Will Iraq war be an Australian war crime?

by Michael Salvaris

Australia' s participation in an armed invasion of Iraq without explicit UN Security Council authority will be illegal under international and Australian law. It will render the Prime Minister and his government liable to be prosecuted as war criminals, and expose our servicemen and women to the same action.

Australia is signatory to the UN Charter and the Australian government is constitutionally bound to obey it. The main purpose and effect of the Charter is to outlaw war and the use of force, except in narrow and explicitly prescribed circumstances: when a country is acting in individual or collective self defence against an actual or imminent armed attack; and when the UN Security Council has authorised the use of force to maintain or restore international peace and security.

Neither of these circumstances now exist. Iraq has not attacked Australia or any other State and is not immediately threatening to do so. UN Security Council resolution 1441, requiring Saddam Hussein to cooperate with weapons inspections, does not include any automatic authorisation for force against Iraq in the event of a breach of the resolution, either by the UNSC or any Member State. Even the US now concedes this.

For this to occur, the UN Security Council is required after considering all the issues, including the report of weapons inspector Hans Blix and the extent of Iraqi compliance, to conclude that there is a serious or potential breach of threat to international peace, and that no other measures short of force are likely to succeed. Only then can it authorise force and it must do so explicitly. This would be odd in the present case, since Blix himself reports that weapons inspections have had at least some success and met with significant if not total cooperation.

In fact a large number of UNSC resolutions have been disobeyed and gone unpunished, some going back 30 years. There are currently about 91 such resolutions, many directed at countries which constitute as serious a threat to the peace as Iraq. Amongst others, they concern the development of nuclear weapons (by India and Pakistan, which proceeded anyway), withdrawal from illegally occupied lands (31 resolutions against Israel) and the disarming of militias in Timor (Indonesia).

Australia is now also a signatory to the International Criminal Court (ICC). This means that Australians participating in an illegal war in which many civilians are killed and excessive violence is used may be tried and imprisoned by the Court for crimes against humanity, war crimes, the crime of aggression or even genocide. The Courtís statute specifically applies to Heads of State, Ministers and bureaucrats, as well as military officers merely obeying orders.

The extent or nature of any crimes that may be committed by Australians will of course depend on the course of the war itself and the role actually played by Australia. It seems likely that the impending war will be largely based on bombing, including the deliberate bombing of civilian infrastructure (water, power, transport etc), which caused massive civilian suffering during and after the last Gulf War. Close fighting in cities is also likely. Nuclear weapons may be used.

Recent reports by the Oxford Research Group and MEDACT estimate likely Iraqi deaths this time round at between 20-30,000 (half of them civilians) in a "conventional" war, and perhaps hundreds of thousands if it should escalate to a nuclear war - as President Bush has threatened, if Iraq uses chemical weapons. These estimates seem low: the 1991 Gulf War cost an estimated 1 to 1.5 million lives, including the effects of 11 years of harsh economic sanctions, which, according to UNICEF, caused the deaths of 500,000 Iraqi children under five: ìa price worth paying for", as US Secretary of State Madeline Albright put it.

Australian politicians and military planners will have difficulties in proving they were unaware of and did not condone or support these forms of war, even if Australian troops themselves play a minor role.

The moral and logical fallacies of the US and Australian governmentsí case for war are obvious enough, whether the supposed justifications are the prevention of terrorism, upholding the UN, promoting democracy, regime change or reducing weapons of mass destruction. On many of these issues the US itself has very dirty hands.

However, until recently, arguments about the legality of the war seemed to have taken a back seat. Late last year, Tony Blair received some disturbing advice from his own Attorney General, Lord Goldsmith: he said that an attack on Iraq without the backing of a specific UN resolution could find the Blair government hauled before the newly established ICC. To make matters worse, the most detailed opinion confirming this advice came from Matrix Chambers, the legal practice founded by the Prime Minister's wife, Cherie Blair. In America, international lawyers including Richard Falk, Frances Boyle, the Lawyers Committee on Nuclear Policy and the Centre for Constitutional Rights have offered the same advice to the US Government. Legal actions by UK and US citizens against their own governments are currently being planned. Some of these lawyers have also queried the UN and US failure to indict Saddam Hussein himself for crimes against humanity, rather than killing his people.

Over the past 50 years, the international legal and human rights system has been built up slowly and painfully, through many failures, and occasional success. It is now facing one of its greatest tests. To succeed, it must be shown to be as tough on the most powerful and assured transgressors as it is upon outcast and despised members of the international community: exactly the same principle of equality that applies to national legal systems. Australia was one of the key builders of this system, but our record recently has not been a proud one. Will it take Australian war crimes trials to wake us up?

Mike Salvaris
Senior Research Fellow
Institute for Social Research
Swinburne University of Technology
28 January 2003

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