Why Australia should face civil lawsuits over soldier misdeeds in Afghanistan


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

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

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




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

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

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

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

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

Why are civil claims against soldiers controversial?

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




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

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

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

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

Should these civil claims be permitted?

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

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

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




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

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

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

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

Greater accountability for the military

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

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

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

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

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

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

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New Christmas tree design will remind of the real Christmas


Boss Creations, a new holiday décor company, has introduced the new "CHRIST-mas" Tree™, featuring the unique trait of a trunk in the shape of a wooden cross. Company owner Marsha Boggs says the tree was specifically designed to counter the "war on Christmas," reports Boss Creations in its press release.

"When I became a Christian a few years ago," says Boggs, "I was appalled by the secularization of the Christmas holiday. When retail stores started substituting ‘Happy Holidays’ for ‘Merry Christmas,’ and schools began calling their Christmas programs ‘Winter Plays,’ it all seemed ridiculous to me. That’s why we have created products that remind people what the Christmas season is really all about – the birth of Christ."

The "CHRIST-mas" Tree™ is size adjustable up to 7.5 foot tall to accommodate various ceiling sizes. Additionally, the company offers ornaments, wreaths and gift items all with Christian-based themes.

Legal fights over Christmas symbolism continue to create headlines such as a recent ban on religious songs in a New Jersey school district where the federal appeal judges noted "such songs were once common in public schools, but times have changed." Lawsuits regarding Christmas trees being taken down from public buildings have sparked anger across the country. Boggs says Boss Creations’ mission is to uphold the traditional meaning of the Christmas season, and from their sales, the company will be supporting two non-profit organizations that work as advocates for religious freedom.

A portion of the proceeds of all "CHRIST-mas" Tree™ sales will go to support the American Center of Law & Justice, an organization recently hailed by BusinessWeek as "the leading advocacy group for religious freedom," as well as to the Liberty Counsel, a nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the traditional family.

Report from the Christian Telegraph 

CENTRAL INTERIOR ASSEMBLY SAYS ‘YES’ TO SAME-SEX BLESSINGS


The assembly of the Anglican Parishes of the Central Interior (APCI) has requested its bishop, Gordon Light, to allow clergy whose conscience permits to bless civilly-married gay couples where at least one party is baptized. The assembly passed the motion when it met Oct. 17 to 19, reports Anglican Journal.

A notice of a similar motion was filed at the synod of the diocese of Ontario but was declared out of order by the diocesan bishop, George Bruce, who acted on the advice of the diocesan chancellor (legal advisor). The ruling was appealed at the synod held Oct. 16 to 18 but was upheld by a majority vote of delegates.

At the APCI assembly, Bishop Light gave concurrence to the motion but suspended any action pending consultations with the Canadian house of bishops, which meets Oct. 27 to 31 to discuss, among others, how best to respond to renewed proposals for moratoria on the blessing of same-sex unions, the ordination of persons living in same-sex unions to the episcopate, and cross-border interventions.

Since the 2007 General Synod four dioceses have already passed similar motions – Ottawa, Montreal, Niagara, and Huron. The diocesan synod of New Westminster approved same-sex blessings in 2002.

Of the 50 clergy and lay delegates at the APCI assembly, 36 voted yes (72 per cent), 10 voted no (20 per cent), and four (8 per cent) abstained. APCI is composed of 18 parishes (including 35 congregations) which was constituted after the former diocese of Cariboo closed its diocesan office in 2001 because of financial pressures surrounding lawsuits about abuse at the St. George’s Indian Residential School in Lytton, B.C.

“We had a very respectful discussion. All voices were heard,” said Rev. Susan Hermanson, rector of St. Peter’s Anglican church in Williams Lake, who moved the motion. She said that approval of the motion “allows us to accept gays and lesbians fully as part of our family and, as in all families, we can disagree with one another and still be part of the family.”

In a telephone interview, she added that the motion was also meant to “take a reading” of where APCI was on the issue. She noted that in 2000, the diocesan synod of Cariboo had approved a motion affirming the full inclusion of gay and lesbian couples in the life of the church. Since then, parishes have been discussing and studying the issue further, she said. “We have, in fact, been discussing this issue for the last 30 years now,” she said.

In her written background and explanation, Ms. Hermanson noted that APCI “is a diverse community and therefore respects and honours those who, because of their theological position or as a matter of conscience, cannot agree with the blessing of same-sex unions.”

Anglicans opposed to same-sex blessings believe that homosexuality is contrary to scripture and to Anglican teaching. To date, 14 of about 2,800 congregations have left the Canadian Anglican church over theological disagreements over homosexuality. These churches have joined a group called the Anglican Network in Canada (ANiC) and placed themselves under the episcopal oversight of the primate of the Southern Cone, Archbishop Gregory Venables.

Report from the Christian Telegraph

ORDINANCE DESIGNED TO ADVANCE GAY ‘RIGHTS’ OVERTURNED BY VOTERS


Voters in the town of Hamtramck, Michigan have overturned an ordinance which would have given legal protections to homosexual behavior, expression and attire, reports Catholic News Agency. The regulations could also have forced businesses to permit men who perceive themselves as women to use women’s restrooms.

Any attempts to prevent such activity, according to the Thomas More Law Center, would have subjected violators to investigations, criminal prosecution, civil litigation, and fines of up to five hundred dollars a day.

The proposal, labeled as a “human rights” ordinance, was defeated 2,903 votes to 2,333.

Father Andrew Wesley, the administrator of St. Ladislaus Parish in Hamtramck and one of the leaders in the fight against the ordinance, wrote a letter published last week in Hamtramck’s The Citizen newspaper supporting overturning the ordinance and denying that the Catholics and Muslims in the town were being intolerant by opposing the measure.

Ordinance opponents knew that “this type of legislation has been used successfully by gay groups in other parts of the country to bring lawsuits against businesses because physical males were refused entrance into women’s restrooms,” Father Wesley’s letter said.

He added that the wording of the ordinance has also been used to bring lawsuits against Catholic adoption agencies which refused to allow same-sex couples to adopt children.

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented on the ordinance opponents’ election victory.

“Radical homosexual groups have lost statewide attempts to impose their agenda on the public,” he said. “They are now engaged in a strategy of putting pressure on municipalities –in many cases successfully – to enact draconian provisions like Hamtramck’s. In this case their new strategy failed as the will of the people prevailed.”

Report from the Christian Telegraph

UK TRADITIONAL WING OF ANGLICANS TO LEAVE CHURCH OF ENGLAND


There are effectively two religions being practised in the Church of England, a leader of the evangelical or traditionally Protestant wing of the Anglican Church said this week, reports Hilary White, LifeSiteNews.com. On one side are the theologically ultra-liberal leadership who support not only women’s ordination but homosexuality, while on the other are those who hold to traditionally Christian and biblical principles.

The Rev. Rod Thomas was speaking to the annual conference of the Reform movement in London this week. Thomas said that at least twenty-five parishes, representing up to 3000 practising Anglicans in the UK, are already seeking alternate oversight from bishops not associated with the ultra-liberal theological trends that dominate the Church of England.

“We are actively going to take forward the agenda of alternative episcopal oversight. We are no longer able to sit back and wait to see what happens,” Rev. Thomas said.

“The most radical scenario which I don’t discount, but neither am I saying we are pressing for, is where you have a shortlist of names and ask overseas persons to consecrate them so they cater for individuals in this country.”

The Reform movement was founded in 1993 to oppose the ordination of women as clergy in the Church of England and represents the established Church’s traditional protestant or “evangelical” wing.

Thomas urged support from Reform Anglicans for the Fellowship of the Confessing Anglicans, a body set up by the bishops who attended this summer’s Global Anglican Futures Conference in Jerusalem.

Thomas said that the group believes in remaining within an “an Episcopal church for good theological and pragmatic reasons.”

“However, where the teaching and actions of a bishop promote an unbiblical way of thinking, then we simply have to look elsewhere for a bishop.

“If we fail to do this then our congregations will not see us taking New Testament teaching seriously and the process of accommodation will continue,” he said.

This summer’s Lambeth Conference issued instructions for Anglican congregations not to continue to seek “cross-border” oversight from bishops outside traditional Anglican episcopal boundaries.

Meanwhile traditionally Christian congregations in the US are winning their cases in courts to retain their parish properties while at the same time removing themselves from oversight by the Episcopal Church of the US (ECUSA). In the Diocese of Virginia this week, a judge ruled that a parcel of land given by Christ the Redeemer Episcopal Church was properly deeded to Truro Church, a traditional church, and that the diocese has no claim to it. The diocese has recently lost three times in lawsuits to retain some dozen church properties.

Conservative Anglican writer and commentator David Virtue wrote, “The Anglican Communion is coming apart at the seams while Dr. Rowan Williams tells a London reporter that he admires the atheist [Dr. Richard] Dawkins.” Dr. Williams, the Anglican Archbishop of Canterbury, was reported to have recently said about Dawkins, “There’s something about his swashbuckling side which is endearing. I invited atheism’s high priest and his wife to a Lambeth Palace party last year. They were absolutely delightful.”

Report from the Christian Telegraph