Why Australia should face civil lawsuits over soldier misdeeds in Afghanistan


Tim Matthews, University of Sydney and John Eldridge, University of Sydney

For the past two years, Paul Brereton, a New South Wales Supreme Court judge and Army Reserve major general, has been conducting an investigation into the conduct of members of the SAS in Afghanistan. While the findings are not yet known, leaks from within the Australian Defence Force (ADF) have suggested that as many as five cases involving unlawful killings have been uncovered.

Much of the media commentary surrounding the allegations has centred on the potential criminal prosecution of these alleged offences. But a further legal issue can arise from investigations of this kind – the alleged victims (or their families) might bring civil claims against Australia’s armed forces, seeking compensation for their suffering.




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Cases of this kind have occurred in other countries. In the United States, a number of high-profile habeas corpus petitions have been filed against the government by people who claim they were unlawfully detained by US armed forces on suspicion of being insurgents in Iraq and Afghanistan.

Claims for damages have also been successfully brought by former Iraqi detainees against private military contractors over their alleged torture at Abu Ghraib prison in Iraq.

British courts are also currently considering a number of civil suits arising out of British involvement in the conflicts in Iraq and Afghanistan.

One of those claimants, Yunus Rahmatullah, was arrested by British forces in Iraq in 2004 on suspicion of being a member of Lashkar-e-Taiba, a terrorist organisation with links to al-Qaeda. He was “rendered” by British forces to the custody of the US army in Afghanistan, where he was detained for over ten years without charge or trial and, he alleges, tortured.

Rahmatullah denies ever being a member of a terrorist organisation. He has made a well-publicised claim for compensation from the UK government, under the country’s Human Rights Act.

Why are civil claims against soldiers controversial?

We are all exposed to potential civil liability in our day-to-day lives. If we drive negligently and cause an accident, for instance, we may find ourselves liable to pay compensation to those we have harmed. The same is true of public institutions and authorities, such as hospitals and the police. Few would suggest this is unfair or unreasonable.




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However, the extension of civil liability to the armed forces is controversial. Former Army officer Bill O’Chee, for instance, recently argued forcefully against such liability:

Service personnel who commit crimes are already subject to military criminal proceedings, and this is rightly so. However, exposing them to claims for personal injury claims would be perverse and entirely unjust.

The very idea that highly paid lawyers in comfortable courts in Australia can understand, let alone litigate these cases, is fanciful at best.

How absurd it would be for our servicemen and women to be subjected to damages claims in these circumstances, let alone be asked to find the money for legal costs and a possible damages order against them.

Should these civil claims be permitted?

Such civil liability claims have never been brought against individual ADF personnel in Australia before. This would be new legal territory. And nobody is seriously suggesting these soldiers should personally bear the burden of defending civil claims arising from the Afghanistan and Iraq wars. Rather, any potential claims are likely to be defended by the Commonwealth.

This is the way civil claims against police officers in Australia are typically resolved. In such cases, individual officers will often be required to give evidence as to their version of events. Yet the costs of defending the case, and the compensation (if any) paid to the plaintiff, are borne not by the individual officers, but by the relevant public authority.

Despite the controversy surrounding them, there are still good reasons to allow civil claims of this kind to proceed.




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First, criminal and civil claims serve different purposes. A successful criminal prosecution may leave a victim with a feeling of vindication, but it typically does not result in monetary compensation. As a result, it may matter little to victims or their families if the soldiers responsible are professionally disciplined, since they may receive no compensation for their loss.

Secondly, the notion that civilian courts are not competent to adjudicate on military matters is seriously problematic.

Nobody could deny that military personnel are forced to carry out their duties in extremely difficult conditions. It is also true that many lawyers and judges have difficulty appreciating the fraught circumstances in which military decision-making occurs.

But the answer to these difficulties is not the abandonment of such claims altogether. Judges are often faced with the task of making difficult decisions about matters on which they are not experts. Civil justice would simply not work if courts threw up their hands whenever they were faced with such challenges.

Greater accountability for the military

Finally, if the Commonwealth were somehow able to avoid liability for potential civil damages in these types of cases, the ADF may have less incentive to conduct military operations in ways that safeguard the rights of civilians caught in conflict zones.

Given the limited accountability for military decision-making in the public sphere, the possibility of accountability in a civil court would promote stricter adherence to international conventions on war.

Many of the victims who may bring claims of this kind are unlikely to excite public sympathy. For example, one of the claimants in the UK cases, Serdar Mohammed, was arrested while leaving a ten-hour firefight with British troops, discarding a rocket-propelled grenade launcher and ammunition on his way.

The ConversationBut we shouldn’t allow our moral judgement of claimants like Mohammed to erode our commitment to the rule of law. Public authorities, and especially our armed forces, should be held accountable for their actions to the limits imposed by law.

Tim Matthews, Sessional Academic, Law School, University of Sydney and John Eldridge, Lecturer, Sydney Law School, University of Sydney

This article was originally published on The Conversation. Read the original article.

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Turnbull government to give national apology to victims of child sexual abuse


Michelle Grattan, University of Canberra

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 Conversation“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.”

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Government response to child abuse royal commission is positive, but will need to go beyond an apology



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Attorney-General Christian Porter, Prime Minister Malcolm Turnbull and Australian Minister for Social Services Dan Tehan announce the government’s response to the child abuse royal commission.
AAP/Lukas Coch

Timothy W. Jones, La Trobe University

The federal government has announced it will establish a National Office for Child Safety and issue a formal apology as part of its response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

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.




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Survivors of abuse consistently state that they want recognition and redress for the past harms and injustices that were done to them.

Recognition

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.

Redress

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.




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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.

Apology

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.

The ConversationLet’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.

Timothy W. Jones, Senior Lecturer in History, La Trobe University

This article was originally published on The Conversation. Read the original article.

Grattan on Friday: Peter Dutton’s bid for more crime-fighting power has bought him a fight


Michelle Grattan, University of Canberra

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 ConversationThe 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.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Legal highs: arguments for and against legalising cannabis in Australia



File 20180417 32339 16n0gjo.jpg?ixlib=rb 1.1
Many of the harms associated with cannabis use are to do with its illegality.
from http://www.shutterstock.com

Nicole Lee, Curtin University and Jarryd Bartle, RMIT University

Greens leader Richard Di Natale wants Australia to legalise cannabis for personal use, regulated by a federal agency. This proposal is for legalisation of recreational use for relaxation and pleasure, not to treat a medical condition (which is already legal in Australia for some conditions).

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.




Read more:
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Cannabis legislation around the world

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”).

Several jurisdictions around the world have now legalised cannabis, including Uruguay, Catalonia and nine states in the United States. Canada is well underway to legalising cannabis, with legislation expected some time this year, and the New Zealand prime minister has flagged a referendum on the issue.

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).




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In the latest National Drug Strategy Household Survey, around a quarter of respondents supported cannabis legalisation and around 15% approved of regular use by adults for non-medical purposes.

What are the concerns about legalisation?

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”.




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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?

Reducing harms

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.




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Assessing the costs and benefits of legalising cannabis


Raising tax revenue

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.

Civil liberties

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 ConversationThe 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.

Nicole Lee, Professor at the National Drug Research Institute, Curtin University and Jarryd Bartle, Sessional Lecturer in Criminal Law, RMIT University

This article was originally published on The Conversation. Read the original article.

Despite a reduction in executions, progress towards the abolition of the death penalty is slow



File 20180413 105522 c5joqk.jpg?ixlib=rb 1.1
At the moment, at least 21,919 people are known to be facing death sentences around the world.
Shutterstock

Amy Maguire, University of Newcastle

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.

According to Amnesty, these developments:

…confirmed that the world has passed a tipping point and that the abolition of the ultimate cruel, inhuman and degrading punishment is within reach.

Why should the world move towards death penalty abolition?

From a human rights perspective, capital punishment is indefensible. It violates the right to life. It constitutes a cruel and inhuman punishment.

Capital punishment can also be regarded as torture, both in terms of the methods used and the years that many prisoners spend waiting on death row. Torture is prohibited under international law.




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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.




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As Indonesia conducts more executions, Australia’s anti-death-penalty advocacy is still lacking


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.

The ConversationIn 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.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Why family violence leave should be paid


Kate Farhall, RMIT University

Five days unpaid family violence leave is a significant improvement over no guaranteed leave at all. But research shows that finances and domestic violence are inextricably linked.

Access to a steady income can mitigate the effects of violence and provide avenues out of abuse. Paid family violence leave is one tool to achieve this.




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Infographic: A snapshot of domestic violence in Australia


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.

The Australian Council of Trade Unions places the total figure at around A$18,000.

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.

Victims of domestic violence also experience higher rates of part-time and casual work, lower retirement savings and a lack of job stability. Many lose their jobs as a direct result of violence.

The effects of violence are not only felt while the abuse is ongoing, but can reverberate for at least afurther three years after the violence has stopped.

This also has substantial consequences for career progression and therefore potential future earnings.




Read more:
Paid domestic violence leave: how do other countries do it?


Victims of domestic violence are also more likely to experience food insecurity, to struggle to find affordable housing and cover the basic essentials like utility bills.

Domestic violence victims are also more likely to experience anxiety over their ability to support their children, even as compared to others on a low income. In fact, all of this is intensified for low-income women.

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.




Read more:
Out of the shadows: the rise of domestic violence in Australia


Paid domestic and family violence leave only represents one aspect of a comprehensive response that workplaces can provide, yet it is a substantial one.

The ConversationThe argument that paid domestic violence leave will negatively impact employers fails to take into account actual patterns of usage, so the potential benefits seem to far outweigh the costs.

Kate Farhall, Postdoctoral research fellow, RMIT University

This article was originally published on The Conversation. Read the original article.

Is counter-attack justified against a state-sponsored cyber attack? It’s a legal grey area



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The US has charged and sanctioned nine Iranians and an Iranian company for cyber attacks.
Parmida Rahimi/Flickr, CC BY-SA

Sandeep Gopalan, Deakin University

On March 23, the US Department of Justice commenced perhaps the largest prosecution of a state-sponsored cyber attack. It indicted nine Iranians for carrying out:

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…

At least 31.5 terabytes of data was allegedly stolen and Australian universities were targeted, although specific institutions are not named.

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.




Read more:
Following the developing Iranian cyberthreat


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.

Prosecution is an insufficient response

The defendants are charged with committing fraud and related activity in connection with computers, conspiracy, wire fraud, unauthorised access of a computer, and identity theft. Each charge carries a prison sentence ranging from two years to 20 years.

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.

And hacking has escalated – the US accused Russia of compromising the US electricity grid and attacks against other countries are also alleged.

Counter-attack a better deterrent

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”.




Read more:
Cybersecurity of the power grid: A growing challenge


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.




Read more:
Cyber peacekeeping is integral in an era of cyberwar – here’s why


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 ConversationThe 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.

Sandeep Gopalan, Pro Vice-Chancellor (Academic Innovation) & Professor of Law, Deakin University

This article was originally published on The Conversation. Read the original article.

Living through the horrors of genocide: humanitarian workers in Rwanda



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The genocide memorial in Kigali. Humanitarian workers in Rwanda had to deal daily with the horrors of war.
Trocaire/Flickr, CC BY-ND

Marc Le Pape, École des hautes études en sciences sociales (EHESS) and Jean-Hervé Bradol, Fondation Maison des Sciences de l’Homme (FMSH) – USPC

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.


The ConversationThis 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.

Marc Le Pape, sociologue (Institut des mondes africains), École des hautes études en sciences sociales (EHESS) and Jean-Hervé Bradol, Médecin, Fondation Maison des Sciences de l’Homme (FMSH) – USPC

This article was originally published on The Conversation. Read the original article.