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:
Begins
4 July 2014
Senator the Hon. George
Brandis, QC
Attorney-General
Parliament House
CANBERRA ACT 2600
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
President
Ends
[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.
