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The Forum > Article Comments > Pragmatism trumps principle > Comments

Pragmatism trumps principle : Comments

By Mirko Bagaric, published 7/7/2006

David Hicks is just a trivial piece of collateral damage.

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The UK and others successfully demanded the release of their nationals without risking their relationship with the US. Why couldn’t we?

The trouble with being in an unequal relationship is that every time you meekly submit to the stronger party, it makes it harder to assert yourself later. Now, says Prof Bagaric, we’re in the situation where we can’t demand fair process for our citizen without enraging our great friend.

In conniving at the injustices at Guantanamo Bay, we have presented a wonderful gift to our worst enemies. Now when we denounce their capricious legal fictions or brutal detentions, they can say, ‘But you do it’.

Prof Bagaric is right about inconsistent perspective: we can get angrier about the man who kicked a kitten than about the men who bombed a baby. But kitten-kickers still need to be confronted.
Posted by DNB, Friday, 7 July 2006 10:37:42 AM
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Mirko Bagaric demonstrates that the illegal detention of David Hicks and hundreds of others represents the triumph of might over right. But Bagaric’s moral blindness is stunning in one who professes the law.

With eyes shut, he can concede acknowledge that the Australian government “has known all along that Hicks’ detention was illegal”. He can admit that our government did not criticise the US “simply because it took the view that the welfare of Hicks wasn’t worth a diplomatic stoush with our closest foreign ally…” And he can conclude triumphally, “They were right.”

Why were they right? Baragic’s First Law of International Relations explains it all to those simpletons with “over-bloated sympathy glands” who asked for a proper trial: “When the global stakes are high, international law goes out the door. It always has and always will.”

Bagaric reminds us that the US has broken the cardinal prohibition in international law – the use of illegal force against another state – on numerous occasions. They have done so with total immunity. Why? We have Bagaric’s Second Law: “The international law system is more akin to a system of etiquette, rather than a prescriptive set of rules.”

Bagaric argues that the US locked up Hicks and more than 400 prisoners without trial in Guantanamo for over four years for two reasons. First, because it wanted to make an example of them. Second, it kept them there because it could. Hence Bagaric’s Third Law: “If you have the power, use it right or wrong.”

To assert that David Hicks (and the other 400) is “just a trivial piece of collateral damage” shows again that Bagaric’s Laws are those of an ethical jungle where those who espouse them are incapable of seeing any distinction between what is the case and what ought to be the case.

Bagaric offers us a history lesson – “In times of war, pragmatism always trumps principle”. To which I say: Only if good people lack the courage to challenge them. Bullies can, and always should be, challenged. Might is not always right. Decency can’t be so readily discounted.
Posted by FrankGol, Friday, 7 July 2006 11:35:11 AM
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Mirko,

Two wrongs don't make a right.

Where do we draw the line on what is "acceptable collateral damage"?
Posted by Narcissist, Friday, 7 July 2006 11:55:55 AM
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David Hicks does not deserve any sympathy – even Mirko Bagaric’s “negligible amount” of sympathy.

Even without a trial, we know, through his own admission and bragging letters to family, that he consorted with some of the most evil people on earth – Islamic terrorists. He met and spoke to Osama bin Laden, offering his services to that creature’s murderous organization. NB: he joined and trained with savages responsible for murdering thousands of innocent civilians, and he knew that when he joined. Nobody seems certain that these savages were behind the Bali bombings, which killed innocent Australians, but the people Hick’s associates definitely killed people just like them.

Hicks lay down with these dogs, and the fleas he caught from them are still on him.

It is astounding that anyone can sympathise with this person. So, he must have a trial: the sooner the better, and it’s unfortunate that he hasn’t already been tried. But to sympathise with him because he has been locked up for 4 years, never! The man is alive and has some sort of future – much more than a person with his alliances and dark thoughts would permit thousands of innocents killed in the name of his warped ideology.

The full nature of his activities can only be proved or disproved when he faces a court. But now his lawyers think that he should be brought home, meaning he would not face any court, and so does the ratbag media. The media can be written off as stirrers, as they always are, but one wonders what sort of idiots get law degrees these days. Doing their best for a client, no matter who the client is, is one thing; but virtually suggesting that David Hicks should not face trial makes Hick’s legal team look pretty stupid and does nothing to allay our entrenched suspicions of their profession.

Hopefully, the US will have the apparently illegal commissions made good, as they are able to, put David Hicks on trial, and end the shameful nonsense opined by people out of touch with the reality of terrorism
Posted by Leigh, Friday, 7 July 2006 12:10:33 PM
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Good old Mirko stirring the pot again - the same man who was sacked from the refugee review tribunal for advocating the use of torture in some circumstances. Mirko is one of those who seem to think anything goes so long as you win in the end.
Leigh is a pure facist who seems to believe that due process is only for the fairies so god help him if he is ever illegally detained for 4.5 years without an ounce of sympathy from anyone when he has not done anything wrong in any country.

I find it astonishing that not a word of abuse is directed at the scum lords of AWB for the theft of $300 million from the fund to feed the starving Iraqi children - they deserve a lifetime in prison if you ask me yet Howard, Downer and co still support them, to the extent that it seems they tried to heavy the US and UN to protect "our" wheat deals in Iraq. Fancy sending soldiers into the firing liine to protect wheat sales. You grind it make bread, and it's gone in 10 seconds. And it was only 6% of our overall wheat sales and was only protected by the massive bribes that kept Saddam afloat.

Hicks has become a position paper that is all. The government know he is innocent and don't care. Just like they knew Habib was innocent and for the same reason they ignored their own documents dated 22 March 2001 "Roqia Bakhtiyari, Afghan" and proceeded to use her as an example of how mean they could be to a simple woman and her kids to stop family reunion rights.

Mirko, how many people who claimed to have been tortured in Afghanistan and Iraq did you deny refugee status to?
Posted by Marilyn Shepherd, Friday, 7 July 2006 1:05:45 PM
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With the help of divine inspiration or media reports, Leigh knows for certain, “even without a trial”, that David Hicks has committed wicked and evil crimes. Leigh knows these allegations and knows Hicks is guilty. Yet he concedes “the full nature of his activities can only be proved or disproved [sic] when he faces a court”.

So Leigh wants a trial to put an end to all uncertainty and to the undue sympathy his cause has generated. People have been asking for a proper trial for years.

What will Leigh say if the charges are not proved? What will he say if David Hicks is convicted of certain crimes but, having been incarcerated for more than four years, is deemed to have been punished for his crimes and so is set free?
Posted by FrankGol, Friday, 7 July 2006 1:17:14 PM
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The other form of collateral damage from this exercise that nobody wants to talk about is Truth.

We are being fed a contant diet of lies and half-truths to keep this sideshow on the road.

Just before the invasion , remember all the chest-thumping that was happening after some Australians were arrested in Afghanistan for (illegally) trying to convert Mulsims to Christianity? They were going to be tried for breaking the laws of a foreign country but there was no shortage of diplomatic representation there.
Yet when another person is illegally detained - without charge and tortured - for years by an "ally", we look the other way.


Johnny may enjoy being George's bitch and may even believe that he is striding the world stage like some sort of collossus but morally, he's really just sold us all down the river for the cost of a shonky trade deal.
Posted by rache, Friday, 7 July 2006 1:44:35 PM
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Mirko should be locked away without trial for 7 years. However he should not be in solitary confinement. He should share a cell with Leigh.
Posted by hedgehog, Friday, 7 July 2006 3:44:37 PM
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PS Mirko and Leigh are only to be tortured once a fortnight.
Posted by hedgehog, Friday, 7 July 2006 3:47:11 PM
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Pragmatism? Of what possible use could that be?

What price pragmatism when our own sly-boys get duped over Wheat-gate and Hicks remains a hostage?

Pragmatism, when our army is compelled to act in a dangerous and thinly disguised piece of posturing?

Pragmatism, when the US Government treats friend and foe alike with contempt?

Pragmatism means throwing more bones to the same hyena, hoping for a different result. They already tried that in the 1930's.

*

Principle, now there's a concept for you.

Principle means never sending someone else's child to war unless you and your family are prepared to shoulder arms yourself.

Principle means never prescribing torture for others unless you are willing to taste it's rare delights for yourself.

Above all, principle requires that we see ourselves as we really are.

- no wonder it's too hard.
Posted by Chris Shaw, Carisbrook 3464, Friday, 7 July 2006 3:48:04 PM
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Until he faces trial,Hicks is a innocent man.That the Yanks are prepared to use kangaroo courts to convict him only proves that they are on shaky ground.As for him belonging to a group that has murdered thousands of innocent civillians, he is no more guilty than the Bush,Blair,and Howard in their rampage in the Middle East. Please remind me, Why are our troops over there? The chaos following the apparently free and fair election result in Palestine shows that nobody cares about bringing Democracy to the Middle East unless the elections can be rigged. The Yanks are having the same problems now as they had in Vietnam,for the same reasons. Indiscriminate bombing,torture,murder and now,allegedly,rape of the people we are supposed to be saving only degrades Democracy.
Posted by aspro, Saturday, 8 July 2006 11:44:14 AM
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Well, you could have easily predicted that Mirko would come out with yet another obtuse and diagonal piece of analysis like this - just for the sake of it. Surely legal scholarship is more than foraging around for angles and triangles and quandrangle points of views.
All it lacks is some suggestions on how to best conduct torture. Reading it was torture enough for me.
Posted by Rainier, Saturday, 8 July 2006 2:25:28 PM
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Aspro? Namba lad?
Posted by Rainier, Saturday, 8 July 2006 2:26:38 PM
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The “Free David Hicks” caravan is going to take some body blows if there are Australian casualties in Afghanistan. From what is coming out of Afghanistan on Mullah Dadullah the chances of Australian casualties are increasing. If Hicks does get out his lawyer friends will no doubt push for compensation or some sort of settlement and Channel 9 or 7 will want to buy his story. The rest of us will then have to pay the cost of monitoring his movements.
Posted by SILLE, Saturday, 8 July 2006 5:09:00 PM
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I hate to say it, but I concur - who cares?

Mr Hicks volantarily entered a legal la la land, when he entered Afghanistan to train with the taliban & al quaida. The argument at the present time, seems to be focussed upon his inalienable human rights & liberties.

The interesting point, which is yet to be addressed by the anti-us forces, is that his captivity (in fact his life) only came about due to his good fortune in fighting american forces. I do not think that if he had been captured alive by the Northern Alliance, that he would be granted all this appeals process that he has now (he would have died within days, hours if he was lucky).

So the only reason we don't fight for his return is because he is held by our bigger ally? Bullsh*t, the only reason he is alive to be fought for, is because he is held by the US. What gets on my goat is that this country ignored its own veterans when they returned from vietnam, yet provides pop-star treatment to a person who voluntarily seeks to fight for this countries enemies.

Bring back the death penalty for treason.

Inshallah

2 bob
Posted by 2bob, Saturday, 8 July 2006 9:08:39 PM
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"But don’t be conned into thinking that the changed stance by the Australian Government has anything to do with the legalities or ethics of Hicks’ detention. It is all about pragmatics. The Australian Government has known all along that Hicks’ detention was illegal. It did not criticise the US simply because it took the view that the welfare of Hicks wasn’t worth a diplomatic stoush with our closest foreign ally - the US." In other words, our government decided to abandon one of our own citizens, deny him assistance that any civilised country would be expected to provide, because its head is <a href="http://www.pm.gov.au/">Bush’s butt boy</a>?
Posted by Xeno, Sunday, 9 July 2006 6:48:22 PM
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“Pragmatism always trumps principle”, writes Mirko Bagaric.

But the two are not mutually exclusive. Pragmatism must take into account principle.

And in the Hicks case, or the Guantanamo Bay case, principle is extremely important.

I don’t believe that the principle in question here needed to be trumped. Australia could have maintained a strong relationship with the US while still expressing outrage at the corruption of a principle that is fundamental to democracy, as is the case with the UK and the US.

Mirko doesn’t mention the contradiction between interminable incarceration without trial and basic democratic doctrine. The two are at awful odds. For those of us who believe in true democracy, the principle that has been overridden here is almightily important, because it strikes right at the very core of democracy….in a country that holds itself up as the shining light of democracy.

How can the US espouse democracy while at the same time demonstrating that it can override basic principles of decency, law and well….democracy? It should respect the notion of innocent until proven guilty and should strive to put all captives on trial as soon as possible, and certainly not entertain the absurd situation whereby some countries can win the freedom of their people in captivity without determination of guilt or innocence while other countries (even close allies) have their people languish without charge or trial. This reeks of international favours and trade-offs completely outside of the principle of law.. oh, and democracy.

How can Australia not let this be known just as assertively as Blair did? Isn’t Australia’s relationship with the US strong enough for us to be able to do this? Are we really just that completely fearful of irritating Bush?

I can appreciate that Hicks was an insignificant element in our relationship with the US at the start. But that has progressively changed, as his time in prison without being found guilty has lengthened and as the Australian populace have rightly expressed increasing outrage.

So it is well and truly time that principle trumped pragmatism.

continued
Posted by Ludwig, Monday, 10 July 2006 1:00:42 AM
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“So yes, Hicks deserves a bit of your sympathy….”

Well, I don’t know if he does… because I don’t know if he is guilty. For all the rather condemning information we have heard about his activities, we don’t know how much of it is true, exaggeration, hearsay or deliberate misinformation. We’ll only know if he deserves sympathy after he has had his chance to express his intent, possible entrapment and mitigating circumstances and been thoroughly cross-examined….in a properly constituted legal setting.

The thing I find most unfortunate about Mirko’s article is his lack of appreciation for the extremely strong principle that is being violated here, and the extraordinary hypocrisy of the US in violating that principle of democracy.

Phoowey to the notion that anyone can be detained any longer than necessary to organise their trial, whether they be enemy combatants, prisoners of war or whatever.

In fact in the heat of battle, or international conflict or tensions of all sorts, innocent people can easily get caught up in the strife …..much more easily than in most domestic situations. This is all the more reason for all captives to be tried as soon as possible. Some of them could very well be innocent, or guilty of a much lesser charge than they are suspected of.
Posted by Ludwig, Monday, 10 July 2006 1:02:33 AM
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Systems of etiquette, rather than a prescriptive on Human Rights and any other such fundamental rules, based-on evidence such as "having real proof"?.

To divide this debate may I talk about it from another perspective.

What about the people who bombed the Rainbow Warrior, a peace boat for Gods Sake...how different were they, to anyone else - when it was found they did actually PLAN and USED a strategic bomb. Did Australia allow them to rot in such a jail for 4 years... without a trial?

I believe the David Hicks family, they are honest and transparent about the character of their son, and if you were David... I can imagine how it is if you live in the West and watch the oppressive relationship it has over many other countries - when it comes to the need for sensing that somethings wrong....

David Come Home. I say this for any child in the world who has entered troubled ground. I believe before the war of Afghanistan things were different...

Like many I watched in "HORROR" and felt deeply of the 40O million odd (mothers, fathers and children) fleeing in pre-war events, in the months leading up to this war. Meanwhile we, sit here and argue over the mis-evidence and disgusting dialogue over the TAMPA. I pray it all needs more care-full consideration and balance?

David is no different to many who might in there own way see the world differently to "mainstream". I don't believe he had any idea of what was to come. Watching how we treat him makes me feel GOD help the rest of us..

It is not good enough to argue that we loose markets if we STAND FOR BASIC HUMAN RIGHTS. Everyone has the RIGHT TO A FAIR TRIAL. There is conflict everywhere over this and it is having a "stunning" impact on many in society.

Bystander apathy will continue rank, while we fudge and fumble... while we refuse to take a deeper look at what is in fact shaping our world.
Posted by miacat, Monday, 10 July 2006 1:18:26 AM
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I'm afraid Mirco is right, pragmatism does trump principle in today's politics.

The article reminded me of a passage in Kurt Vonnegut's recently published memoirs. He wrote about how our culture seems to allow psychopaths - heartless people without consciences - to rise to the top positions in government and elsewhere. He seems he has a point.
Posted by john kosci, Monday, 10 July 2006 1:40:12 PM
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CANDLELIGHT VIGIL THIS WEDNESDAY

On Wednesday evening GetUp is hosting a candlelight vigil in Adelaide with Major Michael Mori, culminating in a walk to the office of Foreign Minister Alexander Downer, where we will present our letter of demand to repatriate David Hicks.

Details:

When: Wednesday August 23, from 5:15pm

Where: Assemble outside in Rundle Mall (western end)

BYO: Candle (friends, colleagues and children also welcome!)

Major Michael Mori will speak at 5:30. Sunset is at 5:49, when we will light our candles and walk peacefully to Alexander Downer’s ministerial office nearby, to present our letter of demand.

http://www.getup.org.au/campaign.asp?campaign_id=41
Posted by BrokenSword, Monday, 21 August 2006 7:39:57 PM
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