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.
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 numberofcivil 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.
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.
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.
But 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.
When Malcolm Turnbull sits down in the White House later this month for the Australian prime minister’s first substantive discussion with Donald Trump on American soil, Afghanistan will almost certainly be part of the conversation.
Whatever is said – and agreed – about that conflict, neither the Americans nor the Australians have much cause for satisfaction over progress in efforts to stabilise that country.
As 2017 gave way to a new year, the news from Afghanistan for the NATO-led effort to counter the Taliban, and other militant groups, was mostly bad.
Terrorist attacks in Kabul and other cities, which killed more than 100 people and wounded dozens in the first weeks of 2018, underscored the lack of progress in establishing a stable environment. Afghanis are losing confidence in the ability of US-backed Afghan security forces to hold insurgents at bay.
This lessening certainty in an Afghan administration, propped up by America and its allies, including Australia, has serious implications for the future of the country and the conduct of what is now America’s longest war.
All this makes it notable that Trump, in his State of the Union address, devoted just 40 words to the Afghan conflict, in contrast to other foreign and security policy preoccupations, inclduing America’s campaign against Islamic State (IS).
This is what he said about a war that has outstripped by half a decade America’s previous longest war, in Vietnam:
As of a few months ago, our warriors in Afghanistan have their new rules of engagement. Along with their heroic Afghan partners, our military is no longer undermined by artificial timelines, and we no longer tell our enemies our plans.
That was it. It was as if Washington had resolved not to talk about a war that shows no sign of an endpoint, although it could be observed Taliban advances are creating what might prove to be an inflection moment.
Whether this will lead to a more concerted push to engage the Taliban in a regional settlement remains moot. However, it is hard to envisage an end to the Afghan nightmare without some sort of Taliban involvement, unpalatable though that may seem.
Robert Malley, newly appointed head of the International Crisis Group, sharply criticised US Afghanistan strategy in an assessment of 2018 trouble spots. He wrote:
The strategy faces serious obstacles. While hitting the Taliban harder might bring tactical gains, it is unlikely to change the war’s course or the incentives of a locally rooted and potent insurgency … Battlefield losses in the past have not impacted Taliban leaders’ willingness to negotiate.
And then this:
As the battlefield tempo increases, the Trump administration should keep lines of communication to the insurgency open and explore the contours of a settlement with Afghanistan’s neighbors and other regional powers, however slim prospects currently appear. US allies in Afghanistan should push for a greater diplomatic political component to the US strategy. As it stands, that strategy sets the stage for more violence while closing avenues for de-escalation. Afghan civilians will pay the price.
All this has been further complicated by growing IS and al-Qaeda involvement in the conflict, with those entities seeking alternative battlefields to Iraq and Syria.
Suspicions Iran and Russia are providing some level of support to the Taliban are adding to concerns. America’s estrangement from Pakistan – Trump has taken Islamabad to task for not doing more to combat the Taliban – is compounding an already fraught environment.
To say that Afghanistan in 2018 is a witch’s brew would be an understatement.
What seems clear is that the Trump administration and its allies are conducting something of a holding operation in the hope that a protracted war plays itself out. This strategy might be placed in the faint hope category, given Afghanistan’s history of resisting foreign involvement going back to the armies of Alexander the Great.
Trump might have escalated the conflict by freeing up local American commanders to fight more aggressively, but it is not clear this is paying dividends, given the level of violence that is manifesting itself.
American sensitivity about progress – or lack thereof – in the war was exposed recently when the its own ombudsman, the Special Inspector General for Afghanistan Reconstruction (SIGAR), reported it had been ordered not to report details of how much territory was under the control of the Afghan government or insurgents.
Information released to CNN by US forces in Afghanistan indicates that 56% of districts were under government control or influence in October. A further 30% is contested, with the balance under the influence of militant groups, including the Taliban.
These figures indicate a significant slippage since 2015, when the government controlled about 72% of the country, and insurgents 7%.
On top of territory yielded to the insurgency, more than 7,000 members of the Afghan security forces were killed last year. This is an attrition rate that would be demoralising in any circumstances.
In an assessment for Foreign Affairs, former commander of US forces in Afghanistan, Stanley McChrystal, observed that Taliban “presence and influence are likely at their highest levels since the group lost power in 2001”.
Last August, Trump announced a revamped strategy in Afghanistan, which included a commitment of additional forces. Numbers were not specified at the time, but are in the order of 4,000, taking the American involvement to 16,000.
This compares with 100,000 at the time of Barack Obama’s “surge” in 2009, which was intended to deal a killer blow to the Taliban. This has not materialised. As noted, the Afghan government has been losing ground since the US wound back its commitment in 2011.
From now on, victory will have a clear definition: attacking our enemies, obliterating ISIS, crushing al-Qaeda, preventing the Taliban from taking over Afghanistan, and stopping mass terror attacks against America before they emerge.
This prompted the following observation from analyst Max Boot of the Council on Foreign Relations:
The Trump administration has concluded that it can live with a situation that even US generals describe as a ‘stalemate’, because the cost of victory – sending hundreds of thousands of additional troops – is too high for the United States to pay and might be impossible to achieve in any case, given that the Taliban continue to enjoy outside support, not only from Pakistan but also from Iran and Russia. In short, a war that started 16 years ago will continue indefinitely with no victory in sight, because from Washington’s perspective there is simply no viable alternative.
In response to the Trump speech, including the president’s unwillingness to set a timeline for an end to America’s involvement, Malcolm Turnbull observed the “coalition commitment to Afghanistan … would be very long-term”.
This might be regarded as an understatement on the eve of Turnbull’s visit to Washington, where the subject of Australian troop levels in a training capacity in Afghanistan will almost certainly arise.
Since announcing its arrival as a global force in June 2014 with the declaration of a caliphate on territory captured in Iraq and Syria, the jihadist group Islamic State has shocked the world with its brutality.
Its seemingly sudden prominence has led to much speculation about the group’s origins: how do we account for forces and events that paved the way for the emergence of Islamic State? In the final article of our series examining this question, Greg Barton shows the role recent Western intervention in the Middle East played in the group’s inexorable rise.
Despite precious little certainty in the “what ifs” of history, it’s clear the rise of Islamic State (IS) wouldn’t have been possible without the 2003 invasion and occupation of Iraq. Without these Western interventions, al-Qaeda would never have gained the foothold it did, and IS would not have emerged to take charge of northern Iraq.
Whether or not the Arab Spring, and the consequent civil war in Syria, would still have occurred is much less clear.
But even if war hadn’t broken out in Syria, it’s unlikely an al-Qaeda spin-off such as IS would have become such a decisive actor without launching an insurgency in Iraq. For an opportunistic infection to take hold so comprehensively, as IS clearly has, requires a severely weakened body politic and a profoundly compromised immune system.
Such were the conditions in Goodluck Jonathan’s Nigeria from 2010 to 2015 and in conflict-riven Somalia after the fall of the Barre regime in 1991. And it was so in Afghanistan for the four decades after conflict broke out in 1978 and in Pakistan after General Zia-ul-Haq declared martial law in 1977.
Sadly, but even more clearly, such are the circumstances in Iraq and Syria today. And that’s the reason around 80% of all deaths due to terrorist attacks in recent years have occurred in five of the six countries discussed here, where such conditions still prevail.
An unique opportunity
The myth of modern international terrorist movements, and particularly of al-Qaeda and its outgrowths such as IS (which really is a third-generation al-Qaeda movement), is that they’re inherently potent and have a natural power of attraction.
The reality is that while modern terrorist groups can and do operate all around the globe to the point where no country can consider itself completely safe, they can only build a base when local issues attract on-the-ground support.
Consider al-Qaeda, which is in the business of global struggle. It wants to unite a transnational ummah to take on far-off enemies. But it has only ever really enjoyed substantial success when it has happened across conducive local circumstances.
The Soviet occupation of Afghanistan in the 1980s provided an opportunity uniquely suited to the rise of al-Qaeda and associated movements. It provided plausible justification for a defensive jihad – a just war – that garnered broad international support and allowed the group to coalesce in 1989 out of the Arab fighters who had rallied to support the Afghans in their fight against the Soviets.
Further opportunities emerged in the Northern Caucasus, where local ethno-national grievances were eventually transformed into the basis for a more global struggle.
The declaration of independence by Chechnya in 1991 led to all-out war with the Soviet military between 1994 and 1996, when tens of thousands were killed. After a short, uneasy peace, a decade-long second civil war started in 1999 following the invasion of neighbouring Dagestan by the International Islamic Brigade.
The second civil war began with an intense campaign to seize control of the Chechen capital, Grozny. But it became dominated by years of fighting jihadi and other insurgents in the Caucus mountains and dealing with related terrorist attacks in Russia.
In Nigeria and Somalia, Boko Haram and al-Shabaab now share many of the key attributes of al-Qaeda, with whom they have forged nascent links. But they too emerged primarily because of the failure of governance and the persistence of deep-seated local grievances.
Even in Afghanistan, al-Qaeda struggled to transform itself into a convincing champion of local interests in the 1990s. After becoming increasingly isolated following the September 11 attacks on the US, it failed to gain support from the Afghan Taliban for its global struggle.
But something new happened in Iraq beginning in 2003. The Jordanian street thug Musab al-Zarqawi correctly intuited that the impending Western invasion and occupation of Iraq would provide the perfect conditions for the emergence of insurgencies.
Al-Zarqawi positioned himself in Iraq ahead of the invasion and deftly rode a wave of anger and despair to initiate and grow an insurgency that in time came to dominate the broken nation.
Initially, al-Zarqawi was only one of many insurgent leaders intent on destabilising Iraq. But, in October 2004, after years of uneasy relations with the al-Qaeda leader during two tours in Afghanistan, he finally yielded to Osama bin Laden’s request that he swear on oath of loyalty (bayat) to him. And so al-Zarqawi’s notorious network of insurgents became known as al-Qaeda in Iraq (AQI).
From the ashes
Iraq’s de-Ba’athification process of May 2003 to June 2004, during which senior technocrats and military officers linked to the Ba’ath party (the vehicle of the Saddam Hussein regime) were removed from office, set the stage for many to join counter-occupation insurgent groups – including AQI.
Without the sacking of a large portion of Iraq’s military and security leaders, its technocrats and productive middle-class professionals, it’s not clear whether this group would have come to dominate so comprehensively. These alienated Sunni professionals gave AQI, as well as IS, much of its core military and strategic competency.
But even with the windfall opportunity presented to al-Zarqawi by the wilful frustration of Sunni interests by Nouri al-Maliki’s Shia-dominated government from 2006 to 2014, which deprived them of any immediate hope for the future and confidence in protecting their families and communities, AQI was almost totally destroyed after the Sunni awakening began in 2006.
The Sunni awakening forces, or “Sons of Iraq”, began with tribal leaders in Anbar province forming an alliance with the US military. For almost three years, tens of thousands of Sunni tribesmen were paid directly to fight AQI, but the Maliki government refused to incorporate them into the regular Iraqi Security Force. And, after October 2008 – when management of these forces was handed over by the US military – he refused to support them.
The death of al-Zarqawi in June 2006 contributed to the profound weakening of the strongest of all post-invasion insurgent groups. AQI’s force strength was reduced to several hundred fighters and it lost the capacity to dominate the insurgency.
Then, in 2010 and 2011, circumstances combined to blow oxygen onto the smouldering coals.
In 2010, the greatly underestimated Abu Bakr al-Baghdadi, a local Iraqi cleric with serious religious scholarly credentials, took charge of AQI and began working to a sophisticated long-term plan.
Elements of the strategy went by the name “breaking the walls”. In the 12 months to July 2013, this entailed the movement literally breaking down the prison walls in compounds around Baghdad that held hundreds of hardcore al-Qaeda fighters.
Islamic State, as the group now called itself, also benefited from the inflow of former Iraqi intelligence officers and senior military leaders. This had begun with de-Ba’athification in 2003 and continued after the collapse of the Sunni awakening and the increasingly overt sectarianism of the Maliki government.
Together, they developed tactics based on vehicle-borne improvised explosive devices and the strategic use of suicide bombers. These were deployed not in the passionate but often undirected fashion of al-Qaeda but much more like smart bombs in the hands of a modern army.
And the US military withdrawal from Iraq in late 2011, well telegraphed ahead of time, provided an excellent opportunity for the struggling insurgency to rebuild. As did the outbreak of civil war in Syria.
A helping hand
Al-Baghdadi initially dispatched his trusted Syrian lieutenant, Abu Mohammad al-Julani, to form a separate organisation in Syria: the al-Nusra front.
Jabhat al-Nusra quickly established itself in northern Syria. But when al-Julani refused to fold his organisation in under his command, al-Baghdadi rebranded AQI (or Islamic State in Iraq) Islamic State in Iraq and al-Sham/the Levant (ISIS/ISIL).
Then, a series of events turned IS from an insurgency employing terrorist methods to becoming a nascent rogue state. These included the occupation of Raqqa on the Syrian Euphrates in December 2013; the taking of Ramadi a month later; consolidation of IS control throughout Iraq’s western Anbar province; and, finally, a sudden surge down the river Tigris in June 2014 that took Mosul and most of the towns and cities along the river north of Baghdad within less than a week.
IS’s declaration of the caliphate on June 29, 2014, was a watershed moment that is only now being properly understood.
In its ground operations, including the governing of aggrieved Sunni communities, IS moved well beyond being simply a terrorist movement. It came to function as a nascent rogue state ruling over around 5 million people in the northern cities of the Euphrates and the Tigris, and defending its territory through conventional military means.
At the same time, it skilfully exploited the internet and social media in ways the old al-Qaeda could not do – and that its second-generation offshoot, al-Qaeda in Arabian Peninsula (AQAP), had only partially achieved.
This allowed IS to draw in tens of thousands of foreign fighters. Most came from the Middle East and Northern Africa, but as many as 5000 came from Europe, with thousands more from the Caucusus and from Asia.
Unlike the case in Afghanistan in the 1980s, these foreign fighters have played a key role in providing sufficient strength to take and hold territory while also building a global network of support.
But without the perfect-storm conditions of post-invasion insurgency, this most potent expression of al-Qaedaism yet would never have risen to dominate both the region and the world in the way that it does.
Even in its wildest dreams, al-Qaeda could never have imagined that Western miscalculations post-9/11 could have led to such foolhardy engagements – not just in Afghanistan but also in Iraq.
Were it not for these miscalculations, 9/11 might well have precipitated the decline of al-Qaeda. Instead, with our help, it spawned a global jihadi movement with a territorial base far more powerful than al-Qaeda ever had.