Allegations of murder and ‘blooding’ in Brereton report now face many obstacles to prosecution



Australian Department of Defence

David Letts, Australian National University

The long-awaited report into allegations of war crimes by Australia’s special forces in Afghanistan has finally been made public, after months of speculation about the contents.




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As expected, the report by Justice Paul Brereton is highly confronting and deeply concerning. However, despite widespread condemnation of the behaviour identified in the report — from the highest levels of the military and government — the next steps are far from straightforward.

Unlawful killings

The report, from the Inspector-General of the Australian Defence Force (IGADF), found evidence of 23 incidents of alleged unlawful killing of 39 Afghan civilians by Australian special forces personnel. There are a further two incidents of “cruel treatment”.

ADF chief Angus Campbell
ADF chief Angus Campbell condemned the behaviour of Australian soldiers in Afghanistan.
Mick Tsikas/AAP

This involved a total of 25 current or former Australian Defence Force members who were perpetrators, either as principals or accessories.

Some of these incidents took place in 2009 and 2010, with the majority occurring in 2012 and 2013.

ADF Chief General Angus Campbell said he was shocked by the revelations, which he described as “damaging to our moral authority as a military force”.

I would never have conceived an Australian would be doing this in the modern era.

Blooding, throwdowns and executions

The inquiry has found “credible information” that junior soldiers were required by their patrol commanders to shoot a prisoner, in order to achieve the soldier’s first kill, in a practice known as “blooding”.
“Throwdowns” — other weapons or radios — would be planted with the body, and a “cover story” was created.

This was reinforced with a code of silence.

The report is damning about a “warrior culture” within the Special Air Service Regiment, as well as a “culture of secrecy”.

The inquiry has recommended the chief of the defence force refer 36 matters to the Australian Federal Police for criminal investigation. Those matters relate to the 23 incidents and involve a total of 19 individuals.

Numerous obstacles to prosecutions

However, last week, in preparation for the report’s release, Prime Minister Scott Morrison announced a “special investigator” would be appointed to further examine any allegations of war crimes.

Campbell confirmed those who are alleged to be involved in unlawful criminal conduct will be referred to the special investigator.

After gathering evidence on specific allegations, the Office of the Special Investigator will refer briefs to the Commonwealth Director of Public Prosecutions. Morrison explained such a task would “significantly overwhelm” the AFP, hence his decision to appoint a special investigator.

Prime Minister Scott Morrison
Prime Minister Scott Morrison warned Australians the report would make tough reading.
Lukas Coch/AAP

Despite these mechanisms being put in place, there are still serious questions about how potential criminal prosecutions would work. 

Investigating and prosecuting alleged crimes of this nature is incredibly difficult due to the passage of time, fading memories and inconsistency of witnesses. There are also practical challenges obtaining evidence in a country with a fragile security situation.




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It is also important to note any statement or disclosure made by a witness to the IGADF inquiry cannot be used as evidence against that person in any subsequent civil or criminal trial or court martial.

This means some of the evidence contained in the IGADF inquiry — however compelling it might be — may not be available for a criminal prosecution, as the right to remain silent would be available to a person being interviewed by the Special Investigator.

Also, the standard of proof required to convict an individual “beyond a reasonable doubt” in a criminal trial is quite high, meaning any successful prosecution might require stronger evidence than what has been included in the IGADF inquiry.

Therefore, for any prosecution to proceed, any evidence obtained by the special investigator will need to be evaluated against this higher criminal standard to determine if it is sufficient for a person to stand trial.

It is important to note the same higher standard of proof (beyond reasonable doubt) will need to be met for a successful prosecution, regardless of whether any trial takes place by court martial or in a civilian court.

Public perceptions of war crimes allegations

The reaction of the Australian public to the report will be interesting to observe. As journalists have revealed the shocking details of many of the allegations against SAS soldiers in recent years, some have defended their actions as having taken place in the “fog of war”.

In his comments on Thursday, Campbell spoke plainly about the report’s findings.

None of the alleged unlawful killings were described as being in the heat of battle […] The unlawful killing of citizens and prisoners is never acceptable.

Of course, it is important to recognise Australian soldiers faced significant difficulties in Afghanistan. Most notably, they were dealing with an enemy that was not easily identifiable and did not abide by the laws of war.

For instance, some Afghan civilians directly participated in conflict against Coalition soldiers. The so-called “farmer by day, fighter by night” has been a constant feature of operations in Afghanistan ever since Australians were first deployed there.

If civilians directly participated in hostilities against foreign forces, regardless of whether they were armed or not, they would lose their protected status under the laws of war. The death of any civilian taking direct part in hostilities, therefore, would not necessarily be unlawful under the laws of war and Australian domestic law.




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Understanding and applying this aspect of the laws of war is a potential complicating factor for the special investigator.

That said, as Campbell pointed out, the challenging circumstances faced by coalition forces in Afghanistan do not allow soldiers to commit war crimes. The laws of armed conflict are very clear in this regard.

A transparent and open investigation process

There was a clear need for these allegations to be properly investigated in an impartial manner. This has happened with the Brereton inquiry.

In appointing a special investigator, the government has shown it is taking these findings seriously and wants those soldiers who are proven guilty of crimes to be held accountable.




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The ADF must also be open and transparent about the actions it is taking following the completion of the IGADF inquiry.

By doing this, Australia’s military can show that it has learned from this sorry tale and made whatever changes are necessary to ensure compliance with the laws of armed conflict is understood and practised by every member of the ADF — regardless of the difficulty of the operating environment.The Conversation

David Letts, Director, Centre for Military and Security Law; Associate Professor, Australian National University

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

Inquiry finds Husar behaved badly to staff but dismisses allegations of lewd conduct


Michelle Grattan, University of Canberra

The inquiry into Labor MP Emma Husar’s conduct has upheld complaints that she behaved unreasonably towards her staff, but rejected claims of lewd conduct and misleading the parliament.

These are the central findings of the independent assessment by barrister John Whelan, commissioned by the NSW Labor party. The party said the legal advice, based on this assessment, was that there was “no basis” for Husar to resign from parliament.

Husar, who is in her first term, announced this week she would quit at the election.

NSW Labor issued a summary of the Whelan inquiry’s findings on Friday.




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The assessment said the allegation of misuse of public entitlements should be referred to the Independent Parliamentary Expenses Authority for audit, and noted Husar had advised she was referring herself.

It found allegations of sexual harassment, on the balance of probabilities and Briginshaw Standard, were not supported. Nor were claims that she behaved in a lewd manner in the office of Labor frontbencher Jason Clare.

But complaints that staff performed non-work related and personal duties for Husar had merit – “even accounting for the particular nature of political offices”. They should be referred to the Department of Finance’s Ministerial and Parliamentary Services for advice about the appropriate employment guidelines issued to MPs, the assessment said.

It also found merit in complaints that “staff were subjected to unreasonable management, including unreasonable communication, demands, practices and disciplinary methods”.

The assessment outlined the two contrasting perceptions of what had happened that it had been given.

Husar argued “she manages appropriately to achieve higher standards of performance and loyalty. And does so under a heavy workload, intense personal stress and a desire to serve Western Sydney and in particular the cause of victims of domestic violence.”

But the men and women who made complaints “perceive and allege they have found much of the member’s management offensive and unreasonable”.

“After considering all sides of the relevant issues the assessment has generally favoured the complainant’s perception of events.”

The inquiry recommended Ministerial and Parliamentary Services review the accessibility of the current electorate office staff complaints resolution process.

It also said Husar, who is on extended leave, and Finance’s Ministerial and Parliamentary Services should be asked to develop a “return to work” plan, covering timing, training, staff needs and office support.

The assessment condemned as “reprehensible” the release publicly of selected allegations.

It said there were concerns for the wellbeing of many involved and counselling was being made available.

The full assessment – which emphasised the need for a “de-escalation” – will not be released.

Husar said the report had cleared her “of the most malicious and damaging of allegations, which were not only baseless but leaked to media.”

“I don’t believe any of these should have cost me my reputation, my job, or humiliated me and my children, ” she said.

“This has been trial by media, gossip and innuendo.

“I am gutted that the willingness of certain individuals, and certain parts of the media, to defame me on vexatious and unfounded accusations, has caused so much personal, emotional and professional damage to me, so much hurt to those close to me, and political harm to the party I love, have supported and worked so hard for.”

The ConversationShe said she was confident that if she had been given the opportunity to respond to all allegations in full, without the public attacks, she would have been able to put the matter behind her and continue to serve her electorate of Lindsay.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Emma Husar allegations show a need for clearer rules about what MPs can – and cannot – do



File 20180726 106511 1cm5ucw.jpg?ixlib=rb 1.1
Labor MP Emma Husar has taken personal leave while the party investigates claims against her.
AAP/Mick Tsikas

Yee-Fui Ng, Monash University

Labor MP Emma Husar is facing pressure to resign, following revelations that she tasked her electorate office staff with childminding and picking up dog poo. Her staffers have also alleged that she engaged in workplace harassment and bullying.

Husar is now on personal leave and the issue is being investigated by the Labor Party.

As we are hit by scandal after scandal involving political staff, from Barnaby Joyce and his love affair, to Michaelia Cash and her leaking adviser, it is time to take a closer look at these political staffers and their role in our democratic system.

Who are staffers and what do they do?

There are two main categories of political staff. The first is ministerial advisers, who advise ministers and parliamentary secretaries on their ministerial portfolio. The second is electorate officers, who assist MPs in carrying out their local duties of representing the people who voted for them.

Unlike the neutral and impartial public service, these staffers are political and partisan, focused on electoral success for their party. They are often young apparatchiks, sometimes with their own political ambitions.

So, is tasking electorate staff with child- and dog-minding acceptable?

These officers are hired to support MPs in administrative, communications and financial matters as they represent their constituents. Dog-walking and child-minding are not part of an MP’s professional role, and therefore should not be part of the deal.

Although Husar’s job advertisement refers to her staff supporting her personal and family obligations, this is not appropriate. Staffers are publicly funded, and the taxpayer should not have to pick up the bill for an MP’s family life. This should be funded through her personal funds, from her (very generous) salary as an MP.

How are MPs and electorate officers regulated?

Both ministers and ministerial advisers are subject to a Statement of Standards. This sets out a code of conduct to achieve the expected standards of behaviour.

But these standards do not apply to MPs who are not ministers. They also do not apply to electorate staff.




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There is therefore a regulatory vacuum for federal MPs and electorate officers, without even a code of conduct regulating their behaviour. Yet MPs and electorate officers are publicly funded. This is a gap that should be fixed.

Despite discussions that have persisted for three decades, we still do not have an MPs’ code of conduct at the federal level. This means that MPs have no formalised guidance about the appropriate boundaries of behaviour, or about avoiding conflicts of interest. Likewise, electorate officers lack a code of behaviour. This is a glaring omission.

Politicians drag their heels on reforming the system because they benefit from having nonexistent regulations or lax rules. They can claim they acted appropriately or within any vague rules, or blame their staff if things go wrong.

This is why we have so many controversies involving ministers, MPs and their staff hitting the headline news – but remarkably few about remedial action or law reform.

Equivalent jurisdictions such as the United Kingdom and Canada have a code of conduct for their MPs.

The ConversationAs public trust in ministers and MPs falls, it is necessary to look to reform our political institutions. Examining parliamentary integrity systems and the regulation of political advisers would be a very good place to start.

Yee-Fui Ng, Senior Lecturer, Faculty of Law, Monash University

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

Allegations against the CBA show the need for a Royal Commission into the banks


Thomas Clarke, University of Technology Sydney

The Commonwealth Bank is facing another scandal as the Australian Transactions Reports and Analysis Centre (AUSTRAC) launches civil proceedings accusing the bank of being complicit in money laundering.

This exposes a deeply worrying prospect, that the Australian public are vulnerable to crime and terrorism directly funded through the Australian banking system.

AUSTRAC alleges CBA breached the Anti-Money Laundering and Counter-Terrorism Financing Act (2006) 53,700 times since 2012, where transactions were not reported by the bank, or reported too late. The bank faces a potential penalty of A$18 million per breach, which could amount to billions of dollars.

According to AUSTRAC, criminals deposited cash, amounting to tens of millions of dollars, over a period of two years in intelligent deposit machines where it was automatically counted and credited instantly to the nominated recipient account. The funds were then available for immediate transfer to other accounts both domestically and internationally.

In their evidence AUSTRAC details how four identified criminal syndicates were able to readily use CBA ATMs to breach the A$10,000 transaction threshold on 1640 occasions amounting to A$17.3 million. A total of A$625 million of suspicious transactions flowed through these CBA ATMs.

CBA’s response to these serious allegations is that it reports 4 million transactions to AUSTRAC per year contributing to the effort to “combat any suspicious activity as quickly and efficiently as we can.” The bank insists all key personnel have been trained in compliance with the Money-Laundering Act. The CBA acknowledges there was a software fault with a number of their ATMs which allowed these transactions to take place, but apparently this took several years to fix.

Unfortunately this response in the circumstances only provokes further questions.

Regulators asleep at the wheel

What this really shows up is the government’s “light touch” regulatory approach which translates into soft touch regulation. It seems regulators in Australia are too frightened to take action even when there is mounting evidence of illegality.

AUSTRAC itself did not launch any proceedings under the Anti-Money Laundering and Counter-Terrorism Financing Act until 2015. This followed a lengthy report of the Financial Action Task Force which concluded:

[AUSTRAC’s] graduated approach does not seem to be adequate to ensure compliance.

Since then AUSTRAC has taken action against Tabcorp on a money-laundering case which reached a A$45 million settlement in February 2017. This contrasts with far larger fines imposed on international banks for money laundering including a US$1.2 billion fine for HSBC and a US$262 million fine for Standard Chartered in 2012 from the US Justice Department.

At a US Senate hearings in 2012, a HSBC chief compliance officer famously quit his post on the spot in answering money laundering allegations, implying he could not defend the indefensible.

The Australian banking industry has faced minimal pressure to reform compared to other countries, where the restructuring of the banks is progressing. Australia has seen a succession of inquiries however each has focused on particular aspects of the banks functioning and proposed specific reforms.

It will require a Royal Commission into the Australian banks to examine the structural and systemic failures of the banks. The banks have become the main providers of not only retail but investment banking, insurance, superannuation and financial advice, and this deserves critical scrutiny.

If the AUSTRAC allegations against the CBA are proven in the Federal Court, this matter is of a different order of magnitude to earlier problems. It suggests a degree of irresponsibility which is unacceptable in major financial institutions.

It also suggests it’s deeply embedded in the banks cultural and operating processes, which undermines the security of Australian citizens. This would demand a substantive inquiry into the management, integrity and culture of the banks that only a Royal Commission could provide.

The ConversationIn the meantime, the CBA needs to provide firm evidence to the Australian public that none of its ATM machines can continue to be used for money laundering. It also needs to prove there are procedures in place for ensuring all suspicious banking activity by potential criminals or terrorists is fully reported to the Australian authorities as soon as the CBA has any knowledge of such activity.

Thomas Clarke, Professor, UTS Business, University of Technology Sydney

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

Bill Cosby Allegations


The link below is to an article that takes an in depth look at the Bill Cosby sexual assault allegations. Why have I decided to post a link about this? Because I’m totally against any hint of sexual crime against a woman (or any person for that matter) and those that have suffered these crimes should not feel guilty for reporting them (or made to feel so). I could could deliver a more detailed post on my thoughts on this, but this will do for expressing my outrage at such crimes.

For more visit:
Article on Bill Cosby Allegations

Hillsong Sexual Abuse Investigation


The link below is to an article that reports on an investigation into sexual abuse allegations against Hillsong and Assembly of God churches.

For more visit:
http://www.theguardian.com/australia-news/2014/oct/06/hillsong-brian-houston-testify-abuse-allegations-response

India Briefs: Recent Incidents of Persecution


Karnataka, India, April 8 (CDN) — Four Christians, including a police constable, were beaten on April 1 in Madikeri district on allegations of “religious conversion abetment,” as if conversion were illegal in India. Daijiworld Media Network reported that K. Nidugane villagers were enraged when a Christian constable identified only as Prasanna, along with three others identified only as Diwakar, Lawrence and Dias, went door-to-door distributing pamphlets and books in Nandimotte village. A few enraged Hindu villagers beat them, tore their clothes half-off, and brought them to a police station. Hindu extremist leaders who found out rushed to the village, but before they could manhandle the four, policemen intervened and took the accused Christians into custody. Deputy Superintendent of Police J.D. Prakash said that a recommendation had been sent to the superintendent of police seeking Prasanna’s suspension from service, the Daijiworld report stated. Diwakar, along with his wife Telcy Diwakar, had also been arrested and released on bail when they visited Devastoor village on March 26. A police official told Compass that the Christians have been charged with “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.”

Karnataka – Police on April 1 arrested Christians after Hindu nationalists registered false complaints of “conversion” against them (religious conversion is legal in India) in Kodihalli, Bangalore. The Global Council of Indian Christians (GCIC) reported that citizens identified only as Vincent, Johnson, Satyan and Naveenand Vinod were at a prayer and fellowship meeting in the home of a Christian when area Hindu extremists led by a person identified only Prashanth stormed the house, made the accusation and forced them to the Kodihalli police station. A GCIC coordinator told Compass that the intolerant Hindus shouted anti-Christian rants along the way, and that police were mute spectators as the extremists mocked the Christians at the police station. Police charged the Christians with “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.”

Himachal Pradesh – On March 17 at Rekong Peo in Kinnur district, Hindu extremists ostracized the Christian community and warned them under threat of violence to conduct no future worship meetings. The All India Christian Council (AICC) reported that Hindu nationalist extremists barred Christians from using a public road, collecting drinking water and entering a local forest. A group of 20 Christians filed a complaint at the Bhavannagar police station, but officials failed to protect the victims at the behest of the local Hindu extremists. AICC submitted a detailed report to the National Commission for Minorities, requesting an investigation.

Kerala – On March 31 on Kara Beach Road, Kodungallur, Hindu extremists attacked Pastor N.V. Eliyas and Pastor Milton George of New India Church of God as they were returning home with their families from a house dedication prayer service. The extremists shouted slogans against the Christians as they accused them of “forceful conversions,” reported the Global Council of Indian Christians. The Hindu extremists damaged the Christians’ vehicles. Pastor Eliyas sustained injuries on his head and ear and was rushed to the Kodungallur Government Hospital. Police arrested 35 Hindu extremists who were involved in the incident.

Uttar Pradesh – On March 20 in Lonianpurawa, Balrampur district, an irate mob of 60 Hindu extremists barged into the worship meeting of The Healing Church and beat those present. An earlier incident had taken place the previous Sunday (March 13), when Hindu extremists threatened the worship led by convert Gudgi Verma and his wife Saroja Verma, according to the Evangelical Fellowship of India (EFI). Opposing their thriving ministry in the area, local Member of the Legislative Assembly Gorakhnath Baba allegedly had sent about 25 Hindu extremists to the church to deliver the warning to discontinue church services. The Christians continued, and on March 16 Baba and 50 Hindu extremists went to the site, urged the couple to stop all Christian worship meetings and restore Hindu idols to the house, give offerings to the temple and observe all Hindu festivals, according to EFI. Evangelists Abhay Kumar and Keshov Parsad went to Lonianpurawa on March 20 to lead worship, and the Hindu extremists suddenly barged in, verbally abused the Christians for their faith and beat them. The situation in the area is reported as tense, and local Christians are praying to be able to resume regular Sunday worship meetings.  

Report from Compass Direct News
http://www.compassdirect.org