Australia prepares legal case for war over ‘non-sovereign nation’ Taiwan

Apr 12, 2023
Pushpin marking on Taiwan, Taipei map.

Australia is inventing an unheard-of way to go to war at the invitation of a ‘non-sovereign nation’ – an obvious reference to Taiwan. The Government’s intent seems to be to have it ready for the conflict with China that US Generals keep telling us is coming.

When it reported on 31 March, the Inquiry into Australia’s Entry into Overseas Conflict produced little of the reform called for by civil society groups, and recommended by 94 out of 113 submissions to the multi-party Parliamentary Committee. Instead it reaffirmed the status quo, under which the Prime Minister, in effect alone, can decide the ADF should go to war.

After statements by Defence Minister Richard Marles and Foreign Minister Penny Wong, that was expected. But a surprise in the Committee’s report was not what it had to say about the role of the Executive, but that of Governor-General, who has not been consulted before recent wars.

Proposing that the role of the Commander in Chief, as set out in section 68 of the Constitution be restored, the Committee recommended that it ‘be utilised, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation given that complex matters of legality in public international law may arise in respect of an overseas commitment of that nature’.

If that means what it seems to, the Governor-General will be asked to approve the ADF being dispatched to an expeditionary war of choice that doesn’t meet the tests of legitimacy in international law. ‘Complex matters of legality’ which the report cites in explanation are always involved in public international law: that’s not the problem. What the Government seems to want is to be able to commit Australian forces to an aggressive war without either a UN Security Council resolution or the ‘invitation of a sovereign nation’.

What’s the non-sovereign nation? Obviously, Taiwan. And why will restoring the war power to the Governor-General do the trick? Because that’s in the Constitution, and indeed it’s how we entered World War I. Of course, the Governor-General can and should ask for information about such a war, but he is then obliged to give assent.

So the Prime Minister, the Defence Minister, the ADF high command and the troops will all be off the war crimes hook, and they need only wait to be told by Washington when to go. The ICC is unlikely to investigate the Governor-General.

The Report’s recommendation brings Australia into line with the US in another way. The UN Charter which our governments signed in 1945, contained a cop-out, Article 98. It allowed member states to make ‘reservations and declarations’ exempting themselves from some of its obligations and interpretations.

Of 193 nations, some 110, mainly from the global south, have signed Article 98 agreements with the US, undertaking not to surrender American service people for investigation by the International Criminal Court.

The US made its own reservations and declarations under Article 98, stating that:

  • The US reserves the right to decide whether to comply with Security Council decisions in accordance with its constitutional processes
  • The US reserves the right to use military force in response to an armed attack on a member state without first seeking authorisation from the Security Council
  • The US reserves the right to veto any decision by the Security Council it believes to be against its national interest
  • The US reserves the right to make its own decisions about the use of military force in situations it perceives as a threat to its national security
  • The US is not bound by the decisions of the International Court of Justice if it involves domestic matters [eg Guantanamo Bay or other US military prisons].

The second of these reservations is the one Australia is seeking to emulate: war without US Security Council authorisation. We have done that already in Iraq, we could do it again. What we are doing now is adding the clause about doing it with no invitation from a ‘sovereign nation’. With or without an invitation from Taiwan, which is not a sovereign nation, we could do it tomorrow, or in two or five years’ time, which ever suits Washington.

For reminding me about Article 98, I am indebted to Mike Smith, whose short play about the US and war crimes is bidding for production by Canberra Repertory Theatre. He wonders if Australia has a similar arrangement, but neither of us has the time it will take to get an FOI response to that question.

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