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Sex, guns and human rights

By Raphael de Vietri - posted Friday, 22 October 2010


I had thought that the US military's "Don't Ask, Don't Tell" policy, banning homosexuals from serving in the armed forces, was on its way out as soon as Obama was on his way in. I was wrong.

So whatever happened to Obama's election promise, which secured him a huge gay-friendly vote in the 2008 presidential election? (It's the only question the President doesn't want us to ask!)

On 21 September 2010 the US Congress blocked Obama from repealing the ban, with 40 Republican and 2 Democrat senators voting to keep it in place. That was despite a ruling by a US federal court earlier in September which stated the policy was unconstitutional because it "infringes the fundamental rights of United States service members in many ways". Judge Virginia Phillips referred especially to the right of free speech, constitutionally enshrined by the First Amendment.

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On 12 October, Judge Phillips, an appointee of the Clinton administration, issued a world-wide injunction, immediately stopping enforcement of the policy. The US Defence Department now has 60 days in which to appeal the injunction. An appeal is underway.

Although I gather from anecdotal exchanges with American friends that the good majority of American folks are supportive of lifting the ban, there obviously remains an influential conservative element in Washington, who would see the revocation of this policy as a grand ideological defeat. In September's Congressional vote, this element was no doubt encouraged by the recent swell of voters swinging away from mainstream GOP politics and towards the Palin-inspired conservative Tea Party movement.

An estimated 17,000 troops have been discharged from the US military since the policy was introduced in 1993. This is all the more astonishing considering the US military's recruiting difficulties in recent years. Each of these individuals has been ready, willing and able to serve their country in war.

One recent high-profile case was that of Lt-Col Victor Fehrenbach. The New York Times reported in August that Lt-Col Fehrenbach, a decorated US Air Force flight officer, may face discharge from the US Air Force after revealing his sexuality to police under interrogation. Fehrenbach is one of the highest ranking officers to be investigated under the policy. There are, however, hundreds of personal stories like his each year, especially among the lower ranks, where soldiers accused of being homosexual may not have the means, know-how or courage to challenge a superior.

The argument put forward by those who advocate the policy is simple. The official line from the US Department of Defence is: having homosexuals in the military "negatively impacts on operational capacity" and "undermines unit cohesion". In other words, you can't trust the gays. People who advocate this position often mount their argument knowing full-well that such an attitude would never be accepted in the civilian world. They therefore couch the argument with vacuous statements such as "due to the unique demands of military service...", and "given the close living quarters and long periods away...".

The truth is quite the opposite. Warriors are men who have committed to a cause, and to a life where their lives are regularly in the hands of others. They know and trust their mates, and look out for one and other. There should be no lies among brothers. Lies create distrust. Honesty creates understanding and mutual respect.

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Professor Belkin, an expert witness in the recent US federal court case, argues that negative feelings towards homosexuals in a military unit would decrease when people among the unit identified with that group - a phenomenon he describes as "familiarity breeds tolerance".

In that same court case, Judge Phillips also considered (among loads of other evidence pointing in the same direction) a Rand Corporation study which concluded that although social cohesion within units might sometimes be affected by openly homosexual members, task cohesion was not affected, and therefore had little to no effect on unit military performance.

No one is saying gay soldiers must come-out to their peers. It's just that it should not cost them their job if they do. It should be up to each individual in this situation to make a personal judgment.

Australia is not immune from criticism on this issue. Both Australia (until 1992) and the UK (until 2000) have had bans on homosexual people serving in their forces. But our forces, and our societies more generally, have moved on from those darker days. Looking back we realise how medieval and cruel our attitudes were.

The idea of the "fair go" is now of central importance to Australian Army values. Its soldiers are directed to observe the "Rules for a Fair Go", which are issued to every solider in the form of a wallet size card:

  • Be honest, always.
  • Respect the differences in others.
  • Make the Chain of Command work.
  • Use the military justice system.
  • Bring honour to your country, the Army, your mates and yourself.
  • Respect and use the Army values of: Courage, Initiative, and Teamwork.
  • Earn the trust and loyalty of your team. Don't let your mates down.
  • Be accountable for you actions and decisions.
  • Treat others as you want them to treat you.
  • Lead by example.
  • Have courage to stand up for what is right and stop unacceptable behaviour.

This message is reinforced to all soldiers and officers at compulsory Equity and Diversity training courses. The progress made by the ADF in the area of Equity and Diversity is impressive, even by civilian standards. Each unit, for example, now has a designated Equity Officer as a first step for complaints management.

When Lt-Gen Cosgrove (then Chief of Army) announced the Fair Go Hotline, for matters not resolved by the chain of command, he said of these values:

"I do not see these matters as being irrelevant or as a side issue to what we in the Army are all about but, rather, I am convinced they make a significant contribution to our operational capability and effectiveness… Unacceptable behaviour, particularly bullying and harassment, adversely impacts on morale, health and individual and unit effectiveness."

But this issue is about more than just our American friends' disregard for the "fair go". This is an institutionalised disregard for fundamental human rights.

The "Don't Ask, Don't Tell" policy breaches a core principle of international law; namely, the non-discrimination principle.

The UN Charter sets out the principle of non-discrimination in articles 7, 55, and 56. The Universal Declaration of Human Rights further builds up the principle, and under articles 2(1) and 26 of the International Covenant on Civil and Political Rights, signatories agree to ensure that all individuals within their jurisdiction are afforded the same basic rights "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Both Australia and the US have ratified the ICCPR.

The importance of international treaties such as the ICCPR, is not that they create directly enforceable rights or obligations in domestic law. Very often they don't, especially if signatories specify special reservations. The authority of such treaties comes from the fact that they represent basic norms of treatment that the international community agrees ought to apply to every human being. In other words, they have moral force.

In the ICCPR, each nation agrees to protect its citizens from discrimination, stating:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

The International Labour Organisation also recognises its Discrimination (Employment and Occupation) Convention to be "one of the eight fundamental ILO Conventions that all members must respect, promote and realise". This convention declares that governments are to adopt national policy designed to promote equality in the workplace, and eliminate discrimination.

Even in the context of international refugee law, Australia and the UK now recognise claims for refugee status from homosexual men in countries that deny them the right to express their identity (such as Iran).

Australia's political and military leaders ought to be unambiguous about where Australia stands on this policy. Although a public denouncement of the policy by  Australia's Ambassador in Washington is unlikely to move the those who are now blocking progress, it is important for us, as friends of American, to put our disagreement on the record. 

Even if you disagree with the discriminatory policy, at his point you might be thinking, "whoah just hang on", why should Australia risk its primary strategic alliance for the sake of a few confused "fags"?

The answer comes in the form of a well-worn (but true) cliché: It's a matter of principle. The brazen hypocrisy involved on the part of the US military has become ridiculous. The misery which some closeted homosexual soldiers in the US forces must go through is comparable to the pain caused to some women who were oppressed and suffered under the Taliban in Afghanistan. Why should closeted soldiers be fighting for the rights and freedoms of foreigners, when their own country does not even afford them those same rights and freedoms?

Closeted societies are unhealthy and destructive. Anyone who has seen Brokeback Mountain would understand the… wait…. I can hear Miss Palin interrupting with her chirpy tea-party smile: "Son! We ain't gonna lynch em! We just gonna fire em!" Ok Sarah, you're right, lynching is extreme, but firing a man or woman because of the person they love still seems pretty cruel to me.

It's not as if, in armies where gays are allowed, gay soldiers come to work each morning with a rainbow scarf and a copy to the latest Kylie CD to share with the boys. Trust me. You have to work twice hard as the next guy to gain the respect of peers. (To anyone who's seen the YouTube sensation "If the Army Goes Gay" –lol).

Military service is a profession, and those who do it best treat it as such. Sex is not part of the job. It has nothing to do with it. So, if sex is irrelevant, why does the "Don't Tell" part even matter? Well, I think a person who is willing to fight and die for his country shouldn't have to lie about why his wife isn't at the Regiment Ball, or why his best mate keeps sending him a letter each month when on deployment.

Ambassador Beazley (our man in Washington), with the support of Foreign Minister Rudd and Defence Minister Smith, needs to communicate a simple message to the Washington elite: This kind of policy sits uneasily with the Aussies.

Even if the issue remains unresolved for some time at the political/judicial level, Australia should at least communicate an expectation that the policy be left unenforced on the operational level.

The stock-standard pollie reply to this suggestion would be, "we don't expect other countries to tell us how to run our business, and we can't tell other sovereign nations how to run theirs".  So why should Australia's representatives expend political capital on making a moral point? After all, it is unorthodox diplomacy to make public normative judgments about other governments. Getting conservative Congressmen off-side might even work against Australia's interests the next time Australian representatives are lobbying the Hill for more favourable treatment in trade or weapons sharing, for example. Furthermore, there are any number of other countries we could be criticising for more serious human rights abuses. Why this one?

It is the close relationship between our two military forces that distinguishes this particular issue. ANZUS has become fully manifest in Iraq and Afghanistan. In those war-zones the ADF and the US military are fused. They are one, in both the eyes of the public, and in real terms. US and Australian soldiers have served under the same command structures in many instances. If our nation is prepared to accept the many benefits that come with such a close relationship, it should also be prepared to take-up some of its moral burdens. By our silence on this issue, Australia becomes vicariously responsible for the damage caused by this state-sanctioned discrimination.

In the past, Australia has not been afraid to expend political capital on pursuing moral issues, at the expense of alliance relationships. Japan and whaling comes to mind. But: (i) These are people, not whales; (ii) Unlike Japan's whaling, Australia shares a degree of responsibility for the US policy, due to our fused military relationship; and (iii) The action required to make our point would be much less drastic than that exerted upon Japan.

Yes, it might be a bit little awkward to bring up (I'm imagining K-Rudd… "Admiral Mullen, Sir, uuhhmm, let's call a spade a spade, there's no silver bullet for this one, but… uumh you know how you don't let "queers" in your army, well, we don't think that's right, and it's embarrassing for us to serve with you guys because of it. …fair shake of the sauce bottle?").

However, for us to know that our US pals are responsible for needless institutionalised discrimination, and to not do anything about it, is in fact more than just embarrassing. It's gutless. Frank friends are fine friends. And the bottom line is, it's not worth freeing strangers if you are a prisoner in your own country.

The views expressed in this article are the author's own opinions, and do not necessarily represent the views of the ADF or any other organisation.

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About the Author

Raphael de Vietri is a keen observer of Australia’s foreign affairs. He is a part-time member of the Australian Defence Force, while also undertaking post-graduate studies in international law at the Australian National University.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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