Unlike a number of the “coalition of the willing” that were part of that invasion and occupation, successive Australian governments have refused to conduct a similar inquiry here. The reasons for this are unclear, although as will be shown, there are good reasons to do with political misconduct and liability for war crimes that would persuade successive governments that a quiet burial of uncomfortable facts is a preferred course of inaction.
The Iraq experience also contains valuable lessons for the conduct of current and future foreign policy. Although lessons should have been learned from the Iraq experience, the involvement of Australia in the current (illegal as far as Australia is concerned) war in Syria would suggest otherwise.
One of the things that Australian governments like to be able to claim is that they are acting in accordance with international law. That claim is often tenuous at best, as with the policies of the past 16 years in respect of refugees where Australia is in continuing breach of a number of international Conventions to which it is a party. The aforementioned Syrian war is another example, of which more below.
In the case of the Iraq war, as will be discussed in some detail, both the UK and Australian governments sought legal advice. The history of the UK legal advice, revealed in devastating detail in the Chilcott Report, was that the Attorney-General’s reservations were unwelcome, initially ignored for presumably geopolitical reasons, and after immense political pressure had been applied, cursorily summarized in a form that the suited the British government’s intentions to wage war with the Americans, “whatever”. (1)
The Australian government was no better served in its legal advice, being given a shoddy piece of legal reasoning which told the Australian government what they clearly wanted to hear. Nonetheless, it was that advice that was misrepresented to the public, as was the case with UK Attorney General Goldsmith’s advice.
The one good thing to emerge from that process was that Australian Prime Minister John Howard’s government did release the legal advice it had received. No such ‘mistake’ has been applied to the Syrian war. In that case, the government claimed in August 2015 that no decision would be taken until they had received legal advice. What the then Prime Minister and Foreign Minister Julie Bishop omitted to say was that they had been given that legal advice many months earlier. A FOI request for a copy of that legal advice has been refused. An unfavourable inference may be drawn from that refusal. (2)
Going to War in Iraq
According to Ron Susskind’s biography of Paul O’Neill, George W Bush’s first Treasury Secretary, an invasion of Iraq was an agenda item for the first Cabinet meeting in January 2001. (3) The motives of the protagonists were mixed. Bush himself seemed to harbour a personal grudge against Saddam Hussein whom he alleged tried to kill his father, George Bush Senior, the 41st president and architect of the first Gulf War in 1991.
Far more significant were the motives of Vice President Dick Cheney whose ties to the oil industry made for astonishing conflicts of interest. The invasion was codenamed Operation Iraqi Liberation, the acronym being an unsubtle clue as to one of the major motives for the war.
Also important was the strongly pro-Israel cabal that dominated the whole Bush presidency. It is a long-standing objective of Israel to prevent the rise of any competing military power in the Middle East. It partially explains the campaign against Iran, easily the most important regional player and a major supporter of Lebanon’s Shia group Hezbollah. There was always an absurdity to Israel’s claims about Iran’s alleged nuclear weapons program when Israel itself is the world’s fourth largest nuclear-armed power.
A further factor is what is known as the Yinon Plan, named after its author, a former senior Israeli Foreign Ministry official. In an article published in the Hebrew journal Kivunim (“Directions”) in February 1982, Yinon set out a long-term project for the Middle East. (4)
Essentially, the plan called for the dismemberment of all of the States surrounding Israel, including Egypt, Lebanon, Syria, Jordan and Iraq. The actions of Israel in the succeeding decades, and the almost unqualified financial, political and military support given to Israel by the United States, can best be understood in the light of the strategic objectives of the Yinon Plan.
The treatment of the Palestinians, the 20 year occupation of Southern Lebanon, the continuing illegal occupation of the Syrian Golan Heights, and the active participation in both the Iraqi and Syrian wars are all predictable policy objectives when read in conjunction with the Yinon Plan.
It is worth noting that Australia is also one of Israel’s most loyal supporters, as evidenced most recently by the comments of the Foreign Minister following the passage of the most recent Security Council Resolution. (5)
We know from the detail provided in the Chilcott Report, and the detail and insights provided in George Venturini’s ongoing series in the Australian Independent Network that active planning for the Iraq war continued throughout 2001 and 2002. (6) Of significance for present purposes was that John Howard was privy to those discussions, in particular his attending a meeting with his UK and American counterparts in Washington DC on 22 January 2003.
A discussion paper prepared for that meeting sets out the post-invasion plans, including issues of security, humanitarian issues, reconstruction, political leadership, economic matters and the oil industry. It should be noted that most, if not all of those plans, violated the Geneva Accords to which the US, UK and Australia were a party.
This meeting was eight weeks before the actual invasion. The Chilcott Report makes clear that for the Americans at least, the actual decision was made no later than April 2002 when UK Prime Minister Blair met with Bush at the latter’s Texas ranch. (7)
The rest of 2002 and early 2003 was essentially a charade, with the Americans proceeding with their planning and the British desperately seeking a legal fig leaf to cover what had been Blair’s policy all along, to support the American invasion “whatever.”
An Australian Chilcott type inquiry would perhaps reveal just what commitments on behalf of Australia were being made when, and by whom. Concealment of that information would be a powerful motive not to hold an inquiry. Instead of a proper inquiry we are forced to rely upon the work of others, notably the Dutch and the British, to inform us as to what was really going on.
The Australian people are not, it seems, to be entrusted with information as to how this country decides to involve itself in other nation’s illegal wars.
The Australian Parliament Learns We Are at War
On the morning of the 18th March 2003 at 6.00am Canberra time, Bush telephone Howard. We do not know the content of the telephone call, but a Cabinet meeting immediately followed it. Howard then spoke on national television ad only then, at 2.03pm was an announcement made to Parliament. (8)
The Australian Legal Advice
Howard agreed to table in Parliament the legal advice that had been provided to the Australian government from the departments of Foreign Affairs and the Attorney-General’s office. He said that it was consistent with the advice given to the British government by Lord Goldsmith.
The authors of the advice were Bill Campbell QC, First Assistant Secretary, Office of International Law in the Attorney-General’s department, and Chris Moraitis, Legal Advisor at DFAT.
The core of the advice was that
“there have been past and material continuing breaches of Security Council Resolution (“SCR”) 687 (which dealt with the ceasefire following the Gulf War of 1991) which negated the basis for the formal cease fire. Iraq’s conduct demonstrates that it did not and does not accept the terms of SCR 687. Consequently, the cease-fire is not effective and the authorization for the use of force in SCR 687 is reactivated.
Given the existing authority for the use of force, suggestions that there is a legal requirement for a further resolution are misplace. Also suggestions that the use of force in Iraq in the absence of a further Security Council resolution would be ‘unilateral’ are wrong.”
Astonishingly, in the light of academic commentary among other developments since then, this is essentially the position that John Howard reaffirmed in his address to the Lowy Institute on 9 April 2013. He said on that occasion: (9)
“My government never saw the obtaining of a fresh Security Council resolution as a necessary legal prerequisite to action the removal of Saddam Hussein. It was always our view that Resolution 678 dating back to 1990 provided sufficient legal grounds for the action ultimately taken……The Opposition (Kim Beazley was Labor Leader) readily concurred. We (Beazley and Howard) were as one on the correctness of their mission.”
Dr Gavan Griffith AO QC, Commonwealth Solicitor General 1984-1987 took a different view. He said that he could not characterize Campbell and Moraitis’ advice as an opinion. Its arguments were weak at best and their claim that the use of force would only be negated by a Security Council resolution requiring member states to refrain from using force against Iraq was a “fanciful proposition, an Alice in Wonderland inversion of the meaning of the plain words of the resolution itself.” (10)
It was not only fanciful, but it ignored the plain wording of the UN Charter itself, particularly Articles 4 and 51 which required States to refrain from the use of force in settling disputes, and any force requiring the sanction of the Security Council respectively.
The fact that the government sought the advice of two relatively junior public servants is curious. On a matter of such significance as going to war, one would have expected the government to use the services of the best available international lawyers.
Two such persons were available and had been used by the Australian government on previous occasions. One was Henry Burmester QC former head of the Office of International Law in the Attorney General’s department, and now Chief General Counsel in the same department.
The other was Professor James Crawford SC, Professor of International Law at Cambridge University who had on previous occasions advised the Australian government and appeared for it in international law proceedings. Crawford’s view that the war was illegal was well known. He was one of the co-signatories of a letter to the UK Guardian on 7 March 2003. (11)
He was one of 16 distinguished international lawyers whose letter said “there is no justification under international law for the use of military force in Iraq…….Neither SCR 1441 nor any prior resolution authorises the proposed use of force in the present circumstances.”
Another of the co-signatories was Professor Philippe Sands, Professor of international law at University College, London. In his written submission to the Chilcott Inquiry on 10 October 2010 Professor Sands said: (12)
“I have been unable to find support in any academic article for the view on which the previous British (and Australian) government relied…….Moreover, it cannot reasonably be claimed that there exists a balanced range of views among those with legal expertise. The overwhelming preponderance of views is entirely in one direction.”
John Howard told the Australian parliament that the views expressed by Campbell and Moraitis were “consistent with” the advice given by Lord Goldsmith, the UK Attorney General. That statement is deceptive at best.
One of the many revelations from the Chilcott Report, and especially Section 5, which details the legal advice given to the UK government between November 2002 and March 2003, was the extent to which Goldsmith’s views and integrity were compromised.
From 30 July 2002, two days after Tony Blair told George Bush that he was with him “whatever”, until the end of February 2003 Goldsmith held the opinion that the overwhelming majority of international law scholars held: that any military action against Iraq required an explicit authorization from the Security Council.
The Evolution of Goldsmith’s Views
In October 2002 Goldsmith told the UK foreign Secretary Jack Straw that the draft resolution that he had seen, and subsequently became SCR 1441, did not offer the necessary explicit authorization.
That was a view that Goldsmith still held in mid-January 2003 and confirmed in a written advice to Blair on 30 January 2003. Blair then went to Washington to meet with Bush. He simply ignored the legal advice that he had been given.
By 7 March 2003 Goldsmith had shifted his view, after visiting Washington and meeting with Bush advisers. It is abundantly clear that he was pressured to come around to the American view. (13)
He provided a further written advice to the Blair. The thrust of that advice was that going to war involved uncertainty and risk as well as being of doubtful legality. Blair withheld that advice from other members of his cabinet.
On 17 March 2003 Goldsmith gave a written answer to a parliamentary question in the House of Lords. (14) This one page response was not a legal opinion, a term of art, but only a ‘view’, one that differed radically from the written advice of 7 March 2003, only ten days earlier. This change of view had nothing to do with either new facts or any consensus about a change in the appropriate legal view.
Sands has provided a clear view of the purpose of that document of 17 March. It was, he said, an advocacy piece written by a committee. It was “an instrument of persuasion that aimed to create the impression that Goldsmith had advised that the war was unequivocally lawful. The document did mislead. It was the product of calculated manipulation enabled by silences and lies, a grand and disastrous deceit.” (15; 16)
In the light of this chronology, it is curious to say the least how Howard was able to express the view, and continue to hold the view, that the legal advice provided by Campbell and Moraitis, which was dated 12 March 2003 and hence five days before Goldsmith’s radical change of position, could in any way be “consistent with “ the advice given to the UK government.
There is no evidence that the Australian government was privy to Goldsmith’s discussion with Jack Straw in November 2002 when Goldsmith’s reservations were firmly stated. (17)
They would have been aware however, of the House of Commons debate of 25 November 2002, which resulted in a motion that said, in part, that in the event of Iraq’s non-compliance with SCR 1441 (2002) the Security Council would need to meet again to consider the situation.
The UK Foreign Office (whose legal team unanimously was of the view that a war would be illegal without Security Council authorization) sought a formal opinion from Goldsmith on 9 December 2002. The brief accompanying that request included the FCO’s view that “resolution 1441 does not authorise the use of force expressly or revive the authorization in resolution 678 (1990)”. (18)
Again, there is no evidence that the Australian government had access to that brief, although the view expressed therein and quoted above was in accord with the overwhelming weight of international legal opinion. Given that weight, the question must be posed again: on what possible basis could Campbell and Moraitis reach the view that they did?
Goldsmith provided a further draft advice to Blair on 14 January 2003. That advice stated that a further decision by the Security Council would be required to revive the authorization to use force contained in resolution 678 (1990). (19)
He went further. He argued that the “revival argument” would “not be defensible.” (20) Neither was there any legal basis for arguing that a veto by one of the five permanent members of the Security Council was “unreasonable” (a purported escape clause argued by Blair) and could therefore be ignored. (21)
Goldsmith reiterated that advice in a further letter to Blair on 30 January 2003. Even after his visit to the United States and notwithstanding the enormous pressure placed on him there, Goldsmith was still arguing, in a meeting with officials at Number 10 Downing Street on 27 February 2003 that the “safest course” would be a further Security Council resolution authorizing the use of force.
Any argument that resolution 1441 was capable of reviving the authorization for force was contingent only if there were strong factual grounds for concluding that Iraq had failed to take the opportunity offered by SCR 1441.
Those strong factual grounds did not exist. There was a barrage of misinformation, but the reports of the UN inspectors did not provide a sufficient basis for concluding that Iraq was in material breach of the terms of earlier resolutions.
Even if they had been, to invoke the concept of “reactivation” as was the case in the opinion of Campbell and Moraitis was to invoke a concept that was unknown to international law. (22)
According to the evidence given to the Chilcott Inquiry Blair did not wish that view to become public. It is unlikely to have reached Canberra, although in the absence of a proper inquiry we are unlikely to ever know what they knew or surmised.
Goldsmith’s next written advice was the one of 7 March 2003 referred to above. It is the only likely one to have been seen by Campbell and Moraitis prior to their advice of 12 March 2003. That advice, as noted above, was heavily qualified and certainly did not provide a basis for the conclusions of Campbell and Moraitis.
Even if one accepts the argument that strong evidence of Iraq’s non-compliance would persuade the UK and Australian governments that SCR678 could be revived, there is still the essential question of who decides there has been strong evidence of non-compliance. It surely cannot be left to an individual government. The obvious answer is that only the Security Council can make that determination and manifestly they had not.
It was recognition of that reality that led Goldsmith to maintain his long-standing position that the “safest course” was a further specific Security Council resolution.
The Australian Response
It is impossible to conclude therefore, that the Campbell and Moraitis view was “consistent with” Goldsmith’s opinion, especially when the former’s opinion was provided on 12 March 2003. As we have seen, Goldsmith’s view was qualified and cautious and subject to many caveats and the determination of unresolved issues.
It is difficult not to conclude that Howard’s statement to parliament on 18 March 2003 following his telephone conversation with Bush was a political statement designed to bolster what was an untenable decision to commit Australia to yet another foreign war on behalf of the Americans.
That conclusion is reinforced by the terms of the wording of the motion placed before Australia’s parliament on 18 March 2003. (23) The motion provided, in part, that:
(2) (a) that Iraq’s continued possession and pursuit of weapons of mass destruction, in defiance of its mandatory obligations under numerous resolutions of the Un Security Council represents a real and unacceptable threat to international peace and security;
(4) Notes that UN Security Council resolutions adopted under Chapter Vll of the UN Charter, in particular resolutions 678, 687 and 1441 provide clear authority for the use of force against Iraq for the purpose of disarming Iraq of weapons of mass destruction and restoring international peace and security in the region.
With regard to Iraq’s alleged possession of weapons of mass destruction it is now indisputable that the allegations were completely untrue. The more important question for present purposes however, is what was the Australian government’s state of knowledge in March 2003?
That is not a hypothetical question posed with the benefit of hindsight. The Australian government had access to the opinions of their own intelligence services, notably the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA).
The evidence available to those two organisations was investigated by a parliamentary committee, the only investigation remotely approaching an inquiry into the involvement of Australia in the Iraq War. The results of that investigation are publically available. (24)
Their eleven main conclusions, summarised at pages 82 and 83 of the report, destroy any doubt that not only did Iraq not have any weapons of mass destruction, much less a capability o intention to use them, but that allegations to the contrary were entirely fabricated and contrived to provide a justification for the war.
As the memorandum written by Sir Richard Dearlove, then head of MI6 put it, “the intelligence and the facts were being fixed around the policy”. (25)
As to the motion’s claim that SCR678, 687 and 1441 provide “clear authority for the use of force” in 2003, the preceding discussion should make abundantly clear that they did no such thing. There was no reason able basis upon which the wording of such a motion could be advanced and approved other than by a government (and opposition) intent on war regardless of the facts or the law.
The legal opinion by Campbell and Moraitis was no more than a crude pastiche of half-baked legal opinions that enjoyed no support at all in international legal scholarship.
Lord Alexander, the highly respected former head of the Bar Council in the UK thought Goldsmith’s written answer in the House of Lords on 17 March 2003 to be “risible.” (26)
There is no better word to use when describing the Campbell and Moraitis advice to the Australian government. As to the parliamentary motion’s claim that the use of force would be for the purpose of “restoring international peace and harmony in the region” is no less risible.
The Consequences of the Decision
The consequences of the invasion of Iraq in March 2003 have been catastrophic for the people of the region. A broader analysis of the consequences will be the subject of separate investigation. There is one consequence in particular that is worth noting here. That is, that the human toll has been vastly greater than the mainstream media is willing to acknowledge, even as late as 2016.
For years, the western media would not acknowledge a number of fatal casualties that went beyond the oft-repeated mantra of “more than 100,000” people have died as a result of the invasion, the occupation and its aftermath.
The phrase “more than” is literally true, but deceptive. Serious studies that yielded significantly greater casualty figures were either ignored or ridiculed.
The deception is maintained in part by ignoring the fact that Iraqi excess mortality and morbidity did not start in 2003. It began in fact with the first Gulf War of 1991 that was followed by sanctions. Those sanctions included the banning of essential chemicals and equipment necessary for Iraq’s water treatment system. This was a deliberate genocidal policy as previously classified US Defence Intelligence Agency documents make clear. (27)
In March 2015 the Nobel prize winning organisation, Washington DC based Physicians for Social Responsibility released a detailed scientific study of the number of people killed in the US-UK-Australia ‘war on terror’ in Iraq, Afghanistan and Pakistan between 2003 and 2015. They estimated a death toll of between 1.3 and 2.0 million persons. (28)
Just taking Iraq alone, there were approximately 1.3 million excess deaths between 1991 and 2003 and a further 1 million between 2003 and 2015. As any reader of the news knows, the killing has continued unabated since the report was published.
In a separate study of Afghanistan, Polya applied the same methodology used by the UN to calculate that total avoidable deaths in Afghanistan since 2001 (when the US, UK and Australia among others invaded that country) amount to approximately three million persons, of whom 900,000 are children under the age of five years. (29)
In addition millions of persons have been displaced, creating the greatest refugee crisis since World War 2.
This is the context in which we must read the Chilcott report. Its findings were not completely surprising, although as Sands noted, that contrary to most expectations the inquiry delivered a report of devastating clarity.
Its central conclusions followed those of a report commissioned by the Dutch government. It reported in January 2010 that the 2003 invasion of Iraq “had no basis in international law.” (30)
Sir Michael Wood, the senior legal adviser at the FCO at the time of the invasion told the Chilcott inquiry virtually the same thing. “I considered,” he told the inquiry, “that the use of force against Iraq in March 2003 was contrary to international law…..In my opinion the use of force had not been authorised by the Security Council and had no other basis in international law.” (31)
In Australia, the provision of poor advice providing a crutch for a government clearly determined, like Tony Blair, to join an illegal war “whatever” is no hindrance to career advancement. Campbell is now General Counsel International Law in the Attorney-General’s department. Moraitis progressed to deputy secretary at DFAT to his current position as head of the Attorney-General’s department.
Successive Australian governments have refused to emulate the British and the Dutch and allow a proper inquiry into Australia’s decision to join the Iraq war and the surrounding circumstances. The results of the Dutch and now the Chilcott inquiry would have done nothing to alter that resistance, and probably the opposite. Australia does not have a good record of holding its politicians accountable for disastrous and illegal actions in foreign affairs.
It should be noted that Howard’s eagerness to follow the Americans was matched by the opposition, then led by Kim Beazley. Both men exhibit extraordinary hubris in neither regretting their part in what happened, but all too willing to repeat the exercise, as the current situation in Syria, and the ongoing debacle in Afghanistan demonstrate. (32)
It is evident from Howard’s address to the Lowy Institute that he has no regrets and continues to believe, in the face of all the evidence, that it was “the right thing to do.”
It would seem that Australia’s latest forays into Syria mean that we have learned nothing from the Iraq experience. To Howard’s credit, he did at least table the legal advice; such as it was, in parliament, that he purported to rely upon. The present government refuses to release the legal advice it received on the Syrian war. (33)
The probable inference to draw from that refusal was that the advice given to Abbott and Bishop, that they lied about, was not what they wanted to hear. As with Howard, the eagerness to follow the American misadventures wherever they may lead, and regardless of their legality, trumps adherence to international law.
We are likely to continue making the same disastrous policy choices until our political leaders are held accountable in a suitable international forum such as the International Criminal Court, (34) and as a corollary develop a foreign policy that truly reflects Australia’s national interests.
*Barrister at Law. He may be contacted a joneillqldbar.asn.au
- The word “whatever” was used in a communication from Blair to Bush in July 2002 denoting British support regardless of legality, UNSC resolutions or any other adverse developments.
- O’Neill Australia and the War in Syria: continuing Obfuscation www.journal-neo.org 19 January 2016
- Ron Susskind The Price of Loyalty 2004
- Oded Yinon A Strategy for Israel in the 1980s. Kivunim (1982) 49-59.
- O’Neill UN Security council in Rare Moment of Clarity www.gumshoenews.com 27 December 2016; UNSC and Israel-Palestine: an update www.gumshoenews.com 1 January 2017.
- George Venturini Blair Bush and Howard: Three Reckless Adventurers in Iraq. theaimn.com
- The Report of the Iraq War Inquiry. Hereafter the Chilcott Report Executive Summary paragraph 85.
- Hansard p12505 (2003)
- Howard Iraq 2003-a Retrospective. www.lowyinstitute.org 9 April 2013.
- Griffith Sydney Morning Herald 21 March 2003
- War would be Illegal guardian.co.uk 7 March 2003
- Philippe Sands Submission to the Chilcott Inquiry 10 September 2010.
- Chilcott Inquiry Section 5 paragraphs 426 et passim.
- Ibid paragraph 806
- Sands op cit paragraph 7.
- Sands A grand and disastrous Deceit. London Review of Books vol 38 No. 14 28 July 2016 at 9-16.
- Chilcott op cit at p18.
- Ibid at p36
- Ibid at p36
- Ibid at p37 ibid at p37
- Ibid at p41.
- Lowe The Iraq Crisis: What Now? International and Comparative Law Quarterly 52(4) October 2003 859-871.
- Hansard 2003 p12506
- Parliamentary Joint committee on ASIO, ASIS and DSD Intelligence on Iraq’s Weapon s of Mass Destruction. Canberra, December 2003.
- M Danner The Secret Way to War Barnes & Noble (2006)
- Lord Alexander Iraq: Pax Americana and the Law. Tom Sargant Memorial Lecture 14 October 2003. An extended version is published in Justice, May 2004.
- Nagy www.casi.org.uk/info/nagi/01612.pdf
- psr.org/assets/pdfs/body-count.pdf March 2015.
- Polya Body Count: Avoidable Mortality Since 1950. Melbourne 2007.
- The Inquiry was chaired by retired Supreme court Justice Willibrord Davids. Rapport Commissie van Onderzoek Besluitvorming Irak. January 2010. A lengthy English language summary commences at page 519 of the report.
- Chilcott op cit. Section 5, especially paragraphs 344-392.
- O’Neill Afghanistan: What Has Fifteen Years of Occupation Achieved? www.journal-neo.org 2 November 2016
- Note 2 supra
- Supra note 6 at part 39.