Saturday, September 13, 2014

Parliament should decide on the deployment of armed force

Malcolm Fraser and Paul Barratt

In “Parliamentary Vote Would Dangerously Restrict Executive in War” (The Australian, 2 September) Russell Trood and Anthony Bergin assert that the idea of Parliament voting on decisions to go to war is poor public policy. None of the arguments they advance in support of this claim hold water.

The point is made that Governments need the capacity to react quickly to events. Quite so, but the occasions would be rare when the capacity of the ADF to deploy would be held up by Parliamentary process. Apart from the Ready Reaction Force at Townsville, most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard. Preparation of a brigade group for deployment to East Timor took six months and hundreds of millions of dollars.

Regarding the high readiness forces, it would be quite easy to draft into legislation requiring Parliamentary authorisation a provision for an emergency response, with a requirement for a statement setting out the nature and purpose to be tabled within three or four sitting days.

A second argument – one often regarded as the supreme card to play – is that the Government might have access to information or intelligence which it cannot reveal.

This is an argument that simply cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House. It is clear that in recent days the Government has been giving the Opposition leadership briefings which the Opposition feels unable to share with the public.

For purposes of Parliamentary debate, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.

A third argument is the old canard that a Parliamentary vote would “simply hamstring the government of the day to the whim of minor parties”. For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant. As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time that the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.

Trood and Bergin also advance the extraordinary argument against Parliamentary authorisation that “in a complicated world the occasions and circumstances in which force in its various manifestations is required is becoming more difficult to describe and define”. This is in fact one of the strongest reasons in support of mature Parliamentary debate and resolution: to guard against the future possibility of the leadership of the day rushing us off into ill-thought out military adventures, with no clear definition of the aims, duration, prospects of success or exit strategy.

It needs to be clearly understood that we are not advocating that Parliament be involved at every step in the management of our involvement in an armed conflict, simply that it be the body that authorises our entry into any particular occasion requiring or likely to require the use of armed force. Authorisation could be given prior to it becoming certain that conflict is inevitable, but it would need to address a defined situation in a particular geographical region. Once the authorisation is given, it would last for a defined period, say 60 days, beyond the cessation of hostilities and within that period it would be left to the Government of the day to determine how to react to circumstances as they evolve.

Those who would rule out any role for the legislature other than post hoc debate would have us increasingly out of step with the practice of other representative democracies. As recently as last year the question of UK participation in air strikes against Syria was put to the House of Commons and was resoundingly defeated – an outcome which rapidly came to be seen as wise.

At the end of the day it all comes down to whether we trust the Parliament, or trust a single individual, no matter how clever he/she might be.  A strong Prime Minister will be able to convince the Cabinet, and that is a one person decision as was the case in the Iraq War.  We most certainly should have Parliamentary approval before Australia can be taken to war.

Malcolm Fraser was Prime Minister of Australia, 1975-83. Paul Barratt is a former Secretary to the Department of Defence and is President of the Campaign for an Iraq War Inquiry .

Sunday, September 7, 2014

Genevieve Lacey and James Crabb

Late this afternoon I went to a wonderful Musica Viva performance in Armidale Town Hall: Genevieve Lacey (recorders) and James Crabb (classical accordion). No I didn't know there was such a thing as a classical accordion either, and was wondering what to expect, but there is, and it's a pretty serious instrument - a lot of intricate mechanisms to enable all the required chords to be played in both major and minor keys. About $50,000 worth and weighing in at 20 kg. In the hands of a master it makes a wonderful sound - or rather, a wonderful range of sounds: best thought of as a kind of portable organ. They played a very diverse program, from 16th century music (Diego Ortiz, Palestrina, Matthew Locke, Jacob van Eyck) to Bach, children's songs by Chick Corea, an extraordinary solo piece for classical accordion by John Zorn - a representation of the musical score for a Road Runner cartoon - some commissioned pieces written by composer friends, finishing with renditions of two folk songs from Crabb's native Scotland. Don't miss them if you have the chance to hear them. Well worth it, and their enthusiasm for what they are doing is infectious.

Resuming normal transmissions

My apologies to my readers for a two-month silence, the reason being that in that time I have moved from Melbourne to Armidale, and with the exigencies of selling a house, packing up a lifetime's possessions, finding and purchasing a new place in which to live, and settling in, something had to give. Happily life is returning to something more like normal, so normal transmissions can resume.

Saturday, July 5, 2014

Iraq War: Letter to Attorney-General

In Reply on behalf of the Attorney-General I presented the text of a letter of 18 June received from Mr Paul O’Sullivan, Chief of Staff to the Attorney-General, Senator the Hon. George Brandis QC.

Below is the text of my reply:

4 July 2014

Senator the Hon. George Brandis, QC
Parliament House

Dear Senator Brandis,

I refer to a letter of 18 June 2014 I have received from Mr Paul O’Sullivan, your Chief of Staff, writing on your behalf in response to my letter to you of 16 May.

In his letter Mr O’Sullivan states that ‘the legal basis for Australia’s participation is a matter of public record’ and cites the opinion provided by two lawyers, one an officer of the Attorney-General’s Department and the other an officer of the Department of Foreign Affairs and Trade.

As you are no doubt aware, the legality of an action is not determined by the legal counsel employed by the initiator of the action.

You are no doubt aware also that there are many other views on this matter on the public record, that the Australian government’s views were very much in the minority, and that much more senior international lawyers took the opposite view. If you are unaware of these we can supply a sample of them – along with the statement of one of the few international lawyers who supported the war that she was very much in the minority.

There are several major questions in the minds of our membership about how this advice was generated:

1.   Why did the government choose advice and/or advisors whose views were so clearly in the minority?

2.   What was the brief (formal or informal) given to the lawyers? What were they asked to do? What was said to them about their role?

3.    Were other lawyers approached for their views before those chosen?

4.   Why did the Attorney-General not give an opinion (even when asked by the Governor General)?

5.    Why was the Solicitor-General not asked for an opinion?

6.    Why was the advice of former head of the Office of International Law and then Chief General Counsel of the Attorney-General's Department Henry Burmester QC not provided? Mr Burmester was at that time the most senior and experienced international lawyer in Commonwealth service. If he was not consulted, why not, and if he was consulted what was his opinion?

7.    Was there any other opinion available, in draft or other form, to the Department of Foreign Affairs and Trade or to the Attorney-General’s Department?

8.    Were lawyers at the Department of Foreign Affairs and Trade or the Attorney-General’s Department in contact with the international legal advisors to the British government? If so, were they aware of the very different views held there? If so, to whom did they communicate those views and what was the response?

9.    What advice had the then Prime Minister received at the time he stated in Parliament that there was ample authority in international law for the action contemplated?

10.  Had the Government been made aware of the legal doubts of others?

11.  Why did the opinion not consider contrary arguments or the likely outcome of those arguments in a court of competent jurisdiction?

12.  Was the then Attorney-General aware, or are you aware, of any legal opinions as to the outcome of a case in a court of competent jurisdiction or was the Government relying on an assumption that no case could come before a court of competent jurisdiction?

13.  Are you aware that Australia changed its recognition of the compulsory jurisdiction of the ICJ a year before the Iraq war commenced, in a way that would prevent Australia being sued in the ICJ as Serbia sought to sue those countries bombing it in 1999? Why was this change instigated and were those who instigated it aware of the 1999 Kosovo case?

14.  Is it your view that the invasion of Iraq in March 2003 by the “Coalition of the Willing” was legal under international law? If you think that it was legal, will you join us in urging the British and Australian governments to seek vindication in a court of competent jurisdiction or before a genuinely independent Royal Commission?

As indicated, the legality of an action is not determined by the legal counsel employed by the initiator of the action.  It is determined by a court of competent jurisdiction.  The inability of such a court to hear the case does not make the action legal.  In international law, the opposite may be the case.  The long standing limitations of international tribunals has been one of the factors which have given greater weight to academic opinion – raising it to a source of law.  Where the vast majority of international law professors (and an even larger majority of the senior ones) endorse a legal proposition and are not contradicted by a superior source of law, we can say that international law includes that proposition.  It may be that the only way that it can be displaced by the minority who differ is if the matter is taken to an international court of competent jurisdiction.

It can hardly pass notice that the Government in 2003 did not put the then Attorney General to his proof on the issue; nor did it seek a formal opinion from the Solicitor-General, so lacking in confidence was it as to the legality of the action about to be taken. As implied by our questions above, it cannot said that legal advice given by subordinates to Constitutionally responsible officers of the Crown can substitute for their superiors, given the high probability that such advice could have a self-serving purpose. Moreover, in this case no advice was offered to the Governor-General himself on the question.

Regarding the other matter, I am surprised that Mr O’Sullivan would cite the Parliamentary Joint Committee on Intelligence and Security’s 2004 report Inquiry into Intelligence on Iraq’s Weapons of Mass Destruction (the “Jull Report”) and the 2004 report of the subsequent Inquiry into Australian Intelligence Agencies (the “Flood Report”) in support of the view that a further inquiry is not required. While this might look to the less-informed observer like an answer to our call for an inquiry, it is not, and by failing to mention the thrust of these inquiries’ findings, it is grossly misleading.

The first point to be made is that these inquiries, as their names suggest, were confined by their terms of reference to the intelligence picture which was available to the Australian Government and an examination of the performance of the Australian intelligence agencies. They were not charged with conducting, and nor did they conduct, inquiries into the matter about which I wrote my letters to you of 13 March and 16 May, namely, the decision-making process which led to Australia participating in the invasion of Iraq.

Second, the outcomes of these inquiries are hardly conducive to confidence in the decision-making process which led to that invasion. The Jull Inquiry found

The case made by the government was that Iraq possessed WMD in large quantities and posed a grave and unacceptable threat to the region and the world, particularly as there was a danger that Iraq’s WMD might be passed to terrorist organisations. This is not the picture that emerges from an examination of all the assessments provided to the Committee by Australia’s two analytical agencies.[1]

The Inquiry led by former DFAT Secretary Philip Flood found that the evidence for Iraqi WMD was ‘thin, ambiguous and incomplete’[2].

Accordingly, far from obviating the necessity for a further inquiry, we think the outcomes of these inquiries strengthen the case for a comprehensive inquiry of the kind we are advocating.

To summarise our position:
·         If the Government believes that Australia’s actions in Iraq in 2003 were legal under international law, then the only way that this view can be validated is by establishing a truly independent commission to consider the matter. We urge the Government to do this to clear the name of the Government of which you were a part.
·         With respect, while you assert that the "legal basis" of Australia's participation in the Iraq War of 2003 is a matter of public record, underpinned by departmental level advice, the legality of an action is not determined by legal counsel employed by the initiator of the action in question. It is determined by a court of competent jurisdiction. The opportunity to put it to this test is unlikely given the Government's stance on the matter now and previously.
·         Clearly the Government's actions were politically motivated and justified to the public on that basis, relying largely on questionable assertions from the US and Britain in this regard. It is common knowledge that the initial, tentative British advice was modified to fit the political case. No authoritative adviser within or without the formal British legal establishment was or has been prepared to advise categorically on this question. Furthermore opinion within the UN Security Council could not have been more divided than it was then and since. The scope of its resolutions at the time fell well short of authorising an invasion.

For Australia's purposes the only available and credible means for determining the issue is to convene a Royal Commission comprising very senior judicial personnel well grounded in international law. It is best that this be done before Australian forces are again deployed in a combat role in foreign countries.

I would reiterate the view expressed in my earlier letters that, given the gravity of any decision to commit the Australian defence force to international armed conflict, the Australian people are entitled to know how that decision was made, and what evidence informed the decision. The Australian Government owes to those it puts in harm’s way a duty to evaluate the quality of the processes by which it decides to put them in harm’s way, to identify and document the lessons learned, and improve the decision making process for the future.

As matters stand, while Britons will have the chance to learn from past decisions once the Chilcot Inquiry hands down its recommendations, Australians will still be deprived of a comprehensive account of the processes leading to our involvement in Iraq. As I said in my earlier letter, an independent inquiry into the decision making process which led to Australia’s involvement in the Iraq War would also allow for a public discussion of the appropriateness of Australia’s current ‘war powers’, which concentrate power in the executive branch. This could provide a framework for reforming how the decision is made to go to war. The current process produced very flawed decisions in relation to Vietnam, Afghanistan and Iraq, and is clearly overdue for careful reconsideration.

Accordingly, the Campaign for an Iraq War Inquiry urges you to support not only an independent inquiry into Australia’s involvement in the Iraq War, but also a commitment on the part of the Government to reforming the ‘war powers’.

Yours sincerely,

Paul Barratt AO


[1] Commonwealth of Australia Parliament, Intelligence on Iraq’s weapons of mass destruction (“Jull Report’), Parliamentary Joint Committee on ASIO, ASIS and DSD, December 2003, 93.
[2] Commonwealth of Australia, Report of the Inquiry into Australian Intelligence Agencies (“Flood Report”), Canberra, 2004, 34.

Wednesday, June 25, 2014

Ramesh Thakur on the Chutzpah of the Iraq War Neocons and Fellow Travellers

On 25 June 2014 Professor Ramesh Thakur of the Crawford School of Public Policy, Australian National University and co-editor of The Oxford Handbook of Modern Diplomacy contributed a piece on the above subject to the Australian Institute of International Affairs’ online journal Australian Outlook.

He begins:

Two years ago, Nobel Peace Laureate Desmond Tutu condemned the ‘immorality’ of the Iraq invasion: ‘in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African peers who have been made to answer for their actions in the Hague’. Like the indestructible Terminator, former British Prime Minister Tony Blair popped up recently to deny that the lightning advance of the bloodthirsty and ruthlessly efficient ISIS (Islamic State of Iraq and al-Sham, covering the Levant across Iraq and Syria) could be blamed on the invasion of Iraq in 2003. Rather, in his parallel universe, the fault lies in not intervening in Syria last year to topple President Bashar al-Assad.

He then goes on to wonder, “Are we to admire Blair for his chutzpah or condemn him for his shamelessness?”.

After traversing the background to this shameful and disastrous War of Choice, its costs and the future prospects for the Middle East he concludes:

Meanwhile the crisis confirms the urgent need for parliamentary consent to be converted from an optional add-on to a legally binding requirement before a democracy goes to war. It should not be possible for a headstrong prime minister to wage war – the most solemn foreign policy decision of all – based on whims or personal convictions.

Saturday, June 21, 2014

Donna Mulhearn on Iraq

Freelance journalist and peace activist – and fellow member of the Campaign for an Iraq War Inquiry – Donna Mulhearn writes in Eureka Street that Iraq needs a local solution, not another Western intervention. She writes of the peaceful protests led by Sunni tribal elders from Anbar Province, and how these protests produced a violent response from the Maliki-led Government. In her view it is Iraq's Sunni tribes and militias — who hold little in common with ISIS and reject its extreme ideology — who could withhold the Islamists' march to Baghdad, should they have the motivation to do so.

Iraq needs a local political solution, she says, not another foreign military intervention, and there can be no moving forward until the mistakes of the past are acknowledged and addressed. This requires political work not just by Iraqi leaders, but by the nations of the 'Coalition of the Willing', who were too quick to jump into the invasion and occupation, and too slow to respond constructively to its disastrous legacy.

Read Donna’s piece in full here.