Senator The Hon Robert Hill
Minister for Defence
Leader of the Government in the Senate
NATIONAL CONFERENCE OF THE DEFENCE LEGAL SERVICE
RAAF Williams, Victoria
Wednesday, 28 January 2004
(SPEECH DELIVERED BY THE PARLIAMENTARY SECRETARY TO THE MINISTER FOR DEFENCE, FRAN BAILEY, ON BEHALF OF SENATOR HILL)
Distinguished guests, ladies and gentlemen.
At the dawn service on Anzac Day last year, I had the honour to address ADF personnel on HMAS KANIMBLA in the Persian Gulf.
I understand that at least one legal officer was serving in KANIMBLA at that time.
In the course of my speech, I said that I was proud to join men and women of our Defence Force, who serve our nation as capably as any of their predecessors.
I also said that that there are many in uniform behind those on the front line who have also been crucial to our military success, and also behind them is a wider Defence organisation all of whom play an important role in success in operations overseas.
I appreciate the opportunity today to address The Defence Legal Service which may not get spontaneous recognition but which plays such an important role as part of the Defence team. Internationally, the ADF is highly respected. That is not only because it fights so capably but also because it fights to a background of values. These values include an acceptance of rules. The rule of law is a fundamental cornerstone of our society including the ADF as one of its principal institutions.
The primary guardians of the rules are lawyers, who understand communicate and if necessary enforce these rules. The rules may be international or domestic, military or civilian.
It’s a challenging but critically important function. Defence lawyers are essential to the ADF operating in accordance with the wishes of the government and the wider Australian community.
I have said on a number of previous occasions, there is no doubt that the circumstances of the post cold war environment are testing the international legal framework. There is a continuing debate about whether international law has kept pace with changing international circumstances.
But even though the environment may change and different challenges arise, Australia has consistently affirmed that any actions that are taken by this country will be in accordance with international law. Interpreting the law in the context of contemporary circumstances has always been one of the great challenges.
But interpretation aside, establishing the rule of law as the foundation for the regulation of human disputes and interaction between nation states is as important as ever.
In the military context we need to understand the rules that govern actions that might be taken to prevent the slide into anarchy or systemic violation of human rights, and action that should be taken to arrest a situation that has already passed beyond the preventative phase.
We face both these challenges in current operations and defence lawyers assist and support with legal guidance on a daily basis.
A desirable international order is one where there is an acceptance of the key elements of public international law such as the Universal Declaration of Human Rights, The International Convention on Civil and Political Rights, as well as numerous treaties and documents dealing with torture, discrimination and justice standards.
But formal acceptance is just a start.
The real challenge is how to build a culture of the rule of law.
We have seen in a number of post conflict scenarios that the grafting of formal standards on a country only takes the issue so far, with the effective cultural dimension, of values rooted in society, still largely missing.
That is a battle that is not won overnight and takes generations to nurture and perpetual vigilance to maintain.
The tackling of the rule of law issue in this context is a long-term campaign and this campaign is characterised by many phases.
Until recent times international action by the armed forces of allied democracies has been directed largely at securing the international legal order by responding to the territorial aggression of States.
Recent operations have very often been driven by the need to redress the aggression of State or even non-State actors against the human rights of individuals.
Often the ADF has been called on to provide critical support to the re-establishment of basic public security and the rule of law in the aftermath or consolidation phase of its operations.
Most notable recent examples of this support have been in the Solomon Islands, Afghanistan and Iraq.
In Iraq, for example, I am aware that ADF legal input in direct support of the Administrator Mr Bremer has been crucial in the shaping of the post conflict environment with regard to the production of numerous temporary laws and in regulating the conduct of the Coalition. In the new phase of transfer of governance and support of the new institutions Defence lawyers continue to play a critical role.
This is building on the support and Defence legal involvement throughout the war in more traditional Law of Armed Conflict matters which was also greatly valued by our allies.
Defence legal support has been crucial in the success the ADF in each instance.
Today I want to touch on three areas where our basic values as they are translated into rules and applied in practice provide particular challenges for Defence lawyers.
Cluster bombs and land mines
Cluster Bombs and Land Mines
Much has been said about the use of cluster bombs and their legality or otherwise in international law.
Cluster munitions are not illegal under either the law of armed conflict or any specific arms control treaty, and have legitimate operational uses which cannot be achieved with the same effectiveness using other munitions.
However, the targetting of cluster munitions, as with all munitions, is governed by the international humanitarian law principles of proportionality, distinction and military necessity which we accept.
Under these circumstances, cluster munitions pose a humanitarian concern when they fail to explode as intended, thereby becoming explosive remnants of war.
Out of our respect for human life and our concern for civilian populations affected by war, we have been a strong supporter of the Certain Conventional Weapons Convention.
The Australian Government has been actively involved in international efforts, through the Certain Conventional Weapons Convention, to consider measures which might be taken to address the problems posed by unexploded mines, cluster bomblets and other munitions which have failed to explode or have been abandoned.
As President of the Second Review Conference of the Certain Conventional Weapons Convention, Australia worked hard to establish a Group of Government Experts.
This Group met during 2003 to consider amending the CCW to deal with explosive remnants of war, including cluster munitions.
The protocol agreed at the recent meeting of States Parties includes clearance responsibility, provision of information, and warnings to civilians, as well as a technical annex aimed at improving the reliability of munitions, thereby reducing the risk of their becoming explosive remnants of war.
ADF experts, including lawyers, played an active role in the drafting of that protocol.
In relation to land mines, many of you will be aware that Australia is a party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction – otherwise known as the Ottawa Convention. This support has been based on the same values.
And in relation to anti-vehicle mines, for the same reasons, the Government supports restrictions on anti-vehicle mines to ensure that mines are detectable by commonly available mine detection equipment and remotely deployable mines are engineered to self-destruct or self-deactivate within a set timeframe.
Australia is one of the co-sponsors of a US proposal to incorporate these technical advances into the Certain Conventional Weapons’ Experts’ Group examination of anti-vehicle mines. Thus on the basis of our values we argue for rules that limit the way in which an operation might be prosecuted.
Secondly, I said I would mention the challenge of accommodating different rules within a coalition.
In this changed and changing post cold war environment, to succeed against those who threaten our security we require coalitions.
The memberships of allied groups and coalitions will vary, depending on the nature of the threat and the nature of the necessary response. These coalition parties will be operating under varied domestic and international legal obligations.
This dilemma highlights the critical importance of ongoing constructive engagement by Australians, including our military lawyers, with the forces of our allies and coalition partners.
The establishment of a legal Information Exchange Group as part of the “Command” Capability Group within the ABCA framework is an important step towards formalising such engagement and the development of combined doctrine.
I also note, and strongly support, the recent establishment of an exchange with the United States Army Judge Advocate General Department, which now sees a US Army JAG Officer working within the Military Law Centre and an Australian Officer within the Centre for Law and Military Operations in the US.
This development builds upon the longstanding relationship The Defence Legal Service has had with the United States Air Force Judge Advocate General’s office in the Pentagon.
These relationships have greatly assisted in identifying and resolving interoperability issues in recent coalition operations.
But the bottom line is that even in a coalition context ADF members operate under Australian command and all ADF personnel are subject to Australian law and Australia’s international obligations.
In a practical sense, this means that the operators, those people of the ADF who designate targets and ultimately, those who drop or launch weapons, must be aware of their obligations when working in a coalition environment.
Without Defence lawyers, this would be impossible.
As a matter of interest in the recent conflict in Iraq, our coalition colleagues accepted the sometimes additional obligations on ADF personnel from international rules Australia has accepted and the operation worked well in practice.
This engagement of the military by our lawyers happens within the ADF as well as in coalitions.
By reminding ADF commanders of the legal foundations of the conflict and the way in which an operation may be legally prosecuted, ADF lawyers go a long way in ensuring we maintain the moral authority so important for our ADF personnel on operations.
Part of the practical commitment to engagement is expressed in the recent creation of the Asia Pacific Centre for Military Law, which is a collaborative initiative of The Defence Legal Service and the University of Melbourne.
The centre educates legal officers and commanders in Australia and throughout the Asia Pacific region on international law, as well as producing valuable research and reference material.
The success of the major Conference held in Melbourne in November 2002 as part of the international “Challenges of Peace Keeping” series with the subsequent publication of a book on the “Rule of Law on Peace Operations” evidence of its work.
This is further reinforced by the fact that its courses have been accredited with the United Nations Institute for Training and Research towards attainment of its Certificate of Training in United Nations Peace Support Operations.
This is work which I strongly support.
Thirdly, I want to touch on military justice within the force.
Within a command structure there must be rules relating to personal behaviour which will be enforced.
You helped to write, interpret and enforce the rules – based on the shared values of our society.
The system must be rigorous but fair. And ultimately there must be public accountability.
The military justice system underpins the trust of the Australian people in the ADF. Parliamentarians respect the values inherent within the military justice system and the forthcoming Senate enquiry is part of that public accountability. What is an issue is not the principle of accountability but whether the rules and their application accord to contemporary expectations.
In conclusion I wanted to stress that we now face a very complex and uncertain global security environment and one in which we will need not only the help of our coalition partners but of those who can make sense of the legal environment in which we are operating.
This is where you work with Australian commanders and others to ensure that we have the moral authority in this changed environment. You will do this based on the values that underpin your application of the law.
You are a joint and integrated team of permanent ADF legal officers, civilian lawyers, paralegals and administrative personnel. Your contribution is very important to us.
I wish you well for your conference and I look forward to meeting and working with many of you in the future.