Is Australia breaking the “rules” of war

By Tony Reeves

[War speech, Dan’s 17 Group, Wednesday, 3 October 2012]

THE deaths of five Australian soldiers in Afghanistan in August, bringing total Australian military casualties there to thirty-eight, has helped to re-kindled the debate about Australia’s involvement in that gruesome war.

A few bits of history: first, how it started.

After the terrorist attacks in the US on September 11, 2001, Australia obediently joined America in George W. Bush’s “war on terrorism” by committing troops to Afghanistan a month later. Operation Enduring Freedom, it was dubbed. Our Special Forces troops called their role Operation Slipper. With the benefit of hindsight, it possibly should have been Operation SlipUP.

John Howard’s advisers found a clause in the ANZUS treaty to attempt to justify our involvement in that foreign undeclared war in response to the terrorist attacks against an ally. The act of committing the troops to fight in Afghanistan was made by Howard, not to the Australian Parliament, but in an address to the Australian Defence Association on October 25th. However, there was never any formal declaration of that war, as we will see.

Now let’s look at the moving feast of our claimed objectives of these hostilities:

Initially, it was all about our commitment to the war against terrorism, however long that lasted. As Defence Minister Robert Hill assured us in April, 2002, Australia was “in it for the long haul”. I mention this to assure you it was NOT Ms Gillard who coined that oft-repeated phrase, or the rhetorical cant: “until the job is done”.

Defence Force chief Angus Houston marked a shift in our target when he said in May, 2010, that Quote “… the primary focus in Afghanistan for the next few years will remain focused in the Uruzgan province as we mentor the 4th ANA brigade to a level of competency that will allow the timely transition of provincial security to Afghan authorities.” Unquote.

So the aim had shifted from wiping the Al Qaeda off the map of the globe and destroying their allies in Afghanistan, the Taliban, to training the Afghani troops to learn to look after themselves. The “war on terror” seemed to have taken a back seat.

Australia’s objectives in Afghanistan have always, obviously, mirrored those of the United States, and as they have been changed by the heavies of the Pentagon over the years, so have ours. “Winning the war on terror” now means, for us and the US, it would appear, handing that mess in Afghanistan back to the local troops and get to hell out of there before those we have been training kill any more of our soldiers.

US military deaths in Afghanistan have now passed two thousand, and the total allied military deaths is now well past three thousand. As in all such actions, civilian deaths are not turned into front-page headlines, despite outnumbering military casualties by thousands.

There was of course the distraction of Iraq, where again we blindly followed Uncle Sam into an undeclared — and illegal — war. UN Secretary-General Kofi Anan made it quite clear the UN did not sanction the second, major invasion, and that it was very clearly contrary to international law. And as most of us guessed beforehand, there were no weapons of mass destruction, there were no hotbeds of terrorist training camps there, and back then, there was no indication that the Al Qaeda were active in Iraq. But there we were once again: “in it for the long haul”. In the process more than one hundred thousand Iraqi civilians were murdered, and the allies left a country plagued with terrorism and political and religious violence.

Of course, declaring war on terror is ambiguous in the extreme. The international conventions require the warring parties — or at least one of them — to make a proclamation of war before they start killing each other, but there is no country called “Terror” or “Terrorism” against which George W. Bush could ask the Congress to make a declaration of war. So basically, his objective was to attack any country which his advisers believed were contributing to an all-encompassing definition of “terrorism” — or any regime America just didn’t like any more.

Our current Prime Minister was not responsible for committing troops to Iraq or Afghanistan, but most certainly has been making a strong — if somewhat confused — case for keeping them in the latter war zone. But it’s OK to be there, she assured the United Nations General Assembly only a week ago today, because it is a UN-mandated mission. Interestingly, Ms Gillard’s speech at the UN was saturated with references to Australia’s actions to promote peace: in Timor L’Este, Solomon Islands and others, but never a mention of Iraq. It was reminiscent of Basil Fawlty’s “Don’t mention the war”. Particularly one that was clearly not legal.

But let’s move on from the spin-meisters and try to focus on some of the real questions, to which, for years now, we have had conflicting and dishonest responses:

Exactly why did Australia decide, in 2001, to take part in Afghanistan? And having withdrawn our troops by the end of 2002, why did Australia commit more troops three years later? And when will our troops now be fully withdrawn? What
really is the objective? And what will happen in that god-forsaken land when all the allied forces do leave? It’s likely that it will revert to a continuation of the old battle for power between war-lords financed by opium sales and dangerous fringe Islamic factions like the Taliban. Or, for Afghanistan, a return to their normal feudal way of life after the interruptions caused by the Brits, then the Russians, then the Americans, with a few Aussies and NATO troops tagging along.

These are important questions to which we should seek honest answers, but these are not the main issues I want to talk about with you tonight. Of far greater significance, I believe, is the way Australia makes decisions about its engagement in wars in foreign countries.

Well-intended people have sought to place legal definitions on how wars are to be conducted since the mid-1800s, the most relevant being the first Geneva Convention signed in 1864 and the Third Hague Convention of 1917. Maybe if as much energy had since those times been put in to making peace, the world would be a better place today.

Australia has signed and ratified later versions of these “rules of war” Conventions, but appears to be in clear breach of the clause in The Hague document which states:


The Contracting Powers [that is, the parties that intend to wage war] recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.


In overlooking our obligations under that convention, we are not alone. In the US, the Constitution authorises only the Congress the right to make a declaration of war. The last time that was used was after the Japanese attack on Pearl Harbour which brought America into World War II.

That event spurred the President, Franklin Roosevelt, to seek Congressional approval to declare war. He said:


Yesterday, December 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan … I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, a state of war has existed between the United States and the Japanese Empire.


On that occasion, the Congress unanimously agreed that America must wage war against the aggressor, Japan. Roosevelt was the last US President to play by the rules laid down for that nation by its founders. The US has flouted its constitutional responsibilities in all the wars it has initiated since then. It appears to have tried to find an excuse a few times by using its powers to push the United Nations to sanction some of its military adventures.

In Britain, only the monarch has the power to declare war, under that quaint device titled The Royal Prerogative. Britain’s last formal declaration of war was with Germany on September 3, 1939, after the Nazi invasion of Poland, extended in the following months to Germany’s allies.

Australia’s Prime Minister Robert Menzies committed Australia to take part hours later. His actions can well be interpreted as a formal Proclamation: a declaration that we were at war with a specific country.

But Australia did not then have, nor has it since defined, any formal or constitutional process for declaring it is at war with another country. The Australian constitution is silent on the issue.

There is an ambiguous Clause 61 in the Constitution which vests all Commonwealth power in the Queen, which the monarch’s local agent, the Governor-General exercises. But as Mr Fawlty said: “Don’t mention the war”, because the constitution certainly does not define it.

The Australian Defence Act, drawn up in 1903 and amended over the years, enables the Governor-General to issue a Proclamation for citizens to be called up for military service “in time of war”, and that such an action requires approval of the proclamation by both houses of parliament.

The Act refers also to the issue of a proclamation of a state of war “or the danger thereof”, but does not define the authority required to make such an announcement. Interestingly, the Defence Act defines “war” as Quote “any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force.” Unquote. That’s it: nothing about towers being blown apart in America, or the possibility that Iraq has weapons of mass destruction buried in its desert sands; or that we just don’t like the Taliban any more.

Politicians and bureaucrats have manoeuvred around this apparent impasse, which imposes an unambiguous international obligation on Australia to properly declare any war in which it chooses to involve its troops on the one hand, and the constitutional and legislative lack of a defined way of doing so on the other. For instance, Australian troops committed to serve in Korea and Malaya were not being sent to war, but to “war-like” operations or “confrontations”. Such are the rare skills of bureaucratic double-talk!

In more recent times, though, Australia appears to have obediently, obsequiously, followed the US into wars — Iraq and Afghanistan being the most recent — and this despite the fact that the US has ignored its own constitutional requirement to have Congress make a formal, legal, declaration of war.

The US has prevailed upon the United Nations to provide a “mandate” for some of its wars, and Australia’s politicians have sheltered behind that legal-sounding justification for their decisions to support the actions.

But it is clear that the United Nations cannot condone or provide a legal mandate for any military action that would not meet the requirements of the “rules of war” laid down by the Geneva and Hague conventions.

In supporting these US-inspired wars, Australia has placed itself in a most dubious legal position. The Australian Council for Civil Liberties asked then Prime Minister Kevin Rudd to define the Australian process for making a declaration of war. He refused to respond. I put the same question to him in mid-September, and am patiently awaiting my local MP’s response. I am not holding my breath.

If it is the case that Australia’s war games since the end of World War II are technically illegal — and they are certainly in breach of The Hague convention — then an argument could be made that our military people are also being made to partake in illegal activities. If a soldier in a declared war kills an enemy, that (sadly enough) is legal. But if an Australian soldier kills a person in another country in an undeclared war, the question must be asked: is that technically murder? I believe it is.

A simple resolution for the problems would be for the Australian Parliament to adopt legislation that enables it to obey its international treaty obligations before going to war, and that might just enable the parliament to debate the merits or otherwise of any recommendations to make such a declaration.

Discussing these issues recently with friends, one said I was being pedantic, that when we have to go to war the decision must be made promptly, and cannot wait on parliament’s sometimes wearying processes. But the friend couldn’t come up with an example to support that view. Never since Japanese threats against Australia in World War II has there been any threat or danger of invasion of our territory, and all the decisions since then to send troops to war zones have not had any greater urgency about them than the pressures which might be put on our politicians to make prompt announcements in support of American decisions.

We can’t change history, and none of us, of course, are likely to race off to the International Court Of Justice to charge John Howard and successive prime ministers with war crimes.

But with enough people raising the issue in places that count, we might at least get our politicians to take note, and do what is necessary to ensure the fullest public scrutiny on these vital decisions.

That way, at least, the Australian people would become aware of the issues, the arguments for and against, and — of vital importance — the legality of any future decision to send Aussie soldiers off again to remote killing fields.

One thought on “Is Australia breaking the “rules” of war

  1. Vale Tony Reeves says:

    by Archie Butterfly

    Former editor and part-owner of the Guardian newspaper in Sydney, Tony will be forever remembered for his fearless reporting of the disappearance of Juanita Nielsen, presumed murdered by former police and underworld figures. Together with journalist Barry Ward, Tony relentlessly pursued the story at great peril to his personal safety and in the face of serious threats from the Sydney underworld. His courageous stand against the property developers and thugs linked to the Nielsen’s disappearance was a landmark in Australian crime reporting

    Read More…

    [Thnx Archie]

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