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Thursday, 13 August 2009
Page: 7900

Dr KELLY (Parliamentary Secretary for Defence Support and Parliamentary Secretary for Water) (11:10 AM) —It is a pleasure to follow my friend the member for Cowan, as both of us in a previous life spent a lot of time working together in support of these major pieces of humanitarian law that we are discussing and commemorating and whose 60th anniversary we are celebrating. There is an old expression that is attributed to Plato that says ‘Only the dead have seen the end of war’. That is obviously a very pessimistic view of human affairs and is one that we in this place have an obligation to work in contravention of as we continue to forge the paths of peace. In that respect I often refer to the Talmudic scholars who said, ‘You are not obligated to complete the task of achieving a better world, but neither are you free to desist from it.’ And that is really what the story of these Geneva conventions is all about.

As the member for Cowan highlighted, it has been a long evolutionary process to the point that we are at now in the law of armed conflict and international humanitarian law. There are two streams in the history of that evolution—what we refer to as Geneva law and Hague law. Hague law effectively governs what we call the methods and means of combat. It also regulates weapons systems and the employment of weapons systems. We saw in the most recent versions of that last year the passage of the convention on cluster munitions, but there are many others besides that regulate landmines and incendiary weapons et cetera.

The four Geneva conventions that we celebrate the 60th anniversary of today are part of the Geneva law tradition which regulates those who are hors de combat or the victims of warfare. They began famously with the experience of Henri Dunant, the Swiss businessman, who witnessed the terrible sufferings of the wounded and sick on the battlefield at Solferino in Italy, which led to the first Geneva convention of 1864. There was a period where a number of conventions were developed to deal with the specific issue of the treatment of the wounded and sick on the battlefield or, in the early years of the 20th century, of the wounded and sick and shipwrecked at sea and then, moving into the 1920s, of the treatment of prisoners of war.

It is important to note that the fundamental principle that was evolving through this period was an understanding that there was a limit to war. At the same time we started to see emerging not only the humanitarian aspect or issue of how people were treated on battlefields but also the additional dimension of the industrial abilities that mankind was able to bring to that situation, which raised the threshold of inhumanity itself. Of course, we had the experience of World War II and the terrible atrocities wrought by the Nazis in relation to civilian populations, and that experience led to the creation of the main development in the 1949 conventions of the fourth Geneva convention relating to the treatment of civilians under the authority or control of military forces.

The four Geneva conventions have been supplemented and added to by three additional protocols. The first of those expanded the conventions relating to the varying types of international conflict that we were seeing emerge post the Second World War and the second protocol dealt with situations of civil war where there were organised armed forces confronting existing governments but not extending further into the Hobbsian situations we have often seen in these failed state scenarios of warring factions against each other in multiple, fractured components not necessarily involving state forces. Then the third additional protocol, which we ratified yesterday, adds the new protective emblem to the armoury of the International Committee of the Red Cross in their seeking to perform their task. The other essential element of these Geneva conventions was the way they fundamentally and formally incorporated the role of the ICRC in the objectives of those conventions.

Also today, I would to pause to salute the work of the ICRC. Over many years, they have not only performed those tasks as set out in the conventions with great dedication and great effect but also been at the heart of the evolution of the law itself. Even today, they continue to pursue that evolution through their projects to do with distilling customary international humanitarian law and also in their current dialogue in defining what is meant by direct participation in hostilities by those who are hard to distinguish from combatants. Their work continues to this day and I salute them for that.

The law has also been complemented by the contributions of tribunals beginning with the Nuremberg tribunal through to those governing the conflicts in the former Yugoslav republic and in Rwanda. That, of course, as part of the revolutionary trend itself, led to the creation of the International Criminal Court, which has helped to develop and distil the laws through its definition of crimes and, most recently, following on from the 1980 statute, the development of the elements of war crimes and crimes against humanity et cetera. In that development, we have seen the law seeking to come to grips with the challenges posed by internal conflicts and dealing with these elements of asymmetric threats and terror. That is a long evolutionary process in itself which we are continuing to see develop.

The ICC statute has now had 109 states sign up to it and it is starting to get some traction and get a roll-on in dealing with the current situations we face internationally. I had wished that I had had something like an international criminal court to support me in the operation I was involved in in Somalia, where we were attempting to deal with serious warlords who had engaged in atrocities and genocidal activities. It was very difficult to find the means to deal with them other than by recreating the local justice system, which in itself was problematic because the end result of that system was that any person convicted would end up being executed. If we had had the International Criminal Court available to us then we could have used that to deal with these serious warlords and violators of fundamental human rights.

My own background is that I have been closely involved with the Geneva conventions through these last 20 years in the Army before I entered parliament. In particular, I also was involved closely with the ICRC as a pool military officer that they drew upon to try and advance the cause of the work of the ICRC in their efforts around the world. It was a great privilege for me to have worked in support of the ICRC, in particular in Bosnia and Croatia during the war there. That is why I have such a deep admiration and respect for the work of the ICRC. In particular, if you are a soldier, you will want to know that the ICRC is being respected and facilitated. If you are a captive then it is only the ICRC that will have the ability to ensure that you exist, that you are being dealt with humanely and that at some point, some day, there is a chance that you will be released. I continue to respect and do whatever I can to promote the cause of the ICRC’s work.

It was also a privilege to have been at the meeting of experts in Geneva in 1998 to draft the Australian statement on our position on the Fourth Geneva Convention. The Fourth Geneva Convention has been a great tool of mine in various conflict situations where Australia accepts or promotes a broader interpretation of the application of that convention to situations not just arising in the context of international armed conflicts but where military forces find themselves in the control of civil populations.

The most extensive example of my reliance upon that convention was in Iraq for the year that I was there from 2003 to 2004. Using the framework of that law, we were able to do a great deal of good in Iraq, something which is often lost in the context of the overall problems of that operation. Using that framework, we were able to establish a central criminal court which is still functioning extremely well and dealing with the most serious crimes in Iraq, and is well respected by Iraqis. We were able to use it as a tool to defeat the major international maritime oil smuggling operations that were bleeding Iraq dry at the time. We were able to create frameworks and operations based upon our use of that law. We were also able to use it for economic reconstruction purposes, and I participated with my colleagues in Iraq in developing over 100 laws for that country which are still being relied upon today as Iraq tries to move forward as a free-market democracy, respecting fundamental human rights. Many of the things that we implemented at that time—freedom of the press, right of assembly and various other measures to create the free-market framework—are still in place today and helping to move the country forward.

Unfortunately, of course, that experience was significantly offset by the dark aspects of what occurred in Iraq in relation in particular to interrogations and the treatment of detainees. Part of the all-consuming aspect of my struggle there was to deal with this detainee issue and create a framework that would meet decent humanitarian standards and the scrutiny of organisations like the ICRC. I worked closely with them in Iraq to try and achieve that. But we were undermined by an atmosphere and an approach that was promoted by various authorities which led to the situation that we saw unfold at Abu Ghraib. That experience itself is all you need to look at to understand the importance of these conventions. That experience undermined the position of our forces. It undermined our position not only within Iraq but, more importantly, internationally in terms of sustaining international support and domestic support for that operation. This is the key thing about these conventions.

In terms of practical military application, our compliance with these conventions helps us to maintain moral authority, to sustain our operations and to win that strategic battle for moral authority. It also has extreme practical military applications in relation to economy of effort and in the process of taking care in targeting; it makes life a lot easier for us in situations when we have to deal with the backwash behind our combat operations. Also of course there is a very serious practical effect in relation to our troops. If we are able to provide an environment for them and provide training for them, it enables them to fight a war and engage in conflict in a moral and just way. Then, at the end of the day, after the conflict is over, they will have less to deal with in terms of psychological and other traumas. You only have to look at some of the experiences of those who have been involved in breaches of these conventions to understand how important that is and what the effect can be in terms of suicides et cetera, and the impacts on anybody associated with those who suffer from those traumas.

We have the major challenge of facing asymmetric warfare and the tactics of Hamas, Hezbollah, the Taliban et cetera have been referred to. Their tactics are used to exploit our application of these conventions. These people use civilians as human shields. And, of course, there is their own non-compliance—and I refer here particularly to the ongoing situation of Gilad Shalit, who has been in the hands of Hamas in the Gaza Strip for three years now without having been visited once by the ICRC. In dealing with this, we have to shape our tactics properly and that does not mean varying from the framework of the conventions. We must still maintain our application of them to maintain the moral high ground and win this battle in the longer term.

It does mean that we have to be very intelligent and capable of shaping the battle space to deny the opportunities for these enemies in that respect. That means being able to apply soft power as much as kinetic power to achieve that. But, when we do need to apply kinetic power, it means that we have to apply that force precisely, which is the key to that. We must avoid collateral damage at all costs and of course make sure that those persons we are targeting are the ones who should be targeted. That is really the secret to success as we face the challenges today of Afghanistan.

We have to also take care of the politicisation of the law, and we have seen what can occur in relation to the ICJ’s case on the Israel security barrier. The judges on the ICJ basically adopted positions in line with the political positions of their home states, which confused and clouded the application of this law to the great detriment of the way the troops would be required to apply this law in the field. So it is something that we have to bear in mind. That also means that we as politicians and as governments must make sure that we make very clear statements about the application of this law for the benefit of the practitioners of it at the sharp end in terms of our troops.

We have an opportunity to promote international humanitarian law and the work and the role of ICRC, and we have to take that as a solemn responsibility. The road to a humanitarian and peaceful world leads ever on, and we have many to miles to go before we can sleep. (Time expired)