Yesterday, at the beginning of a week when John Howard admitted Australia could invade Iraq without UN approval, he said this: “It’s very important as we start the week off that people understand that there is adequate legal authority under existing Security Council resolutions for action to be taken without the need for a further resolution.”
Today, he refused point blank to release the legal advice he said proved his claim.
John Howard’s contempt for the Australian people, it seems, has no bounds. His disdain for the morale of our troops, now allowing the fear of illegality to add to their burden of fighting a war knowing most Australians do not want them to risk their lives for this cause, verges on the unbelievable.
As Keir Starmer QC, a British barrister specialising in international human rights law, wrote in today’s Guardian newspaper on the eve of the release of the British Government’s legal advice:
“(British troops), their families and the public have a right to know what the “proper legal basis” for their action is. Engaging in armed conflict in breach of international law is a precarious business. The idea that the prime minister would end up before the international criminal court for participating in a US-led attack is far-fetched. But military commanders on the ground will not thank the government if any action they take is later judged to have been in breach of international law.”
Just last month, forty three of Australia’s most senior international law experts signed a letter declaring that “the initiation of a war against Iraq by the self-styled “coalition of the willing” would be a fundamental violation of international law” which could “involve committing both war crimes and crimes against humanity”. They warned that Australian military personnel and government officials faced the threat of being hauled before the International Criminal Court if they took part.
Sydney’s top barrister, Bret Walker SC, challenged the government to release contrary advice, if it had any. His challenge went unanswered.
Mr Howard said today he had “formal legal advice”, from “the Attorney General’s department and the Department of Foreign Affairs and Trade”, but would not release it. He did not say why.
When told that the British government planned to release advice from Attorney General Lord Goldsmith, he said: “I don’t know what the UK will do, and we do what we normally do in relation to these things.”
Here’s what the government normally does in relation to legal advice on politically contentious matters. If the advice suits its argument it releases it, either in full or by showing reporters parts of the text. If the advice does not suit its case, it refuses to do so.
In 1997, the overwhelming majority of Australia’s top lawyers – in private practice and at the Australian Law Reform Commission – advised that its original Wik bill was racially discriminatory and in breach of the Racial Discrimination Act.
The Government repeated, over and over – including in the Parliament – that its legal advice was that the Wik bill did not breach the Act and was not racially discriminatory. One minister, Nick Minchin, even told Parliament that it was difficult to understand how anyone could believe the contrary claim.
The government refused all requests to release that advice and ordered the Australian Law Reform Commission not to give evidence on the matter to a parliamentary inquiry into the Wik bill, triggering an inquiry into whether Attorney-General Daryl Williams was in contempt of the Senate.
Finally, in November 1997, an extract of the Government’s legal advice – by its Chief General Counsel Henry Burmester – was leaked to the Herald. It warned that the Wik bill could run foul of the Racial Discrimination Act on at least three grounds, and could also breach a key international human rights agreement, the Convention on the Elimination of all forms of Racial Discrimination.
This government has form. This is a matter of the highest importance to the Australian people and to our troops in the Gulf. It is Mr Howard’s duty to prove his case.