By James O’Neill*
The confusions, inconsistencies, factional infighting and uncertainty in Australia’s foreign policy in the Middle East have been thrown into stark relief in a number of developments over the past few weeks.
The particular issue I want to address arose in the last days of the Abbott administration. The Sydney Morning Herald informed its readers in August 2015 that Tony Abbott was soliciting a “request” from the United States government to invite us to a greater degree of participation in America’s wars in the Middle East and in particular the war in Syria.
The same month the Foreign Minister Julie Bishop said that no decision on Australia’s involvement in Syria would be made until the government had received and considered legal advice.
My subsequent FOI request for that legal advice showed that it had in fact been received eleven months earlier in September 2014. It must have slipped Bishop’s mind that she was waiting for something she already had.
The content of that advice has not been disclosed, but only two logical possibilities exist. Either the advice was that such military action would be lawful, thereby placing Australia in the unique position of holding a legal opinion that the overwhelming balance of the international law community did not share.
Or, the advice was that such military action would be unlawful under international law, in which case why did the government go ahead, as they did in September 2015, in engaging in bombing attacks in Syria?
I published an article in November 2015 setting out the reasons why such military action was illegal under international law. On the day the article was published, Ms Bishop appeared on ABC Radio and said that Australia was bombing Syria pursuant to a request from Iraq under Article 51 of the UN Charter. The relevant provision in that Article is the notion of collective self-defence.
What Ms Bishop did not say in that interview was that Australia had sent a letter to the UN Security Council, as it was obliged to do under the Charter, in which the added justification for Australia’s bombing was that Syria was “unable or unwilling” to stop attacks on Iraq by ISIS fighters from Syria.
The reason why the “unable or unwilling” claim must also have slipped Ms Bishop’s mind during the interview is that it is a concept adopted only by the United States and the United Kingdom for their own self-interested reasons. It is a concept rejected by the rest of the international law community for a host of very good reasons. Not the least of these reasons is that the claimant is both Judge and jury in their own cause as to what or who is “unable or unwilling”.
As to invoking collective self-defence, further obstacles exist. The International Court of Justice on at least two recent occasions has stated that “collective self-defence” is not available as a justification when the attackers are not a sovereign state. Whatever else its pretensions, ISIS is not a sovereign state.
A further calamity awaited Ms Bishop. In December 2015 the Office of the Prime Minister of Iraq issued a statement saying in effect that Iraq had neither asked for, and nor did it want, any foreign or “coalition” forces to do anything other than to assist Iraq within Iraq’s own borders. That little detail somehow escaped our mainstream media.
Somewhere in the bowels of the Department of Defence it is possible that someone was having second thoughts about the wisdom or legality of bombing Syria. The bombing commenced in September 2015 but then stopped. There were no bombing attacks in either October or November. There were a token 10 sorties in December. We were not told that the bombing had stopped or why it resumed.
There were however some parallel events of considerable significance. As is well known, the Russians began a bombing campaign in Syria at the end of September. The crucial difference is that they did so at the invitation of the sovereign Syrian government. They have been more effective in destroying ISIS assets in the 14 weeks of their campaign to date than the Americans achieved in the preceding 14 months of their pretend campaign of bombing ISIS targets.
The Russians also brought with them the highly effective S400 anti-aircraft missile system and did not bother to hide the fact that those missiles could and would be used against any aircraft not legitimately engaged in Syria’s war. That necessarily included Australia.
The Russians further embarrassed Australia by releasing detailed evidence of huge convoys of ISIS trucks transporting stolen Syrian and Iraqi oil across the Turkish border and returning with weapons, ammunition and other military supplies.
Quite how these convoys escaped the attention of the Australian and American air force for so long is one of the enduring mysteries of this fake campaign.
Further embarrassing revelations from the Russians included the role of Bilal Erdogan (son of the Turkish President) in running his own oil importing business using the aforesaid stolen oil as his source of supply.
Just to keep things in the family, Erdogan’s daughter runs a hospital across the Turkish border from Syria where wounded ISIS fighters are treated.
Israel offers a similar service at its military hospitals in the Golan Heights. That friendly humanitarian gesture may be one reason why the rabidly pro-Sunni ISIS seems curiously uninterested in attacking Israeli targets.
Mr Putin caused further embarrassment when he disclosed evidence that ISIS was receiving large financial support from more than 40 countries, including members of the so-called coalition that are allegedly opposing ISIS and even in some cases even more allegedly fighting them.
If you did not read much or any of this in your local Fairfax or Murdoch duopoly do not be surprised. Both media outlets have a strong tradition of sheltering its readers from bad news, especially when that news might reflect poorly on their editorial support for the West’s imperial adventures.
The latest revelations are that Abbott’s pleas in August 2014 did not go unheeded. The Americans did ask for a greater military commitment from us. Quite what the legal basis for them to do so remains another of those enduring mysteries from which we are ever protected by the government never sharing its unique insights into international law with the rest of us to whom they are nominally accountable.
How do we know therefore that the Americans did ask for help? It transpires, again relying on the SMH, that Defence Minister Marise Payne turned them down. That must have been a bit of a surprise in Pentagon circles, given that we, in the form of the Abbott government, had solicited that request.
Actually doing the right thing clearly does not sit well in the further reaches of the right wing of the misnamed Liberal Party. Ms Payne’s predecessor, the truly awful Kevin Andrews, publicly lambasted Ms Payne’s (and presumably the Prime Minister and Cabinet’s) decision to turn down the American request.
Mr Andrews was joined in his criticism by his other former ministerial colleague and ideological soul mate, Senator Eric Abetz of Tasmania.
All of which must be very confusing for the Labor Party. Their morbid fear of being wedged in national security issues has led their current leader to shout “me too” when the latest outrages in foreign policy or destruction of domestic civil liberties are proposed or enacted.
With whom can they be bi-partisan when the other party is itself rendered into increasingly fractious segments, so terminally confused that they share tweets with the object of their misogynistic diatribes.
Perhaps such confusion can be understood when one sees the logical fallacies, contradictions and selective lapses of memory, not to mention an idiosyncratic view of international law and geopolitics from the Minister nominally in charge.
So what is Malcolm Turnbull to do when he meets Barack Obama shortly? Does he build upon the glimmer of hope and rationality reflected in the two-month bombing pause and declare that Australia has no military role to play in Syria’s war? Or will he be like legions of Australian Prime Ministers before him and succumb to the non-subtle pressures that the US customarily applies to wavering or less than totally loyal allies?
It may be 40 years since the coup that deposed one of his predecessors for showing a little too much independence, but not so long ago that the memory has faded. The outcomes of that meeting will help determine whether or not we are the agile and innovative nation the Prime Minister wants us to be, or do we continue our traditional role as the pawn of US’s geopolitics.
*Barrister at Law. He may be contacted at firstname.lastname@example.org