This War is illegal: Howard's last top law man

By Margo Kingston (Courier Mail Online, March 21 2003)

Today, David Bennett QC's predecessor as Commonwealth Solicitor General, Gavan Griffith QC - who represented the Labor and the Howard government in the High Court, gives Webdiary his written opinion that the Government's claim that the war is legal is "untenable", and that the legal advice he was forced to release is Alice in Wonderland nonsense.

For my discussion of the deeply unsatisfactory nature of the government's advice see The politics of war and for the Government's history of abuse of legal advice, see It's legal, believe me, The government's legal advice is at smh.

John Howard defended his legal advice this week: 'I don't think you can discount somebody whose daily job is to advise not on the theory but on the practice of international law (to) the Australian government."

For John Howard, the ends invariably justify the means.


by Gavan Griffith QC, Melbourne

The tabled joint "Memorandum of Advice" of the First Assistant Secretary, Office of International Law, Attorney-General's Department and the Senior Legal Adviser, DFAT, has insufficient substance to bear the weight of the Prime Minister's reliance to justify the invasion of Iraq by Australian defence forces.

This Advice invokes the authority of Security Council Resolution (SCR) 678 of 15 July 1991 to justify the unilateral use of force by Australia.

It is plain that the authority of para 3 for the use of force of that 12 year old resolution expired with the Gulf War and successive resolutions of the Security Council leading to SCR 1441 of 2 November 2002.

Colin Powell in A Line in the Sand wrote that Resolution 678 "displayed the usual fuzziness of documents written by many hands and made it clear that the invasion was only to free Kuwait." It is now facile to assert that without the further resolution authorising the use of force, now abandoned, SCR 678 has revived (or may be regarded as continuing) as authority for the use of force at the whim of Australia as a self-appointed member of the "Coalition of the Willing". The question "Willing for What?" has its answer: Willing to act in breach of plain obligations of international law and comity between nations.

I cannot characterize the advice as an opinion. The short paragraphs 14 to 18 of the brief seven page advice read as weak best arguments for the use of force. Para 34 of SCR 678, cited in para 18, denies the continued authority of that resolution to support present action by individual states, as does the entire SCR 1441.

The final sentence of the advice concluding that the authority of SCR 678 to use force "would only be negated by a Security Council Resolution requiring Member States to refrain from using force against Iraq" is a fanciful proposition, an Alice in Wonderland inversion of meaning of plain words in the resolutions themselves. It is unsupportable. The authors are making it up.

It is significant that the authors of this Advice, on the important issue of giving legal sanction to war, do not even entitle it as 'Opinion'. Its brevity and lack of force is exceeded only by the one-page 'Opinion' of the United Kingdom's Attorney-General tabled in the United Kingdom Parliament, that makes the completely untenable assertion that "all resolution 1441 requires is a report to and discussion by the Security Council of Iraq's failures, but not to express further decisions to authorize force".

To this end the Australian and United Kingdom legal advices are entirely untenable. They are arrant nonsense. They furnish no threads for military clothes. It is difficult to comprehend that the fanciful assertions (they are not arguments) of the two advices have been invoked by Australia and the United Kingdom to support an invasion of another state. It does not appear from his published remarks that President Bush made any such attempt to clothe American action with the authority of the Security Council. This has the advantage of making the nilateral basis of his country's actions plain.

I note that the Memorandum of Advice is not subscribed by Henry Burmester QC, former head of the Office of International Law and now Chief General Counsel of the Attorney-General's Department and the most senior and experienced international lawyer in Commonwealth service. Nor by Professor James Crawford SC, professor of International Law at Cambridge, who commonly advises and appears for the Government in International law matters. I could suggest none available to the Commonwealth better qualified to give disinterested and expert advice.

Without knowing their views, I would be inclined to defer to their expert opinion. I am at a loss that this important matter of legal support has not been supported at this highest expert level readily available to the Government. Instead, the Government has been content to table a mere "memorandum" of assertion, signed of at the departmental level of First Assistant Secretaries.

I comment further that the authority of the opinion by 43 Australian international lawyers as to the plain breach of international obligations by Australia absent a further Security Council in no way answered by the loose references to emerging new principles by Professor Ivan Shearer or the American and Australian signatories to the letter curiously published as an op-ed. piece in The Australian on 18 March.

Like-minded lawyers of ambition in America scramble to justify, in arrears, the evolving unilateralism of the USA's foreign policy. I know few of the American signatories. The Australian signatories have, with but slight exception, common interests more in areas of taxation, defamation and commercial law and none is known in the field of public international law (excepting Professor Waller who has a reputation in the specialised area humanitarian law). The reputations of the Australian and United Kingdom Attorneys-General on the issues of use of force also are elsewhere than in public international law.

I compare the opinion by Robinder Singh QC of Matrix Chambers, London, to be found at web site publicinterestlawyers, which is reasoned and compelling argument for the lack of support provided by the aged SCR 678.

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