March in March 2017, Armidale

This afternoon I had the honour of addressing Armidale's "March in March" community gathering, on the subjects of asylum seekers and war powers. My notes follow.

Speech notes for Armidale Rural Australians for Refugees Vigil,

Central Park, Armidale

Saturday 25 May 2017

Foreign Minister Julie Bishop is fond of extolling the virtues of a “rules-based international order”. She is particularly inclined to do that when other countries do things that don’t suit us, such as China building military installations on disputed reefs in the South China Sea and claiming sovereignty over them.

She is right in principle of course. We all have an interest in a rules-based international order. It’s either that or the law of the jungle. For a country such as Australia, the rules-based international order suits us very well. We are not powerful enough to get our way by force of arms or through economic power, but we are important enough to be listened to when the rules are being made, and we have a creditable track record in the development of international treaties and conventions that help to make the world a better and safer place.

The problem is in recent years our governments have become very selective about the rules they abide by. The ones I want to talk about this afternoon are those which bear on the treatment of refugees and asylum seekers, and those which bear on how we go to war.

In our treatment of refugees and asylum seekers we routinely ignore the provisions of the Refugee Convention which we willingly and proudly helped to negotiate in 1951. I am sure you are all familiar with the many ways we flout the provisions of the Convention: describing and treating those who arrive by sea as “illegal”; mandatory detention rather than a short period of detention to conduct health and identity checks; interminable delays in processing asylum claims; denial of access to the Australian courts; transfers to third countries with associated claims that the asylum seekers are not our responsibility; failing to make adequate provision for the health, safety and welfare of people in detention; and more recently, refoulement – returning refugees to their countries of origin without due regard to the dangers they may face.

You may be less familiar with the disturbing behaviour our Government has shown in relation to our obligations under the Convention on the Safety of Life at Sea (SOLAS), as recounted in Tony Kevin’s excellent 2012 book Reluctant Rescuers, and I would argue that our placing turned back asylum seekers in a lifeboat under the control of someone with no seamanship or navigation qualifications is in violation of that convention.

In addition, some of the turn-back operations have seen Australian military vessels violate Indonesian territorial waters, in violation of the U Convention on the Law of the Sea, and of course our interception of boats on the high seas is highly questionable in relation to that same Convention.

In considering our approach to the refugee issue we must also consider the contribution we make, through our military actions, to the fracturing of societies and the displacement of people. We go to war too readily, and we go to war too easily. Under the Australian Constitution the power to deploy the Australian Defence Force into international armed conflict rests with the Governor-General, acting on the advice of the Prime Minister and the Executive Council. There is no requirement for Parliamentary involvement in the decision-making process.

This means that the power is effectively in the hands of the Prime Minister; as former Prime Minister Malcolm Fraser wrote, strong-willed Prime Ministers always get their way in Cabinet.

In 2003 John Howard took Australia into an illegal invasion of Iraq. Under the United Nations Convention, there are only two grounds for military action against another state: authorisation by the UN Security Council, or an immediate threat to the nation’s territory. Neither of those conditions was satisfied in 2003.

To make matters worse, the Howard Government sent the troops to war without obtaining the authorisation of the Governor-General, the only person who has the Constitutional power to authorise a deployment. Instead, an order was given by the Defence Minister under Section 8 of the Defence Act, a section which merely gives the Minister control of the administration of the Department and the Defence Force. It is not a power to make war.

In so doing, the Howard Government placed the soldiers, sailors and airmen and –women at risk. In the event of a claim that any of them had committed an illegal act under the Laws of Armed Conflict, the first question that would arise in front of a tribunal would be whether the individuals concerned were lawfully in the theatre of conflict, and without the Governor-General’s authorisation they could not argue that they were.

We deserve better than this. A decision as great as going to war - the biggest decision a country can make, and one on which the fate of millions of people will depend - must be subject to the most exhaustive scrutiny. Australia’s Parliament should be a vital part of that process and not simply a rubber stamp. Governments proposing a particular military deployment should be required to explain to Parliament why it is proposed, what it will achieve, and how the predictable costs will be met, including looking after its victims.

And if a war is worth fighting, it is worth the trouble to look after the victims, as we did after World War II, to the enormous enrichment of our society.

So by all means let us have a rules-based international order. But to show that we are serious about that, let us demand of our governments that they obey all of the rules, all of the time.

Election priorities

It is amazing what we do and don’t discuss these days in the course of election campaigns, or the "phony war" that precedes them. At the present time we seem to be endlessly fascinated by what is to happen to the threshold for the second highest personal income tax scale to cut in, a matter which will leave 75% of taxpayers unaffected and will have a trivial effect on most of the rest.

Meanwhile, we have young Australians in Iraq, without, as far as I can tell, the form of authorisation required by our Constitution, and without the protection of a Status of Forces Agreement with the Government of Iraq. The effect of this is that they do not have the appropriate authorisation from either government to kill or capture people or destroy their property, and would find it difficult if brought before a tribunal to plead the defence that they were obeying lawful orders. Then on Saturday night ABC TV News revealed that these people are not simply training the Iraqi Army “behind the wire” at Camp Taji, they are following close behind them as they go into combat. Meanwhile, the Government of Iraq is collapsing in a heap. Is anyone talking about this? Not as far as I can tell. There was a time when matters of war and peace captured some attention during election campaigns, but no longer, it seems.

Kellie Merritt on the 'War Powers'

One of my valued colleagues on the Committee of the Campaign for an Iraq War Inquiry, which is also seeking reform of the so-called ‘war powers’, is Iraq War widow Kellie Merritt, whose husband Paul Pardoel was killed in 2005 when a RAF C-130 Hercules crashed north of Baghdad.

Visiting Canberra where she will speak at a symposium at the Australian Centre for Christianity and Culture, she spoke to senior Canberra Times reporter Ross Peake:

I end up with the conclusion that we invaded Iraq for no reason, that the fall-back reason has backfired (especially for the Iraqi people) and that my husband did not die for any tangible purpose.

This leads me to question the nature of the contract between the military and our government.

Conventional democratic wisdom holds that it is disastrous for the military to second guess our democratically elected government's decisions.

This makes it all the more important that our government exercises its decision-making processes with caution, transparency and a sense of accountability.

Read Ross Peake’s full account of the interview, as published in today’s Canberra Times, here.

The case for an Iraq War inquiry in Australia

In May this year I had an article with the above title published in the journal Global Peace, Change and Security (formerly Pacifica), Volume 26, Issue 3, 2014. It was posted by Taylor and Francis Online on 27 May 2014 (see here). For a while it was available for free download but accessing it now requires the payment of $US 39.

This is the abstract:

This article examines the background to the March 2003 invasion of Iraq with a view to identifying when and by what process Australia committed itself to the invasion. It provides evidence and assessments from a variety of sources that the Australian Government was effectively committed long before it announced a decision on 18 March 2003, the eve of the invasion. Many questions about the decision making process remain; in the absence of a properly constituted inquiry there is little solid evidence that the Government considered the matter of entering into armed hostilities with the diligence that the Australian public might expect. It is the thesis of this paper that one of the key lessons from the Iraq War is that the current system of decision making in relation to the deployment of the Australian Defence Force (ADF) into international armed conflict contains insufficient checks and balances, and needs to be changed.

View full text ($US 39 fee)

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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 .

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.

Read the full piece at The Chutzpah of the Iraq War Neocons and Fellow Travellers.

Letter to the Prime Minister re Iraq War Inquiry

Below is the text of a letter I sent to the Prime Minister on behalf of the Campaign for an Iraq War Inquiry on 13 March 2013, a few days ahead of the eleventh anniversary of the invasion of Iraq.

Similar letters were sent to all Members and Senators in the Federal Parliament.

I will provide updates on any substantive replies we receive.

Letter begins

13 March 2014

The Hon. Tony Abbott MP

Prime Minister of Australia

Parliament House

CANBERRA ACT 2001

Dear Mr Abbott,

As we approach another anniversary of the 20 March 2003 invasion of Iraq I write to express my concern that, eleven years after Australia participated in that invasion, there has still been no comprehensive inquiry into the process by which the Government of the day made the decision that Australia would be a participant in the war.

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. Like any world class defence force, the Australian Defence Force is assiduous in reviewing the conduct of every campaign in which it is involved, to identify and document the lessons learned, and incorporate them into the development of future doctrine. Surely 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.

In the civilian domain, we are accustomed to holding inquiries after natural disasters and man-made accidents. We rigorously debate and scrutinise government administration and expenditure, how prepared we were to deal effectively with problems and how well our command and control systems worked. We carefully investigate the causes of deaths and injuries. All of this is designed so we can learn from experience and avoid future mistakes and losses. The Iraq war should be treated no differently.

Britain’s inquiry into the Iraq war, conducted by Sir John Chilcot, plans to report its findings soon. This means that while Britons will have the chance to learn from past decisions, Australians will still be deprived of a comprehensive account of the processes leading to our involvement in Iraq.

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 experience of Parliamentary and Congressional debate in Britain and the United States last year over the question of whether to intervene in Syria demonstrated the benefits of parliamentary involvement in decisions to commit to armed international conflict. By allowing for greater public debate, the involvement of parliament permitted better evidence to be obtained, and cooler heads to prevail. This experience has demonstrated the value of moving the ‘war powers’ from the executive to the Parliament, ensuring a better deliberative process and greater accountability.

The Campaign for an Iraq War Inquiry hopes to see not only an independent inquiry into Australia’s involvement in the Iraq War, but also a commitment from Australia’s elected representatives to reforming the ‘war powers’.

Yours sincerely,

(Signed)

Paul Barratt

President

Letter ends

Open letter to the Prime Minister-elect

Below is the text of an open letter to the Prime Minister-elect, the Hon. Tony Abbott MP, signed by me and a number of distinguished Australians who support the cause of our Campaign for an Iraq War Inquiry, was published in today’s edition of The Age. The original may be viewed online at An open letter on war to the new PM.

BEGINS

Among the many big-picture items missing from Australia's recent election campaign was foreign policy. While Australians were voting, the United States President was seeking US congressional and international approval to launch a punitive military action against the government of Syria, which would almost certainly bring further suffering and disruption to populations in the region.

We welcomed the news that the US would hold off on a military strike because Syria has ''already agreed'' to an initiative by Russia for Damascus to hand over its chemical weapons stocks to international control. However, the danger of another disastrous military intervention persists.

The newly elected Australian government may soon have to decide whether, how and under what circumstances we would support our major ally in another armed intervention in the Middle East.

Ten years ago Australia strongly supported the US invasion of Iraq on the decision of the prime minister. We believe that on this occasion Australia should independently assess how best we can serve the interests of the people of Syria and broader international security interests.

There is a related, fundamentally important issue that will apply not only now in relation to Syria but every time the possibility of Australian support or involvement in military action is considered. How and by whom should a decision to send Australian troops to war be made - by the prime minister or by a broader consultative process?

We invite prime minister-elect Tony Abbott to tell the Australian people whether he believes that a prime minister should continue to have the authority to take Australia into international armed conflict on her/his own, or whether he would support a bill requiring parliamentary debate and approval before the Australian Defence Force is deployed overseas in combat.

Specifically, in relation to concerns about weapons of mass destruction, does he believe Australia should defer to the established international channels for WMD verification, monitoring and compliance?

The importance of these issues is stark. There has been no policy review of the decision made by Australia's leadership in 2003 to invade Iraq, and no inquiry into the decision-making process to draw out lessons or make recommendations for the future.

We appear now to be at risk of repeating the errors of 2003. Before the election, the Rudd government made supportive comments about US plans for a military strike against Syria, despite the absence of a report from UN weapons inspectors, and in the absence of authorisation from the UN Security Council. While Coalition comments at the time appeared to be commendably more cautious, a commitment to a proper and transparent decision-making process is lacking.

At the same time, the British Parliament has considered and rejected Prime Minister David Cameron's bid for British involvement, President Barack Obama has decided to turn to Congress to seek wider political endorsement of his planned military strike, and French President Francois Hollande has also decided to consult his parliament.

At the recent G20 summit, a majority of participating governments did not support the case for US military action in Syria without an authorising UN Security Council resolution. The situation in Britain demonstrates the valuable role of legislatures in acting as a brake on the impulsive use of executive power.

Australia's policy is particularly crucial during our current term on the UN Security Council, and our presidency of the council this month. The responsibility to respect and protect the pre-eminent role of the United Nations in examining the evidence and all possible responses to security threats and violations, weighs heavily on us.

International law states that no military action is legal unless authorised by the Security Council or in a country's own self-defence. While the crisis in Syria demands an international response, military intervention would be the most risky, destructive and costly option, and one that would make a terrible situation worse.

We urge that the lessons of 2003 be heeded, and that Australia follow the lead of the majority of our allies and major regional partners in withholding support for the course of action now being proposed by President Obama.

We also urge that parliamentary debate and approval become standard before the Australian Defence Force is deployed overseas in combat. If Parliament cannot be persuaded that Australia should be at war, then the case for authorising it is not sufficiently strong. If MHRs and senators are required to debate and vote on a case for war, they will be individually and collectively responsible for Australia's decision.

Deploying the Australian Defence Force into international armed conflict is the gravest decision a government can make. This is not a decision for a leader acting alone, nor for a leader in concert with a small group of cabinet colleagues. Australians have the right to expect that such a decision would receive the most rigorous scrutiny of all possible consequences, including humanitarian, military, legal, strategic and political, by all those elected to represent us.

This article is signed by:

Paul Barratt AO, former secretary, Department of Defence

John Menadue AO, former secretary, Department of Prime Minister and Cabinet

Malcolm Fraser, former Liberal prime minister

Professor Ian Maddocks AM, Senior Australian of the Year

Professor Peter Baume AC, former federal Liberal minister

Garry Woodard, retired ambassador

Professor Ramesh Thakur, former UN assistant secretary-general

Elizabeth Evatt AC, former judge

Kellie Merritt, widow of Flight Lieutenant Paul Pardoel, who was killed in Iraq