10 April 2017.
In the early hours of Friday morning Australian time the United States fired 59 Tomahawk missiles from two of its warships in the Eastern Mediterranean. The target was the Shayrat Air Base in North Eastern Syria.
The purported justification for the missile attack was, in the words of the Sydney Morning Herald’s chief Washington correspondent Paul McGeogh “as punishment for a previous gas attack that killed more than 80 civilians this week.”
The Australian response to the missile attack came principally from Prime Minister Malcolm Turnbull and Russia had a “solemn obligation” to stop its “client” from using weapons prohibited under international law.
Shorten also supported the strikes, saying the “illegal and abhorrent use of chemical weapons……demanded a strong response.” Editorially, the SMH welcomed “the decisive steps to deter the Assad regime from repeating its flagrant crimes against humanity.”
‘Senior government sources’ were quoted in the newspaper as playing down “the prospect that the missile strike would lead to further military entanglement”, noting that “Australia’s legal mandate for carrying out air strikes against the so-called Islamic State in north-east Syria was based on the collective self-defence of Iraq.”
Leaving aside the obvious non sequitur in the unnamed senior source’s views, the American missile strike and the Australian response raises important issues of international law. Characteristically, those issues are never discussed in the Australian mainstream media.
What will be argued here is that is that the missile strike and Australia’s involvement in the Syrian war that goes beyond being a cheerleader for American conduct is contrary to international law. It is all the more ironic in the case of both countries given their actual behaviour that they are among the loudest to protest that international disputes should be settled in accordance with the rules based international order, that is, international law. A current example of that attitude is seen in the Australian government’s reaction to the measures being taken by China in the South China Sea.
Australia’s original involvement with the 2003 invasion and occupation of Iraq was itself in flagrant breach of international law, as the recently released Chilcot report in the United Kingdom makes clear. Australia’s refusal to hold a similar inquiry into this country’s involvement into that ongoing disaster itself speaks volumes about the true state of law and lack of accountability for those responsible.
That is something that cannot be discussed in the Australian media, which continues to display, as with the latest missile attacks, a large capacity for ignoring the historically inconvenient facts, and an equally large capacity for reaching conclusions in the absence of evidence. Evidence that does not fit the preferred narrative is either simply ignored or dismissed as unworthy of consideration.
The latest American missile attack appears to rest upon two major assumptions. The first assumption, and one shared unquestionably by both media and politicians in this country, is that the gassing of civilians in Khan Sheikhoun on 3 April was in fact carried out by the Syrian government.
No evidence to support this assumption has been provided. The assertions of Syrian government culpability do not equate to evidence, regardless of the degree of certainty or assurance with which they are delivered. One would have thought that the memory of Tony Blair’s ‘dodgy dossier’ or Colin Powell’s presentation to the UN Security Council, both preceding the invasion of Iraq, would provide a note of caution when politicians make bold statements about their high degree of confidence in the actions of any given enemy du jour.
There are a number of reasons in the present case to be skeptical about the unqualified assertions of politicians in the possession and use of chemical weapons by the Syrian government forces. One is the agreement brokered by Russia for Syria to give up all its chemical weapons following the Ghouta tragedy in 2013. We now know that the Ghouta tragedy was the responsibility of terrorist groups and not the Syrian government. Even the New York Times (R. Parry NYT Retreats on 2013 Syria-Sarin Claims. www.consortiumnews.com 6 April 2017) has recently conceded as much, although the Australian media still persist in blaming the Syrian government.
There is also the report in June 2014 by the UN body, the Organisation for the Prohibition of Chemical Weapons (OPCW) that Syria’s chemical weapon stockpile had now been eliminated. (www.un.org 23 June 2014) There is no mention of OPCW in any Australian mainstream media reporting.
Even if there were legitimate concerns that the Syrian government still did have chemical weapons in its armoury, at the very least it would have been prudent to wait for the results of a proper investigation before embarking on a missile attack. The Russian government called for such an investigation immediately following the Khan Sheikhoun tragedy. The refusal of the western governments to even countenance such an investigation is the antithesis of how international diplomacy should be conducted.
A sub-assumption is that the Syrian government carried out the Khan Sheikhoun attacks because that is the sort of thing it does. This fits the general narrative of the Assad government being an unacceptable party to negotiations, but it is at the very least a double standard in operation because that moral approbation is not applied to many of the world’s governments. If being the purveyor of violence was the criterion for exclusion from the negotiating table then there are many candidates ahead of Syria for exclusion, including many of Australia’s erstwhile allies in the Middle East and elsewhere.
The second major assumption underlying the missile attack was that the Americans were somehow justified in international law in doing so. Although the views of the Russian government on this issue have been quoted in the Australian media, it is apparent from the lack of analysis that the Russian view has been simply disregarded.
It is however a very powerful argument (M. Milanovic European Journal of International Law www.ejiltalk.org 7 April 2017) and one that the Australian media are anxious to avoid. When it is alluded to, as in the quotation above from the ‘senior government source’ such self-serving claims are never critically examined.
The United States is a member of the United Nations and as such (as is Australia) expected to comply with the conditions that bind all member states. Article 2(4) of the UN charter stipulates “All members shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any state, or in any other manner inconsistent with the purposes of the UN.”
A reprisal attack, such as the Americans have carried out, clearly breaches Article 2(4). The recent statements by Turnbull and Defence Minister Marise Payne violate at least the spirit of Article 2(4). For a former barrister Turnbull displays a singular disregard for, or knowledge of, international law.
Article 51 of the UN Charter limits the use of armed force to two specific exceptions to the general prohibition on the use of armed force to resolve international disputes.
The first exception is if the force is used pursuant to an authorizing resolution of the UN Security Council. Manifestly this does not exist in the present case, and neither did the US either seek such a resolution or claim (as
Australia and the UK did in the 2003 invasion of Iraq) that some previous resolution somehow carried over to the present circumstances. (J. O’Neill Lessons from the Iraq War: a reappraisal. www.johnmenadue.com 7 January 2017.)
The second exception is that a country may act in self-defence if it is itself attacked by another state. There are further qualifications to that exception that are not relevant here. Again, this exception is manifestly not the case, and the Americans make no claim that they were acting in self-defence.
All of the public statements, by Trump, by Secretary of state Tillerson and by others in the US administration all refer to the attack being a “punishment” for the deaths caused by the use of chemical weapons in Khan Sheikhoun a few days previously.
As noted above, ‘senor government sources’ were quoted as claiming that the American attack on a Syrian air base did not signal greater involvement by Australia in the Syrian war.
This was, said the source, because Australian air strikes against ISIS in Syria were based on the collective self defence of Iraq. This was a curious argument to raise as the missile strike was not against ISIS or any of the other terrorist groups operating in Iraq and Syria. How a missile strike against the Syrian air base could be part of the collective self-defence of Iraq by Australia is not clear.
It is in any case a false argument. Foreign Minister Julie Bishop first publicly advanced the “collective self-defence of Iraq” justification in November 2015 in an interview with ABC Radio. The interviewer had asked Ms Bishop what was the legal basis for Australia attacking targets in Syria.
There are two major problems with this argument. (J. O’Neill Australia’s Illegal War in Syria: A Brief Update. www.newmatilda,com 8 December 2015) The first is that the Iraqi government issued a statement denying that they had sought the help of Australia in dealing with terrorists operating outside Iraq’s borders.
Even if the Iraqi government had asked for such help the Australian actions in Syria would still be contrary to international law as the self-defence provisions of Article 51 of the UN Charter only apply if one state is attacked by another state. Ad hoc terrorist groups such as ISIS do not qualify, as the International Court of Justice has pointed out on more than one occasion. K. Zemanek Armed Attack Oxford International Public Law www.opil.ouplaw.com October 2013.)
The Australian government has refused FOI requests for the legal advice it claims to have to justify what it is doing in Syria. In August 2015 it claimed to be awaiting that advice before deciding whether to become involved in Syria, when in fact the advice had been received a year earlier. The duplicity and obfuscation surrounding the Syrian activity by Australian forces is also a topic that fails to interest the Australian media.
In light of the well established body of international law (Zemanek ibid,) regarding the limited rights of military intervention, and that the limited exceptions do not in fact apply to Australia, one is entitled to draw a negative inference about why the government refuses to publish that legal advice. It would be a safe bet that the legal advice was along the lines discussed above, that is, there was no legal basis upon which Australia could act militarily in Syria.
It would be an equally safe bet that the government chose to ignore international law in acting the way it has.
Rather than posturing about the alleged conduct of the Syrian government and indulging in fact free assertions about what is actually happening in Syria, the government and the Labor Opposition would be better advise to ‘rein in’ their American partner, rather than making ludicrous demands of Russia and Iran.
Not for the first time, unilateral and illegal actions by the Americans pose a grave threat to the safety of the planet and its inhabitants.
*Barrister at Law and geopolitical analyst. He may be contacted at firstname.lastname@example.org