HUMAN

RIGHTS
DEFENDER
The Military and Human Rights: Human Rights of
Border Protection and Human Rights:
Political Narratives and Service Personnel
The ADF’s Challenge
Moral Injury
RAIN LIIVOJA AND
TOM FRAME MAJOR GARETH RICE ALISON DUXBURY

SPECIAL ISSUE:
HUMAN RIGHTS AND THE MILITARY
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
PAGE 02

AUSTRALIAN HUMAN RIGHTS INSTITUTE

Website: www.humanrights.unsw.edu.au
Email: humanrights@unsw.edu.au
Twitter: @humanrightsUNSW
LinkedIn: Australian Human Rights Institute

MANAGING EDITORS:
DR CLAIRE HIGGINS is a Senior Research Fellow at the
Andrew and Renata Kaldor Centre for International Refugee Law,
at UNSW Sydney. She is the author of ‘Asylum by Boat: origins
of Australia’s refugee policy’ (NewSouth, 2017) and was a
Fulbright Postdoctoral Scholar at Georgetown University,
Washington DC, in 2018. Claire is the Editor-in-Chief for the
Human Rights Defender.

DR PICHAMON YEOPHANTONG is an Australian Research

Council DECRA Fellow and Senior Lecturer in International
Relations and Development in the School of Humanities and
Social Sciences, UNSW Canberra at the Australian Defence
Force Academy.

DR CAROLINE LENETTE is Senior Lecturer in the School of

Social Sciences, UNSW Sydney and a member of the Forced
Migration Research Network, an interdisciplinary network of
leading researchers in refugee and migration studies. Caroline’s
research explores how storytelling through creative means can
influence decision-makers towards meaningful change, and the
ethical considerations of collaborative, arts-based research.

ANGELA KINTOMINAS is a Scientia PhD Scholar at UNSW

Sydney. Her research interests are in the intersections of gender,
socio-economic rights and migration. Her work is informed by
feminist, socio-legal and interdisciplinary approaches to law.
Angela is a Research Associate with the Social Policy Research
Centre and the Migrant Worker Justice Initiative and a Teaching
Fellow at UNSW Law.

ANDY SYMINGTON is a PhD candidate at UNSW Law and an

Associate of the Australian Human Rights Institute. He is
researching business and human rights, focusing on the
extraction of lithium in the high Andean salt flats of South
America. In 2018 he was honoured to be the recipient of UNSW’s
inaugural Judith Parker Wood Memorial Prize for human rights
PHOTOS
law. He is an experienced freelance writer and journalist.
Cover image: Sean Burton
JOSH GIBSON is a current PhD Candidate and Garth Nettheim Tough Love (Composite), 2018
Doctoral Teaching Fellow at UNSW. As a member of both the @sean_burton66
Australian Human Rights Institute and Gilbert + Tobin Centre, Contents page image: Sean Burton
Josh’s research interests include anything public law and human Tough Love 1, 2018
rights. His research focuses on human rights litigation, social @sean_burton66
movement strategies and the institutionalisation of human rights
norms. Josh teaches human rights law at Macquarie University.
Sean Burton served with the Australian
Army between 1989-2005, including
service as a photojournalist in East
STUDENT EDITOR: Joshua Wilson
Timor, Solomon Islands and the Middle
STUDENT INTERN: Georgia Couter East. Tough Love - the use of strict
PRODUCTION MANAGER: Gabrielle Dunlevy disciplinary measures as a means of
DESIGNER: Stephanie Kay, On the Farm Creative Services fostering responsibility and expressing
care. Originally a piece of street art,
Tough Love is based on photographs
by the artist depicting Australian
soldiers conducting ‘Population
© 2019 Human Rights Defender. The views expressed herein are those of the authors. Protection and Control’ drills prior to
The Australian Human Rights Institute accepts no liability for any comments or errors of fact. overseas deployment. “Love will win.”
Copyright of articles is reserved by the Human Rights Defender. ISSN 1039-2637
CRICOS Provider Code. 00098G

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 03

04 Editorial: In the Defence of Human Rights

Pichamon Yeophantong

06 Border Protection and Human Rights:

The Australian Defence Force’s Challenge
Major Gareth Rice

08 The Brazilian Armed Forces and Human

Rights: Inter-agency Cooperation and the
Venezuelan Migration Crisis
Ana Luiza Bravo e Paiva, Sabrina Evangelista
Medeiros and Cintiene Sandes Monfredo Mendes

11 The Workplace Rights of Warriors

Ned Dobos

13 Human Rights of Service Personnel

Rain Liivoja and Alison Duxbury

16 Combat Interpreters and A Moral

Obligation: Interview with Jason Scanes,
CEO of Forsaken Fighters Australia Inc.
Interviewed by Joshua Wilson

19 Moral Injury in Military Service

Lewis Frederickson

21 The Military and Human Rights: Political

Narratives and Moral Injury
Tom Frame

24 Human Rights, the Rule of Law, and

Foundations of the Post-World War II Order
Philippe Constantineau

26 Civilisation on Trial: The Failure to

Craft Policy
Richard Adams

29 Humanitarian Law and Human Rights

in Armed Conflict
Sam Hartridge

31 The Challenge of Guarding Against

Conflict-Based Sexual Violence
Tamsin Phillipa Paige

34 Militarised Security: Understanding the

Relationship between the Armed Forces of
the Philippines and Human Rights
Sarah Wilson

36 The Traditional Japanese Spirit and

Experiences of War: Reflections on Japan’s
International Peace Cooperation Activities
Shutaro Sano

38
CONTENTS
Human Rights in Fifth Dimension Warfare:
Exposed and Undefended
Joshua Wilson
HUMAN RIGHTS DEFENDER
VOLUME 28: ISSUE 2 – SEPTEMBER 2019
PAGE 04

IN THE DEFENCE
OF HUMAN RIGHTS
PICHAMON YEOPHANTONG
Pichamon Yeophantong is an Australian Research Council Fellow and Senior Lecturer at UNSW Canberra.
She is the guest editor of this issue.

The profession of arms is mentally, Even so, whereas the duty of a military force to the state –
to advance and protect national interests – tends to be
physically, and morally demanding.
clearly delineated, the nature of its responsibility to society
In a world now typified by intense can remain rather equivocal. This may be truer in certain
geopolitical competition and the growing parts of the world, such as in Southeast Asia and Latin
prevalence of non-traditional security America where the armed forces have historically played,
threats like large-scale environmental whether for better or worse, a more prominent role in
hazards and terrorism, mastery of this politics and society.
profession has proved to be difficult as it Surveying the vast literature on the world’s militaries and
becomes increasingly susceptible to the (un)ethical conduct of war, it is possible to identify three
turbulence and geostrategic uncertainty. broad roles frequently used to characterise the armed
forces when the question of human rights is asked: that is,
Especially with rapid technological advances, the character
the military as a recipient, defender and/or abuser of these
of war is likewise changing – and with serious implications
rights. Not to overgeneralise the functions of the armed
for the protection of human rights. The United Nations’ (UN)
forces, these categories are useful in terms of spotlighting
most recent report on the five-year conflict in Yemen serves
the agency of the military and, more specifically, of
as a stark reminder of the human costs of war. Among the
uniformed personnel in discussions about human rights.
wide range of violations that is documented as having been
Instead of simply focusing on conflicts and their
committed against Yemeni civilians, the report alarmingly
perpetuation of human insecurity, one of the aims of this
reveals the possible use by the parties to the conflict of
special issue is to cast light on how human rights issues
starvation as a method of warfare.1
are understood from a military perspective, as well as how
But despite this challenging strategic terrain, there are and to what extent those serving are accorded rights.
elements of the profession that have persisted over time:
This edition of the Human Rights Defender (HRD) is thus
in particular, the notion that it entails the cultivation of
noteworthy for two reasons. First, it marks the first time
specialised knowledge in the management of violence
that the HRD has been edited at UNSW Canberra, located
and that, as a result, its members are consequently
at the Australian Defence Force Academy. Second, the
tasked with discharging special responsibilities to both the
issue showcases a diverse collection of articles that
state and society.2 As reflected in some of the articles
speaks to the varying depictions of the armed forces and
featured here, although those who join the armed forces
their roles in receiving, safeguarding or undermining
may do so understandably due to self-interest, there will
human rights. Weaving together a rich tapestry of first-
nevertheless be a good number who feel a strong
hand experiences and case illustrations from Australia,
obligation to upholding the values and moral codes of
Brazil and the Philippines, among others, the contributors
their respective societies, largely by virtue of the special
expertly consider what human rights means to the military,
powers and duties associated with being in uniform (most
how they are acted upon in different socio-political
notably, the ability to use lethal force). This expectation is
contexts, and the challenges that lie ahead.
often one placed upon the armed forces by society, as
well as by those serving themselves.

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 05

Kelly Manning
Boys, 2002
Australian National Veterans
Arts Museum Collection
Kelly Manning has, through her art, portrayed the lifelong
effect on the people connected to the Vietnam War. Manning
depicts the stories of Australian Vietnam veterans, Indigenous
Australian Vietnam veterans, the people of North and South
Vietnam, and the Vietnamese diaspora around the world. She
also tells the story of the generational impact of the war and
its lasting effect on the children and family of those who
experienced the war.
www.kellymanningartist.com
@kellymanning1

Contributors are drawn from within the Australian Defence record with the people-centred approach of Japan’s Self-
Force as well as from leading military colleges and Defense Forces. At a time when the information revolution
academic institutions, including the Royal Military College is creating new battlegrounds in cyberspace, the final
of Canada and the National Defense Academy of Japan. article (J Wilson) concludes this HRD edition by
Mirroring the complexity of the topics covered, the views anticipating the human rights impacts of future warfare.
and analyses presented here are the authors’ own and do
not always agree. For this reason, the articles have been Taken together, the articles ultimately
arranged in a way that facilitates a conversation between remind us of how the profession of arms
the authors – and hopefully, readers as well. Beginning and successful armed combat require
with an examination of how the ADF and the Brazilian not only physical prowess and
Armed Forces respectively manage cross-border
intellectual agility, but also moral
migration (Rice; Paiva, Medeiros & Mendes), the issue
delves into the topic of the rights of service personnel and
stamina. Even after a war is won on the
the moral injury they risk sustaining when faced with battlefield, its human consequences will
injustice (Dobos; Liivoja & Duxbury; Frederickson; Frame). surely extend beyond the battlefield,
Following a candid interview with Jason Scanes, CEO of bleeding into the lived experiences of
Forsaken Fighters Inc., who has been campaigning to those affected. As such, the conduct of
bring his Afghan interpreter to Australia, the focus shifts to war is necessarily a contest of wills and
a discussion of the implications – and omissions – of of moralities – a reality that holds its
policy and law vis-à-vis armed conflict and gender-based warriors to a higher ethical standard and
violence (Constantineau; Adams; Hartridge; Paige). This
then segues into country accounts (S Wilson; Sano) that
level of human accountability.3
juxtapose the Philippine military’s human rights track

1. UN Human Rights Council, ‘Yemen: Collective failure, collective responsibility – UN expert report’, September 3, 2019 <https://www.ohchr.
org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID =24937&LangID =E>
2. See S. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Harvard University Press, 1957).
3. I gratefully acknowledge the incredible assistance and support provided by Gabrielle Dunlevy, Claire Higgins and Joshua Wilson during the
production of this magazine.
PAGE 06
BORDER PROTECTION
AND HUMAN RIGHTS:
THE AUSTRALIAN DEFENCE FORCE’S CHALLENGE
GARETH RICE
Major Gareth Rice is an Instructor at the Australian Defence Force Academy. He is a graduate of
the Royal Military College – Duntroon and has served on operations in Afghanistan. The
opinions expressed in this article are the author’s own, are not based on personal experience
with border operations, and do not necessarily reflect the views of the Australian Defence
Organisation or the Australian government.
In international law, it is considered
a human right to be able to seek
asylum from persecution.1 While the
Australian government recognises
this fact, the arrival of asylum
seekers (predominately by boat) has
become a toxic and pervasive issue
in Australian politics. So much so
that the government has often
turned to the Australian Defence
Force (ADF) to solve this issue for
them and stop boat arrivals. Such
use of a nation’s military to
potentially deny a human right
poses notable ethical challenges in
regard to the use of force,
particularly considering the
question of how much force the
government is prepared to use to
achieve these ends.
In 2001, then Australian Prime Minister John
Howard politicised the arrival of asylum seekers by
boat.2 In August of that year, he famously utilised
Special Forces soldiers to board the MV Tampa in
an effort to deny the asylum seekers on board
access to Australian territory.3 The use of Special
Forces for such a benign threat was undoubtedly a
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
political statement above all else; and yet, it placed
the ADF in a challenging ethical situation that has
continued to this day.
Following the Tampa crisis, the ADF was utilised in
Operation Relex, Resolute and more recently,
Sovereign Borders.4 While the stated aims of these
operations has been to protect Australia’s borders,5
they have more commonly been associated with
preventing ‘illegal’ immigration from the sea. The
question of whether such immigrants are seeking
asylum is presumably not addressed as part of this
operation, although there have been reports of
enhanced screening techniques at sea.6
Presumably, the arrivals are simply denied entry
and turned around through a variety of means that
appear to have been successful is dissuading many
subsequent attempts.7
While this article does not seek to go into the legal or
ethical implications of this policy decision, the use of
the ADF in this manner is of particular interest. The
ADF has often viewed itself as a protector of human
rights abroad.8 This is an entirely appropriate
characterisation given the ADF’s operational service
and is arguably an extension of Australia’s values
and where it sees itself in the world. However, the
ADF’s participation in such border protection policies
has the potential to challenge this perception or at
the very least, pose ethical challenges for its soldiers,
sailors and airmen should the parameters of the
operation change.
 PAGE 07

Operations conducted since the Tampa crisis have not
required the use of lethal force in the pursuit of these
policy goals. Even so, it is not unrealistic to imagine a
scenario where lethal force may be considered or even
used. Should the smugglers (who are often responsible
for operating such vessels) prevent a boarding from ADF
personnel through the use of force, it is not implausible to
see an exchange that could result in deaths at sea.
Whenever lethal force is used, the possibility of collateral
damage must also be considered.
Further extending these hypothetical scenarios, we must
also examine the possibility of a different political
landscape whereby increased arrivals prompt a change in
policy to authorise lethal force against maritime incursions.
While this scenario is undoubtedly extreme, there are
striking parallels between this and the recent decision by
President Donald Trump to authorise the United States
military to use lethal force on their southern border with
Mexico.9 Consider then the challenge of an Australian
soldier or sailor required to fire on a crowded vessel in self-
defence (as a best case scenario) or in the execution of a
government policy (in a worst-case scenario).
For those individuals required to use lethal force, it may be of
little consolation that the successful implementation of this
policy may prevent further losses at sea from asylum
seekers boarding unseaworthy vessels. The use of lethal
force to protect a nation’s sovereignty is perhaps an easier
ethical consideration, but it is debatable if this is indeed a
question of sovereignty. While the use of militaries to control
national borders is by no means a new in hard power terms,
it does pose ethical challenges when that hard power is
used against people who are unlikely to pose a direct threat.
In the context of the ADF, most ethical discussions today
concern the use of force to protect human rights where
restrictions placed on an operation do not allow for
intervention. An example might include witnessing an
execution across an international border. But the scenarios
posed above are far more direct and controversial. They
raise questions about what the Australian public are willing
to allow the ADF to do in their name. Similarly, while ADF
personnel may be afforded a degree of legal protection by
the Australian government, it assumes that those personnel
would be willing to follow orders.
Fortunately, these scenarios are hypothetical and the
success of the ADF and Australian Border Force in
achieving the government’s policy goals without causing
loss of life is a testament to their capability and
professionalism. But the problem is not going away.
According to the United Nations Refugee Agency
(UNHCR), the number of displaced peoples in the world
today is the highest on record.10 Future iterations of
Operation Sovereign Borders should, therefore, expect to
confront a larger number of more desperate peoples
attempting to reach Australia’s shores.
The ADF is well-equipped to confront these challenges,
but the prospect of using lethal force on unarmed civilians
poses serious questions of proportionality and military
necessity. While the scenarios outlined above are
extreme, the dilemma is real. Borders can be closed, but
enforcing that closure often comes at a cost. The ADF
needs to be at the forefront of confronting these
challenges if they want to continue to be a protector of
human rights.

1. J. McAdam, ‘Australia and Aslyum Seekers’, International Journal of Refugee Law, 2013, vol. 25, no. 3, p. 438.
2. M. McDonald, ‘Deliberation and Resecuritization: Australia, Asylum-Seekers and the Normative Limits of the Copenhagen School’, Australian
Journal of Political Science, 2011, vol. 46, no. 2, p. 285.
3. E. Willheim, ‘MV Tampa: The Australian Response’, International Journal of Refugee Law, 2003, vol. 15, no. 2, p. 159.
4. J. Chia, J. McAdam & K. Purcell, ‘Asylum in Australia: ‘Operation Sovereign Borders’ and International Law’, Australian Year Book of
International Law, 2014, vol. 32, no. 35.
5. Australian Border Force, ‘Operation Sovereign Borders’, 2019 <https://osb.homeaffairs.gov.au/>.
6. S. Whyte, ‘Immigration department officials screen asylum seekers at sea ‘via teleconference’’, The Sydney Morning Herald, July 2, 2014
<https://www.smh.com.au/politics/federal/immigration-department-officials-screen-asylum-seekers-at-sea-via-teleconference-20140702-
3b837.html>
7. Legal and Constitutional Affairs Legislation Committee, Senate, October 20, 2014, <https://parlinfo.aph.gov.au/parlInfo/download/
committees/estimate/e0ac4873-6e45-47ec-b82f-7eb06a2dd45f/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20
Committee_2014_10_20_2981_Official.pdf;fileType=application%2Fpdf#search=%222010s%202014%2010%2020%20legal%20and%20
constitutional%20affairs%20legislation%20committee%22>
8. Australian Civil Military Centre, ‘Protection of Civilians’, 2019 <https://www.acmc.gov.au/why-were-here/protection-of-civilians>
9. J. Laporta, ‘Donald Trump signs authorization for border troops using lethal force as migrant caravan approaches, document reveals’,
Newsweek, 2018 <https://www.newsweek.com/donald-trump-memo-migrant-caravan-border-troops-1226945>
10. UNHCR, ‘Figures at a Glance’, 2018 <https://www.unhcr.org/figures-at-a-glance.html>
PAGE 08
THE BRAZILIAN ARMED
FORCES AND HUMAN RIGHTS:
INTER-AGENCY COOPERATION AND THE VENEZUELAN
MIGRATION CRISIS
ANA LUIZA BRAVO E PAIVA
Ana Luiza Bravo e Paiva is an Assistant
Professor and vice-coordinator of the
Postgraduate Program in Military Sciences at
the Brazilian Army Command and Staff College.
SABRINA EVANGELISTA
MEDEIROS
Sabrina Evangelista Medeiros is an Associate
Professor and vice-coordinator of the
Postgraduate Program in Maritime Studies at
the Brazilian Naval War College.
CINTIENE SANDES
MONFREDO MENDES
Cintiene Sandes Monfredo Mendes is an
Assistant Professor at the Brazilian War College.
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
The role of the armed forces has been
evolving since the end of the Cold War.
However, the decline in interstate
conflicts over time has brought about an
unprecedented change in the
responsibilities assigned to the military.
South America, in particular, has managed to avoid both
significant interstate conflict on its own continent as well
as involvement in the major wars that have occurred in
other parts of the world. As such, despite experiencing
severe economic crises and domestic political instability,
South American countries have been able to use their
armed forces to contribute to the international order
through other means. Contributing to peacekeeping
missions has been especially popular, as doing so helps
to build public trust in the armed forces and among the
countries involved.
Brazil, in particular, has sought to further enshrine the
core principles of human rights in its military operational
doctrines, motivated by a desire to standardise military
operations as well as improve interagency coordination
and civil-military relations. The need to comply with the
rules of engagement in United Nations (UN) peacekeeping
missions has challenged, at both the individual and
command level, the preparedness of Brazilian troops as
well as operational training in an increasingly complex
international environment. Nevertheless, such
experiences have assisted with the refinement of Brazilian
military training.
Brazil has had extensive involvement in UN peacekeeping
operations throughout the organisation’s history. Its most
substantial and strategic contributions have been in
relation to the leadership of two operations: from 2004 to
2017, the Brazilian Armed Forces led the UN Stabilisation
Mission in Haiti (MINUSTAH), providing the operation’s
largest contingent1, and in 2011, Brazil assumed
command of the UN Interim Force in Lebanon Maritime
Task Force (UNIFIL MTF) 2. The country has also been
sending, on average, 1700 personnel to UN missions per

year. These efforts were coordinated under
Brazil’s pacifist foreign policy, whose underlying
values have since been integrated into the Armed
Forces’ best practices. The country’s experience
in international peacekeeping missions further
inspired the consolidation of inter-agency and
human rights preparedness through the
development of relevant military manuals,
protocols and operational doctrines.
Currently, the Brazilian Armed Forces face the
challenge of its changing national security
demands, as outlined in the Defense White Paper
(2012) and as guided by the National Defense
Strategy (2008) and National Policy (2012). This
includes the use of the military in domestic
security operations, which is written into the
Brazilian Constitution (1988) and regulated by law
(Supplementary Legislation 97/99; Decree
3897/2001). In the past (1992-2019), the Law and
Order Assurance Operations (GLO) authorised the
federal government to deploy Brazilian troops
PAGE 09
Military and civilian observers with a child migrant
upon request by state governors to intervene
during a domestic security crisis (there have been
136 of such cases since 1992, as of April 2019).
The delineation between the Armed Forces’ public
security duties and their other functions is further
blurred by the recognition that, given Brazil’s vast
territory and challenging geography, only the
Armed Forces can be as responsive as border
security and domestic stability demands dictate.
Accordingly, the Brazilian Armed Forces have
assumed many non-traditional roles and missions,
as soldiers, defenders, peacekeepers, firefighters,
and police officers.3 The Brazilian military is able to
take on this diversity of roles due to its unique
capacity to respond to crisis scenarios, being
primarily employed in the development of national
infrastructure and crisis management, while also
operating across a spectrum of other non-
traditional assignments, including food distribution
in remote areas such as the Amazon.
PAGE 10

Given the range of these tasks and their civilian-oriented recommendations put forward by the UNHCR (UN
nature, human rights issues have consequently been Refugee Agency) to the Brazilian Armed Forces and the
central to the Armed Forces’ assignments. Guaranteeing High-Level Committee (which had been created by the
electoral integrity across the country and responding to Brazilian Army). Military forces were deployed to ensure
natural disasters such as recurring floods are tasks of that all the agencies involved in this undertaking will be
considerable importance and operational complexity. They able to fulfil these objectives. The military is also
also entail rather varied requirements for human rights responsible for providing logistical support to the shelters,
safeguards. As such, challenges remain in ensuring that which includes construction, repairs as well as the
the legal framework and operational protocols progress at provision of meals and security.
the same pace as the deployment of domestic military
Venezuelan immigrants are presently given the choice of
operations, so as to prevent the problem of overreach.
returning voluntarily to Venezuela or remaining in Brazil.
A recent example of the Armed Forces’ deployment in Should they decide to remain in Brazil, they will be
response to a human rights emergency was the military’s received by an available local municipality to be
role in the Venezuelan migration crisis. Since 2014, the subsequently integrated into the Brazilian labour market.
deterioration of political, economic and social conditions in
A defining characteristic of Operation Acolhida is the fact
Venezuela has precipitated emigration on an unprecedented
that it constitutes a joint humanitarian and inter-agency
scale and the massive displacement of Venezuelan migrants
task force. Notably, it has resulted in the cooperation
across the land borders to Colombia and Brazil. According
between the Brazilian Army and leading international
to data from the Brazilian Federal Police, between January
NGOs, including Médecins sans Frontières, Fraternidade
2017 and June 2018, 127,000 Venezuelans entered Brazil
Sem Fronteiras, Telecoms sans Frontières, and the
through the city of Pacaraima. Increased displacement has
Panamerican Foundation for Development (PADF), as well
since triggered a crisis in Pacaraima, a small town on the
as with representatives of different religious groups (e.g.
Amazonian periphery which has inadequate infrastructure
Catholic Caritas, ADRA, Rotary, Methodists). The
and little capacity to absorb the sudden growth in the
reception and integration of displaced Venezuelans are
population and labour force.
coordinated by the Brazilian Ministry of Defense, the
As a consequence, in February 2018, the Brazilian Federal Police and the Health Regulatory Agency, in
government recognised the “vulnerable situation resulting conjunction with UNHCR.
from the flow of migrants to the state of Roraima due to
Brazil’s shift from an emigrant source to host country has
the crisis in Venezuela”4 and established a humanitarian
prompted it to take on a more significant role in at both
mission in response. Since its creation, Operation
the regional and international levels for the protection and
Acolhida (which means ‘welcome’ in Portuguese) has
promotion of human rights. Furthermore, an especially
been carried out by the Brazilian Armed Forces in
noteworthy development was the internalisation process
coordination with other government agencies, civil
conducted by the Acolhida Operation, which guarantees
institutions and the UN. Given the logistical and
the transfer of migrants to humanitarian shelters
operational challenges posed by conditions in the
distributed across the different states of the federation
Amazonian region, this military dimension has proven to
(Sergipe and São Paulo, for instance).
be an important development.
In light of the issues discussed, it is interesting to note
According to Lt. Gen. Eduardo Pazzuelo, coordinator of
that Brazil’s growing participation in peacekeeping and
Operation Acolhida, the main purpose of this operation is
humanitarian operations has been reflected in the
to provide assistance to Venezuelan immigrants
development and improvement of its military documents
experiencing vulnerable conditions. In practical terms, the
and operational protocols. From lessons learnt in
operation is based on three objectives: regulating the
operations under the aegis of the UN, the Brazilian Armed
border, providing shelter, and relocating Venezuelan
Forces has been improving its ability to act in conflict
immigrants. These objectives form a part of the
resolution as well as in human rights promotion.

1. C. Braga, ‘MINUSTAH and the Security Environment in Haiti: Brazil and South American Cooperation in the Field’, International
Peacekeeping, 2010, vol. 17, no. 5, pp. 711-722.
2. A. Abdenur, ‘Rising powers in stormy seas: Brazil and the UNIFIL maritime task force’, International Peacekeeping, 2016, vol. 23, no. 3, pp. 398-415.
3. P. Shemella, ‘The Spectrum of Roles and Missions of the Armed Forces’, in T. Bruneau and S. Tollefson (eds), Who Guards the Guardians
and How: Democratic Civil-Military Relations (Austin: University of Texas Press, 2006), pp. 122-144.
4. G. Oliveira, ‘Use of the Brazilian Military Component in the Face of Venezuela’s Migration Crisis’, Military Review, 2018 <https://www.
armyupress.army.mil/Journals/Military-Review/Online-Exclusive/2018-OLE/Oct/Brazilian-Military/>

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 11

THE WORKPLACE
RIGHTS OF WARRIORS
NED DOBOS
Ned Dobos is Senior Lecturer in International and Political Studies at UNSW
Canberra. He is the author of Insurrection and Intervention (Cambridge University
Press) and The True Cost of the Military: Ethics, Security, and the War-Machine
(Oxford University Press, forthcoming).

British General Sir John Hackett thought the military was more like a
holy order than a workplace.1 In a similar vein, renowned political
scientist Samuel Huntington described the military professional as ‘one
who pursues a higher calling’.2 The analogy to a priesthood is carried
further in the latest edition of The Armed Forces Officer, produced by
the US Department of Defense. Therein, clergy and combatant are said to
be alike in that both answer a summon ‘to serve others, to sacrifice self,
and to be about something larger than one’s own ambitions and desires,
something grander than one’s own contributions and even one’s own
life’.3 For the clergy, the ‘larger’ and ‘grander’ thing in question is the
divine. For soldiers, it is the closest thing on earth to divinity: the state.
Soldiering, on this view, is no ordinary occupation. Indeed, it is not an occupation at all. There is no
contract of labour, but rather a sacred oath to the state. To this day the official enlistment form of the US
Armed Forces advises recruits in no uncertain terms that what they are about to sign is ‘more than an
employment agreement’.4 This notion that military service is something radically different from an
ordinary career generalises far beyond the United States. The effect of this has been to insulate the
military from our common standards of occupational ethics, workplace rights, and even labour law. On
the prevailing orthodoxy, since soldiers are not workers, they do not have any workplace rights that
might impose moral limitations on their own state’s war-making prerogatives.
However, the trouble is that the empirical evidence suggests military service is an occupation in the eyes
of many of the people engaged in it. Several decades ago American sociologist Morris Janowitz
observed that those who see the military profession as a higher calling ‘are outnumbered by a greater
concentration of individuals for whom the military is just another job’.5 More recently, award-winning
investigative journalist Michael Massing conducted interviews at Fort Drum with the express purpose of
discovering ‘who fights, and why?’ As Massing reports, ‘Over and over I heard soldiers talk about being
hard-pressed to pay the rent, of having a child and being without healthcare’. One soldier confessed ‘I
joined the army because I couldn’t afford to go to college’. Another said ‘I thought it would look good on
my resume’. Another admitted that the handsome retirement package offered by the military, compared
to civilian employers, is ultimately what lured him in.6
Sociologist George Moskos sees this as part of a trend: what he calls the “occupational shift” in military
service. The members of an institution, Moskos explains, are driven by ‘a purpose transcending
individual self-interest in favour of a presumed higher good. Members of an institution are often viewed
as following a calling’. An occupation, by contrast, ‘is legitimated in terms of the marketplace, i.e.,
prevailing monetary rewards for equivalent competencies.’7
PAGE 12

To put it in another way, an occupation
is a means of self-advancement, whereas
an institution presents an opportunity
for self-sacrifice. Traditionally, the
military has been thought of as falling
squarely on the institutional side of the
divide; but according to Moskos, this is
changing fast. Every day soldiering is
looking less like a ‘higher calling’ and
more like an ordinary job.
The ethical implications of this occupational shift have, for
the most part, gone under the radar. But in recent years,
institutions representing the interests of soldiers have
increasingly based their ethical demands on the idea that
soldiering is, in fact, just another job Perhaps the most
striking illustration has been the emergence and expansion
of EUROMIL – the European Organisation of Military
Associations – whose stated mission is to ‘promote the
professional and social interests as well as the fundamental
rights and freedoms of European soldiers’.8 The
organisation now includes military unions from over 20
countries, spanning from Turkey in the east and Ireland in
the west, to Sweden in the north and Cyprus in the south.
The network’s demands are as follows:
EUROMIL is committed to the principle of citizen in
uniform, and particularly demands equal rights and
treatment of soldiers; the right of servicemen and
women to form and join trade unions; [and]
inclusion of military personnel into EU social and
labour legislation. EUROMIL requires of
governments to lift all existing restrictions [on the]
rights of soldiers which are not an inevitable and
proportionate result from the military assignment.9
These demands are justified with explicit reference to
the occupational shift. The EUROMIL website declares
that ‘a military career is nowadays becoming
indistinguishable from alternative, and more traditional,
lines of employment’, and that ‘soldiers are highly skilled
employees who have the same legitimacy to promote
their social and professional interests as other employees
do’. The thinking is that if soldiers have become workers,
then they are presumptively entitled to the protection of
workplace rights.
The practical implications of this have yet to receive much
scholarly attention, but there is reason to believe that they
would be radical. We accept that employees are entitled
to dignified treatment at work: they must not be assigned
tasks that would devalue their lives. We also think that
workers have a right to occupational safety, which
includes a prerogative to disobey orders that are
reasonably expected to cause injury or death if complied
with. A research paper of mine, forthcoming in the Journal
of Military Ethics, argues that if these standard workplace
rights were extended to armed forces personnel, it would
constrain the war-making privileges of their state in more
ways than one.
But that might not be a bad thing. Some wars are waged
not to defend lives and basic liberties, but simply to ensure
that citizens can ‘continue to gas up their SUV’s at a
comfortable price’, as David Luban puts it facetiously.10
If soldiers, like other workers, have a right to dignified
treatment, it may be the case that deploying them into such
wars constitutes a violation of said right, since it treats
soldiers as though the loss of their lives can be morally
offset by economic gains accruing to the people back
home. Of course, we already think that wars waged for
such trivial reasons as securing cheap access to oil are
unjust, on the grounds that they violate the rights of the
people on the receiving end of the lethal violence (enemy
combatants and civilians). But if we can add that any such
war also infringes the workplace rights of the soldiers sent
in to do the fighting, this is surely all to the good.

1. J. Hackett, The Profession of Arms (National Defense University Press, 1962), p. 3.

2. S. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Harvard University Press, 1957), p. 8.
3. US Department of Defense, The Armed Forces Officer (National Defense University Press, 2007), p. 13.
4. Washington Headquarters Services, ‘Executive Services Directorate’, 2019, <http://www.dtic.mil/whs/directives/forms/eforms/dd0004.pdf>
5. G. I. Wilson, ‘Careerism and Psychopathy in US Military Leadership’, Fabius Maximums, May 2, 2011.
6. M. Massing, ‘The Volunteer Army: Who Fights and Why?’, New York Review of Books, April 3, 2008.
7. C. Moskos, ‘From Institution to Occupation Trends in Military Organization’, Armed Forces & Society, 1977, vol. 4, no. 1.
8. European Organisation of Military Associations and Trade Unions (EUROMIL), 2019, <http://euromil.org>
9. Ibid.
10. D. Luban, ‘Intervention and Civilization: Some Unhappy Lessons of the Kosovo War,’ in P. de Greiff and C. Cronin (eds), Global Justice and
Transnational Politics: Essays on the Moral and Political Challenges of Globalization (Cambridge: MIT Press, 2002), pp. 86-7.

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019


HUMAN RIGHTS OF
SERVICE PERSONNEL
RAIN LIIVOJA
Rain Liivoja is an Associate Professor at the TC Beirne School of Law, University of
Queensland, where he leads the Law and the Future of War research group.
ALISON DUXBURY
Alison Duxbury is a Professor at Melbourne Law School, University of Melbourne, and an
Associate Director of the Asia Pacific Centre for Military Law.
When discussing the application of international
human rights law to service personnel, commentary
has tended to focus on the role of service members
as duty bearers. This is understandable, particularly
in light of the recent publicity given to UN
peacekeepers engaging in sexual exploitation and
abuse. Consequently, whilst much has been
written on the legal frameworks surrounding the
investigation and prosecution of service personnel
alleged to have committed human rights abuses,
there is less discussion surrounding service
members as bearers of rights.
However, service personnel also enjoy the
protection of international human rights law like
other members of society. The International
Covenant on Civil and Political Rights (ICCPR), to
which Australia is a party, reinforces this point. The
Covenant requires states ‘to respect and to ensure
to all individuals within its territory and subject to
its jurisdiction the rights recognized in the ...
Covenant’.1 Australia is bound by the Covenant as a
matter of international law, although it has not been
comprehensively implemented in domestic law.2
Service members have not made many complaints
to the UN Human Rights Committee, which
oversees the implementation of the ICCPR. The
European Court of Human Rights, in contrast, has
decided numerous cases about the rights of
PAGE 13
service personnel under the European Convention
on Human Rights (ECHR).3 Several of these cases
concern the application of fair trial rights in military
justice systems, for example, where a military
court or tribunal has allegedly not met the
standard of impartiality or independence required
by the ECHR.4 Indeed, national military law in
some European states has changed dramatically
because of human rights litigation.
The extent of the rights of service
members clearly cannot be
identical to that of other members
of society. Armed forces need to
maintain a far higher level of
discipline than most workplaces
and service personnel can
intentionally be placed in harm’s
way. Courts have recognised that
the extent of the protection given
to service members must
reasonably account for life and
service in the armed forces.5
On that basis, human rights may be qualified.
The manner in which that happens, however,
remains surprisingly unclear. There are several
possible options.
PAGE 14
RESERVATIONS
The most radical option is for states to make
reservations to human rights treaties concerning
the armed forces. As unilateral statements intend
to modify the application of particular treaty
provisions, the effects of reservations can be far
reaching. A state could, by means of a reservation,
completely deprive service personnel of some
rights, as long as this is not prohibited by the
treaty itself or incompatible with the object and
purpose of the treaty as a whole. For example, on
that rationale, reservations to the Convention
against Torture would be inconceivable.
In practice, States have been sparing in their use
of reservations to the ICCPR when dealing with
the human rights of service personnel. Most
notably, France and the United Kingdom have
made reservations to the ICCPR regarding the
application of military discipline with the intention
of preserving the processes of military justice
systems.
INTERPRETATION
The second option is to interpret concepts or
terms of human rights treaties differently when
applied to service members. The European Court
of Human Rights did precisely that in the landmark
case of Engel v Netherlands,6 which concerned
detention in the armed forces. The Court held that
the right to liberty and the associated right not to
be detained without a legal basis needs to be
interpreted in light of ‘the particular characteristics
of military life’.7 Specifically, what might amount to
detention in civilian society might not amount to
detention in the armed forces.
While the reinterpretation of a treaty in light of the
dictates of military life seems like a promising
option, those involved in overseeing the human
rights treaties have used it sparingly. Part of the
reason may well be that while some rights (for
example, the concept of detention) may be open
to contextual interpretation, others are not. For
example, it is not possible to suggest that torture
has a special meaning in view of the
characteristics of military life – what is torture in
civilian society cannot but be torture if practised in
the armed forces.
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
WAIVER
The third option is to regard service members as
having waived some of their rights by signing up
for military service. Thus, in a case concerning
freedom of religion, the European Court of Human
Rights found that, ‘[i]n choosing to pursue a
military career [a service member] was accepting
of his own accord a system of military discipline
that by its very nature implied the possibility of
placing on certain of the rights and freedoms of
members of the armed forces limitations incapable
of being imposed on civilians.’8
But it is not clear how far such implied waivers
may go. A waiver is not only about the rights of the
individual, but also the public interest in protecting
certain rights. Consequently, in the context of a
case involving a potential waiver by a service
member of the right to fair trial,9 the European
Court of Human Rights held that a waiver of rights
by an individual must not ‘run counter to any
important public interest.’10 Treaty bodies are
unlikely to treat the act of joining the armed forces
as a basis for a comprehensive waiver of human
rights. In any event, the idea of a waiver loses its
persuasiveness when dealing with conscripts. Yet
armed forces that have conscripts typically limit
their rights to the same degree, if not more
extensively, than those of volunteers.
LIMITATIONS
Finally, the rights of service members may be
restricted through limitations clauses contained in
human rights treaties. Most rights contained in
international human rights law are not absolute –
they can be restricted when considered necessary
in a democratic society for the protection of an
important value, including national security, public
health or safety or the rights of others. In
accordance with this approach, the restriction of
the rights of service members must have a basis
in law, must have an identifiable public interest
aim, and the restriction must be proportionate to
that aim. The European Court of Human Rights
has accepted that a service member’s right to
freedom of expression can be restricted ‘where
there is a real threat to military discipline’.11
However, in considering whether the restriction on
the right is ‘necessary in a democratic society’,
the Court will carefully consider whether there has
been an objective impact on military discipline.12

The requirement of proportionality can play a
critical role. For example, the ICCPR includes the
right to freedom of religion but it also provides that
the freedom can be limited by law where it is
‘necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms
of others’.13 It would not be possible to broadly
require all military personnel who, for religious
reasons, have facial hair to remove that hair.
Rather, such a restriction on the right of religious
freedom would need to be assessed on the basis
of the limitations outlined in the relevant treaty. As
a result, it may be that facial hair is prohibited for
service members who need to wear a mask, such
as divers or fighter pilots, because an appropriate
seal cannot otherwise be achieved.
CONCLUSION
The protection of the human
rights of military personnel is a
complex legal issue involving
debates about the role of the
armed forces in a society. Service
members do not simply give up
their rights and freedoms on
entering the armed forces.
The mere fact of military service and the existence
of the chain of command or military traditions do
not, in and of themselves, provide a sufficient
basis for restricting the enjoyment of human rights.
Instead, the starting point for any discussion
involves an acknowledgement that military
1. International Covenant on Civil and Political Rights,
adopted 16 December 1966, 999 UNTS 171 (entered
into force 23 March 1976) art 1 (emphasis added).
2. For a recent statement on the status of the ICCPR in
Australian law, see Joint Standing Committee on
Foreign Affairs and Trade, Interim Report – Legal
Foundations of Religious Freedom in Australia,
November 2017, p. 67. For a discussion of Australia’s
implementation of human rights treaties, see H.
Charlesworth, Writing in Rights: Australia and the
Protection of Human Rights (Sydney: UNSW Press,
2002), pp. 56–8.
3. Convention for the Protection of Human Rights and
Fundamental Freedoms, adopted 4 November 1950,
213 UNTS 221 (entered into force 3 September 1953).
PAGE 15
personnel are entitled to the protections of human
rights law and that any restrictions on their rights
considered necessary in light of life in the armed
forces should be carefully interrogated.
When considering the different ways in which
restrictions on the human rights of service
personnel could be legally justified, the reliance on
limitation clauses seems to be the most promising
option. The practical implications of this
conclusion are significant. Notably, restrictions
placed on the human rights of service members
under limitation clauses must be assessed using
the threefold test of lawfulness, legitimate aim and
proportionality. Meeting the requirements of
lawfulness and legitimate aim (such as national
security) would not pose significant obstacles for
states. Crucially, however, proportionality would
require a careful balancing exercise where the
intrusiveness of the restriction on human rights is
weighed against the aim of that restriction. Hence,
stating that some rights may be restricted in the
armed forces for the purposes of national security
or operational effectiveness is not the end of the
enquiry, but the beginning.
4. Such cases include Findlay v United Kingdom (1997) 24
EHRR 221 and Grieves v United Kingdom (2003) 39
EHRR 2.
5. See, for example, Engel v Netherlands (1976) 1 EHRR
647, para 54; Smith and Grady v United Kingdom (1999)
29 EHRR 493, para 89.
6. Engel v Netherlands (1976) 1 EHRR 647.
7. Ibid para 54.
8. Kalaç v Turkey (1997) 27 EHRR 552, para 28
9. ECHR art 6.
10. Thompson v United Kingdom (2004) 40 EHRR 11, para
43.
11. Grigoriades v Greece (1997) 27 EHRR 464, paras 45.
12. Ibid paras 47-8.
13. ICCPR art 18(3).
PAGE 16

COMBAT INTERPRETERS
AND A MORAL OBLIGATION:
INTERVIEW WITH JASON SCANES

JASON SCANES
Retired Australian serviceman Jason Scanes, the CEO of Forsaken Fighters Australia Inc., sat down for an
interview with Joshua Wilson, a Student Editor of the Human Rights Defender. Forsaken Fighters Australia
(www.forsakenfighters.org.au) is a registered not-for-profit organisation, focused on promoting a culturally
inclusive society by assisting veterans and Mission Essential Personnel (MEP). The interview delves into
Jason’s ongoing fight to bring his interpreter, Hassan, to Australia. Hassan had assisted Jason – as well as
many other Australian, British and American soldiers – in daily high-intelligence operations in Afghanistan,
helping to secure their safety and operational success.1

Who is Hassan?
Hassan is a young Pashtun, Afghan man from Kandahar.
He was an interpreter for Coalition forces in Afghanistan
on the War Against Terror and worked with Australian,
British and US Forces over a number of years. Specifically,
he was my interpreter from December 2012 to September
2013, during my deployment to Afghanistan with the
Australian Army. Hassan assisted me in my role in
Afghanistan as the Intelligence, Plans and Information
Officer Mentor. Through working closely with me, Hassan
had access to highly sensitive operational information and
was at a greater risk of being identified as a result. His
assistance to me was critical in my role and in a number
of complex events that occurred during deployment.
Since my return home in September 2013, Hassan has
married with two young sons.
By providing ‘mission essential’ skills and assistance, Jason Scanes, (former Army Captain)
interpreters like Hassan place themselves and their with two schoolchildren in Afghanistan, whose
fathers were Afghan Soldiers, killed in combat
families at significant risk to facilitate our government’s
fighting the Taliban with Coalition Forces.
mission. They are specifically targeted by insurgent or
terrorist groups and are labelled as ‘traitors’ for assisting
Coalition Forces. They face violent attacks and live in
constant fear, often confining themselves to their homes
and relying on others for financial assistance. Finding local
employment becomes near-impossible as business
owners worry that, were they to employ such people, this
could make their businesses a target of insurgent attacks.
These interpreters live an uncertain and disruptive life,
having to change cars and houses every few months in
order to evade persecution.

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019


Many of them have been left behind, however, as they do not
meet the strict criteria under the Afghan Locally Engaged
Employee (LEE) Program for an entitlement to apply for this
visa sub-class. Others were not notified they were eligible to
apply in the first place, whereas those who applied and were
found eligible are still waiting for a response from Defence
and/or the Government – some for over five years now.
Why was Hassan denied an Australian visa?
Hassan was denied a special humanitarian (sub-class
201) visa based on s 501 of the Migration Act, specifically
the character test. The minister can exercise this power if
he reasonably suspects that a person has – or had – an
association with an insurgent or terrorist group, or
alternatively when the minister reasonably suspects that
the they might have an association with such groups.
Intelligence sources and reporting can be difficult to
navigate, however, especially with respect to determining
the degree of separation or involvement on the basis of
these sources. If these sources are interpreted incorrectly
or out of context, then they can have a negative impact on
an individual’s character assessment.
It is, moreover, important to note that under this visa sub-
class, the minister can exercise their discretionary power
based on the character test without affording procedural
fairness or natural justice, and that rules of evidence also do
not apply here. In effect, it is enough for someone or a single
report to cast doubt over an individual visa applicant. There
are, of course, a number of reasons why it is necessary for
the minister to have this power. With tens of millions of
displaced people all over the world and a long line of people
seeking asylum in Australia, it would be costly, ineffective
and resource-intensive to investigate every derogatory claim
made against an individual seeking asylum in Australia.
What inspired you personally to lead the fight to get
Hassan to Australia?
Hassan and I went through a lot together and we have
many shared experiences. The ultimate reason is that
Hassan and I are mates, and mateship and loyalty are at
the core of what it means to be Australian. These values
have been hard won and tested in Australian society.
Australian soldiers are widely known as tough, resilient
and compassionate fighters. Unfortunately, I am now
seeing compassion being diluted, along with respect for
our service personnel. Our service men and women, their
families and those who assist us, all make significant
sacrifices for protracted periods, often in multiple areas of
conflict or disaster. The Australian terms, ‘do not let your
mates down’ and ‘a fair go’, fuel me in my fight for the
brave and locals who assist our troops in conflict areas.
PAGE 17
Hassan’s case has been ongoing for some years now.
What roadblocks have you encountered and how did
you respond?
The first and most significant roadblock has been getting
access our political leaders to bring a deeper level of
understanding to the issue, whilst also competing with
media and press that control the public discourse and, on
occasion, generalisation of Muslims. We have engaged in
lengthy discussions with political leaders, but these took
many years to secure. These continued setbacks and a
refusal to accept responsibility for this issue can, and has,
negatively impacted on veterans, their mental health, and
their families. Our response has been to create a not-for-
profit organisation to help those who are seeking assistance
through the process, provide submissions to Government,
as well as assist and support Government in the delivery
of services to reduce adverse impacts on veterans and
their health. We have so far assisted one interpreter to
pursue his case through the Australian Federal Court in
May 2019 and are currently awaiting a response.
‘National Security’ can be used as a justification, at times,
by the Government to avoid their responsibility to these
interpreters. The reality is that we needed their assistance
to conduct our mission. As a coalition force, we made a
commitment to remove extremist groups from their
country; and they believed that we could achieve this.
These interpreters wanted peace and stability for their
families and country, but instead have been left living a life
of fear and are at constant risk of persecution. They are
actively sought after by insurgent groups, having been
labelled as traitors for assisting the coalition forces.
Looking at political rhetoric and some media reporting, it
would seem that it is easier for us to tar Muslims as
terrorists than challenge our policies or politicians.
However, it is negligent to allow such discourses to
permeate and to leave comments from those that have
little understanding of these issues unchallenged.
Are there any promising developments?
Having now had many meetings with our political leaders,
universities, the Australian War Memorial, and the
Australian Defence Association, we have seen a positive
acknowledgment of the issue. Unfortunately, it has been
just that: recognition that there may be an issue, but little
political appetite to pursue an outcome. Forsaken Fighters
Australia Inc. have outlined the issues and practical ways
in which the government can address them. We have
highlighted the benefits to our veterans in reducing moral
injury, benefits to our communities as well as current and
future serving Defence personnel. Despite the limited
appetite for this issue, we are now pursuing it through the
PAGE 18
Federal Court of Australia [see postscript]. This implies
that positive future discussions on this issue are possible.
Developing policies that acknowledge the service of local
nationals as MEP will ensure that Australia’s Defence
personnel who are deployed in the future will be provided
with the best pool of local national MEP to support them
in their mission.
There are hundreds of interpreters who have relocated
to Australia, but many have not received the
recognition they deserve, nor adequate assistance
with transitioning into their new lives here. What are
the key challenges faced by this community, and what
more needs to be done to assist them?
Their ability to tell their stories is a major challenge. This is
particularly significant, as many Australians do not
understand the role of the interpreter and the risks that they
face both working alongside the coalition forces, particularly
given that we have now withdrawn from different parts of
Afghanistan (which have now fallen back under control or
are being contested by the Taliban). Once they have been
granted a visa to Australia, they also need support for
their unique needs – support that will also help ensure
that we have productive and well-educated members
capable of contributing to our society. Improvements to
accessing mental healthcare, resettlement options,
recognition, and education are all vital to the successful
integration of interpreters and their families.
What is the aim of Forsaken Fighters Australia?
At Forsaken Fighters, we seek to ensure that our
Government accepts its responsibility to MEP who have
provided critical skills on the battlefield and saved many
Australian lives. This is a financial and emotional burden
that is too heavy for our veterans to shoulder alone. Many
veterans feel a moral obligation to ensuring the safety of
these interpreters and, as a result, will go to great lengths
to assist them with complex visa applications, as well as
providing financial and emotional support upon their
resettlement in Australia.
Forsaken Fighters is advocating for the development of a
streamlined visa pathway system for those who have
assisted Australian Forces, one which allows for the
allocation of additional resources and investigation when
and where required. This system should recognise
individuals who have assisted the Australian Government in
conflict areas and ensure that those who are at significant
risk of persecution, as a result of allying themselves with
the coalition forces, are given a fair opportunity at being
resettled in Australia. Individuals such as Hassan, who have
assisted our troops in missions as well as the Australian
Government in its pursuit of national interests, must be
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
supported. This is important to ensuring that we, as a
nation, show our appreciation to them by acknowledging
their sacrifice for Australia.
How has your involvement in Hassan’s fight and
Forsaken Fighters impacted you?
Emotionally, it has consumed me. At times, I have
withdrawn from my own family and friends. It has
compounded my own mental health issues and has seen
me questioning our national values. It has also placed a
considerable and undue strain on my relationship with
both my wife and children. I have lost many years of sleep
and time with my own children. Having been deployed to
Afghanistan for 10 months, I had hoped that when I came
home, I would be ‘present’ but it seems only my body has
returned as my mind is still fighting. The Government’s
disinterest in this issue has drawn it out by too many
years, adding significantly to my own personal issues.
Financially, I have invested substantially in standing up for
a mate, using my young family’s money to engage
lawyers, migration agents and psychologists to address
the Department’s concerns on Hassan’s behalf. The
pressure was so great that at one point I was unable to
focus on anything else. It has placed me in conflict with
family, friends and many anti-Muslim groups and
individuals. The toll of this work, and the lack of
acceptance or acknowledgement by our Government of
its importance, has been a torment and burden, which
has sometimes been almost unbearable.
What does the path ahead look like?
As a registered charity, Forsaken Fighters relies solely on
donations and in-kind support to continue providing a
voice for MEP here in Australia. We continue to look for
members, partners and ambassadors – anyone who can
assist us with upholding the Australian values of ‘standing
up for your mates’ and ‘never letting them down or leaving
them behind’. Forsaken Fighters will continue advocating
for our left-behind MEP, so that they receive appropriate
recognition for their contributions and support when
resettled in Australia.
Editorial Postscript: Shortly prior to the publication of
this interview, it was announced in August 2019 that the
Federal Court had dismissed Hassan’s appeal. His case
was previously heard by the court in March. Hassan and
his legal team, with the support of Mr Scanes, is now
considering appealing the court’s decision. 
1. This interview has been edited for clarity.
 PAGE 19

MORAL INJURY IN
MILITARY SERVICE
LEWIS FREDERICKSON
Wing Commander Lewis Frederickson is an Air Combat Officer in the Royal Australian Air Force, currently
serving as the Chief of Air Force Fellow at the Australian Defence Force Academy. He completed his PhD on
Australia’s involvement in the Great War and has served operationally in East Timor and the wider Middle
East region. The opinions expressed in this article are the author’s own and do not necessarily reflect the
views of the Australian Defence Organisation or the Australian government.

This article addresses the question of moral injury in the
context of military service: specifically, the affront to
humanity when responsible people fail to act responsibly.
Moral Injury refers to an offence to values, ethics,
compassion and empathy. But this list is not exhaustive.
Moral injury is about people. And because there is no
narrative without humans, the only way to elaborate on
the subject is to begin with a story about people.
The young United States (US) Army non-commissioned
officer (NCO) implored the Australian officer he was
speaking with for guidance and intervention. The NCO
was a college graduate and spoke Arabic fluently. As it
went, he had been directed to present to the Multi-
National Force Iraq’s (MNF-I) security centre in Baghdad’s
Green Zone to interpret for the military police in a matter
concerning a 14-year-old Iraqi girl. She had been pulled to
safety from the railings along Baghdad’s ’14 July Bridge’
that spanned the expanse of the Tigris River. The girl’s
story: her parents were dead – killed in a coalition air
strike – leaving her to care for younger siblings.
“You’ve got to help, Sir,” the young NCO
implored. “The MPs (military police) are
going to hand her over to the Iraqi
police. She has been forced to sell
herself to provide for her younger
brothers. The police will keep her in a
room and she will eventually disappear.
Please get someone to help.”
The soldier had spoken with the girl and she was terrified.
The soldier was nearly in tears. The Australian officer was
convinced, and he petitioned the US colonel in his chain
of command. The colonel was blunt. This was an Iraqi
matter and MNF-I was not concerned with it. The
colonel’s subtext was clear: do not involve yourself in
complicated matters that fall outside the responsibilities of
your immediate role. The Australian officer also knew that
the colonel was desperate to be a brigadier; there was a
‘cigar-club’ to which all the headquarters colonels
belonged, and they met in the evenings to smoke and
discuss their careers and the war.
Despite the pain and angst that the circumstance caused
him, the Australian officer did not argue the case any
further with the colonel. He did not see the point, and when
he returned to relay the colonel’s response to the Army
NCO, both men – lean, fit, hard, one Australian and one
American – bowed their heads in shame and lamented over
the girl’s fate. That was me. I was the Australian officer
involved. I don’t need anyone to acknowledge this story.
Yes, it was confronting, and these are facts.
In our time, the notion of moral injury has emerged to
redefine symptoms which, similar to those of post-
traumatic stress disorder (PTSD), come about as a result
of experiences which violate an individual’s most deeply
held values and moral principles. The concept is wide-
ranging and difficult to define, but values represent
individual beliefs about what is considered to be right and
wrong, and what is most important. This is particularly
important in hierarchical organisations such as the
military, in which a values-set is intrinsic to service.
Indeed, as international economist Samer Mashlah
indicates, people’s personal values, human energy and
leadership are critical organisational resources that
enhance an individual’s capacity to work and achieve
goals.1 Renowned educator and academic Thomas Nielsen
PAGE 20
takes the notion further: he stresses that values are intrinsic
to humanity and that we have ethical yardsticks around us
all the time, whether we realise it or not.2 Psychologist Brett
Litz, whose work is central to the study of contemporary
moral injury, explains how: ‘Morals are defined as the
personal and shared familial, cultural, societal, and legal
rules for social behaviour, either tacit or explicit. Morals are
fundamental assumptions about how things should work
and how one should behave in the world.’3
Litz goes on to say that the majority of individuals have a
strong moral code that they use to effectively navigate
through their lives.4 When the moral code is continually
violated, the emotional injury can be profound. For some
individuals, the resultant injury confronts their core beliefs,
ideals, understanding of the world around them,
expectations of others, and sense of self. These are
potentially replaced by some, or all, of the following: guilt,
shame, anger, despair, suicidality, and the capacity to
trust.5 Jonathon Shay coined the term “moral injury” in
response to his observations of similar symptoms
displayed by Vietnam War veterans under his care. He
considered the criteria for moral injury to be:
(a) a betrayal of “what’s right”;
(b) e
 ither by a person in legitimate authority
[a leader], or by one’s self – “I did it”; and
(c) in a high stakes situation.6
In a military context, the perception of betrayal by a
supervising officer is a significant contributing factor to
moral injury. Indeed, Shay’s work highlights how the self-
seeking or self-serving moral failures and ambiguity
displayed by some military commanders can have a toxic
impact on those under their jurisdiction – often with
catastrophic consequences. In light of this, Litz and his
colleagues proposed a broader criteria to describe moral
injury as ‘[p]otentially morally injurious events, such as
perpetrating, failing to prevent, or bearing witness to acts
that transgress deeply held moral beliefs and expectations
may be deleterious in the long-term, emotionally,
psychologically, behaviorally, spiritually and socially’.7
These events are associated with feelings of anger,
1. S. Mashlah, ‘The role of people’s personal values in the
workplace’, International Journal of Management and Applied
Science, 2015, vol. 1, no. 9, pp. 158-164.
2. T. Nielsen, ‘Do values have a place in education?’, The Curriculum
of Giving, 2014 <http://www.thomaswnielsen.net/do-values-have-
a-place-in-education/>
3. B. Litz, N. Stein, E. Delaney, L. Lebowitz, W. P. Nash, C. Silva, and
S. Maguen (hereafter Litz et al), ‘Moral Injury and Moral Repair in
War Veterans: A Preliminary Model and Intervention Strategy’,
Clinical Psychology Review, 2009, vol. 29, no. 8, pp. 695-706.
4. Ibid, p. 699.
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
personal shame, alienation, disgust and contempt.8 When
it is expressed in this way moral injury most directly
reflects the internal moral agency of the person affected.
Jacob Farnworth, American Veteran’s Affairs (VA)
psychologist and acknowledged expert in the field of war
trauma, stresses that moral injury can arise in any type of
warfare. Notwithstanding this, the idiosyncrasies
associated with counter-insurgency operations,
particularly in an urban environment, are particularly
susceptible to moral injury. Such environments potentially
include adversaries indistinguishable from civilians,
improvised explosive devices (IEDs), great uncertainty,
indiscriminate indirect fire (think Baghdad’s Green Zone),
and greater dangers for non-combat troops and civilian
populations.9 The Australian Defence Force (ADF) has
been on operations continuously for nearly twenty years in
environments beset with such ambiguities. In these
netherworlds, the spectre of moral injury is looming.
Let me step away from operations and clinical definitions
once more and back to the human narrative. There is a
potential for a wider malaise should we officers, both
warrant and non-commissioned, and other ranks of the
Australian Defence Force, fail to act in accordance with
our personal and professional values. In fact, I see that
not doing so is a dereliction of our responsibilities: to our
colleagues, service, the society we are charged with
serving, but mostly to ourselves. I have encountered many
other officers of the ilk of the colonel that I encountered in
Iraq. Many of these officers have – mostly out of self-
interest – carelessly disregarded the integrity of the values
that we members of the ADF hold dear. But for every one
of these, I have seen far many more young, enthusiastic,
open, and generous spirits, and I am proud to be
associated with them. Do I have a moral injury? I don’t
know; I have not been diagnosed. But I have been
outraged and I will not stand quietly on the side and watch
on. I don’t know what happened to the girl of this story,
but I will make it right.
These are facts. 
5. J. Shay, ‘Moral Injury’, Psychoanalytic Psychology, 2014, vol. 31,
no. 2, pp. 182-191.
6. Ibid, p. 182.
7. Litz et al, p. 697.
8. J. Farnworth, K. Drescher, J. Nieusma, R. Walser, and J. Currier,
‘The Role of Moral Emotions in Military Trauma: Implications for
the Study and Treatment of Moral Injury’, Review of General
Psychology in the Public Domain, 2014, vol. 18, no. 4, pp. 249–
262.
9. Litz et al, p. 696.
 PAGE 21

THE MILITARY
AND HUMAN RIGHTS
POLITICAL NARRATIVES AND MORAL INJURY

TOM FRAME
Tom Frame AM is Professor and Director of the Public Leadership Research Group at UNSW
Canberra. A former naval officer and Anglican Bishop to the Defence Force, he has authored
or edited nearly fifty books with an emphasis on ethics, leadership and public policy.

Much has changed within and around the
Australian Defence Force (ADF) in the forty years
since I joined the Royal Australian Navy as a
16-year-old cadet-midshipman in January 1979.
Thinking about internal changes for a moment, the
ADF’s deepening respect for the exercise of
personal conscience and increasing regard for
individual dignity have been very welcome
developments. Dealing with the human rights of
ADF members is not, however, the focus of this
article; instead, it focuses on the evolving nature of
ADF deployments and their purposes since 1990,
and on the possibility that the intersection of
tradition and transition may be causing what is
known as ‘moral injury’ among those who serve.
THE CONTEXT OF RESPONSIBILITY
The ADF’s primary duty is the defence of the
nation’s sovereign interests, including the safety of
people and the protection of property: the
Australian Defence Force defends Australia. Yet
the ADF does a good deal more than protect
people, property, the continent, offshore islands,
and overseas trade. It is also an instrument of
political power that can legally and legitimately be
used to advance, and not just defend, the nation’s
interests. More importantly, for the purposes of
this special issue, the ADF gives expression to
Australia’s commitment to human rights.
Demonstrating this commitment, it has been
deployed to places like Somalia and Rwanda, and
nearer to home in Cambodia and East Timor as
part of aid and assistance missions with a strong
human rights imperative.
When an ADF member is asked why they joined,
beyond the unavoidable admissions of self-
interest, there is the notable desire to ‘make a
difference’. This is often code for securing and
promoting human rights, particularly the protection
of vulnerable peoples and the prevention of social
implosion. These affirmations are highly significant
in themselves and worthy of closer attention.
MILITARY DEPLOYMENTS
AND POLITICAL NARRATIVES
There is usually a paragraph or two
missing from political narratives
explaining military deployments. It
is the paragraph that ties a given
military operation to a particular
national interest: that is, the
explanation of how a deployment
furthers or fulfils an urgent
national goal. This is a critical
deficiency when human rights are
the focus – as they increasingly
have been since 1990 – and have
the potential to become especially
acute and a source of anxiety when
danger or discomfort are part of
the deployed experience.
PAGE 22
The absence of this connecting narrative is usually
revealed in two laments from the uniformed
person: ‘what are we doing here’ and ‘I didn’t join
up for this’. In essence, the uniformed person is
questioning the purpose of the deployment and
how it relates to national defence, and whether the
tasks they have been assigned are legitimate ADF
functions (such as defending or securing human
rights) and not tasks best undertaken by another
nation or agency. This is a first order issue: the
uniformed person is being placed potentially in
harm’s way in situations that are avoidable
because the deployment is, as explained below,
discretionary. Australia is choosing to deploy its
people; it is not obliged to do so.
One response to potentially subversive
questioning among those deployed is for
governments to better explain why an activity is
necessary and why particular units are being sent.
There is a need to revise the dominant narratives
undergirding ADF service to make defending and
securing human rights in particular, more
explicable in terms of the overall national security
strategy. This bears upon the possibility of ADF
personnel sustaining moral injuries as a
consequence of their service.
This political justification for deploying ADF units
is entirely absent from the 2016 White Paper,
although it is a political document that reflects
political aspirations, including the fulfilment of
Australia’s international responsibilities for the
promotion and protection of human rights. It is,
for instance, an expression of political will to
deploy the ADF overseas in operations that
transcend the immediate defence of Australia and
its sovereign interests, such as peacekeeping,
election monitoring, providing humanitarian aid
and disaster relief, and supervising weapon
surrenders. In this way, the ADF is a vehicle for
Australia to demonstrate it is a ‘good
international citizen’.
For the Australian government, these are
essentially deployments of choice. They are
discretionary operations that are not forced upon
the government, but are ones that the ADF cannot
refuse to undertake. For uniformed people, they
are anything but deployments of choice. The only
choice that a uniformed person can exercise is the
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
decision to resign if they are unwilling or unable to
deploy if directed to do so.
Because missions that are prompted by or which
seek to promote human rights are usually
complex, dangerous and demanding, with
progress imperceptible in the short-term and
success in the long-term never assured – famine
relief in Somalia between 1993-94 and ceasefire
monitoring during the long-running Bougainville
civil war being vivid examples – there is a distinct
possibility that ADF members will question why
they were deployed, lament that they did not join
for this kind of work, and doubt that their work
will make any lasting difference. This is where
and how a covenant could make a difference and
the propagation of a new narrative would help to
build individual resilience and collective
confidence. But, I would contend, resilience will
be impaired if a soldier sustains a moral injury.
What is moral injury?
THE POSSIBILITY OF MORAL INJURY
A 2016 study commissioned by the ADF and
conducted by UNSW Canberra defines moral
injury as ‘the result of harm or damage (a wound)
that reduces the functioning or impairs (injures)
the performance of the moral self, which is that
part of a person where moral reasoning and moral
decision-making takes place’.1
Exposure to, or participation in,
actions that violate an individual’s
own moral code cause moral injury
because they destabilise the moral
norms that an individual uses to
make sense of themselves and the
world. Moral injury can be
sustained through acts of
commission and omission. The
extent to which these moral norms
are ignored, denied or betrayed
will determine the severity of the
injury, along with the strength of
the beliefs and their nature –
whether they are foundational,
supportive or expressive – within
the moral self.
 PAGE 23

The involvement of morality makes moral or exploited, and few things more dispiriting than
injury different from PTSD and other service- seeing help turned into harm. Many ADF
related mental health conditions and personnel who have engaged in human rights
psychological disorders. promotion as either a primary task or a subsidiary
one often ask whether their service made a
Defending and securing human rights has the
difference in either the short or long-term.3 To
potential to inflict moral injury on deploying ADF
hear them question whether their mission had any
personnel. 2 Because such missions have a strong
point or purpose beyond good intentions and
moral character, they can also have acute moral
political appeal points to the pressing need for a
consequences. When those nations and peoples
new, more fulsome, approach to depicting ADF
that the ADF seeks to help resist or resent what is
service and explaining ADF missions, if only
offered, when the assistance provided is used
because we ought to prevent the proliferation of
against political enemies or exploited for personal
moral injury. If ADF members were to become
gain, or where those being assisted seem to
disinterested in finding any personal meaning in
prefer the ways things were to the way things
their deployed service, they would become little
might be, reflection on such service can be
more than state-sponsored mercenaries. Such an
debilitating. There are few things more demeaning
outcome is in no-one’s interests.
than a heartfelt desire to help being manipulated

1. T. Frame et al, ‘Moral Injury: From Theory to Practice’, a report prepared for the Vice Chief of the Defence Force, June
2017, UNSW Canberra <http://handle.unsw.edu.au/1959.4/unsworks_44550>
2. Instances of these injuries are reported in T. Frame (ed.), Moral Injury: Unseen Wounds in an Age of Barbarism (Sydney:
UNSW Press, 2015). The collection features accounts from commanders, officers and chaplains drawing on a range of
first-hand operational experiences.
3. See T. Frame, ‘Moral Objection and Political Dissent’, in T. Frame and A. Palazzo (eds), Ethics Under Fire: Challenges for
the Australian Army (Sydney: UNSW Press, 2017), pp. 120-137.
PAGE 24

HUMAN RIGHTS,
THE RULE OF LAW, AND
FOUNDATIONS OF THE
POST-WORLD WAR II ORDER
PHILIPPE CONSTANTINEAU
Philippe Constantineau is Professor in the Department of Political Science and Economics at the Royal
Military College of Canada in Kingston, Ontario.

In light of the 75th anniversary of D-Day in June 2019, this
article reflects on where we stand today with respect to
the implementation of the political lessons that were
drawn in the wake of World War II (WWII), and the role of
the postwar institutions – specifically, the United Nations
(UN) – that were designed to prevent such disasters from
happening again in the nuclear age.
Despite the failure of the League of Nations to prevent
WWII, which witnessed the most large-scale violations of
human rights of any conflict in world history, the rationale
underlying the League’s creation was still reflected in its
successor, the United Nations. A major motivation behind
the inception of both the League and UN was to establish a
global governance system that would anchor international
law through the establishment of an International Court of
Justice that had the ability to hand down binding arbitration
decisions unto states in situations where interstate quarrels,
if left unresolved, could lead to war. In essence, the purpose
of this international legal system was to render wars illegal,
except in cases of self-defence against foreign aggression.
To this end, aggression is cited among the crimes identified
as coming under the jurisdiction of the International Criminal
Court (ICC), along with genocide, crimes against humanity
and war crimes, which are counted as being among the
most egregious violations of human rights. Although the ICC
would come into existence only in July 2002, when over sixty
UN member-states ratified the 1998 Rome Statute, it was
the case that the great powers – namely, the United
States and China – were two of seven countries that had
voted against the statute, whereas Russia was initially a
signatory but subsequently withdrew from it.
The UN also underwent a fundamental change to its
design, as reflected in the proclamation of the Universal
Declaration of Human Rights (1948). Meant as the draft
for an International Bill of Rights, the Declaration proposed
quite an extensive, if not comprehensive, set of human
rights that were deemed ‘inalienable and inviolable’,
following the model provided by the French Déclaration
universelle des droits de l’homme et du citoyen (1789) and
the American Bill of Rights (1791). For its part, the League
did create back then a commission aimed at eradicating
slavery, forced prostitution and drug trafficking, having
also established in 1930 the Office international Nansen
pour les Réfugiés. However, the UN went a step further.
Crucially, a key idea behind the Declaration is that justice
(i.e. the preservation of basic human rights) should trump
‘national interests’, howsoever these may be understood
by sovereign governments, in the interest of preserving
civil and international peace. As such, advancing the
global rules-based order became viewed as a central
foreign-policy objective for all nations.
The notion that ‘civil peace and order’ can be ensured by
a civil government under a constitutional rule of law that
upholds fundamental rights and freedoms is what inspired
Immanuel Kant’s essay Towards Perpetual Peace (1795),
which proposed the implementation of a global legal order
through covenants between ‘free states’, based on the
right to self-determination of peoples, so as to outlaw war
between such states. It is this very idea that motivated the
creation of the League of Nations, and which was more
effectively executed through the UN’s design. This idea –
or rather, aspiration – is also what had inspired many

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019


democratic states to embed, in their constitution, a
charter of rights and freedoms that compels them to
uphold human rights through the adoption of policies
promoting, for example, diversity and preventing sexual
abuse at home – within agencies like the military and
society more broadly – and abroad.
I recall here the example of the Canadian government’s
‘Somalia Inquiry’. As discussed below, this case
demonstrates how Canada, as a country that espouses
human rights and the rule of law as overarching principles
of justice and the most important lessons learnt from
WWII, was compelled to uphold these principles despite
the shame that doing so would bring upon one of its most
prized agencies.
On 16 March 1993 a Somali teenager, Shidane Arone,
was beaten to death after having been caught stealing
within the Canadian compound at Belet Huen, Somalia.
This was the culmination of a series of other violent
incidents that involved Canadian military personnel, who
were then engaged in an UN-mandated, international
peacekeeping mission in Somalia. As these incidents
became known to the public, a Commission of Inquiry into
the Deployment of Canadian Forces to Somalia was
established, tasked with taking decisive action on the
issue, and with public hearings held between late 1995
and 1996. The Canadian public’s outrage would grow
even greater when it was revealed that a cover-up of
Arone’s death, and other earlier incidents involving the
abuse of Somali looters, had been ordered by those at the
highest levels of the Canadian military. The scandal was
widely deemed by the Canadian public to have
undermined the national and international reputation of
the Canadian Armed Forces, which had been engaged in
many UN peacekeeping operations since the Korean War.
The Somalia Inquiry filed its report in 19971, however the
Canadian government, under pressure from public opinion,
did not wait to get the Commission’s recommendations:
instead, the government ordered the disbandment of the
Canadian Airborne Regiment – the then most elite
commando unit of the Canadian Armed Forces, given its
distinguished history stemming from their role in D-Day.
Furthermore, based on the Inquiry’s recommendations, the
Canadian government ordered sweeping changes to be
1. Dishonoured Legacy: The Lessons of the Somalia Affair. Report of the Commission of Inquiry into the Deployment of Canadian Forces to
Somalia, Executive Summary, Ottawa, 1997 <http://publications.gc.ca/collections/collection_2015/bcp-pco/CP32-66-1997-eng.pdf>
2. H. G. Coombs, ‘25 Years after Somalia: How it Changed Canadian Armed Forces Preparation for Operations’, Canadian Military Journal,
2017, vol. 17, no. 4, pp. 35-46.
3. Coombs, p. 45.
4. I would like to thank Captain Rick Duncan for reviewing this essay and providing me with further insight into the training regime within the
Canadian Forces that was put into place after the Somalia Inquiry.
PAGE 25
made to the entire educational, instructional and training
regimen of the Canadian Armed Forces. Identifying the
failed preparation of Canadian troops for their mission in
Somalia as a major cause, it had sought to promote a
stronger ethic of professionalism among its military
personnel, from the higher ranks of its officer corps down
to its non-commissioned members.2 This resulted in
mandated peace operations training as well as the
establishment of a Peace Support Training Centre in 1996.
The Centre offers several courses that together reflect
Canadian foreign policy objectives, but also UN and NATO
standards and requirements. For instance, the Centre runs
the ‘United Nations Military Experts on Mission’ course,
which was created in the late 1990s and has been re-
certified every five years until now.3 The ethical dimension
of this educational program cannot be understated.
A major component of professional education lies with its
deontological code, its ethics. Thus, a course on the
ethics in the profession of arms was also created for the
Canadian Armed Forces, aimed at enhancing the military’s
capacity to account for the human rights dimension of any
conflict situation in which its members might be involved.
This includes peace operations, whether mandated under
Chapter VI or Chapter VII of the UN Charter.
Here, beyond the focus on the pre-deployment
preparedness of the military in conflict or peace
operations, one should also note the psychological
pressure that this new operational regime has placed on
its members due to the moral responsibility and legal
accountability that comes with it: a thorough evaluation of
a mission on all of these aspects and metrics is
conducted as soon as it is completed.
To be sure, no one today can fully rest assured that
another world war, which is bound to be much worse
because of the ever-increasing destructive potential of
technology, can be prevented by the current system of
global governance. However, the example provided above
can serve as an illustration of how the principles of human
rights and the rule of law can, at the agential level,
become the pillars of a self-perpetuating, yet constantly
adaptive, system – one which integrates past lessons to
avoid future harm.4 
PAGE 26

CIVILISATION
ON TRIAL
THE FAILURE TO CRAFT POLICY

RICHARD ADAMS
Richard Adams is a researcher at UNSW Canberra.

In this article, I am concerned with – and by – the dearth of properly crafted, harmonising,
long-term public policy. I do not use the word ‘policy’ as a term of art but to mean a definite,
thought-through purposeful course of action. As such, policy here refers to a plan or strategy
informed by a sense of principle and purpose. It is common sense that a government should
adopt and pursue policy in order to accomplish some predefined end. A joined-up suite of
policies is thus seen to be effectual when defined by clarity and coherence. Governments do
not always seem to have clear or coordinated policies, however. And without clear policy there
can be no clear objectives. Brexit, for example, is arguably in omni-shambles. Launched
without a clear policy basis, the implications of Brexit are imprecise and the means by which
Brexit will be realised are, at the time of writing, unknown. Climate change, similarly, has been
a looming crisis for years. But in the absence of straightforward policy responses, responsible
action on this issue is uncommon.
To borrow from Hannah Arendt’s preface to The Origins of Totalitarianism, as our future
appears dramatically unpredictable, we seem to depend increasingly on political forces that
do not follow the rules of common sense.1

Among the implosions and inadequacies of modern politics,

none is more concerning than the failure of governments to
craft policy in relation to war. Decisions to go to war often
seem ill-considered, without a clear sense of the objectives to be
accomplished and, for this reason, without a convincing step-by-
step plan to get from the beginning to the end.
Writing in The Atlantic, James Fallows points to the notion of a policy vacuum. Considering
umpteen years of war in the Middle East, the longest period of continuous military action in
United States (US) history and Australian history, Fallows notes how despite countless tactical
victories, despite the great bravery and skill of soldiers, and despite long and expensive
missions to train indigenous forces, the West has failed to establish lasting stability in both
Afghanistan and Iraq.2
Resorting to war with an insufficient grasp of the unqualified need to win, the West and, in
particular, the US seems to have forgotten US Secretary of Defense Caspar Weinberger’s
caution against the indecisive squander of military power. In a 1984 address to the National

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 27

Press Club in Washington D.C., Weinberger argued that military force must be dedicated to
winning, used only when military means were critical to well-defined and urgently important
political objectives, and only with a clear military strategy.3 In an age of uncertainty, the West
must rediscover the art of designing policy. Wars must not be a knee-jerk response to some
political or other challenge. War must be a last resort – for clear and declared reasons. To
quote Henry Kissinger, ‘A nation should not send half a million of its young to a distant
continent…unless its leaders can describe their political goals and offer a realistic strategy for
achieving them’.4

THE MODERN FAILURE

I am not against war. I am against irrational, unwinnable, ill-planned, aimless, fundamentally
unjust war. Recalling John Stuart Mill’s argument from Fraser’s Magazine, this article
recognises how ‘War is an ugly thing, but not the ugliest of things: the decayed and degraded
state of moral and patriotic feeling which thinks nothing worth a war is worse’.5
Some things are worth fighting for, but few things justify conflict. Confronted by complex
events, political figures are failing since they fail to recognise war as a totally consuming and
utterly abhorrent endeavour. War, in other words, is a complex political and legal event. And it
is most richly and intensely understood as a human phenomenon. War is hell. In her Nobel
prize-winning book, Last Witnesses, Svetlana Alexievich details the accounts of men and
women who were children during the Nazi invasion of Russia in 1941. The voices of children –
horrified, desperate, bewildered, choked with tears, raw with heartbreak and hopelessness –
rise off the pages, as they reveal war’s immeasurable frightfulness:

In the morning I woke up from fear. From some unfamiliar sounds…Then I remember the
black sky and the black plane. Our mama lies by the side of the road with her arms
spread. We ask her to get up , but she doesn’t. She doesn’t rise. The soldiers wrapped
mama in a tarpaulin and buried her in the sand, right there. We shouted and begged:
“Don’t put our mama in the ground. She’ll get up and we’ll go on.6

Alexievich asks us to see the heart-sickening cost of war and the barratry of politicians who
justify war on whatever scale technology permits. The unsound 2002 September Dossier, the
2014 report of the US Senate Select Committee on Intelligence on the use of torture, and the
notorious 2016 report of the Chilcot Inquiry into the British government’s decision to go to war
in Iraq reveal political evil, done and disguised in the plain language of legality and due
process. But there is no real justification. There is no clear policy explanation, apart from some
whitewashing, of how our recent wars have made the world a better place and our nations
safer. It is unclear whether our recent wars have been a last resort and if there was no other
way to effect justice.
In fact, the opposite appears true. The modern world is influenced profoundly by a complicated
system of treaties and conventions on trade and investment, loans, patents, double taxation,
labour standards, environmental protection, and much else. But only rarely do these instruments
alleviate poverty, which is causally connected to political disorder, injustice, suffering, and war.7
Perhaps this point is debatable. The objector might claim that these regulatory developments
contribute to poverty alleviation and socio-political stability. But this is to forget acta non verba
(the importance of ‘deeds, not words’). From the comfort of our developed economies, we
forget how awful it is to be the victim of inequality. We forget the horror of slavery when we buy
clothes made in foreign sweatshops or oil wrested from fragile nations. We can deny the
PAGE 28

existence of inequality since we don’t experience the pain of serious injustice. For instance,
Western governments turn a blind eye to tax havens, which enable the globe’s richest one per
cent to hide US$7.6 trillion.8 Purportedly fighting to safeguard human rights, they also turn a
blind eye as Western corporations trade arms with regimes known for systematic and cruel
repressions. The Australian Broadcasting Corporation has similarly reported on how the
Australian company, Electro Optic Systems, is selling an advanced remote weapons system
directly to the United Arab Emirates, which stands accused of war crimes arising from the
involvement of UAE forces in the Yemen war.9 The Stockholm International Peace Research
Institute has catalogued other examples of such arrangements.10 We must discard our hypocrisy.
In short, insulated by economic and military power, the West is failing to make good policy.
Better policy would recognise how military power has the capacity to perpetuate war, but no
capacity to end war. Better policy would grasp the evils of war and the need for it to be a last
resort. Better policy would reflect an integrated grand design and a coordinated long-term
view. Better policy would be the cornerstone of Western moral leadership and positive
diplomatic influence.

FOR ALL HUMANITY

In April 1967, Martin Luther King Jr. spoke at the Riverside Church in Manhattan. The talk,
‘Beyond Vietnam – a time to break silence’, resonates with insight. King portrayed the Vietnam
war as ‘the symptom of a far deeper malady within the American spirit.’11 On King’s account,
left untreated, this malady will drag democracy down ‘the long, dark, and shameful corridors
of time reserved for those who possess power without compassion, might without morality,
and strength without sight.’12
King gestures to our present need for leadership. The need is for perseverance and long-
sightedness, for discernment, for thinkers and consensus-builders. The need is for moral
principle, not belligerence. The world needs serious leaders determined to exercise
constructive influence. Peace will be won and human rights assured, not by military fiat,
but by the sort of coordinated political action that is founded on well-reasoned policy. 

1. H. Arendt, The Origins of Totalitarianism (Harcourt, 1994). p. vii

2. J. Fallows, ‘The Tragedy of the American Military’, The Atlantic, 2015, pp. 72-90, 77.
3. J. Stone, Military Strategy: The Politics and Technique of War (Bloomsbury, 2013), pp. 132-133.
4. H. Kissinger, Diplomacy (Simon & Schuster, 1994), p. 659.
5. J. S. Mill, ‘The Contest in America’, Fraser’s Magazine for Town and Country, 1862, p. 268.
6. S. Alexievich, Last Witnesses: An Oral History of the Children of World War II, R. Pevear and L. Volokhonsky
(tr.) (Random House, 2019), pp. 3, 4.
7. T. Pogge and D. Mollendorf (eds), Global Justice: Seminal Essays (Paragon House, 2008).
8. Oxfam Briefing Paper 210 ‘An Economy for the 1% - How privilege and power in the economy drive extreme
poverty and how this can be stopped’, 2016, <https://www.oxfam.org/sites/www.oxfam.org/files/file_
attachments/bp210-economy-one-percent-tax-havens-180116-en_0.pdf>
9. D. Welch, ‘Fighting Yemen’s Dirty War: an Arab military is buying a weapons system made in Canberra’,
Australian Broadcasting Corporation, 2019, <https://www.abc.net.au/news/2019-07-25/australian-
company-sending-weapons-systems-directly-to-uae/11322974>
10. Stockholm International Peace Research Institute, SIPRI Yearbook 2016: Armaments, Disarmament and
International Security (Oxford University Press, 2016).
11. M. L. King Jr., ‘A Time to break Silence,’ in A Time to Break Silence: The Essential Works of Martine Luther
King Jr. (Boston: Beacon Press, 1994), p. 92.
12. Ibid, p. 96.

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019


HUMANITARIAN LAW
AND HUMAN RIGHTS
IN ARMED CONFLICT
SAM HARTRIDGE
Sam Hartridge is a Teaching Fellow and PhD Candidate at the UNSW Law School. His research examines
the IHL and IHRL rules regulating the use of lethal force in armed conflict. He is a solicitor in NSW, practicing
criminal law as well as privacy and data security law.
The relationship between international human rights law
(IHRL) and international humanitarian law (IHL) – also known
as the laws of armed conflict1 – is a complex legal and
normative question. Notwithstanding their similar motivations
and principles, these two legal regimes conflict in
fundamental ways. This article will outline the broad contours
of this conflict and discuss some solutions to the problem.
IHL is designed to regulate armed conflict. The law is
based on the simple premise that ‘even wars have limits’.2
The law creates a comprehensive body of rules that
permit and forbid certain conduct in war. These rules
reflect a balance between the humanitarian imperative –
protecting the sick, wounded, prisoners and civilians –
and military necessity, that which is necessary to
undertake warfighting. In other words, the law aims to
protect those ‘who are not, or are no longer, taking part in
hostilities.’ However, the law also recognises that warfare
involves ‘killing people and breaking things,’3 and so IHL
permits conduct of this kind.
This can be contrasted with IHRL, the ‘fundamental
concern’ of which is ‘regulating the…relationship between
state and individual’.4 These rules are not intended to
provide a framework for warfighting. Indeed, IHRL
requires the state to refrain from using lethal force except
where there is absolutely no other option. The sum of the
treaty rules and jurisprudence is that states must do
whatever they can to avoid the loss of life or the
destruction of property. Such obligations are incongruent
with military operations, and here we see the first hints of
substantive conflict between the two legal regimes.
Norm conflict can also be found in the structure of the two
sets of rules, with each having significantly different
structures reflecting their divergent aims and fields of
application. IHL is designed to apply in armed conflict. Its
PAGE 29
treaties consist of highly detailed rules regulating the
behaviour of belligerents. These rules create legal
protection for anyone not, or no longer, taking part in the
fight. The rules govern the kinds of weapons that can be
used, who can be targeted and in what circumstances.
They regulate the grounds and conditions of detention, as
well as the privileges and protections for medical
personnel, humanitarian actors and the sick and wounded.
In contrast, human rights treaties list a comparatively
short catalogue of rights in the form of broad principles.
These rights are intended to apply in all circumstances
and everywhere within a state’s jurisdiction. States must
not interfere with the rights of individuals and prevent
others from doing so. They must also effectively
investigate credible allegations of, and provide remedies
for, violations. Certain rights can be limited in specific
circumstances, or qualified to protect the rights of others.
Moreover, states can derogate from rights in emergencies
that threaten the life of the nation.
The differences between these two legal regimes is
reflected in the contestation surrounding their interaction.
Military lawyers have argued strongly against IHRL
encroaching on the warfighting domain. For them, IHL is
uniquely adapted to protect the victims of war, while
affording militaries the flexibility needed to fight wars.
After all, they say, these rules represent a delicate balance
between the principle of humanity and the dictates of
military necessity. Those on the LOAC side further argue
that it is entirely impractical, if not impossible, to apply the
detailed procedural obligations found in IHRL to the
widespread death and destruction of armed conflict.
Underlying this is a concern that IHRL is not fit for
purpose, that it ‘lacks the stomach to deal with the harsh
realities of modern warfare’.5
PAGE 30
Human rights defenders, on the other hand, argue that
IHRL can and should be applied to war, as states had
always intended for the law to apply in these situations.
Moreover, this law is inherently flexible. It is designed to
account for prevailing circumstances, and has
mechanisms for resolving conflicts between rights and
duties. But more fundamentally – as the human rights
defender argument goes – it cannot be the case that the
rules that say there are some things that states must
never do are not applicable in war. Indeed, this is the time
when we need those rules the most.
Despite these differences, both IHL and IHRL seek to
protect vulnerable people. Premised on underlying notions
of humanity and human dignity, these bodies of law seek
to limit suffering, mistreatment and discrimination. This
would suggest that these laws should not conflict and,
instead, that their objectives are aligned. And often this is
the case. By and large, the rules do correspond. Both
regimes protect humanitarian action, prohibit inhumane
treatment and forbid adverse discrimination, thereby
preserving some degree of humanity in war.
There are, however, important substantive differences
between these bodies of law. These differences lead to
complex questions about the legal responsibilities of
militaries in situations of armed conflict. In war,
belligerents inflict death and destruction on each other,
and so any law that seeks to regulate conflict must also
acknowledge this reality. IHL permits killing the enemy
and destroying property – something that is prohibited
under IHRL unless there is no other option. IHL also
permits detaining enemy soldiers for the duration of the
war simply because they are enemy combatants.
So, the question is one of resolving conflict. Until recently,
the answer to this question has been the maxim lex specialis
derogat generali – that is, a special law derogates from the
general law. The International Court of Justice in the Nuclear
Weapons Case famously declared that: ‘the protection of
[IHRL] does not cease in times of war…in principle, the right
not arbitrarily to be deprived of one’s life applies also in
hostilities. The test of what is an arbitrary deprivation of life,
however [is] determined by the lex specialis, namely [IHL].’5
1. I use these terms interchangeably.
2. Speech given by P. Maurer, president of the ICRC, at the United
Nations Security Council Briefing, 3 May 2016, New York, USA.
3. M. Huckabee, 2015 Republican Primary Debate.
4. W. A. Schabas, ‘Lex Specialis – Belt and Suspenders – The
Parallel Operation of Human Rights Law and the Law of Armed
Conflict, and the Conundrum of Jus Ad Bellum’, Israel Law
Review, 2007, vol. 40, no. 2, p. 607.
5. M. Hansen, ‘Preventing the Emasculation of Warfare: Halting the
Expansion of Human Rights Law into Armed Conflict’, Military Law
Review, 2007, vol. 194, no. 1; quoted in A. Clapham, ‘Human
Rights in Armed Conflict: Metaphors, Maxims, and the Move To
Interoperability’, Human Rights and International Legal Discourse,
2018, vol. 12, no. 9.
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
At first blush, this may seem like an elegant solution. However,
this remark and limited guidance in subsequent cases have
not helped to resolve actual norm conflicts. It has, however,
provided ample space for international lawyers to discuss
at length ‘the meaning of the expression lex specialis and,
how the ICJ conceived the relationship between the two
[bodies of law].7 Space does not permit an exploration into
these discussions, but this extensive dialogue shows lex
specialis seems to have raised more questions than it
answered.8 So, in light of the broad acceptance that the
substantive and procedural protections of IHRL do not
cease in war, lawyers are now moving beyond arguing
about lex specialis and turning to interoperability.
Echoing doctrinal approaches to multinational forces and
military systems, interoperability describes ‘the ability of
two complex systems to interact together in a harmonious
way to achieve effective functionality, compatibility and
mutual outcomes, through various processes including
innovation, adaptation and partial standardisation.’9 This
approach shifts from looking at legal regimes, to looking
at specific norms and incidents. This has allowed for a
distinction to emerge between incidents that involve the
conduct of hostilities and those that are more analogous
to law enforcement situations. For those that involve the
former, the permissive rules of IHL will apply, informed by
relevant aspects of IHRL. In the latter, IHRL will serve as
the principal framework.
While there are still many issues that are yet to be
resolved, the focus on interoperability progresses the
analysis in a pragmatic way. Military lawyers and human
rights defenders are now developing processes which
enable these two bodies of rules to interact effectively,
and in a manner that protects those who are not in the
fight. It is encouraging that we have moved beyond
unhelpful metaphors to focus on a practical
implementation of the rules. Ultimately whether the
‘interoperability’ approach is successful will depend on
whether those who are called upon to resolve norm
conflicts between IHL and IHRL will do so in good faith. At
their core, and despite their differences, the two bodies of
law are aimed at protecting the most vulnerable. 
6. Legality of the Threat or Use of Nuclear Weapons (Advisory
Opinion) [1996] ICJ Rep 226, at [25].
7. N. Quénivet, ‘Introduction: The History of the Relationship
Between International Humanitarian Law and Human Rights Law’,
in R. Arnold and N. Quénivet (eds), International Humanitarian
Law and Human Rights Law: Towards a New Merger in
International Law (Brill, 2008), pp. 1–12.
8. See, for example, S. McCosker, ‘The ‘Interoperability’ of
International Humanitarian Law and Human Rights Law:
Evaluating the Legal Tools Available to Negotiate their
Relationship’, in A. Byrnes, M. Hayashi and C. Michaelsen (eds)
International Law in the New Age of Globalization (Brill, 2013).
9. McCosker, ‘The ‘Interoperability’ of International Humanitarian Law
and Human Rights Law’; Clapham, ‘Human Rights in Armed Conflict’.

THE CHALLENGE
OF GUARDING AGAINST
CONFLICT-BASED
SEXUAL VIOLENCE
TAMSIN PHILLIPA PAIGE
Tamsin Phillipa Paige is Lecturer in International Law at Deakin Law School.
In international law, it was only in recent decades
that conflict-based sexual violence (CBSV) started
to be treated by International Humanitarian Law
(IHL) as a crime against the personhood of the
victim rather than a crime against military discipline.1
This development has since been reinforced by the
United Nations Security Council Resolution 1325
(UNSCR1325) on Women, Peace, and Security
(WPS), which sets out an agenda that focuses, in
part, on preventing CBSV as a crime that
disproportionally impacts women. Australia, like
most states, has drawn on the WPS Agenda to
inform what it should be doing at the national policy
level on this issue, resulting in the publication of a
National Action Plan on WPS in 2012. Given its
central role in combatting CBSV in situ, the
Australian Defence Force (ADF) was tasked with
incorporating the Australian government’s
interpretation of UNSCR1325 into its operational
framework, with Exercise Talisman Sabre 2015
(TS15) – a biennial military exercise with the United
States – marking its first attempt at doing so.2
Although there have been two Talisman Sabres
since, this reflection piece focuses on TS15 as
it constitutes the very first instance of the
UNSCR1325’s operationalisation within a military
operational context. What follows is a discussion
of the key policy developments and challenges
that characterised UNSCR1325’s implementation
in TS15.
PAGE 31
Particularly with respect to preventing and
combatting CBSV, the integration of UNSCR1325
into the ADF’s operational framework resulted in the
introduction of three new policies which, as
discussed below, can arguably be ranked as being of
decent to excellent in quality. The first policy to be
incorporated into TS15 was the inclusion of a ‘gender
adviser’ in the command team. The role of the
gender adviser was modelled on the Female
Engagement Teams (FETs) that had been used to
build goodwill and gather intelligence in Afghanistan.
A gender adviser was included in all command
meetings and was charged with ensuring that all
decisions had considered the differentiated impact of
armed conflict on different parts of society.
The gender adviser was thus
responsible for keeping
commanders mindful of the
complexity of the human terrain of
the area of operations. However,
there remained the issue of the
gender adviser’s role being
misunderstood and misrepresented
as being more about ‘getting women
to talk to other women about
women things’, which risked
undermining the full positive
potential of such a role, particularly
in the context of preventing CBSV.3
PAGE 32

The second policy concerned the

development of the Commander’s Guide
to Implementing UNSCR1325 into Military
Planning,4 which was designed to provide
commanders with a checklist for different
aspects of an operation to ensure that they
adequately take into account a ‘gendered
perspective’ in operational planning and
decisions. Items in the checklist include
such activities as: making sure that FETs
and gender advisers are available for
deployment; ensuring that civilian medical
aid packages include supplies needed for
childbirth, menstrual hygiene and other
female ‘conditions’; ensuring that human
intelligence gatherers speak to women as
well as men; and identifying the family,
religious, and social relationships within
the area of operation. All of these
inclusions are practical and reasonable;
however, the fact that they need to be
included in a checklist does underscore
the deep-seated nature of the various
challenges posed by gender discrimination
and heteronormativity in the ADF.
Moreover, the fact that LGBTIQA status
receives scant attention in the document
points to the heteronormative issue as well
as the need for greater intersectionality
awareness. Here, the reminder that some
people may be queer was limited to only a
passing clause in the checklist.
The final policy that was implemented
related to the provision to frontline troops
of a ‘Soldier’s Smartcard’ (see Figure 1),
which gives detailed, yet easy to
understand and implement, guidance on
Figure 1: Soldier’s SMARTCARD
how they are to conduct themselves when
encountering CBSV victims. The document
provides troops on the ground with eight
points that they need to be aware of and/
or undertake when documenting and
reporting incidences of CBSV. It also
provides step-by-step advice, in a notable
concise manner, on how to gather
information about CBSV and document it,
as well as the sensitivities surrounding
issues of CBSV. Despite the adherence to
a strict gender binary, which is in turn
apparently based on a cisgendered

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 33

heterosexual understanding of CBSV, the Even so, the ADF should not
Card does demonstrate solid optics: it
be viewed as being wholly
clearly communicates to soldiers the gravity
of the traumas associated with CBSV, and
responsible for these ongoing
places the well-being of victims at the challenges, as similar
centre of its concerns and those of the problems exist in other parts
soldiers who have to deal with the of the Australian government5
aftermath. Although many issues (e.g. queer and even within the WPS
blindness and misogynistic institutional framework itself.6 The fact
culture) remain with the WPS’ that the ADF is aware of these
implementation in the ADF and across the issues, at the very least, is a
Australian government, the Soldier’s
Smartcard is an excellent tool that has
cause for cautious optimism.7
emerged from the integration of
UNSCR1325 into TS15.
ADF operational documents obtained by the
author have since revealed how these
policies were, at times, undermined by
institutional and cultural challenges – in
particular, those related to gender
discrimination, heteronormativity and a lack
of intersectionality. What this, in effect,
highlights are gaps between rhetoric and
reality. For example, while greater sensitivity
has been brought to bear on
intersectionality issues in the Australian
Military Gender Advisers Course, this has
not automatically resulted in compliance or
changes to the broader institutional culture.
Indeed, looking through whole-of-
government and ADF documents, it would
appear that the term ‘gender’ is still often
used as a euphemism for women, with
inadequate consideration given to LGBTIQA
individuals and communities in these policy
and operational publications.

1. The Prosecutor v Jean-Paul Akayesu (Trial Judgement) [1998] International Criminal Tribunal for Rwanda ICTR-96-4-T.
2. Details of the FOI request and documents released can be found on the Australian Department of Defence’s FOI Disclosure log under the
title ‘The implementation of “Women, Peace and Security” principles into Exercise Talisman Sabre 2015’ (FOI No: 226/17/18): Department of
Defence, ‘Disclosure Log’ <http://www.defence.gov.au/FOI/Decisions/DisclosureLog.asp>.
3. J. Wittwer, Integration of Women, Peace and Security into Military Strategic Guidance and Planning: A Case Study - Exercise Talisman Sabre
2015 (Freedom of Information Act Disclosure No Item 1 Serial 2, Department of Defence).
4. L. Jardins and Author Redacted, Commander’s Guide to Implementing UNSCR 1325 in Military Planning and Operations (Freedom of
Information Act Disclosure No Item 3 Serial 1, Department of Defence).
5. For example, see Australian National Action Plan on Women, Peace and Security 2012-2018 (Federal Government of Australia, 8 March
2012) <https://www.dss.gov.au/sites/default/files/documents/05_2012/aus_nap_on_women_2012_2018.pdf>.
6. For a detailed examination of these issues in the WPS Agenda, see T. Paige, ‘The Maintenance of Heteronormativity’, in D. Otto (ed),
Queering International Law: Possibilities, Alliances, Complicities, Risk (Routledge, 2017).
7. This article features additional contributions from Pichamon Yeophantong.
PAGE 34
MILITARISED SECURITY:
UNDERSTANDING THE RELATIONSHIP BETWEEN THE
ARMED FORCES OF THE PHILIPPINES AND HUMAN RIGHTS
SARAH WILSON
Sarah Wilson is a graduate of the University of Queensland, having completed a degree in
International Relations and Peace and Conflict Studies.
Since the declaration of martial law under President
Marcos in the 1970s, the Armed Forces of the
Philippines (AFP) have come under scrutiny for their
human rights abuses, particularly with regard to
their use of extrajudicial killings (EJKS) throughout
their campaigns to protect domestic ‘security’.
Human rights organisations, international
institutions (i.e. the United Nations) and the media
have worked to highlight this relationship, with
much critical attention directed to the AFP’s
activities in three key campaigns: the Islamic
insurgency in Mindanao, the communist
insurgencies around the state, and the AFP’s
treatment of Indigenous Filipinos. In each of these
cases, the human cost of EJKs is staggering.
Families are left to mourn loved ones as
communities are kept in constant fear, unaware of
who will be targeted next.1
While it is tempting to vilify the AFP for these human
rights abuses, members of the AFP tell a different
story. Ferdinand Quidilla, a chief of the AFP
Southern Luzon Command (where acute human
rights violations against Indigenous Filipinos have
been reported), maintains that the AFP’s ‘military
offensives are within the bounds of the AFP rules of
engagement, respect human rights (and
international humanitarian law) at all times’.2 They
have long maintained that their soldiers are taught
to follow and respect human rights. In 2010, the
AFP established the AFP Human Rights Office
(HRO), which works to guide soldiers on human
rights practice and keep track of alleged human
rights violations that come their way.3
This article seeks to understand this paradox. In so
doing, it will explore how the human rights abuses
perpetrated by the AFP are symptomatic of deeper
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
structural issues that surround the protection of
human rights within the AFP and the Philippines,
more broadly.
UNDERSTANDING THE STRUCTURAL FACTORS
BEHIND HUMAN RIGHTS ABUSES
According to Leslie Advincula-Lopez, a professor of
anthropology and sociology at Ateneo de Manila
University, the AFP’s engagement with human rights
takes place on two levels: the individual level (i.e.
how individual soldiers understand and respond to
human rights norms) and the structural level (i.e. the
institutions and mechanisms that guide and
constrain soldier behavior).4 At the individual level,
the AFP appears to possess a well-developed
understanding of human rights. This is manifest in
the responses to a survey conducted by Advincula-
Lopez in 2012 which sought to gauge the human
rights understanding of AFP personnel. One soldier,
for instance, noted how the AFP ‘taught me that my
rights stop where the rights of others begin’, whilst
another observed that ‘[human rights refers to]…the
right to life…the essence of his humanity’.5
If individual soldiers are aware of what it means to
respect human rights, what then explains the
frequent use of EJKs and violence?
Approaching this question from the structural
perspective may help to shed some light. The AFP’s
current structure was designed by former President
Ferdinand Marcos (in office from 1965-1986). The
pre-Marcos military had been largely built by the
Americans, who had occupied the Philippines from
1898-1946. They had sought to imbue the AFP with
values that were conducive to human rights
promotion, including civilian supremacy, impartiality,
and detachment from the political process.6

The post-Marcos military, however, was a changed
institution. In his efforts to consolidate political power,
Marcos declared martial law and took steps to personalise
the military. The military was reformed to suit his purposes,
with changes including: an integration of the military into
the political process; abolition of ideas relating to civilian
supremacy; and changed constitutional control over the
military.7 In effect, the AFP’s new structure resulted in a
‘total institution where the members are cut off from the
wider society and the daily routines administered by a
single authority in accordance with a rational plan’.8 This
isolation from broader society creates a gap between the
military and civilian society, which arguably, makes violence
easier to rationalise and commit.
At the same time, violence is woven into the very fabric of
the AFP. New cadets in the AFP are subject to a violent
initiation process, in which they are forced to undergo a
degrading and violent process of breaking down their
‘civilian’ identities and building their new military identities.
This initiation process is common to militaries worldwide,
being used to ensure that soldiers are socialised into the
military structure. Accounts from former cadets include
mentions of regular beatings, humiliation, electrocution, and
grueling physical activities.9
The use of systematic violence to deconstruct and rebuild one’s
self is reminiscent of anthropologist Nancy Scheper-Hughes’
assertion that ‘everyday violence makes mass violence and
genocide possible’.10 With respect to the AFP, working within
a military structure that normalises violence invariably breeds
an active willingness to use force as a first resort.
These structural conditions are exacerbated by the highly
militarised environments in which the AFP works.
Testimonies taken from the AFP soldiers themselves find
that in a ‘battle situation, individuals do regress to their
sub-human nature [and here] there is the greatest
possibility for violations’.11 A senior officer in the AFP admits
1. X. Arcangel, ‘Indigenous People Group Claims Human Rights
Abuses by Military’, CNN Philippines, 2018, <http://cnnphilippines.
com/news/2018/07/19/afp-lumad-mindanao-surigao-del-sur-
human-rights-abuse.html>; T. Miles, ‘U.N. Says ‘Massive’ Rights
Abuses in Southern Philippines Could Intensify Under Martial Law’,
Thomson Reuters, 2017 <https://www.reuters.com/article/us-
philippines-security/u-n-says-massive-rights-abuses-in-southern-
philippines-could-intensify-under-martial-law-idUSKBN1EM0SN>
2. D. T. Mallari, ‘AFP Human Rights Abuses to Rise in ‘All-out’ War,
Says Lawyer’, Inquirer News, 2017, <https://newsinfo.inquirer.
net/869737/afp-human-rights-abuses-to-rise-in-all-out-war-says-
lawyer>
3. Ibid.
4. L. V. Advincula-Lopez, ‘Human Rights in the Eyes of the Filipino
Soldier’, Philippine Sociological Review, 2012, vol. 60, pp. 131-164.
5. Ibid, p. 146.
6. P. Chambers, ‘Constitutional Change and Security Forces in
Southeast Asia’, in M. Bünte and B. Dressel (eds.), Politics and
PAGE 35
that on a battlefield, ‘emotions run high and [when] the
situation calls for quick decisions in order to survive, there
is the greatest possibility for human rights violations’.12
Working within such highly securitised conditions forces
AFP soldiers to create a ‘hierarchy of dangers’, in which
ensuring the security and survival of AFP soldiers takes
precedence over the protection of civilian human rights.13
THE POLITICAL DIMENSION OF MILITARY BRUTALITY
The AFP’s use of EJKs has a distinct political dimension. In
the Philippines, the military has become a tool for powerful
politicians looking to achieve personal goals and gain
power. Political leaders capitalise upon the structures of the
AFP that enable human rights abuses (i.e. their isolation
from civilian structures and their willingness to use violence)
to forcefully achieve their goals.14
A clear contemporary example of this is seen in recent
developments in Duterte’s ‘War on Drugs’. Despite
international condemnation, the Duterte administration
continues to sanction upwards of 10, 000 extrajudicial
killings (EJKS) in his ‘crackdown’ on drugs. In 2017, Duterte
militarised this campaign, and through this, actively facilitated
the AFP’s use of EJKs to achieve his political purpose.15
The political dimension to the AFP’s actions points to a
more systemic link between the Philippines and human
rights abuses. Whilst the soldiers in the AFP are the
physical actors committing the human rights abuses, the
pervasive influence of the structure and the environment in
which they work in means that they aren’t always acting out
of their own volition. In this way, attempts to reform the
AFP’s approach to human rights must first tackle the
structural issues surrounding the protection of human rights
in the AFP and the Philippines as a whole. These include:
the AFP’s isolation from civilian structures; their exposure
to ‘everyday’ violence; the highly militarised environments in
which they work; and the influence of political figures and
structures upon their actions. 
Constitutions in Southeast Asia (Routledge, 2017), p. 103.
7. T. Lee, ‘Personalism in the Philippines’, in T. Lee, Defect or Defend:
Military Responses to Popular Protests in Authoritarian Asia (John
Hopkins University Press, 2015), pp. 81-83; 87-92.
8. Advincula-Lopez, above n 4, p. 141.
9. Advincula-Lopez, above n 4, pp. 143-4.
10. Advincula-Lopez, above n 4, p. 143.
11. Advincula-Lopez, above n 4, p. 158.
12. Ibid.
13. Ibid.
14. A. Jetschke, ‘The Philippines 1999-2008: Counter-Terrorism and
Human Rights Violations’, in A. Jetschke, Human Rights and State
Security: Indonesia and the Philippines (University of Pennsylvania
Press, 2011), p. 232.
15. L. Karen, and M. Petty, ‘Philippine Leader to Use Troops in Drug
War, says willing to kill more’, Thomson Reuters, 2017 <www.
reuters.com/article/us-philippines-drugs/philippine-leader-to-use-
troops-in-drug-war-says-willing-to-kill-more-idUSKBN15H0N7>
PAGE 36
THE TRADITIONAL
JAPANESE SPIRIT AND
EXPERIENCES OF WAR:
REFLECTIONS ON JAPAN’S INTERNATIONAL
PEACE COOPERATION ACTIVITIES
SHUTARO SANO
Shutaro Sano is a Professor at the National Defense Academy of Japan.
Japan firmly believes that the
promotion and protection of
fundamental universal values and
human rights is in the interest of the
international community. Tokyo has
upheld the highest standards of
human rights as enshrined in its
Constitution and has steered its
efforts to promote human security
through international commitments
and bilateral dialogues.
In the field of defence, the Self-Defense Forces
(SDF) have begun to engage in various types of
international peace cooperation activities including
peacekeeping missions (PKOs), as well as
humanitarian assistance and disaster relief (HADR)
operations in respect of these values. The SDF
acknowledges the importance of these values, but
also the challenges associated with them.
Human rights issues per se have not posed as a
major challenge to the SDF in its operations, which
may be viewed as a rather unique phenomenon.
The SDF have tended to perceive the importance of
human security intuitively – that is, they inherently
acknowledge the importance of these issues. More
specifically, despite their relatively short history of
engaging in overseas missions, such as HADR which
is just over twenty years, the SDF have acknowledged
the importance of human security and contributed to
HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019
restoring the life and welfare of the local people.
These activities are not purely of a technical nature,
but are also informed by traditional Japanese
culture that emphasises the spirit of the Japanese
people, as epitomised by the principles of harmony
(wa), self-sacrifice (jiko-gisei), and benevolence (jin)
– the essence of what was elaborated in Inazo
Nitobe’s classical book Bushido. Moreover, these
principles are reflected in such practices as showing
respect for local cultures and traditions (e.g. by not
taking off one’s combat uniform or relaxing in the
presence of those affected even during breaks),
avoiding actions that may be viewed negatively by
locals (e.g. refraining from driving quickly through
puddles after the rain), and by notifying the locals of
SDF activities in advance (e.g. informing them when
and how road construction will take place). These
may appear to be trivial examples but are
nonetheless important, as they speak to the SDF’s
ability to win the hearts and minds of the local
populations which is, in turn, critical to promoting
human security in conflict or disaster affected areas.
In light of Japan’s role and experiences during
World War II, this historical memory has
necessitated the SDF to be humble and
accommodating, as well as attuned to the
importance of human rights issues. Domestic public
support for the SDF has increased dramatically over
the years: in January 2012, over 90% of Japanese
people surveyed had a positive perception of the
SDF, marking an increase from 80.9% in January
 PAGE 37

2009. The major role played by the SDF in large-scale
humanitarian and disaster relief operations at home since the
mid-1950s – for example, after the 1995 Kobe Earthquake
and the 2011 Great East Japan Earthquake – has largely
contributed to this gradual increase in public support for the
SDF. (The SDF has engaged in around 40,000 missions in
total, averaging at 500 cases per year.) Even so, it deserves
note that it has taken approximately fifty years for the
Japanese people to truly approve of the SDF’s existence and
its participation in peace cooperation activities overseas.
Here, the SDF’s humility and endurance, in both
organisational and individual terms, has often been
highlighted to the Japanese public in view of their
domestic and overseas missions. This is apparent from
the retirement speech of Admiral Katsutoshi Kawano,
Joint Chief of Staff of the SDF, in April 2019, where he
noted how: ‘Trust collapses in a matter of seconds. Do
not forget to be humble and forge ahead as a Self-
Defense Force that remains close to the people, always’.1
Today, a key concept that undergirds the SDF and their
international peace cooperation activities is that of genba-
mesen, which literally means to act from the ‘viewpoint of the
local people’. This idea represents the essence of Japanese
culture as well as the lessons learnt from World War II, which
obligates the SDF to provide utmost respect to the people, in
order to ensure that human rights is promoted and protected
in their activities both at home and abroad. 

Warrick Eady
Phase, 2016
Australian National Veterans
Arts Museum Collection
www.warrickeadyphoto.com
@warrickeadyphoto

Warrick Eady served with the Australian Army, between 2005-2014, including in Afghanistan.
Photography became a means for coping with depression and anxiety after he left the army.
It got him ‘out of the house, if only to see the sunrise over a beach’ on days when personal
motivation waned. Warrick’s main focus is exploring surf and ocean photography. Phase
was shot at Redhead Beach, south of Newcastle.
“The more I think about it, the more the metaphor of a wave seems to fit the struggle I had
once I left the army. A cyclical motion of highs and lows, each wave looking different, some
petering out, slipping back into the ocean, while others come to a crashing halt on the shore.”
In May – June 2019, Warrick held his first solo exhibition - These Seven Seas - in Newcastle.

1. ‘Kawano-shi, Tōbakuchō rininshiki de aisatsu “tsuneni kenkyosa wasureruna”’ [Mr Kawano speaks at his farewell ceremony as Joint Chief of
Staff, ‘Always do not forget to be humble’], Kyodo News, April 1, 2019.
PAGE 38

HUMAN RIGHTS IN FIFTH

DIMENSION WARFARE:
EXPOSED AND UNDEFENDED

JOSHUA WILSON
Joshua Wilson is a Pilot Officer in the Royal Australian Air Force and a
graduate of UNSW Canberra.

The future of warfare is dictated in large part by
technological progress. In the battles of today, militaries
contest not just the classical domains of air, sea, land and
space, but in fifth dimension warfare, that of the
cyberspace as well. Unfortunately, this development has
serious implications for the pursuit of human rights and the
humane conduct in war. The state of affairs in cyberwarfare
is such that many equivalent state and non-state actors are
able to conduct operations with minimal boundaries and
oversight, in ways that threaten the human rights of non-
combatants and with little concern for accountability.1
In order to fully understand the effects of cyberwarfare, it is
important to invalidate the notion that cyberwarfare is not
kinetic and therefore cannot impact upon the rights of
persons in war. Taking the Clausewitzian definition of war
as ‘an act of violence intended to compel our opponent to
fulfil our will’, cyberwarfare is commonly understood to be
distinct from conventional warfare in its lack of any violent
effect.2 This challenges the very idea of cyberwarfare: is it
really ‘warfare’? Can it actually have any negative
humanitarian effect? But to understand cyberwarfare in
this manner is both flawed and dangerous.
In 2010, one of the largest and most
effective cyberweapons to date was
employed against Iran. Known as
Stuxnet, the computer worm targeted
programmable logic controllers in order
to vary the speeds of Iranian nuclear
centrifuges and subsequently cause
them to self-destruct. This well-executed
attack saw around one-fifth of the
centrifuges destroyed and significantly
impaired the Iranian nuclear program,
demonstrating the significant power that
cyberattacks have to influence physical
domains in both a kinetic and violent
manner. A similar attack, directed at
critical national infrastructure, would
have severe and crippling effects on
combatants and non-combatants alike.
This raises one of the major concerns with cyberwarfare:
duality. The prevalence and importance of technology in
civilian infrastructure furnishes cyber combatants with the
ability to wreak devastating effects on non-combatants.
The interdependence of most computer systems makes
targeting difficult and increases the likelihood of collateral
damage to civilian infrastructure.3 It can often be
impossible to differentiate between purely military and
purely civilian computer infrastructure.4 Transportation,
power, communications, water supplies, sanitation
systems, and even government administrations can all be
brought down by a cyber-attack. This has led some
commentators to go so far as to claim that certain acts of
cyber warfare may be prosecutable as war crimes.5
In order to visualise these effects, consider the following
scenario. A military commander orders an operation to
begin with a cyber-electromagnetic attack to degrade
enemy defences and disable supporting infrastructure in
an occupied village. In doing so, a cyber-team instigates
an indiscriminate attack which shuts down the networks,
systems and power in the entire area, affecting not just
the occupied buildings but a nearby hospital as well. This

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019

 PAGE 39

attack effectively disables the hospital and shuts down
crucial equipment such as life support systems,
communications and water supply. Even if every effort
was made to restrict the attack to the occupied buildings,
the issues surrounding duality would make strict
discrimination extremely difficult. This demonstrates just
how much power cyber-combatants have to influence
physical domains and, therein, the human rights of
non-combatants.
Despite widespread recognition of these issues, the cyber
domain is notoriously unregulated. The laws and doctrines
which have been put in place to regulate the behaviour of
combatants, such as International Humanitarian Law (IHL)
and domestic defence law, were enacted with
conventional warfare and sovereign states in mind. The
cyber domain, on the other hand, is anarchic, privately-
run, and without traditional state boundaries. This
problematises the enforcement of human rights because it
enables warfare to be carried out with a degree of
anonymity and almost no oversight. The Stuxnet case
noted earlier suggests the inability of pinning responsibility
conclusively on any particular actor. While the attack is
believed to be of joint United States and Israeli origin, it
has been virtually impossible to prove this. The issues of
duality noted above also directly challenge one of the
fundamental principles of IHL: discrimination.6 Thus, while
pre-existing laws do retain a level of general applicability
to cyberwarfare, they are not presently sufficient to
mitigate these new challenges.
The nature of cyberwarfare will, moreover, compound
existing issues surrounding the enforcement of a humane
approach to warfare by private military companies
(PMCs). Past cases, such as the killing of a security guard
by a drunk Blackwater employee in 2006 and the
shootings of 37 Iraqi civilians by Blackwater employees
the following year in the Nisour Square Massacre,
demonstrate the inability of present legal frameworks to
regulate the conduct of PMCs and prosecute offenders.
Moving forward, it is likely that we will see some PMCs
expand to adopt cyber warfare capabilities. The nature of
cyberspace means that such actors can have an
equivalent, if not greater, capability and strength than
state forces. Yet, the anarchic, private and anonymous
nature of cyberspace will facilitate the operation of PMCs
while rendering the regulation and prosecution of such
actors more difficult.
Warfare is steadily becoming indivisible from cyberspace
and we can expect that in coming years, this domain will
only grow in importance. Present efforts to remedy the
associated humanitarian concerns with cyberwarfare,
however, have been limited and generally ineffective. The
international community needs to take responsibility for
developing a legal instrument which can regulate a humane
approach to cyberwarfare and prosecute offending
combatants. The challenges of this are many: such an
instrument will likely need to exist outside of the state-
centric paradigm and address key issues such as
anonymity, lack of national boundaries as well as increased
duality. Until it is created, however, one’s human rights in
warfare will be at an increased risk of violation. 

1. N. Akyesilmen, ‘Cybersecurity and Human Rights: Need for a Paradigm Shift?’, Cyberpolitik, 2015, vol. 1, no. 1, pp. 53-54.
2. C. von Clausewitz, On War, trans. Colonel J.J. Graham (New York: Barnes and Noble, 2004), p. 3.
3. A. Colarik and L. Janczewski (eds), Cyber War and Cyber Terrorism (Hershey: The Idea Group, 2007).
4. C. Droege, ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians’, International Review of the Red
Cross, 2012, vol. 94, no. 886, p. 539.
5. A. Colarik and L. Janczewski, Cyber War and Cyber Terrorism (New Zealand: IGI Global, 2007).
6. Droege, ‘Get off my cloud’, p. 561.
 CHANGED FOREVER
LEGACIES OF CONFLICT
11 SEPTEMBER 2019 – 30 APRIL 2021

The photographer (Michael Christofas) and veteran

artist (Sean Burton) collaborated with the Australian
National Veterans Art Museum (ANVAM) to create the
Persona – Veteran Artist Portrait Project Series.
Persona is an ongoing collaborative project beginning
in late 2017, documenting and supporting notions of
identity and transition in the growing Australian veteran
arts community. Images from the series will be shown
alongside paintings, sculpture, and poetry supported
by the ANVAM collection in Changed forever, a travelling
exhibition by the Shrine of Remembrance, from
1 September 2019 – 30 April 2021.
www.shrine.org.au/Exhibitions/Travelling-Exhibitions

Michael Christofas
Sean Burton, 2017
Persona series
www.michaelchristofas.com.au
@michael_christofas

The Australian National Veterans Arts Museum (ANVAM) is a unique organisation that provides arts-based
programs and experiences for current and former members of Australia’s military services and their families.
ANVAM invites participants to choose from a range of expressive possibilities that may enhance mental,
physical and social wellbeing. In partnership with the broader veteran community, ANVAM is working to
enhance the in-service and post-service support available to veterans and their families.

ANVAM’s vision is to transform an art deco building into a cultural institution dedicated to improving their health
and wellbeing through art therapy and arts engagement programs. ANVAM is currently delivering programs to
veterans through partnerships and direct mentoring of veterans and families. www.anvam.org.au

HUMAN RIGHTS DEFENDER  |  VOLUME 28: ISSUE 2 – SEPTEMBER 2019