Exchanging killers for peace in Afghanistan is wrong — and could have lasting consequences



Taliban prisoners preparing to leave a government prison in Kabul last month.
AFGHANISTAN NATIONAL SECURITY COUNCIL HANDOUT/EPA

Ben Saul, University of Sydney

An Afghan soldier convicted of murdering three Australian soldiers is among six high-value prisoners who have been flown to Qatar ahead of peace talks between the Taliban and Afghan government this weekend.

Hekmatullah has spent seven years in jail after killing the three soldiers he worked with in 2012 — Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate. He is one of the last remaining Taliban prisoners.

Both the Taliban and the United States have pressured the Afghan government to release all 5,000 Taliban prisoners it holds as part of their peace deal. In return, the Taliban pledged to release 1,000 members of the Afghan security forces.

Hekmatullah has been flown to Qatar ahead of the peace talks.
Twitter/AAP

The Afghan government was excluded from the original peace deal struck between the US and Taliban in February where the prisoner release was negotiated, but has since agreed to release the prisoners.

For a long time, the Afghan government vowed not to free 600 prisoners it considered too dangerous, including murderers and foreign fighters. Afghan President Ashraf Ghani called them a “danger” to the world.

But last month, an assembly of Afghan elders, community leaders and politicians called a “loya jirga” approved the release of the last 400 Taliban captives and hundreds have been set free.

Delegates at the loya jirga in Kabul last month.
Rahmat Gul/AP

Foreign governments’ objections to prisoner release

The release of prisoners who killed Westerners has been among the most contentious parts of the deal.

The Australian government, and the families of the three murdered Australian soldiers, have strenuously objected to the release of Hekmatullah.

Prime Minister Scott Morrison has raised the issue with US President Donald Trump in recent weeks, and Foreign Minister Marise Payne and Defence Minister Linda Reynolds reiterated this position in a statement today:

The Australian government’s long-standing position is that Hekmatullah should serve a full custodial sentence for the crimes for which he was convicted by an Afghan court, and that he should not be released as part of a prisoner amnesty.

France has similarly objected to the release of those prisoners who murdered its aid workers and soldiers.

The US has not publicly objected to the release of three prisoners who murdered Americans in so-called insider attacks, although it is reportedly exploring the possibility of release under house arrest.

US envoy Zalmay Khalilzad, left, and Mullah Abdul Ghani Baradar, the Taliban’s top political leader, signing the peace deal in February.
Hussein Sayed/AP

The importance of the rules of war

So far, the issue of freeing prisoners in Afghanistan has been largely treated as a political and security issue. There has been less attention given to the equally important question of law, justice and human rights.

It follows a regrettably common view that peace is necessary at any price, even if it means letting suspected or convicted war criminals go free, denying justice to their victims and violating international law by enabling killing with impunity.

It is no surprise that such a deal has been spruiked by Trump, who has pardoned US soldiers accused or convicted of war crimes, despite protests by US military commanders. Trump also this week imposed sanctions on senior officials of the International Criminal Court for investigating alleged US war crimes in Afghanistan.




Read more:
Afghanistan’s future: the core issues at stake as Taliban sits down to negotiate ending 19-year war


The rules of war, or international humanitarian law (as it is otherwise known), take a much more balanced and reasonable approach. These rules are also binding on Afghanistan, the US and Taliban alike.

Hekmatullah’s killing of three Australian soldiers was not a fair fight in the heat of combat between opposing forces under the law of war. It was treacherous and illegal because Hekmatullah was wearing an Afghan army uniform when he killed the Australian soldiers while they were resting at a patrol base in August 2012.

The families of the slain Australian soldiers firmly oppose Hekmatullah’s release.
DAVE HUNT/AAP

Hekmatullah says he was inspired to kill the soldiers after watching a Taliban video purporting to show US soldiers burning a Quran. He was later aided by the Taliban in his escape.

Through these actions, Hekmatullah violated the basic rules set forth by the Statute of the International Criminal Court, specifically

making improper use … of the military insignia and uniform of the enemy … resulting in death or serious personal injury

The law of war also acknowledges the granting of amnesty to ordinary fighters is an appropriate means to promote peace and reconciliation to end a civil war. But it does not permit amnesty for those who violate its basic rules, including those suspected or convicted of war crimes.

All countries have a legal duty to “respect and ensure respect” for international humanitarian law. Releasing prisoners, thus, is not purely a political question for the Afghan government to decide. It is also bound by international law and must respect it.

Australia has a right to “ensure respect” for the law by both Afghanistan and the US. Releasing Hekmatullah would arguably be a violation of international law by Afghanistan, aided by the US.




Read more:
Afghanistan’s peace process is stalled. Can the Taliban be trusted to hold up their end of the deal?


Peace without justice can cause long-term problems

The US, Taliban and Afghan government all know this, but are choosing to sacrifice justice for the dream of peace. All sides are exhausted by the two-decade military stalemate and are understandably desperate for a way out.

But numerous conflicts in recent decades — from Latin American to Africa to the Balkans — show that peace without justice is almost always a delusion.

Any immediate gains are usually undermined by the mid- to long-term insecurity that results from giving impunity to killers. It contaminates the integrity and stability of political systems. It undermines the legal system and subordinates the rule of law and human rights to raw politics.




Read more:
Afghanistan: stuttering peace process leaves out millions displaced by 40 years of war


It also allows victims’ grievances to fester, which is especially dangerous in places like Afghanistan where “blood feuds” stoke the desire for vengeance.

In the case of Afghanistan, most seasoned observers also know that peace with the Taliban may well be a naïve fantasy. Violence has increased, not decreased, since the peace deal.

While it has made some tactical concessions for peace, the Taliban’s ideological commitment to extreme religious rule, and its disdain for democracy and human rights, is unswerving.

The Taliban has played the Americans brilliantly, knowing the US no longer has the appetite for war. Releasing murderers could be all for nothing.The Conversation

Ben Saul, Professor of International Law, Sydney Centre for International Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Lasting peace in Afghanistan now relies on the Taliban standing by its word. This has many Afghans concerned



Stringer/EPA

Niamatullah Ibrahimi, Deakin University

The US has signed an historic agreement with the Taliban that sets Washington and its NATO allies on a path to withdraw their military forces from Afghanistan after more than 18 years of unceasing conflict.

It is now hoped the deal will lead to a more complicated process of negotiations between the Taliban and Afghan government – starting as early as next week – to work toward a complete ceasefire and new political roadmap for the country.

This is critically important because until now, the government has been absent from the peace process at the insistence of the Taliban.

The opening of this window to end one of the world’s most debilitating and protracted conflicts has been welcomed by many US allies, including Australia.




Read more:
After US and Taliban sign accord, Afghanistan must prepare for peace


However, many seasoned observers, including prominent American politicians and former diplomats and military leaders, are concerned the agreement concedes too much to the Taliban without requiring it to make any substantive commitments to ensure a genuine peace process.

The deal has completely sidelined the Afghan government and civil society and does not provide any explicit references, much less guarantees, for the protection of human rights in Afghanistan, especially for women and minority groups who were suppressed and persecuted by the Taliban.

Indeed, cracks have already begun to emerge in the deal. On Monday, the Taliban refused to take part in the intra-Afghan talks until the government released 5,000 Taliban prisoners, which President Ashraf Ghani has refused to do.

As a result, many Afghans are worried that rather than being the start of a comprehensive peace process for the country, the deal is merely a cheap withdrawal troop agreement intended to serve US President Donald Trump’s political interests during an election year.

Will the Taliban sever ties with terror groups?

The agreement is to be implemented in two separate processes. The first commits the Taliban to take measures to prevent al-Qaeda and other terror groups from using Afghanistan as a safe haven from which to threaten the US and its allies.

In return, the US and NATO have agreed to a complete withdrawal of all forces from the country within 14 months. It is scheduled to begin with the departure of over 5,000 troops and the closure of five military bases within 135 days of the signing of the agreement.

The Taliban has said it will resume attacks against Afghan forces shortly after signing the deal.
JALIL REZAYEE/EPA

In the short term, the Taliban will likely tactically reduce its relations with certain elements of the local al-Qaeda network to demonstrate its commitments under the deal. But its relationship with these international terror groups is far more complicated and nuanced than the agreement recognises.

Research has shown the Taliban sees foreign militant groups as valuable allies due to their shared ideologies and longstanding material support for one another. This is provided these groups don’t directly challenge their power in the country.

This explains why the Taliban’s ties with al-Qaeda are so enduring, despite the US-led military campaign in Afghanistan aimed at dismantling the terror group. In particular, the Haqqani Network, a semi-autonomous component of the Taliban movement, has a long history of working closely with al-Qaeda and other groups.




Read more:
Afghanistan’s suffering has reached unprecedented levels. Can a presidential election make things better?


On the other hand, the Taliban has fiercely resisted groups such as the Islamic State when it has threatened to seize Taliban territory.

As a result, the Taliban is likely to intensify its attacks on already weakened Islamic State affiliates in Afghanistan, rather than going after more dispersed elements of al-Qaeda under the agreement with the US.

But verifying the group has followed through on its commitment to completely sever ties with al-Qaeda and other terror groups may prove to be extremely difficult in the long run. Especially after the withdrawal of the US military and intelligence assets from the region.

Many challenges lie ahead in peace talks

For negotiations between the Taliban and Afghan government to succeed, both sides will need to find a compromise on the future of the country’s political system. This would require the Taliban to abandon its goal of restoring its ultra-conservative Islamic Emirate, which it sought to establish from 1996-2001.

The Taliban will also need to make robust guarantees for basic civil and political rights and to shut down its safe havens for militants across the border in Pakistan.

The Taliban has so far steadfastly refused to directly negotiate with officials of the Afghan government, which it describes as an illegitimate imposition of western powers.




Read more:
How to end Afghanistan war as longest conflict moves towards fragile peace


The divisions that have intensified within the government since September’s presidential election will only serve to strengthen the Taliban’s position. And the implementation of the first stage of the US military withdrawal is likely to further weaken the government and embolden the Taliban.

Consequently, it is highly doubtful a complete and durable political settlement will be achieved within the 14 months of the complete foreign troop withdrawals.

Yet, despite the failings of the government, the public has not shifted its support to the Taliban. Last year, a national survey by the Asia Foundation found 85% of Afghans had no sympathy for the Taliban.

A protest against the Taliban delegation negotiating a peace deal with the US last year.
WATAN YAR/EPA

Taliban negotiators have said they are not seeking to monopolise power and are willing to recognise the rights of women and freedom of expression according to Islam. But given the group’s draconian interpretation of Islam, it is far from certain it is ready to recognise the vibrant role Afghan women now play in the public sector and civil society.

The rights of ethnic and religious minorities also remain a concern. The Hazaras, for one, have been relentlessly persecuted by the Taliban since the 1990s.

Finally, the Taliban’s sanctuaries and power bases in Pakistan will undoubtedly remain a sticking point in any peace talks on the future of Afghanistan. A durable peace is unlikely to materialise when an insurgent group can wage wars from across the border with impunity and backed by elements of a powerful neighbouring state.

Despite these challenges, the fact a peaceful resolution to the war is on the agenda of regional and global powers is a positive development. A genuine peace is likely to be the outcome of trials and errors, a long process that requires patience and sustained international commitment.The Conversation

Niamatullah Ibrahimi, Associate Research Fellow, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Afghanistan’s suffering has reached unprecedented levels. Can a presidential election make things better?



A supporter of Ashraf Ghani takes part in an election rally in Kabul last month.
Jawad Jalali/EPA

Safiullah Taye, Deakin University and Dr. Niamatullah Ibrahimi, Deakin University

After months of delays and uncertainty, Afghanistan is set to hold its presidential election on Saturday. This election, the fourth since the overthrow of the Taliban regime in 2001, has critical implications for the political stability and security of the country.

Most importantly, it will test the resilience of the country’s fragile democratic process and shape the conditions under which the now-defunct negotiations between the United States and the Taliban can be resumed with more meaningful participation from Kabul.

And if the vote produces a broadly acceptable and functioning government – which is not a guarantee after the last presidential election in 2014 and parliamentary elections in 2018 – it will have profound repercussions for the Afghan people.




Read more:
How to end Afghanistan war as longest conflict moves towards fragile peace


Nearly two decades after the US-led coalition invaded the country and ousted the Taliban, Afghanistan is still in a downward spiral. In June, the country replaced Syria as the world’s least peaceful country in the Institute for Economics and Peace’s Global Peace Index report. The BBC tracked the violence in the country in August and found that on average, 74 Afghan men, women and children died each day across the country.

Further, the number of Afghans below the poverty line increased from 33.5% in 2011 to nearly 55% in 2017.

And in another bleak assessment of where things are at the moment, Afghan respondents in a recent Gallup survey rated their lives worse than anyone else on the planet. A record-high 85% of respondents categorised their lives as “suffering”, while the number of people who said they were “thriving” was zero.



Tests of democracy in Afghanistan

Despite the major challenges posed by insecurity and risks of electoral fraud, Afghanistan’s recent elections have been serious contests between the country’s various political elites.

Ordinary voters take extraordinary risks to participate in the polls. Thanks to a dynamic media sector, these contests involve spirited debates about policy-making and the visions of the candidates. This is particularly true when it comes to presidential elections, as the country’s 2004 Constitution concentrated much of the political and executive power in the office of the president.

There have been serious tests of Afghanistan’s nascent democracy before, however.
The 2014 election was tainted by allegations of widespread fraud, pushing the country to the brink of a civil war.

The political crisis was averted by the formation of the national unity government, in which Ashraf Ghani became president and his main challenger in the election, Abdullah Abdullah, took the position of chief executive officer, with powers similar to a prime minister.

Abdullah Abdullah is again the main challenger for President Ashraf Ghani, similar to the 2014 vote.
Jalil Rezayee/EPA

Negotiations with the Taliban

Since the withdrawal of most of the US and NATO forces from Afghanistan in 2014, the Taliban has considerably expanded the areas under its influence. Nonetheless, the insurgent group has been unable to score any strategic military victories by gaining control of provincial or population centres.

In 2016, President Donald Trump came to the White House with the promise of ending the war in Afghanistan. However, after a meticulous assessment of the risks associated with a complete troop withdrawal, he backed away from that pledge.

Trump instead called the 2014 departure of most US troops a “hasty withdrawal” and declared a new strategy that included an increase in the number of US forces in Afghanistan.

Afghan President Ashraf Ghani (centre) has adopted a populist style in his re-election campaign to connect better with voters.
Ghulamullah Habibi/EPA

The deployment of additional troops significantly escalated the military campaign against the Taliban but failed to decisively change the security dynamics in the country.

Then, in 2018, the Trump administration formally began engaging the Taliban in a series of direct negotiations in Qatar. The process was called off by Trump earlier this month when it was reportedly at the threshold of an agreement.




Read more:
A peace agreement in Afghanistan won’t last if there are no women at the table


Critics noted, however, the many flaws of this approach and the haste with which the negotiations were conducted by Zalmay Khalilzad, the US special representative for Afghan reconciliation.

Ironically, at the insistence of the Taliban, the process excluded the government of Afghanistan, which the Taliban refuses to recognise as the legitimate authority in the country. This led to phased negotiations, whereby a deal between the US and the Taliban was expected to be followed by an intra-Afghan dialogue and eventually a ceasefire.

A successful presidential election that produces a broadly acceptable outcome can significantly strengthen the position of the new government in negotiating and implementing a peace process with the Taliban. This is one reason why Ghani does not want to be sidelined from the negotiations.

Challenges for the upcoming vote

The election involves a significant number of political players and coalitions, but is essentially a replay of the 2014 poll between Ghani and Abdullah. While none of the other 13 candidates have a realistic chance of winning, they can split the votes to prevent one of the leaders from claiming victory in the first round. A run-off was required in the last two presidential elections in 2009 and 2014.

Another factor is the threat of violence from the Taliban. The group has already vowed to violently disrupt the election. In recent weeks, it has claimed responsibility for deadly attacks on election rallies, including a devastating attack on the campaign office of Amrullah Saleh, the first vice-president on Ghani’s ticket.

Supporters of incumbent President Ashraf Ghani at a rally in Jalalabad this month.
Ghulamullah Habibi/EPA

Insecurity will also likely prevent significant numbers of people from participating in the process. The number of polling stations has significantly dropped to less than 5,000 this year compared to 7,000 in 2014, highlighting the deteriorating security conditions.

There are also fears that more polling stations will be closed on election day, both for security reasons and political reasons (the latter in areas that are likely to vote for opposition candidates).




Read more:
Afghanistan election: with Kabul in lockdown, we watch and wait


This election is unlikely to be a game changer in the face of the magnitude and complexity of the challenges facing Afghanistan and its people.

Nonetheless, the election presents a rare opportunity for the country’s people to exercise their rights to choose who governs the country.

And if the supporters of the leading candidates stay committed to a transparent process, even a reasonably credible outcome can go a long way in restoring confidence in the country’s shaky institutions and strengthening the position of the government in any future peace negotiations with the Taliban.


This article was corrected on September 27, 2019. The forthcoming election is the fourth since the Taliban was overthrown in 2001, not the third as originally stated.The Conversation

Safiullah Taye, Phd. Candidate and Research Assistan, Deakin University and Dr. Niamatullah Ibrahimi, Associate Research Fellow, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

A peace agreement in Afghanistan won’t last if there are no women at the table


Susan Hutchinson, Australian National University

Over the past weeks, the US government has been in peace negotiations with the Taliban. It has been 17 years since US and allied troops first deployed to Afghanistan to overthrow the Taliban and support a democratically elected government.

The current peace negotiations have progressed further than any other attempted during the conflict. But they have two serious problems. Firstly, they have have not included the democratically elected government of Afghanistan, led by President Ashraf Ghani. Secondly, they have failed to include a single woman.

The situation so far

Peace negotiations can take many forms. At their most basic, they cover ceasefires and division of territory. But they often go further to address underlying causes of conflict and pave the way for durable solutions. They include extensive informal discussions before any formal agreement is signed.

In 1996, the Taliban took control of Afghanistan. It banned women from attending school and denied them their most basic rights. The Taliban provided safe haven for those responsible for the attacks against the US on September 11, 2001.

The US is keen to withdraw its remaining troops. But they want to secure a commitment from the Taliban that Afghanistan will not be home to terrorist groups planning attacks against the United States.

The most recent reports show the Afghan government controls 56% of Afghan districts, or 65% of the population. The Taliban controls 15% of the districts, with 29% remaining contested.

Peace negotiations are often fraught with tension about who is allowed at the table. So far, the Taliban has refused to allow the government of Afghanistan to participate in the current negotiations. The chief US negotiator, Zalmay Khalilzad, has been briefing the Afghan government on the progress of negotiations taking place in various Gulf States.




Read more:
Afghanistan: the tensions inside the Taliban over recent US peace talks


Khalilzad is under pressure from US President Donald Trump to move the negotiations forward. But excluding the government is problematic. It could indicate the likely failure of negotiations, end up making the government look even weaker than it is and/or pave the way for a return to deeply conservative religious rule for Afghanistan.

It is often tempting for power brokers to prioritise the participation of armed groups in peace negotiations. But it’s important to ensure broader participation of civil society.

Research examining every peace agreement since the Cold War shows the participation of civil society makes a peace agreement 64% less likely to fail. The key reason is the peace process is perceived as more legitimate if civil society is included. But including civil society also ensures the concerns of the broader community are accounted for and that those who carried arms do not receive positive reinforcement by monopolising the benefits negotiated in the agreement.

What about the women?

Afghan women are angry about being excluded from the peace negotiations. The country’s leading women’s rights group, the Afghan Women’s Network, released a statement calling for “the full, equal and meaningful participation of women” in the negotiations.

Life for women in Afghanistan remains hard. The latest Reuters Poll said Afghanistan was the second most dangerous country to be a woman, down from the most dangerous five years earlier. The country still makes the top of the list for violence against women, discrimination, and lack of access to health care.

But significant progress has been made in the past 17 years.
Data from the UN Development Program show gender inequality dropped by ten percentage points between 2005 and 2017.

Women have strengthened their political, economic and social presence through efforts to advance their status and respect for their rights. Girls have been able to go to school. Women have become members of parliament, governors and police.




Read more:
Trump and Turnbull have little cause for satisfaction over progress in Afghanistan


Afghanistan’s 2004 constitution includes a hard won provision that enshrines the equality of men and women. But the Taliban is calling for a new constitution and it is highly unlikely if this was agreed, such a provision would survive.

Research drawing on extensive quantitative and qualitative data has shown that the way a country treats its women is the best indicator of its peacefulness. This is a better indicator than wealth, ethnic and religious identity or democracy.

We also know that women’s participation in peace processes makes for a more effective outcome. A peace processes is 35% more likley to last at least 15 years if women are at the negotiating table, have observer status, or participate in consultations, inclusive commissions or problem-solving workshops.

Women can negotiate with the Taliban

Even so, men and people from the international community often believe the struggles faced by Afghan women mean they are not in a position to negotiate with the patriarchal Taliban.

But Afghan women like Palwasha Hassan have been working for years to pursue peace with the Taliban. Hassan sits on the country’s High Peace Council and has seen how women across the country have already negotiated with local Taliban leaders. She says “the international community is failing to value what we have achieved together and the progress we have made so far.”

She conducted a workshop in 2010 with women across local communities. Stories included one woman who had negotiated to keep a local girls’ school open by arguing that educated girls could do better in Islamic studies, including learning to read the Quran. She also guaranteed to her Taliban interlocutors that a prayer space in the school would be reserved strictly for women and girls only.

Another woman explained how she and others negotiated the release of hostages being held by the local Taliban commander. She appealed to Islamic values of life and justice, and persuaded the captors that the hostage was being held unjustly.

International agreements

The importance of women’s participation in international peace and security was codified by UN Security Council resolution 1325 nearly 20 years ago.




Read more:
As Australia takes the world stage, it’s time to fulfil promises to Afghan and Syrian women


Seventy-nine countries, including Afghanistan, have National Action Plans to guide the resolution’s implementation and the subsequent seven Security Council resolutions on Women, Peace and Security.

In October 2017, the US became the first country in the world to pass a Women, Peace and Security Act, signed off by President Trump himself. It was passed explicitly to

ensure that the United States promotes the meaningful participation of women in mediation and negotiation processes seeking to prevent, mitigate, or resolve violent conflict” across the world.

Democratic Senators have urged the Trump administration to ensure Afghan women’s involvement in the peace negotiations. But so far no one has invoked the new law.

There are few who wouldn’t hope for peace for Afghanistan, but as Palwasha Hassan says, the negotiations “have to include women, both to protect our rights and also to ensure the durability of the peace that follows.”The Conversation

Susan Hutchinson, PhD Candidate, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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.




Read more:
Explainer: how Australia’s military justice system works


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.




Read more:
Inconsistency bedevils Australia’s prosecution of war criminals


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.




Read more:
Friday essay: war crimes and the many threats to cultural heritage


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.

Trump and Turnbull have little cause for satisfaction over progress in Afghanistan



File 20180205 19948 ghodqc.jpg?ixlib=rb 1.1
What to do about Afghanistan will likely be on the agenda when Malcolm Turnbull meets with Donald Trump later this month.
Reuters/Omar Sobhani

Tony Walker, La Trobe University

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.




Read more:
Where will the global political hotspots be in 2018? (Spoiler alert: it’s not all about Donald Trump)


The Afghan conflict has cost the American taxpayer getting on for a trillion dollars – or a lot more, according to some estimates – with no end in sight. More than 2,000 Americans have been killed.

Australia has spent an estimated A$8 billion on its Afghan engagement, including civil and military assistance. Forty-one service personnel have been killed, and 261 wounded.

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.

Under this administration, America dropped three times the number of bombs – 4,361 – on insurgent targets in 2017 compared with the previous year.

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.




Read more:
Trump changes his mind on Afghanistan, but will upping the ante win the war?


In his August address, Trump said this about American strategy:

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”.

The ConversationThis 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.

Tony Walker, Adjunct Professor, School of Communications, La Trobe University

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

Out of the ashes of Afghanistan and Iraq: the rise and rise of Islamic State


Greg Barton, Deakin University

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.

Al-Qaeda founder Osama bin Laden.
AAP

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.

The declaration of independence by Chechnya in 1991 led to all-out war with the Soviet military between 1994 and 1996.
EPA

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.

Musab al-Zarqawi positioned himself in Iraq ahead of the invasion by Western powers.
Petra/EPA

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.

Like this view of Aleppo in Syria from September 2015, many other cities in Syria and parts of Iraq have been destroyed by violence and war.
AAP/Alaa Abdulrahman

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.

Former prime minister Nouri Al-Maliki’s government deprived Iraqi Sunnis of immediate hope for the future and confidence in protecting their families and communities.
Aude Guerrucci/EPA

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.

Abu Bakr al-Baghdadi’s trusted Syrian lieutenant, Abu Mohammad al-Julani, quickly established Jabhat al-Nusra in northern Syria.
Hamid Khatib/Reuters

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.

In 2010, Abu Bakr al-Baghdadi took charge of AQI and began working to a sophisticated long-term plan.
EPA/Furqan Media

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.


This is the final article in our series on the historical roots of Islamic State. Catch up on the rest of the series, if you haven’t already.

The Conversation

Greg Barton, Chair in Global Islamic Politics, Alfred Deakin Institute for Citizenship and Globalisation; Co-Director, Australian Intervention Support Hub, Deakin University

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