On ABC News Radio (Monday 16th April) Paul Barrett, a former Deputy Secretary of DFAT and former Secretary of the Department of Defence was asked in an interview whether the military actions over the past weekend in Syria by the United States, the UK and France were legal in both international and domestic law.
He replied that they were not legal. When asked if Australian forces had participated would that have been illegal as well? He again replied that it would have been illegal. When asked further whether if he was still in his previous position as Head of the Department of Defence he would see it as his duty to advise the government of the illegality. He said it would be his duty to do so.
As for international law, it is well documented that since the 2003 invasion of Iraq the military actions of US and Australian forces there and subsequently in Syria have been tainted with illegality (see website of Australians for War Powers Reform at: http://www.warpowersreform.org.au), as they could not be justified under Article 2 (4) of the UN Charter nor as legitimate actions of self-defence. In US domestic law these military actions were not authorised by Congress. For the UK the convention that had emerged since Libya requiring Parliament to authorise force abroad was by-passed. In France, the National Assembly was not consulted. For Australian domestic law, the deployment of forces in Iraq and Syria were not authorised by the Governor-General in Council which is the authority charged with the exercise of the Prerogative war power. Section 8 of the Defence Act (“The Minister shall have the general control and administration of the Defence Force”), which the government has relied on to date, does not alone contain the power or displace the Prerogative power, to commit and authorise our armed services to engage in conflict abroad. In none of these cases were the respective forces acting in self-defence against an armed attack on home territory or military vessels on the high seas. Nor were they engaged in the defence of another country at the invitation of that other country. Yet the countries whose forces attacked Syria over the weekend have been categorical in stating that their actions were justified and necessary and ipso facto legal to enforce the Chemical Weapons Convention.
How does that stand up in a rules-based system of law and order when the processes for securing legality supposedly exist and can be utilised? Or can they?
This is the rub. It is unfortunate that in the age-old game of power politics at its highest level the rules-based system exists only as a consequence of successful conquest or negotiated settlement. This was the case at the conclusion of the Second World War but that (now tenuous) rules-based system was ab initio heavily qualified in that it gave the 5 victorious powers the right to opt out or frustrate its operation at any time when they believed their national interests or the national interests of another power or partner would be compromised. Meanwhile, the enforcement of the rules and norms relating to the use of force in international relations has been problematical at best where those power interests are involved, other than the traditional protocols to facilitate diplomatic discourse over options and outcomes, as now over Syria.
In short, what we have is yet another round of power politics fought with little regard for the widespread death and destruction inflicted on the innocent. In this situation, relative side-issues such as crimes against humanity and the illegal use of chemical warfare await the final outcome and only then might the rules-based system come into play with any chance of effectiveness or enforcement. If this was a case of punishing the use of chemical weapons on innocent civilians then, as was asked similarly before the invasion of Iraq in 2003, why didn’t the missile attack await the outcome of the UN Chemical Weapons Inspectors who arrived in Iraq the day after the attack (though Russian obstruction for a time might have been anticipated? But if as some believe the motivation for the military option had more to do with President Trump’s issues with Special Counsel Robert Mueller, then it is remarkable how readily the governments of Britain, France and Australia rallied around the President in his determination to make a point over the alleged chemical weapon attacks.
There is no innocence in this conflict. All parties in the complex amalgam of issues at stake in the Syrian civil war are flat out pursuing their particular and sometimes lethal interests – the Syrian government under Bashar al-Assad, the rebels, the Kurds, sundry other sectarian groups, terrorists, and mercenaries (Sunni and Shia), Iran, Iraq, Israel, Saudis, Turkey, and not least Russia, the US and France, the big power players and their proxies as above. No one is sure how they all lineup or where they might end up. But the curious question – especially given that the US for its part has been unsure for some time under several Presidents just what its interests and objectives are in the region – why Australian forces are there and have been so closely associated with the conflicts in both Iraq and Syria all these years. A region where at most we have only marginal interests unlike in places elsewhere, such as the South Pacific, where our benign neglect of neighbours over decades may one day prove an Achilles heel.
Andrew Farran is a former diplomat, law academic, and trade policy adviser.