by James O’Neill*
In August 2015 the government of then Prime Minister Tony Abbott, with Julie Bishop as Foreign Minister announced that they were considering Australia having a role as part of the US “coalition” engaged in the war in Syria. They said that no decision would be made until they had received legal advice as to whether or not Australia’s intervention would be legally possible.
What Mr Abbott and Ms Bishop failed to disclose was that the government had solicited an invitation from the Americans to participate in the Syrian war. According to a report in the Sydney Morning Herald, the government had “pushed for Washington to request that Australia expand its air strikes against Islamic State from Iraq into Syria.”
Exactly what form that “push” had taken has not been disclosed, either to Parliament or elsewhere. Similarly, the exact terms of the US request, solicited as it was, has also not been disclosed, if it even exists. The legal basis for the US to ask Australia to engage in military activity in a third country has likewise never been disclosed. The probable reason is that no such legal basis exists.
The government then announced in September 2015 that it was going to war in Syria. Assuming that the legal advice referred to a month earlier had been received, I made a Freedom of Information request for a copy of that legal advice. There was the useful precedent of then Prime Minister John Howard tabling in Parliament in February 2003 the legal advice he had obtained prior to Australia embarking on the Iraqi misadventure.
My FOI request was refused, but I was given a list of 52 documents relevant to the request that I was not allowed to read. Five were of particular interest. The first was dated 24 September 2014 and headed “Draft Legal Advice.” The other four were all headed “Legal Advice” and carried the same date, 30 September 2014.
In other words, at the time that Abbott and Bishop were telling the Australian public that no decision would be made until they had legal advice, they had in fact received that advice eleven months earlier.
I wrote an account of this exercise revealing the government’s duplicity, which was published in New Matilda online magazine on 16 November 2015. That same day the article was published Ms Bishop was interviewed on ABC National Radio and asked about the legal basis for Australia joining the US “coalition’s” war in Syria.
Her response was that Australia had joined the war pursuant to the collective self-defence provisions of Article 51 of the UN Charter, and at the request of the Iraqi government. That was the first time such a rationale had been advanced. That it was inconsistent with the apparent fact of a solicited request from the US government appeared not to trouble Ms Bishop because she did not mention it. Neither did the ABC interviewer who, to be fair, may not have even known about the earlier versions of the government’s story.
There were two further difficulties with the government’s story, quite apart from the secret legal advice they had for nearly a year without disclosing it and then claimed to be awaiting it, and the ever shifting rationale for intervention. The first difficulty arose when the office of the Prime Minister of Iraq issued an official statement on 3 December 2015. In that statement they specifically denied making any such request for any “international coalition” to send troops to Iraq. The Iraqi government’s reluctance to entertain Australian troops is further evidenced by the fact that there is no Status of
forces Agreement in existence between Iraq and Australia, and that Australian troops have been issued with diplomatic passports to overcome the legal difficulties that would inevitably arise.
No member of the Opposition or the mainstream media has ever challenged the government on its manifestly false claim to be in Iraq at the request of the Iraqi government.
The second problem arises Ms Bishop’s statement to the ABC that the intervention was pursuant to the collective self-defence provisions of Article 51 of the UN Charter. That provision is clearly not applicable in the present case, which if the media or the Opposition had bothered to research would have been immediately apparent.
That particular provision of the Charter has been authoritatively interpreted by the International Court of Justice in a number of cases (see: Williams, University of Pennsylvania Journal of International Law 2011 (33 (2). In short, under Article 51 a State may only ask for assistance pursuant to the collective self-defence provisions if it has in turn been attacked by another State, This clearly does not apply here, quite apart from the fact that the Iraqi government has stated that they made no such request.
The Department of Defence has refused to confirm whether or not Australian ground troops are involved in Syria, although there are unconfirmed reports that Special Forces have been operating on Syrian soil. If that is correct, then that would be a violation of international law as the only legitimate basis for any such military intervention can only be pursuant to a Security Council Resolution (which does not exist) or at the request of the Syrian government, which also does not exist.
What has been confirmed, because the Department of Defence publishes the data on its website, is that the RAAF has been conducting operations in Syria albeit sporadically. These data disclose the following operations:
The FA18 is a fighter jet and as the figures show, has barely been used. The E7A is a different story. This plane is an electronic eye in the sky and provides essential support for the bombers, primarily American, to aim at their targets. Those targets, as has been amply documented, have resulted in heavy civilian casualties, as well as units of the Syrian Arab Army.
A rare admission of operational actions was made in September 2016 when the RAAF command acknowledged bombing Syrian Army units, which they said was a “mistake.” The Syrian government did not accept that explanation.
The third aircraft involved, the KC30A provides refueling services. Given the number of sorties flown by the KC30A exceeds that of the FA18 and the E7A, the conclusion must be that the refueling services are provided to other “coalition” forces operating in Syrian air space.
By carrying out air strikes in Syria, or assisting others to do so, is a breach of international law. As noted above, such operations can only be lawfully conducted in self-defence; pursuant to an appropriate resolution of the Security Council; or following a request from the host government. None of those conditions apply. Australia is therefore at the very least a party to war crimes.
What is perhaps as remarkable is that these facts are not the subject of parliamentary debate, or serious discussion in the mainstream media. Even if the matter were brought before parliament it is doubtful it is doubtful whether the Labor Opposition would raise any objections. On matters of alleged “national security” the two parties are essentially indistinguishable.
It now seems to be the case that Australia can commit to war without the need for a legal basis, without parliamentary approval or even debate, and with the public either lied to or seriously misled by senior politicians without fear of consequences. We have truly descended to a sorry state of affairs.
The US plan for regime change (supported by Australia) now seems to have been abandoned, although with Trump one can never be too sure. The Syrian Army, with the lawful assistance of Iraq, Iran, Hezbollah and the Russians are now on the verge of crushing ISIS. There will still be unresolved issues, including removing the Americans from the military bases they have illegally set up on Syrian soil. If the US does not leave but tries to stay (as is their practice) will Australia assist the Americans in the inevitable confrontation that would follow with Russia, Iran and Syria?
The Australian government does not seem to have any plan beyond doing what the Americans want, and as their wishes shift with the vagaries of the power struggle in Washington, Australian policy seems even more directionless than usual.
Perhaps if we had a genuine and long overdue national debate, then clarification on this and other related issues might be forthcoming. Don’t hold your breath waiting.
*Barrister at Law and geopolitical analyst. He may be contacted at email@example.com