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The 28th Australian soldier to die in Afghanistan was killed on July 4. In what is becoming a routine, Prime Minister Julia Gillard used the occasion of giving the nation’s condolences on July 6 to harangue an increasingly sceptical public about the necessity for the occupation to continue.

The Afghan war’s self-evident failure to achieve any of its shifting official objectives has meant questioning the war has become unavoidable.

Whether the objectives are to combat terrorism and drug trafficking, to create a stable Afghan state and security apparatus or promote democracy, women’s rights and development, the occupation has clearly failed.

However, the exploitation of Australian military deaths by politicians and pro-war media does reinforce an assumption present throughout mainstream discourse: that even when wars are mistaken or unwinnable, Australian armed forces make a positive difference.

This assumption has been shattered by obtained under Freedom of Information laws by the Public Interest and Advocacy Centre (PIAC).

The documents show Australian complicity in prisoner abuse in Afghanistan and Iraq, including involvement in cover-ups of the infamous Abu Ghraib atrocities, undermining the Geneva human rights convention on human rights, and the deliberate misleading of the Australian public and parliament by the Australian Defence Force (ADF).

When Australia followed the US into Afghanistan in 2001 and Iraq in 2003, ADF and US military lawyers created a legal fudge so Australian forces could say they continued to work within the Geneva Convention at a time when the US was cheerfully announcing that the rules of war did not apply.

Under this arrangement, a US soldier embedded in Australian units would legally be the captor of any prisoners taken.

US-held prisoners routinely disappeared into secret prisons in Iraq, Afghanistan and other countries, where they were tortured. Some re-emerged in Guantanamo Bay.

The July 4 Sydney Morning Herald : “The situation reached absurd heights on April 11, 2003, when 66 prisoners rounded up by Australian SAS troops [in Afghanistan] were deemed to have been ‘captured’ by the sole US Army officer present.”

Australian military and political leaders were aware that they were in dubious legal territory.

A February 2002 top from then-ADF chief Admiral Chris Barrie to then-defence minister Robert Hill said the “arrangement may not fully satisfy Australia’s legal obligations and in any event will not be viewed as promising a respect for the rule of law”.

Hill tried to justify the arrangement to the SMH, saying it was “a practical response” that did not violate Australia’s obligations under the Geneva Convention.



However, University of NSW international law expert Professor Andrew Byrnes the SMH: “It is clear that the ADF and the government’s lawyers felt very uneasy about this considerable stretch of the legal imagination — and so they should have. Attempts to avoid obligations through legal artifice have no place in the Geneva Conventions’ protective framework.”

The documents have also revealed the ADF and the Australian government were aware of concerns about the treatment of prisoners at Abu Ghraib, despite claiming they knew nothing.

In a legal memorandum dated August 27, 2003, Major George O’Kane, a military lawyer with the Australian Defence Force, expressed reservations that proposed interrogation techniques were open to abuse and not compliant with the Geneva Convention.

“The proposed techniques — including sleep management, dietary manipulation and sensory deprivation — are generally regarded under international law as cruel and inhuman treatment and in some cases, torture,” .

“Speaking inside the Australian Federal Parliament on 30 May 2004, the head of Defence Legal Services, Air Commodore Simon Harvey, said Major O’Kane’s legal memorandum concluded that the proposed interrogation techniques were consistent with the Geneva Conventions.

“In subsequent weeks, defence minister Robert Hill and senior Department of Defence officials knew Air Commodore Harvey’s statement was inaccurate. However, the Department of Defence made no attempt to correct the public record and refused to publicly release Major O’Kane’s advice without first consulting the United States.”

Despite his earlier misgivings, O’Kane “had become sympathetic towards US military interrogators during his time in Baghdad in late 2003-early 2004”, the July 5 SMH .

“The documents, which include extensive interviews with Major O'Kane when he returned from Iraq in 2004, reveal that as a military lawyer embedded with the United States he was a primary author of the manual for processing prisoners in Iraq.”

He was also directly involved in denying the International Committee of the Red Cross access to nine prisoners at Abu Ghraib, a clear violation of international law.

Explaining his actions to defence department interviewers in June 2004 he said: “They’re undergoing active interrogation. And if you break someone down or persuade them to give up information, you don’t need them drawing strength from a [Red Cross] visit,” ABC TV’s 7.30 on July 4.

On July 6, the Senate rejected attempts by Senator Bob Brown to set up a parliamentary inquiry into what the Australian government knew about Abu Ghraib. The transcripts of O’Kane’s debriefing interviews refer to questions Senator Brown was asking at the time.

Explaining his questions on Abu Ghraib to O’Kane, defence department official Mike Pezzullo (now a senior official with Customs and Border Protection): “The only reason I am chasing this is because Brown in [sic] rabbiting on about ROEs [rules of engagement],” the July 5 SMH said.