Is this war legal? John Howard wouldn’t release his legal advice on Monday, but changed his mind overnight and released it yesterday. You can read it at smh.
The date of the advice is March 12, last Wednesday (the date on the link is incorrect). Surely Howard must have got advice before then – a UN refusal to endorse has been a possibility for quite a while now. Indeed, you’d think he would have got it before he predeployed troops, because that act committed him to Bush’s war regardless of what the UN did.
The second interesting thing is the junior level of the advice. Such important advice is usually given by Australia’s top law officer, the Solicitor General, or the top legal officer in the Attorney-General’s department, the Chief General Counsel. This advice is by a middle ranking Attorney-General’s officer (three rungs below a Department secretary) and a legal officer in the department of foreign affairs and trade. Why?
Perhaps because a more senior lawyer would not have put his name to such unequivocal advice? The “yes’, no-ifs-or-buts nature of the advice has seen it shredded by Australia’s most senior international law experts (Experts at odds as PM releases legal advice) and the Secretary General of the UN confirmed this week that the war’s legitimacy was in question.
Th political difficulty of Labor’s position on this issue was exemplified on The 7.30 Report tonight.On Sunday, Labor’s foreign affairs spokesman Kevin Rudd said a war without UN sanction would be illegal. Yesterday, Simon Crean said he was getting legal advice, but tonight he refused to answer Kerry O’Brien’s questions on the matter, and when pressed, said it was not important (7.30 Report).
Why? Because now that we’re at war, the public will naturally rally behind our troops. To argue the illegality of the war would be portrayed as treacherous.
Last night, smh.com.au reader Bryan Palmer sent me a brilliant political analysis of how Labor will play its politics on the war from now on, and in the process rightly argued that my suggestion that Labor demand an election and block all legislation till it got one was a case of heart ruling head. Tonight his analysis, then other reader comments on the politics and legality of this nightmare.
Jim Snow writes:
A very large survey of Arab opinion conducted by the University of Maryland, apparently under the auspices of the Brookings Institution, was published on March 13. A complete scholarly description of methodology is given in the report which is given as a pdf file in the first link: “telhami survey ” at brookings. A discussion of this (and what went on in the security council) – The Brookings Iraq Series Briefing of March 13, 2003 – is at the second link: “transcript”. I have been surprised that this has apparently not surfaced in Australian media, as it is evidence from an unlikely source, a right wing republican think tank.
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Bryan Palmer
You said: “I believe Labor should seriously consider demanding an immediate election, and refuse to pass any legislation unless John Howard submits himself to the Australian people.” (A question of legitimacy)
While your passion may be admirable, your suggestion is electoral suicide for Labor.
Blocking legislation only enables the Coalition parties to build a war chest (excuse the pun) of double dissolution election triggers. The only method that might force Howard to the polls at an inconvenient time is to block supply (as occurred in 1975). However, this trigger can only be unleashed (under the new budget timetable) in May/June each year. Blocking additional estimates (in February/March each year) is close to meaningless, and the normal business of Government would survive such a block.
By May or June 2003, the Iraqi war outcome should be resolved. If it is a short war that exposes duplicity by Saddam (the most likely outcome), I believe that the people who were opposed to the war without UN support (but not opposed enough to indicate a change in voting preference) will forgive Howard, and embrace him for his courage against the tyrant. Winners are grinners, and the punters love winners. Call it the Thatcher/Falklands or Bush/Kuwait afterglow.
So, if Labor blocks legislation now, it creates a set of double dissolution triggers, but has little other effect. It would not force an election.
Second, if the war is short and Howard wins, he can cash in these dissolution triggers at a time of his choosing in order to maximise a Liberal win. This has the added benefit that double dissolution triggers can be turned into legislation quickly and without parliamentary debate (as Whitlam showed in 1974). No pesky greens or democrats to worry about.
Third, a double dissolution deals a deft blow to the transition to Costello side show.
Finally, in the lead up to the double dissolution poll, Labor’s opposition to the war can be painted as ill informed carping from the sidelines, and dark (dog-whistle like political) inferences can be drawn about Crean’s implicit support for Saddam.
While you may hate the impending war, you should recognise the politics probably plays 100% Howard’s way for at least another three months. For Labor to act pre-emptively (another unforgivable pun) would only be detrimental to Labor’s subsequent electoral chances. For the next three months Labor must play a difficult waiting game. Crean has a high wire act of some skill to pull off: support the soldiers but not the war nor Saddam’s past excesses.
If we are still at war in three months, or if something horrible happens before then (numbers of Aussie deaths, a nuclear explosion, an escalation in militant Islamic terrorism, etc.) then Crean has a chance of becoming an accidental Prime Minister. Otherwise, Howard will be the winner from his all the way with the USA approach.
Conclusion: in recommending advice to Labor, you Margo Kingston should not let your heart rule your head.
Margo: I sent this email to Bryan:
Did you think Crean’s focus on subservience, loss of independence, etc from the US is the right way to go politically? It scares me a bit, because we are so dependent on the US for our security. I wonder if voters will lose their confidence.
Brian replied:
What ever the language, whether its Crean’s subservience or Latham’s lickers and suck-holes, I think it has limited appeal with the punters, and that appeal is limited largely to Labor’s core voters. I do not believe the theme of subservience and loss of independence shifts voting intention. Not at this stage in the war. In the future, maybe, but not now.
I suspect that Crean is playing the long haul and the long odds on this war. If the war is long, goes badly, or if Australians become the target of another Bali like event, his arguments will be a strong rallying cry in the next election. Conversely, if the war goes well for Howard, Crean does not want to be left with words that are regrettable.
For Crean, one down side of this hedged bet approach is that it is unlikely to generate much electoral traction for Labor in the short term. Another is that it reinforces the perception that Howard and Brown are the real conviction politicians of Australian politics.
In summary: Crean seems to have chosen a low risk, low gain strategy. If I was to bet on the outcome, I would put my money on Howard. The other winner will be Bob Brown. For Crean, I think the odds are against this being the career reviver he needed.
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Mark White
You wrote: “Some people are so angry at the sheer contempt their leader has shown them that they’re emailing the Governor-General to demand he veto Howard’s war. This is ridiculous. Australians bear the responsibility for electing this man, and this Parliament.” (A question of legitimacy)
A better move is to email the leader of the ALP, Democrats and Greens demanding they refuse to pass a budget bill containing appropriations for an illegal war. This will then create a replay of 1975, Crean will be appointed PM and can pull the troops out immediately.
This is the fastest, cleanest constitutional way out of this mess.
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John Thornton in Doonside, NSW
The government is in the process of preparing a budget to be delivered in May. Wouldn’t it be deliciously ironic if John Howard, a member of Malcolm Fraser’s government, were to lose government after Labor, the Democrats, the Greens and the Independents blocked supply in the Senate and forced the Liberals to an election which could fought on one issue.
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Damien Hogan
Surely our fate rests with Liberal voters. Only they have any leverage over the Prime Minister.
Even then it will be a hard case for them to make – they must convince the party pollsters that they are really willing to elect a Labor government – headed by Simon Crean!
They will surely be disbelieved. Polling will show that whilst certain sections of the faithful are against the war, very few will actually vote against John Howard in a future election when broader issues come into play.
And that seems to be be John Howard’s real gamble – not on the outcome of the invasion – but on the sustained moral outrage of Liberal voters.
He seems to assess his chances as quite good. Is he right? Only Liberal voters can tell us.
Steve Wallace
Looks like it’s a waste of time contacting the Libs about this war. They come back at you with this sort of trash.
I emailed this to federal Liberal politicians:
Subject: May God forgive you
Senators and Members,
Lest we forget that you did nothing to stop your PM from committing murder upon Iraqis by his illegal, immoral, unjustifiable, unprovoked attack. Australia’s first war of AGGRESSION. Our first shot at STARTING a war. The first time ever we broke the peace and ATTACKED another country.
And not one of you had the courage to speak out. Not a Christian voice in your whole number. Nobody with a strand of morality. Not one law abiding soul. May God forgive you for not having the guts to speak out against this war. The blood is now on your hands.
I received this reply from Ross Cameron, the Liberal member for Paramatta:
Dear Steve,
It must be nice having perfect moral vision but so frustrating for you to have to live with lesser beings. Enjoy the warm inner glow.
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Tim Gillin in Sydney
It is ironic that 21st March, which may be the first full day of fighting in Iraq, has been proclaimed “Harmony Day” by the Feds (harmonyday). As a friend says, “Harmony here, chaos everywhere else”.
Of course this coincidence is not as odd as you might imagine at first sight. All the really great empires have embraced universal ideals and have pushed “multi-culturalism” since the time of Xerxes and Alexander the Great. It’s only those unreconstructed xenophobes in the provinces who give the Emperor headaches!
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Stephen James
I’ve read the Letters to the Editor and I’ve read the contributions to your site, and most of them are good, worthy and thoughtful. I still think they are skirting around the obvious.
Not even John Howard seriously thinks that 2000 of our boys and girls will make any difference. Yet he is determined to send them, and the reason is simple vanity.
John Howard is approaching the end of his political career. He has done nothing of note apart from surviving for an unusually long time. The Americans have picked this up. They know nothing about international relations or diplomacy, but boy do they know how to flatter a sucker. They have convinced Howard that he is important, that he is on the world stage, and that he is made of the Right Stuff.
I make no moral judgment about it. In sexual terms, it’s a bit like a gorgeous 24 year old girl telling a balding, fat, middle aged bloke that he’s a bit of a hunk. Common sense would tell the bloke that there’s something wrong, but common sense is the first thing to go out the window in a case like that. Substitute power for sex, and it’s clear why we are in this mess.
Menzies over Suez and Holt over Vietnam had the same problem. They both wanted to be remembered as important. So do a lot of us. It’s just that most of us don’t get the chance to cause massive damage as a result of a simple and common human failing.
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Meagan Phillipson
I think this might be the beginning of the end for the Howard government. I mean, they are waging a war in a manner only 9% of Australians support and Costello has already indicated that there will be cuts in May’s budget to “certain programs” (read pesky non-essentials like education, healthcare etc.) to pay for Australia’s military commitment.
When the “mums and dads” and the battlers go down to the medical centre to see a doctor only to find out they have to fork out for private billing, they ain’t gonna be happy. First Johnny doesn’t listen, then he wages war nobody wants and underwrites it by cutting the budget – do you think middle Australia will stand for this in 2004? When it comes to the hip pocket nerve, voters seem to have a long memory.
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Mark McGrath, Union Sector Manager, Social Change Online
Dear John,
For us voters we have now made up our mind and reached the final days of decision. For more than seven years, many of us citizens have pursued patient and honorable efforts to tolerate your government of lies, deception and corrupt behaviour. Your government pledged to be an honest government and renew people’s faith in our democratic system of government as a condition for being elected by us citizens in 1996.
Since then, many of us Australians have engaged in 7 years of patience and tolerance whilst your Ministerial code of conduct became a sham and a political liability. We have accepted dozens of your assurances in parliament that you are acting in our best interests and have given you the benefit of the doubt. We have voted for you numerous times based on your promises to do the right thing by us and despite your assurances, our good faith has not been returned. Instead we have been given less public services, less share of the wealth we generate and less accountability.
Your government has used diversion tactics, spin and plain lies to deflect attention and manipulate public opinion. It has uniformly defied United Nations resolutions and conventions that ask Australia to be a good global citizen. Over the years, you have derided and undermined those in the public service that have tried to keep your government honest. Honest and genuine efforts to reform your government have been blocked and denied again and again – because we are not dealing with honest men.
Intelligence gathered by us citizens leaves no doubt that your government continues to deceive the Australian people and that you possess motives that run counter to our interests. Your government has already used weapons of mass propaganda to win elections under false pretences such as the Children Overboard affair. Your government has a history of reckless behaviour driven by self-interest. It has a deep hatred of any nation, group or person at odds with your ideology. And it has aided, trained and harbored union busting thugs, including operatives of Patricks in the MUA dispute.
The danger is clear: a prolonged use of your government puts Australians at risk and could kill the faith millions of our people have in democracy. The people of Australia did nothing to deserve this threat. But we will do everything to defeat it. Instead of drifting along toward tragedy, we will set a course toward regime change and reform. Before the day of horror can come, before it is too late to act, this danger will be removed at the ballot box.
The people of Australia has the sovereign authority to use its electoral force in assuring its own national security. That duty falls to us, the citizens, by the oath we have sworn, to uphold the principles of democracy and good government. This is an oath we will keep in spades John.
Recognizing the threat to our country, the people of Australia will vote overwhelmingly next election to force you and your coalition from government. This is not a question of authority, it is a question of will.
Your government has not lived up to its responsibilities, so we will rise to ours. In recent days, some members of your party have been doing their part. They have delivered public and private messages urging you to change your ways, so that Australia can start to get itself out of the mess you have put us in. You have thus far refused. All the years of deceit and disingenuous have now reached an end.
You and your coalition must call an election within 48 days. Your refusal to do so will result in your political destruction, commenced at a time of our choosing. For their own safety, all your political cronies should vacate the bureaucracy immediately.
Many Liberal and National party members can hear me tonight and I have a message for them. If we must begin a political campaign, it will be directed against the spineless men who rule your coalition and not against you. As us citizens take away their power, we will deliver the good government you need. We will tear down the apparatus of political patronage and we will help you to build a new Australia that is prosperous and fair.
In a fair Australia, there will be no more fear of your neighbors, no more detention centres, no persecution of unions or marginalised groups, no more contrived events for political propaganda. The little schoolboy tyrant will soon be gone. The day of your liberation is near.
It is too late for you to remain in power. But it is not too late for the coalition to act with honor and protect their government by demanding the peaceful resignation of your Prime Minister. We urge every member of the coalition, do not fight for a dying regime that is not worth your own political life.
And all the political appointees in the public service should listen carefully to this warning. In any conflict, your fate will depend on your action. Do not destroy, siphon off or privatise any public assets, like Michael Wooldridge did, a source of wealth that belongs to the Australian people. Do not obey any command to use lies and deception against the Australian people. Political crimes will be prosecuted. Political criminals will be punished unmercilessly at the ballot box. And it will be no defense to say, “I was just following the John’s orders.”
John, should you choose blind obstinacy and ignore our protests, you can be assured that every measure will be taken by the Australian people to remove you. Australians understand the costs of having gutless and dishonest leaders such as you because we have paid for them in the past.
If you attempt to cling to power, we know you will become desperate and engage in more deceptive and harmful behaviour that puts Australia at risk. The terrorist threat to Australia will be diminished the moment that you and your Liberals are removed from power.
We are a laid back people – yet we’re not a dumb people, and we will not be fooled by a political charlatan such as yourself. We are now acting because the risks of inaction would be far greater. In one year, or five years, the power of you and your government to inflict harm on all of us would be multiplied many times over. We choose to meet that threat now, making it known that we are consigning you and your flunkeys to electoral oblivion.
The security of Australia requires the dismissal of the your Government at the earliest opportunity.
Unlike you John Howard, we believe the Australian people are deserving of a safe and prosperous future with accountable and honest government.
That is the future we choose. Citizens have a duty to defend our country by uniting against the dishonest that act against our interests for the sake of their own. And soon, as we have done before, Australia and its people will accept that responsibility.
Good night John, and may God save the Liberal Party because the rest of us we will be waiting for you and your pathetic party with a block of four-by-two at the next election.
Yours Sincerely,
John Citizen, somewhere in a marginal seat
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THE LEGALITY OF THE WAR
Norm Wotherspoon
Margo, I have no legal knowledge or experience, and am seeking an answer to a question of some concern to myself and others:
When Australia sends troops into Iraq as part of the ‘pre-emptive strike’ phase of the war on Iraq, then:
a) Under the legal terms/definitions/conventions of war, would it be an invasion, from the Iraqi viewpoint (which I as a layperson believe it would be), and, if so,
b) under those same legal terms/definitions/conventions, would that therefore mean that any attacks within Australia in reprisal would be simply reciprocal acts of war, (and more justifiable through being a response to attack), and could not be really labelled as ‘terrorist attacks’?
Can any of your readers please enlighten me?
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Jacob A. Stam
On The 7.30 Report last night, Kerry O’Brien interviewed Prime Minister John Howard on his decision yesterday to commit to war on Iraq. O’Brien questioned the international legitimacy of this war, observing that whereas “the allied coalition against Iraq in 91 … numbered 34 countries … The coalition of the willing this time has shrunk to three”. (abc)
The PM responded that “more than twenty countries are making a contribution”, but conceded that “To my knowledge, there are three making a direct military contribution”. He added, “There could be more, I dont know…” It’s alarming that the man whose decision it has been to embark on this military adventure doesn’t even know exactly who our servicemen and women will be fighting alongside.
When the Prime Minister discussed his government’s legal advice that legality of the war issues from UNSC Resolution 1441, O’Brien pointed out that Britain and America co-sponsored Resolution 1441, and America said at the time that it voted for that resolution: “This resolution contains no hidden triggers and no automaticity with respect to the use of force”. The British said exactly the same thing, both promised to come back to the UN for further discussion before any action.
The PM seemed rattled for a moment, but bounced back with his government’s legal advice that “the failure of Iraq to fully disarm reactivates the authority to use force contained in the earlier Resolutions of 678 and 687”, and that “is really the essence of the argument”.
As commentators in the press have observed today, Resolution 678 in fact provides for the use of collective force to remove Iraqi forces from Kuwait. Resolution 687 sets out the terms of the 1991 ceasefire, outlining Iraq’s requirement to destroy all weapons of mass destruction, and the final paragraph of resolution 687 gives the Security Council the power to decide “such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area”, implying further Security Council consideration will be needed(theage).
Other commentators have observed:
The key to the Government’s legal view is that Iraqs actions have somehow negated the basis of the 1991 ceasefire as expressed in Resolution 687. It has been argued the ceasefire declared by Resolution 687 was conditional on Iraq fulfilling the conditions required of it. However, the resolution makes clear the ceasefire will come into effect if Iraq simply accepts the terms of the resolution.
The resolution states that it is then up to the Security Council to take such further steps as may be required for the implementation of the resolution. No state or coalition of states acting outside the authorisation of the council retains the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.
Hence, a further resolution of the Security Council is required… (smh)
That’s where Resolution 1441 enters the equation, but the Prime Minister did not even attempt to respond O’Briens reference to “no hidden triggers and no automaticity with respect to the use of force”. Presumably, the PM knew this was a fruitless direction to take, and so diverted the discussion to Resolutions 678 and 687 (which I suspect O’Brien was ill prepared to discuss).
Greg Hunt (Peter Reith’s successor in the seat of Flinders) argued the legal case for his government in The Age today at theage, saying, “Critically, resolution 1441 declares Iraq “in material breach” of its obligations, offers “one final opportunity” to comply fully not partially and threatens “serious consequences” if it continued to violate its obligations”.
A reasonable distillation, but he then adds: “The term serious consequences is the same enforcement provision that underpinned Desert Storm.” This is incorrect, because Resolution 678 specified forced expulsion of Iraqi forces from Kuwait, and gave a specific deadline for Iraq’s compliance. Aside from defending a flawed legal argument, much of Hunt’s argument for the legality of the war belabours the subsidiary arguments for war with which were all by now quite familiar, but which are frankly irrelevant to this point of law.