would also reduce these harms without requiring full legalisation.
Reducing crime and social costs
A large proportion of the work of the justice system (police, courts and prisons) is spent on drug-related offences. Yet, as Mick Palmer, former AFP Commissioner, notes “drug law enforcement has had little impact on the Australian drug market”.
Decriminalisation may reduce the burden on the justice system, but probably not as much as full legalisation because police and court resources would still be used for cautioning, issuing fines, or diversion to education or treatment. Decriminalisation and legalistaion both potentially reduce the involvement of the justice system and also of the black market growing and selling of cannabis.
Economic analysis of the impact of cannabis legalisation calculate the net social benefit of legalisation at A$727.5 million per year. This is significantly higher than the status quo at around A$295 million (for example from fines generating revenue, as well as perceived benefits of criminalisation deterring use). The Parliamentary Budget Office estimates tax revenue from cannabis legalisation at around A$259 million.
Many see cannabis prohibition as an infringement on civil rights, citing the limited harms associated with cannabis use. This includes the relatively low rate of dependence and very low likelihood of overdosing on cannabis, as well as the low risk of harms to people using or others.
Many activities that are legal are potentially harmful: driving a car, drinking alcohol, bungee jumping. Rather than making them illegal, there are guidelines, laws and education to make them safer that creates a balance between civil liberties and safety.
What has happened in places where cannabis is legal?
Legalisation of cannabis is relatively recent in most jurisdictions so the long-term benefits or problems of legalisation are not yet known.
But one study found little effect of legalisation on drug use or other outcomes, providing support for neither opponents nor advocates of legalisation. Other studies have shown no increase in use, even among teens.
The research to date suggests there is no significant increase (or decrease) in use or other outcomes where cannabis legalisation has occurred. It’s possible the harm may shift, for example from legal harms to other types of harms. We don’t have data to support or dispel that possibility.
Amnesty International has released its latest figures on the use of capital punishment globally. In 2017, at least 993 executions were carried out in 23 countries. At least 2,591 death sentences were issued across 53 countries.
At the moment, at least 21,919 people are known to be facing death sentences around the world.
In some ways, bizarrely, these figures are a source of hope. Fewer executions were carried out and fewer death sentences passed in 2017 than in 2016. The year saw a reduction in the number of executions in cases of drug crime.
There is no remedy for execution if a person is later exonerated. Innocent people have been executed in the past and efforts continue to free wrongly convicted people from death row.
On a more pragmatic level, capital punishment lacks deterrent value. It is also a costly punishment to impose, at least in justice systems that seek to meet the requirements of a fair trial and the right to appeal.
As Amnesty reports, the countries that imposed capital punishment in 2017 represent a shrinking minority – 23 of 193 UN member states. Yet Amnesty’s report reveals some worrying truths, and demonstrates how far the world still has to go before the death penalty is abolished.
Gaps in the data
Some countries, most notably China, treat death penalty data as a state secret. For this reason, Amnesty International has not published estimated figures for the death penalty in China since 2009.
Yet it is reported that China executes more people annually than all the other retentionist countries worldwide. Amnesty International is confident that thousands of executions are carried out in China each year.
The Cornell Center on the Death Penalty Worldwide aims to provide comprehensive data on the global application of capital punishment, including for countries like China that do not release figures on executions.
Although the Cornell Centre also refrains from estimating figures for China, it concurs that China executes thousands of people each year, and issues thousands more death sentences. Unlike those retentionist countries that permit many levels of post-sentencing appeal, in China people are typically executed immediately after sentencing, or within two years.
Inconsistencies in application of capital punishment
Almost all executions carried out in 2017 were imposed in just five countries: China (estimated thousands), Iran (507+), Saudi Arabia (146), Iraq (125+) and Pakistan (60+). In each of these countries, there are peculiar aspects of the practice that highlight the challenges of promoting abolition where the death penalty is entrenched.
Amnesty reports that executions were carried out in China, Iran, Iraq and Saudi Arabia in cases where confessions were extracted through torture.
In China, while it is not common practice, some death sentences continue to be delivered in public. In Iran, public executions were carried out in at least 31 cases.
Both Iran and Saudi Arabia impose mandatory death sentences for some crimes, execute juveniles, and fail to meet minimum fair trial standards.
Several retentionist states impose the death penalty in cases that do not meet the “most serious crimes” threshold under international law. For example, some “capital” crimes in China, including bribery and embezzlement, would not attract the death penalty in other retentionist states.
In Iran and Pakistan, blasphemy and insult to the prophet of Islam are punishable by death. In Saudi Arabia, adultery can attract a death sentence. Iraqi law permits capital punishment for kidnapping.
Amnesty also raises concerns regarding aspects of the practice in countries such as the United States and Japan, both of which continue to execute people with mental illness and intellectual disability.
Drug crime and capital punishment
Of ongoing concern is the use of the death penalty in drug cases. Fifteen countries implemented or imposed capital punishment for drug crimes in 2017. Iran executed more than 200 people convicted of drug offences.
Australia took a strong public stand against the death penalty for drug offences when it sought clemency for “Bali Nine” members Andrew Chan and Myuran Sukumaran. Yet the pair were executed in April 2015, and Indonesia continued with drug-related executions in 2016.
Although fewer executions were imposed for drug crimes in 2017, extrajudicial killings have been commonplace in the Philippines’ “War on Drugs”. Under President Duterte’s inhumane anti-drug strategy, more than 12,000 Filipinos have been killed to date.
Harm Reduction International raises the concern that Duterte’s regime could be normalising the killing of people for drugs. Such a development could encourage the retention of the death penalty in drug cases in the Asia-Pacific region.
Australia’s advocacy for death penalty abolition
In the aftermath of Chan and Sukumaran’s executions, the Australian government was galvanised to review its advocacy for the abolition of capital punishment.
The subsequent parliamentary inquiry delivered 13 recommendations to enhance Australia’s advocacy, several of which I have discussed previously.
The government delivered its response to these recommendations in March 2017 (10 months after the inquiry report was published). Several recommendations were accepted or accepted “in principle”, with the government noting new or pre-existing efforts to undertake actions recommended by the committee.
However, the government did not accept the recommendation to amend Australian Federal Police (AFP) guidelines in ways designed to prevent future Bali Nine-type situations. It explicitly rejected the recommendation that the AFP refuse to share information with foreign law enforcement partners in relation to drug crimes, in the absence of guarantees that capital punishment would not be sought or imposed.
Australia has since been elected to the UN Human Rights Council for a three-year term. One of its voluntary pledges to the council was to continue strong advocacy for global abolition of capital punishment.
In order to meet this pledge, Australia could helpfully re-engage with the recommendations of the parliamentary inquiry. Australia can, and should, do more to contribute to the ongoing effort to achieve global abolition of capital punishment.
Research shows leaving an abusive relationship can be costly. This includes the cost of relocation (such as breaking a lease or finding alternative housing), medical and counselling bills, increased transportation costs due to moving house or loss of access to a car, as well as lost earnings – among other financial burdens.
Given this, financial hardship can bind women to abusive relationships. As such, the economic backing that ongoing employment supplies can be a critical factor in supporting women to leave abusive relationships. Continued employment can also serve to psychologically bolster victims.
The impact of violence on earnings and employment
Family violence can significantly impact lifetime earnings. This has flow-on effects for victims’ ability to live safe and healthy lives.
In Australia, approximately two-thirds of women experiencing domestic violence are in paid employment.
Research shows a significant correlation between the experience of domestic violence and reduced lifetime earnings. Some studies in the United States show a 25% loss in income associated with abuse.
As Adrienne Adams and her colleagues explain, “whether it is a few hours out of a day, a few days out of a week, or a few months out of the year, missed employment opportunities translate into lost income”.
Providing paid family violence leave means we’re not asking victims to choose between forgoing necessary support for the sake of financial security.
It also means that victims may be better able to weather the storm of domestic and family violence and may be more productive at work (although more research is required to assess this).
Providing family violence leave – and ensuring that it is paid – is a fundamental aspect of workplace support for victims.
Research also shows a symbiotic relationship between financial stress and rates of domestic violence. What people think about their own economic insecurity is closely associated with higher rates of domestic violence, according to one comprehensive study in the United States.
By failing to provide family violence leave we risk re-entrenching existing forms of disadvantage and failing to address a potential contributing factor to the persistent gender pay gap in this country.
a coordinated campaign of cyber intrusions into computer systems belonging to 144 US universities, 176 universities across 21 foreign countries, 47 domestic and foreign private sector companies … [and] the United Nations…
History suggests that this response is unlikely to deter future attacks, and that counter-attacks are a more effective strategy. But would it be justified? Current international law focuses on armed attack, not cyber attack as a justification for state action taken in self-defence.
As cyber attacks become more common, international law needs to clear up this grey area.
How they did it and what was taken
The indictment alleges that defendants Gholamreza Rafatnejad and Ehsan Mohammadi are founders of Mabna Institute – an organisation established for the purpose of scientific espionage. Mabna is alleged to have contracted with Iranian governmental agencies (including the Islamic Revolutionary guard) to conduct hacking on their behalf.
The defendants allegedly engaged in a conspiracy to compromise computer accounts of thousands of professors to steal research data and intellectual property, costing the US approximately US$3.4 billion. They allegedly conducted surveillance and sent professors targeted “spearphishing” emails to lure them into providing access to their computer systems.
Valuable data was transferred from the compromised IT systems to the hackers, according the the indictment. Over 100,000 professors were apparently targeted and approximately 8,000 email accounts compromised.
Private companies were also targeted – none Australian – via “password spraying”, said the US Department of Justice. This is a technique whereby the attacker identifies the email accounts of a target via public search and gains access to the account using common or default passwords.
The prosecution is a necessary, but insufficient response to these cyber attacks.
The defendants are based in Iran and are unlikely to be brought to justice. Previously, US prosecutors have charged Iranian hackers with attacks against financial institutions and a dam in New York to no avail.
Rogue states such as Iran, Russia, and North Korea are only likely to be deterred against conducting cyber attacks if their targets have robust self-defense and counter-attack capabilities. However, the legal status of cyber attacks and the appropriate responses are not clear in international law.
Under the UN Charter, states have an obligation to refrain “from the threat or use of force against the territorial integrity or political independence of any state”. Crucially, states possess an “inherent right of individual or collective self-defence if an armed attack occurs”.
The key questions then are whether a cyber attack amounts to a “use of force”, whether hacking attributable to a state amounts to an “armed attack”, and if a cyber attack violates “territorial integrity”. Traditionally, international law has answered these questions with reference to acts of physical violence – conventional military strikes.
It’s likely that a large scale cyber attack against a state that has physical consequences within its territory may be characterised as a “use of force”, and may violate “territorial integrity” under the charter. For instance, attacks that turn self-driving cars into weapons, knock out nuclear stations or paralyse the power grid might reach this threshold.
But what if the attack is designed to sow confusion or generate internal discord, such as in the case of Russian hacking of the US election? Or attacks directed beyond a particular country? This is a harder question and not settled currently. Similarly, it’s not certain that even large scale hacking would rise to the level of an “armed attack”.
Precedent in international law
In 1984, Nicaragua brought proceedings against the US in response to American support for the Contras (rebels fighting the government). In that case, the International Court of Justice (ICJ) opined that armed attack might also include:
the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces.
Crucially, the ICJ underlined the principle of non-intervention:
Intervention is wrongful … [using] methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State.
Based on the Nicaragua case, if a cyber attack has sufficient “scale and effects” it may amount to an armed attack. More importantly, if the attacks are attributable to a state (in this case the Islamic Revolutionary Guard) – or are within its overall or effective control or direction – it would appear that the armed attack would give rise to the right to self-defence.
However, this may be difficult to establish in practice – there may not be sufficient evidence connecting the hacker to the state to show control, and hence attribution.
So, what are the permissible self-defence responses under international law? Could the US launch military strikes against Iran or Russia for these incidents if they are found to be behind these attacks? The legality of such strikes is not clear even though the US might claim such status.
The international community should set bright line rules on this matter before an expansive reading of self-defence triggers war. The NATO Cooperative Cyber Defence Centre of Excellence’s Tallinn Manual 2.0 is a start, but a binding instrument is needed. John Bolton’s appointment as US President Donald Trump’s National Security Advisor makes this an urgent priority because a military strike in response to the next major cyber attack is a realistic prospect.
They are on the frontlines of any major conflict or disaster – but how much is known about the daily experiences of humanitarian workers in these extreme situations? In their new book, Génocide et crimes de masse. L’expérience rwandaise de MSF (“Humanitarian Aid, Genocide and Mass Killings: Médecins sans frontières, the Rwandan experience, 1982-97”), Marc Le Pape and Jean-Hervé Bradol set out to answer some of these questions. The book is also informed by Bradol’s experience of working for Médecins Sans Frontières in Rwanda during the genocide. Here, they discuss their findings.
You investigated humanitarian operations in the Great Lakes region between 1990 and 1997. This was a period of extreme violence against Rwandophone populations. You specifically looked at the records of Doctors Without Borders in Paris. What did you hope to learn?
Marc Le Pape: The actual day-to-day work of humanitarian teams in situations of extreme violence is generally little known and understood. That’s why our investigations focussed on messages from the field, while most studies are far more concerned about getting the macro-political or macro-humanitarian picture. Taking a “micro” perspective meant we could observe the long-term evolution of operations: how, and with whom, did teams need to negotiate to launch and maintain operations?
So we looked at how these teams got information and communicated with political and military authorities, various local authorities, UN agencies in the Great Lakes region, local and international NGOs, religious leaders and people at emergency sites, in medical facilities and camps.
We also looked at the relationship between the field of operations, national capitals and the various Doctors Without Borders head offices. We tracked field accounts transmitted up the chain of command, how the organisation’s head offices reacted to the stories of violence, intimidation and prohibitions, and the way these were then framed and talked about publicly.
For example we examined all the documents, from internal alerts to public statements, demonstrating the gradual realisation of humanitarian workers in Rwanda in 1994 that they were witnessing the systematic, organised extermination of the Tutsi people.
Did humanitarian workers witness extreme violence?
Jean‑Hervé Bradol: It’s shocking to see, from 1994 onwards, the extent to which humanitarian workers became regular eyewitnesses to violence, murder and large-scale massacres. It is generally rare for humanitarian workers to witness these kinds of events. They typically work at a distance from mass killing sites and the perpetrators remain largely anonymous. This was not the case in Rwanda.
The situation in April 1994 was extreme and basically unprecedented, at least for Doctors Without Borders. Humanitarian workers where present when the decision was made as to who would die and who would be spared. Some Rwandan staff members were among the victims. Others were complicit, or even participated in these crimes.
Can you give a few examples of the violent situations Doctors Without Borders workers witnessed and what kind of lessons were learned – or not?
Jean‑Hervé Bradol: In April 1994 I was working in Kigali. In the first few days following the assassination of former president Juvénal Habyarimana, we braced ourselves for a massive eruption of violence. We thought there would be reprisals against the Tutsi, but never imagined that the order would be to “kill them all”.
Our team quickly realised that, at least in Kigali, the extermination of the Tutsi did not arise from chaos; instead, it was organised. Others also rapidly grasped the situation, in particular the head of the International Committee of the Red Cross delegation. It was awful. We knew the army was providing arms to the militia groups manning the road blocks. This made it extremely dangerous to evacuate wounded Tutsi adults to the Red Cross hospital: when they were caught, they were executed.
Later, Doctors Without Borders workers also witnessed first-hand the horror of the prisons in Rwanda. Between September 1994 and May 1995, they worked in Gitarama, where 3,000 prisoners were incarcerated in a complex built for 400 detainees. Some 800 prisoners died during this period. These people were arrested based solely on hearsay. We were their doctors, so we could not escape the realities of the new regime’s policy and the crimes committed by the former rebels.
Among other shocking crimes committed by the new authorities was the Kibeho massacre in April 1995. The new Rwandan (formerly rebel) army killed several thousand people in an internally displaced persons refugee camp in front of a Doctors Without Borders medical team. People convinced themselves that one mass crime, the Tutsi genocide, could hide other mass crimes committed by the new government.
As a sociologist, did you learn things that you had not realised were important to aid NGOs?
Marc Le Pape: I learnt the extraordinary importance of counting populations: the numbers of people in camps and on the run, of victims and of people being treated.
Conducting frequent counts is of course crucial for humanitarian organisations, especially when they need to know how many supplies to bring to the field. In the case of emergency NGOs, counts are also politically important to back up first-hand accounts, ensure that the murders they have witnessed are documented, and oppose competing statements that claim to be based on figures.
This interview is published as part of the work of the “Violence and exiting violence” platform (Foundation Maison des sciences de l’homme), of which The Conversation France is a partner. It was translated from the French by Alice Heathwood for Fast for Word.
The Royal Commission into Institutional Responses to Child Sexual Abuse has performed its task magnificently. Its scale, complexity and quality is unprecedented. Its work is already being acknowledged internationally as a model of best practice.
As a nation, we can be proud of the commissioners and their staff. We should acclaim the courage of all survivors, including those who informed the commissioners about their experiences, and we should honour those who have not lived to see this day.
We must recognise the integrity and strength of those who advocated for the inquiry, including survivors, their families, journalists and police. We should applaud former prime minister Julia Gillard for initiating the commission, and the current federal government for ensuring it was adequately resourced.
But this is not the end. The real work begins now. Australian governments and major social institutions now have not only the opportunity, but the responsibility, to create lasting social change. Their responses will be monitored here, including through requirements to report on their actions, and around the world.
The royal commission’s impact
This watershed inquiry has created the conditions for a seachange in how society deals with child sexual abuse in institutions, which can flow to our treatment of sexual abuse in other settings.
Our society’s leaders can build progress from the pain of former failings. Not meeting this responsibility would surely stick as a lifelong regret for those in positions to cement change. Fulfilling this imperative can leave a legacy of which these government and institutional leaders can be proud.
Substantial progress has already been made. The commission’s earlier reports have influenced important changes to civil justice systems, criminal justice systems, organisational governance, and prevention, including situational prevention in child and youth-serving organisations.
The Child Safe Standards now promoted by the commission are substantially embedded in legislation in several states, requiring organisations to adopt comprehensive measures to prevent, identify and respond appropriately to child sexual abuse.
Civil laws have been amended in most jurisdictions to allow claims for compensation, holding individuals and organisations accountable.
In some states, new requirements to report known and suspected cases apply through special “failure to report” and “failure to protect” offences in criminal laws. They also apply through separate reportable conduct schemes that add essential independent external oversight.
Yet much remains to be done. The reforms already made in some states must be adopted elsewhere to create national consistency.
Accountability of individuals and organisations is essential to create cultural change, and needs to be achieved through both civil systems (such as following Western Australia’s recent bill enabling lawsuits against organisations that previously could not be sued, such as the Catholic Church), and criminal systems (for example, prosecuting those who harbour offenders, and removing criminal law principles that compromise criminal prosecutions).
Other state and territory mandatory reporting laws need to be harmonised, as recommended by the commission. Many of the commission’s new 189 recommendations are rightly directed towards prevention, especially through the Child Safe Standards, including their requirements for education, codes of conduct, situational prevention, and the commitment required of organisations’ leadership.
We must focus our efforts on the future, but we must also ensure we properly deal with the past. Perhaps the single most important aspect of this is the redress scheme.
What happens now with redress?
The national redress scheme is behind schedule and must be finalised with sufficient funding, and government and institutional commitment.
The bill for the scheme remains before parliament, awaiting a committee report due in March 2018. It is yet to receive the commitment of all states, territories, and relevant organisations.
The commission recommended the scheme be operational by July 1, 2017, with an upper cap of A$200,000 and an average redress payment of $65,000. Under the bill, the scheme’s cap is $150,000, substantially below the recommendation, and even further below the average payment awarded in Ireland of more than €60,000 (about A$92,200). In Ireland, the highest payment was more than €300,000 (about A$461,000).
The Australian scheme contains three elements. First, a monetary payment as tangible recognition of the wrong suffered by a survivor. Second, access to counselling and psychological services (estimated at an average of $5,500 per person). Third, if requested, a direct personal response from the responsible institution(s), such as an apology.
Not all survivors will apply to the scheme, as many are not financially motivated. However, it is an essential part of a healing response. This has been shown internationally in Canada, Ireland and elsewhere.
Redress schemes are more flexible and speedy, with less formality and cost, and less trauma and confrontation, than conventional legal proceedings. Payments are not intended to replicate the amount that would be payable under a formal civil compensation claim, and instead are far lower.
Accordingly, institutions should recognise the lower financial commitment required to discharge their ethical obligation to participate compared with their liability in formal civil compensation amounts, especially since recent reforms to civil statutes of limitation have removed time limits and allow a claim to be commenced at any time.
Ten key aspects of the proposed Australian scheme are:
People are eligible to apply to the scheme if they experienced sexual abuse in an institution while they were a child, before July 1, 2018.
A lower evidentiary threshold applies, meaning that eligibility for a redress payment is assessed on whether there was “a reasonable likelihood” the person suffered institutional sexual abuse as a child.
Applicants who have received redress under another scheme or compensation through a settlement or court judgment are still eligible, but prior payments by the institution will be deducted from the amount of redress.
Only one application per person can be made; where a person was abused in more than one institution, provisions enable the decision-maker to determine the appropriate share of each institution.
Applicants can access legal assistance to help determine whether to accept the offer of redress.
A person who accepts an offer of redress must sign a deed of release, meaning the institution(s) responsible for the abuse will not be subject to other civil liability.
Payments are not subject to income tax.
Reviews of decisions are limited to internal review, and not to merits review or judicial review.
Criminal liability of offenders is not affected.
The scheme is intended to open on July 1, 2018, and operate for ten years; applications need to be made at least 12 months before the closing date of June 30, 2028.
Five further factors need to be accommodated by the scheme to ensure it functions properly and complies with the clear recommendations of the royal commission.
The upper cap should be $200,000 to ensure sufficient recognition of severe cases.
To ensure equal access to the scheme, legal assistance must be made available to assist people in making applications.
Governments and institutions should opt in as soon as possible and commit resources to discharge their duty to participate in the scheme.
Governments – federal or state – should be the funder of last resort in all cases where the institution is unable to reimburse the Commonwealth (for example, where the institution no longer exists, or lacks resources to participate).
The method of determining the amount of the payment, based on the severity of the abuse, its impact, and other relevant factors, must be made available as soon as possible so it can be adequately debated.
The commission’s work contributes a historic, international legacy. The sexual abuse of children in institutions will be revealed in more nations in coming years. This will involve some of the same religious institutions in which it has been found here to be so prevalent, and so heinously concealed and facilitated. Simply due to population, countless children will be shown to be affected.
For this reason, our governments and institutions must now ensure their actions add to the royal commission’s example, and demonstrate to other countries how civilised societies should respond.