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article imageOp-Ed: Digital surveillance — Australia's Pine Gap and US vs War Crimes?

By Paul Wallis     Aug 20, 2017 in Technology
Sydney - The U.S. Pine Gap base in Australia has been controversial since it was built, during the later Cold War. The question is whether Australia is participating in a system which may qualify as war crimes when civilian casualties are incurred.
Pine Gap’s current role is to provide surveillance data of digital communications. The base is operated under the broad NSA umbrella. Information is locked in to US law, as the PRISM system. Information obtained includes “chatter”, phone messages, and targeted surveillance of people of interest like I.S. commanders, as well as more conventional military intelligence.
Drone strike basics
The likely scenario is pretty straightforward in these cases:
• Target signal is intercepted and located.
• Info is passed on regarding target location to military.
• Military OKs drone strike, frequently killing target.
The OK for the strike is subject to protocols, particularly if there’s a risk of civilian casualties, but the strike probably will happen, if the target is in a site deemed relatively clear of civilians.
The strike certainly will happen if the target is of sufficient importance. Many I.S. and Taliban commanders have been killed in this way.
The other side of this scenario is that some strikes may be deemed to be war crimes. Under various international treaties, the killing of civilians is a war crime. Therefore, the logic goes, Australia is assisting in war crimes by helping the US to deliver ordinance through the Pine Gap facility. (Various "leaks", aka what everyone knew but is now public information) have recently highlighted Pine Gap's role in the strikes.
Pine Gap and Australia
A Pakistani demonstrator holds a burning US flag during a protest in Multan on May 24  2016  against...
A Pakistani demonstrator holds a burning US flag during a protest in Multan on May 24, 2016, against a US drone strike in Pakistan's southwestern province Balochistan
SS Mirza, AFP
Pine Gap has had various degrees of unpopularity in Australia since it was built. First, Australia had minimal access to Pine Gap facilities, which was seen as a snub to the Australian government.
In practice, it’s more like basic security; the fewer people able to disclose information about the facility, the better. Politicians come and go, and so does their security clearance. It’s a no-brainer. There’s a further twist in that Australia and the US are part of the “Five Eyes” intelligence super network, which collects global information and coordinates with allied forces around the world.
Yemenis gather around a burnt car after it was targeted by a drone strike killing three suspected al...
Yemenis gather around a burnt car after it was targeted by a drone strike killing three suspected al-Qaeda militants on January 26, 2015 in a desert area east of Sanaa
, AFP/File
Secondly, Pine Gap was seen as a potential nuclear target in the event of World War 3, which it certainly is. That didn’t exactly endear it to those less enthusiastic about getting turned in to radioactive dust, either.
These days, thanks to the War on Terror in all its strange modes, it’s out of the question that Australia would require the removal of Pine Gap under any circumstances. Not only would it be a rather futile effort, but it would also throw a few spanners in the working machinery of combat intelligence upon which Australia also relies for current combat information.
Theory and practice of war crimes laws
The new allegations about participation in war crimes also come with a bit of baggage. It’s hard to determine to what extent someone passing on intelligence information is responsible for a war crime, and whether it is a crime.
Does passing on the location of an intercepted signal constitute a war crime? If it does, just about every signals unit on Earth would be guilty.
Does operating a GPS tracking system equate to a war crime, if the reference is a target? How would you know if the information was going to be used for a strike?
Are drone operators guilty of war crimes? No. Say you’re delivering a strike under orders from a superior. How can you not do your job, when you’re in a military organization? If you don’t do it, someone else will. That theory can’t fly at all as a practical option, in any scenario.
The wider picture doesn’t add much to the argument:
1. Terrorists use civilian populations as cover and as targets. That’s been the pattern for decades.
2. Terrorists do not observe any kind of international law.
3. The most surgical strike includes high powered missiles which are definitely not safe for baby, and these weapons can’t really discriminate, even with a live operator, when committed to a strike.
4. Civilian casualties in Afghanistan, Iraq and Syria have been ongoing, with or without any thought of war crimes issues.
5. Populations are deliberately targeted by I.S. and other groups, which seem determined to break every possible law regarding war crimes.
6. Australia and the US refused to sign a treaty related to war crimes a decade or so ago. The refusal was based on the risk of prosecution for basic military roles, in which many basic combat operations would have become potential criminal actions by definition. There was also some consideration of endless lawsuits, etc.
In all fairness - The legal guys are trying to do their own jobs, not trying to create problems. If the law says X, then X is the standard by which each situation is judged.
MQ-1 Predator UAV With Hellfire Missiles
The Predator and the Reaper 'drones' are equipped with an air-to-ground version of the Hellfire anti-tank missile .
The bigger, and very hard to answer, question is whether the law can coexist with the combat situations on the ground. In this case, there’s a grimmer issue in which civilian casualties have allegedly been caused deliberately by allied troops, notably the notorious “plant a gun on a corpse” problem. In these cases, which someone is shot deliberately or by accident, and a gun is used as evidence that the person was armed. That may be closer to the mark for actual war crimes than what a missile might do in any given situation.
Another, much less appealing issue is whether the war crimes definitions are up to date with real world combat. The scope and scale of various atrocities includes everything from genocide to mass rapes and executions.
The actual values of the war crimes prosecutions are hardly encouraging. There was an interesting, if sobering, case in which two rapists were convicted of rape in the hideous multi-sided war in Kosovo and elsewhere in the former Yugoslavia. The convictions were said to “empower” victims. Two convictions, in the face of tens of thousands of deaths and rapes is “empowering”? Not very surely.
Australia will not accept any allegation of war crimes for fulfilling its part in a military and/or military intelligence role. There’s just no practical way of doing it, even if it was national policy, which it isn’t. Supply of information and intelligence is basic to military operations. We can’t “not” do that. Our own forces, similarly require the same sorts of information for their own operations.
There are a few practical issues to be considered, too:
1. Hitting civilians and non-combatants also means hitting the wrong targets. That’s not the intent of the operations.
2. Failure to act against enemy operators who often carry out major attacks against civilian targets doesn’t exactly help the civilians, either.
3. In a combat zone containing civilians, by international law, the occupying force is responsible for the safety of those civilians. The crime, in fact, is to fail to take proper precautions for civilian safety, and those laws aren’t enforceable against terrorists.
For those wondering, since WW2, many more civilians have died than combatants in every war. Dresden, Hiroshima, Tokyo, the Blitz, Vietnam, you name it; if there are people in a target area, some of those people will be killed. We’re talking about millions of people.
The future
There are no ideologies in the mechanics of human beings vs high explosives, drones, incendiaries, napalm, etc. There’s nothing to prevent wars, particularly modern wars, happening in people’s living spaces.
I don’t want to give the impression that the war crimes theory is some sort of blue sky exercise. It isn’t. Some level of accountability, and enforcement, must be in place. Real atrocities, committed by whoever or whatever, must be accessible to law.
…But not like this open-ended, unlimited liability approach, which can’t work in practice.
To work, to be applied, and to have any credibility at all, laws must be:
 Able to be applied in real combat situations.
 Not unrealistic, or too vague to be easily applied to situations.
 Not absurd, in equating gathering of intelligence with resulting combat scenarios, which is quite unworkable.
 Clear cut enough to be fully understood by the entire food chain of military operations, from 4 star generals to grunts on the ground.
Frankly, I’d suggest a real meeting of the minds to evaluate working options which can be used by combat commanders and soldiers in the field. It may take time, but it’ll work a lot better than this “everything might be a crime” approach, which hasn’t done a damn thing to help civilians under fire for the last 30 years.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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