Laws of Yesterday’s Wars Symposium – Indigenous Australian Laws of War

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| Mar 27, 2023

Indigenous

Editor’s note: The following post highlights a chapter that appears in Samuel White’s edited volumes Laws of Yesterday’s Wars published with Brill. For a general introduction to the series, see Samuel White and Professor Sean Watts’s introductory post.


Australia is unique. It is the only country that is also a continent. It is one of the deadliest places in the world. It is home to the longest living, continuous culture in the world, with 60,000 years of unbroken connection to its country. There are over 250 First Nations. The continent of Australia is also a land that forces innovation and co-operation to survive. This was the focus of the Chapter 1 of Volume 1 of the Laws of Yesterday’s Wars, co-authored by Ray Kerkhove and Samuel White.

Australian History & Conflict

It is hard to capture succinctly to an international audience the complexity of writing and research regarding Indigenous Australian laws of war and peace. Indigenous Australians from 1788 (the date of British colonisation) were systematically removed from their land, which is central to health, community, and language, and forced to co-habit with historic enemies. They were subjected to concerted publicly declared military campaigns, covert counter-insurgency operations, and one of the earliest examples of protracted lawfare (both in defining who was Indigenous, and what rights they had). It was not, however, one sided.

British colonists consistently decried Aboriginal warriors for their unnerving courage, lightning quick mobile strike operations, and expert adoption of British weapon systems and methods of warfare. Entire Indigenous communities would engage in economic subversion, having quickly identified that the British center of gravity was their reliance on European crops in foreign soil. When tourists come to Sydney today, they often ride the ferry across the Harbour to Manly – so named due to the manly nature of Guringai warriors. The 1901 Australian Constitution contains provisions, still operational today, that guarantee State governments the ability to call out Federal troops to suppress domestic violence. The threat in 1901? That over a quarter of the continent of Australia still had not been pacified. Frontier violence permeates founding legal documents and still leads to debates today about the nature of colonization. Underpinning this is a cultural myth that, unlike the warlike Maori of Aoteroroa with whom a Treaty was made, the passive and peaceful Indigenous Australians could not legally be entreatied with.

In 1950 Australian academia, against the backdrop of the White Australia Policy (the first piece of legislation passed by the Commonwealth in 1901, guaranteeing that only white British individuals could reside in Australia), a lone voice called out a glaring omission in contemporary writing. W.E.H. Stanner, an anthropologist, held that Australian history had been re-written since 1901 to exclude any and all references to White Australia’s dark past. He critiqued his colleagues for the “Great Australian Silence” and sought to open the Australian public to its multicultural past, present, and future.

Out of the Silence

Seventy years later, on the cusp of constitutional recognition through a First Nations Voice to Parliament, discussions of the unique depth and breadth of First Nation warfare are still only starting. One thing is clear however. Indigenous Australians remain one of the few cultures to develop a nuanced, balanced, and effective means of conflict resolution based upon norm entanglement. It is a method of conflict mitigation and resolution that pre-dates globalism by 59,000 years. It is, importantly, the closest historical analogy to the modern era of the spectrum of competition that States find themselves involved in today. The issue that Anglo-Saxon nations have, however, is that our cultural norms approach conflict through a binary construct of peace and war. It is a particularly Eurocentric norm, arising from Roman legal constructs and perpetuated through the medieval laws of chivalry.

Unlike the Eurocentric, binary position of peace and war, First Nation peoples relied on payback (junkarti in Lardil, dalgii giban in Wiradyuri). Payback was premised on more than just tit-for-tat, but shaped jus in bello. As Tyson Yunkaporta, an Apalech Australian man, explains, the rules of engagement required that cuts only be inflicted on the arms, back or shoulders. And importantly, these cuts, at the end of a battle, had to be replicated on one another. The aim was that no one could walk away holding a grudge.

Such an approach is quite difficult to comprehend from a Western military perspective. Yet its logical application is such that wholesale slaughter was often mitigated. Payback, however, did not prevent territorial conquest. There are multiple instances of Indigenous Australian groups conquering their neighbours. The Wiradyuri and Kamilaroi of Eastern Australia are infamous for their belligerency to their neighbors (whose tribal names such as the Yorta Yorta mean “No! No!” probably from repeated sovereign incursions by Wiradyuri).

Payback was only one element of conflict mitigation and resolution. Indigenous Australian cultural norms promoted training to disarm rather than to kill – just like the Mexica. Indigenous Australians emphasized disabling an opponent in the quickest manner possible. Accordingly, individuals had a remarkably detailed knowledge of the nervous system, which was taught and reinforced through training during initiation periods. In 1951, Lumsdaine, reporting on the Yinni Burra People, recorded that a wallaby tail was smeared with white ash and used in training warriors where to strike:

each stroke was then explained and each nerve point shown. The trainees were not allowed to bruise or break the skin of the opponent. The mere touch of the ash-smeared tail left a white mark sufficient to show if the right place had been hit. Once the trainee could hit the exact place and nerve to paralyse an opponent, they knew then in any series affairs, the same place must be hit with vigour.

The influence of this research can be seen widely today. There are attempts to revitalize First Nations martial arts (some of the oldest in the world) and there is a push, at a local level, to acknowledge the martial prowess of Frontier War resistance leaders. Additionally, commentary by Lumsdaine, along with the research underpinning this chapter, has led to further discussions and explorations with the Australian Red Cross, who facilitated a “digital yarning circle” including Kamilaroi and Palawa elders to participate and discuss their cultural conflict resolution.

This is particularly relevant in the wider push for localized truth-telling in Australia currently. The yarning circle highlighted the strength and utility of oral history (deep history) in this area. Specifically, one recount by an emerging Kamilaroi Elder was of a combined, annual peace corroborre (Indigenous ceremony for initiation, joint decision making and information sharing) between Wiradyuri men and their Kamilaroi neighbors. The corroborre required both sides to participate in a mock fight, and mock peace ceremony. In many ways, this is similar to the annual Pyrenees peace ceremony practiced today – held erroneously to be the oldest in the world. The Australian Red Cross event highlighted that Indigenous Australians had pre-dated the latter event by over 3,000 years.

Love Thine Enemy

Another way to avoid escalation, but potentially the hardest from an Anglo-Saxon perspective, is to approach situations with empathy. We say this is potentially hardest due to the underlying assumptions in Anglo-Saxon (and more generally Western) culture that privilege retaliation and punishment for misdeeds over empathy. This has also evolved to be reflected in criminal law.

One of us observed this most readily whilst in Argentina in 2017, observing the Trial of the Sixth Junta. Blanket immunities for members of the junta were found to be unconstitutional, paving the way for national criminal trials to deter any future military coups. The resulting trials and punishments, notwithstanding the heinous nature of the junta’s crimes, could be viewed as excessive. One individual was sentenced to 640 years imprisonment. This practice is not isolated to Argentina alone. Recent German prosecutions of Nazi staff in concentration camps highlight a wider cultural practice of ensuring punishment. This is not said with condemnation. It is just a lens through which European practice needs to be critically examined.

There are alternative perspectives. William Lloyd Warner was an American sociologist and anthropologist who was noted for his studies on class structure. His observations of the Murngin People, located in the furthermost eastern and northern parts of Arnhem Land, provide a particularly important case study for empathetic relations. Warner recounted 72 instances of armed conflict over two decades between the Murngin, of which 50 were payback. The idea underlying Murngin warfare was that the same injury should be inflicted as was suffered. When accomplished, there was satisfaction. This consequently led to the makaratta – a peacemaking ceremony used by the Murgin for generations prior to colonisation.

Makaratta has been promoted as a method through which reconciliation, domestically, can occur since the 1980s. During the late 1970s, many Aboriginal Affairs organizations campaigned for a treaty between Aboriginal peoples and the Australian Government. To allow negotiations, the National Aboriginal Council (NAC) adopted the word makarrata to designate the proposed agreement. In NAC publications it was given the meaning of “things are alright again after a conflict” or “coming together after a struggle.” Underpinning it is an empathetic approach to conflict and reconciliation; it is, by its nature, de-escalatory.

In 2017, after a period of considerable community engagement, the Uluru Statement from the Heart was released. The Statement was the culminating document from the Referendum Council’s National First Nations Constitutional Convention at Uluru to ratify the decision making of the Regional Dialogues. The Convention overwhelmingly endorsed the Uluru Statement from the Heart. The Statement called for a constitutionally entrenched First Nations Voice to Parliament, and a Makarrata Commission to oversee a process of treaty-making and truth-telling. After initial rejection by the Commonwealth Government, a subsequent election, and new government, saw progress with Federal support and a commitment that a referendum would be actioned in 2023 with respect to a First Nations Voice.

The Makaratta Commission has received little practical or academic attention. This lack of attention promotes further inquiry into alternate models, to encourage the development of alternative agreement-making processes in a way that “walk alongside” First Nations customs and cultures. This is a perspective taken by the 2021 Victorian Yoorrook Justice Commission, Australia’s first comprehensive process of truth-telling. Yoorrook is Wemba Wemba for truth. Designed in partnership with Aboriginal Victorians and the Victorian State Government, the Yoorrok Commission is invested with the power of a Royal Commission and is empowered to establish an official public record. Importantly, it uses a model of truth telling that is culturally safe.

These alternate models of conflict resolution – yarning, truth telling, yoo-rrook, makaratta – are only the beginning of post-colonial Australian understanding of Indigenous conflict resolution. Gabrielle Appleby and Megan Davis explain that delegates at the Regional Dialogues that produced the Uluru Statement emphasized the importance of truth emerging from within local communities. As Davis explained:

Truth-telling must be bottom up, led by First Nations in their communities. The vision of truth determined by the First Nation Regional Dialogues, which led to the Uluru Statement, captured this dynamic: localised and featuring understandings of a shared history within communities. Few wanted a framework or institution to regulate this activity. The notion of a commission to animate the process of Makarrata was supported, but communities would still decide whether they want to connect to this, if at all.

Local and regional truth-telling holds several advantages. Truth-telling slowly but steadily builds a base of understanding and cultural awareness in Australian (both Indigenous and non-Indigenous) communities, helping inoculate all Australians from misinformation, enabling a post-colonial society to build a resilient, shared history together. Similarly, as a bottom-up process led by Indigenous Australian communities, localized truth telling may have stronger engagement. Top-down or state-driven efforts at “reconciliation” in Australia have too often marginalised and disempowered Indigenous communities, who may have perceived them as “repressive” or as means to “reinforce colonial hegemonies’.” It is here that breaking the Great Australian Silence is of utmost importance, to identify other methods of conflict resolution, perhaps methods that have been practiced for over 60,000 years by First Nations peoples in Australia.

For instance, the Prun was a structured ceremonial process of conflict-management that created opportunities for reconciliation among the Mallanpara People (in Queensland), which involved a combination of physical venting and pageantry combat, as well as taunting, teasing and exchanges of “the most filthy epithets.” TheNathagura ceremony amongst the Mallanpara People was held over 14 days and included distinct phases and activities that lead to an 18-hour fire ceremony. Elders expressed that “its object was to finally settle up old quarrels, and to make the men friendly disposed towards one another.” In the Nathagura ceremony there was a lengthy preparatory phrase, which included a deterioration of most social rules, involving taunting, insults and practical jokes. Kinship and relationship rules were also set aside, and humor and merriment seemed to accompany the loosening of social boundaries.

Conclusion

Although some First Nation methods of conflict and resolution may seem unrealistic from an Anglo-Saxon perspective, their existence highlights clear alternatives to how war can be fought and resolved. By overcoming colonial biases and turning the Great Australian Silence into the Great Australian Discussion, it is possible that Australia may increase its intellectual edge and be uniquely prepared to both ensure domestic tranquillity, and successfully be positioned internationally to succeed in an era of competition. To do so, non-Indigenous Australians are required to ask difficult, self-critical questions and to embrace 60,000 years of norm creation; for, as Audre Lorde warned us, “the master’s tools will never dismantle the master’s house.”

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Samuel White MPHA is the inaugural Cybersecurity Post-Doctoral Researcher and RUMLAE Associate Researcher at the University of Adelaide, as well as an Adjunct Senior Research Fellow at the University of New England.

 

Photo credit: Maclearite