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'Just cause' or just callous? Australia’s justification for war in Iraq

Minh Nguyen
Jan 2004, published at uniya.org


John Howard did not get along well with former US President Bill Clinton. The two national leaders were opposites in many ways. Clinton did not appear to pay much attention to Howard during his own term in office, and Howard may never have fully recovered from the embarrassment of being kept waiting for Clinton in drizzling rain on his first visit to Washington shortly after being elected to the top job himself.

However, on Clinton’s departure from the White House, Howard’s fortune was to take a significant turn for the better. When President George W Bush came to power in 2000, Howard finally found someone in whom he could relate: both were churchgoers, socially conservative, committed to free trade, and suspicious of the United Nations and multilateral processes.

“Your President”, Howard once said to a US audience, “[is] a man whose values I admire and in many ways share, a man whose aspirations for his own society are very similar to many of my aspirations for the Australian community”. Howard made this comment of Bush during his second visit to the US on the eve of September 11, 2001.

Howard was in Washington to mark the 50th anniversary of the ANZUS defence treaty which linked Australia and New Zealand with the US when terrorist-piloted commercial jets slammed into the World Trade Centre and the cement walls of the Pentagon.

The presence of Howard in Washington on September 11, and the symbolism of the event he was there to commemorate, are seen by many as a turning point in US-Australian relations. The alliance between the two countries became stronger than ever. The poignant circumstances deeply affected how Howard viewed Australia’s place in the world.

“I feel the tragedy,” he immediately wrote to Bush, “even more keenly being here in Washington at the moment.” He then emphasised: “In the face of an attack of this magnitude, words are always inadequate in conveying sympathy and support. You can, however, be assured of Australia’s resolute solidarity with the American people at this most tragic time.”

Was Howard implying something else when he said words were inadequate? At a press conference the next day, he told reporters: “I’ve … indicated [to Congress] that Australia will provide all support that might be requested of us by the United States in relation to any action that might be taken.”

When a reporter asked him what he meant by “full support” he said:

Well, I’m talking diplomatically and otherwise. We haven’t been requested to provide any military assistance, but obviously if we were asked to help, we would. It is very important at a time like this that America knows that she’s got friends.

This is in contrast to the more cautious comments from Foreign Affairs Minister Alexander Downer who, in reponse to questions about whether Australian troops would be deployed alongside any potential US military action, said:

We have to find out – and find out beyond doubt, or beyond reasonable doubt – who’s responsible for it before we can make any assessment of what the United States, or the United States can make any assessment about what they’ll do. When we know what they’ll do, then, you know, we’ll have some clarity on it. I shouldn’t think so, though. I shouldn’t think it would involve Australians directly.

Howard obviously thought differently and, on a dramatic US air force flight back to Australia, invoked Article IV of the ANZUS treaty for the first time. In announcing the move on September 14, he repeated a diluted version of what he said in Washington. “It’s the unanimous view of the Cabinet that Australia stands ready to cooperate within the limits of its capability concerning any response that the United States may regard as necessary in consultation with her allies,” he told reporters.

Before the implications of the terrorist attacks had been fully defined and considered, the Government endorsed, despite some cautions, any future US action. In those words, Howard set the tone for Australia’s involvement in the war against Afghanistan and, within the following 18 months, Iraq. The Howard Government made it virtually impossible to back away from participating in any US military action, if such aid were requested, without endangering the alliance and Australia’s diplomatic credibility. Australia was obliged and determined to stand by its “great and powerful friend” no matter how foolish her actions might turn out to be. Such uncritical enthusiasm defies the rhetoric in the lead up to the war against Iraq that the Government does not take a “blank cheque approach” to Australia’s involvement in US military manoeuvres.

As citizens in a democracy that prides itself on its human rights standards and the rule of law, let us hope that the decision to take part in the unpopular military action in Iraq, action which was outside the traditional framework of international law and which killed tens of thousands of combatants and civilians, was for more than just alliance-building. We would hope there were other moral and legal rationales for Australia’s involvement so compelling as to justify the cost of such a bold venture.

The road to Baghdad

The idea of regime change in Iraq was not new. Key administration officials including Vice President Dick Cheney, Deputy Secretary of Defense Paul Wolfowitz and Deputy Secretary of State Richard Armitage have long argued for a more aggressive US foreign policy in the Middle East, advocating in particular the removal of Saddam Hussein. It took an event like September 11 for this small band of hawks to turn a fringe idea into mainstream policy.

Barely a month after the fall of the Taliban in Kabul, the focus officially switched to Iraq with Bush’s infamous State of the Union address on January 29, 2002, in which he declared Iraq to be part of the “axis of evil”. At first, the Howard Government was cautious about the new direction. When asked about Bush’s address, Howard avoided comments except to say that he understood “exactly” what the President was saying. Howard’s position was that any US request for Australia’s support in military action outside of Afghanistan would be looked at on its merit.

However, by March 2002 the Government started to publicly entertain the issue. The Government would now consider any US request for military assistance elsewhere against the background of Australia’s “determination to stand with the Americans in the fight against terrorism and the long and close relationship that exists between [the] two countries.” For the next six months, the Government toyed with the idea of a possible US-lead military action outside Afghanistan and the conditions for Australia’s involvement in such action. The need to be “strong and loyal and dependable allies” featured prominently on the Government’s list of rationales, although Howard was at pains to point out that he had not given a “blank cheque”.

The reasons offered were various and included alliance building, enforcement of UN resolutions and concerns for the human rights of Iraqis. The Government even flirted with the emerging idea of preemptive or preventative wars, a doctrine that was rejected as “morally corrosive” by the US Government itself during the height of the Cold War.

Acting in self-defence

The preemptive self-defence argument in the current post-Cold War incarnation first emerged in 1992 in a classified draft policy document prepared by Dick Cheney’s Department of Defence. The document was rewritten and buried following controversy arising from its leak to the press. It was not until 2002 that this argument surfaced again in official US policy debates, culminating in the National Security Strategy document of September. The document states:

Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat. … We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. … The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

Australia’s Defence Minister, Robert Hill, quickly picked up the mood in the US and began endorsing the argument in Australia. In a speech to the Australian Defence College in June 2002, he publicly flagged Australia’s “in-principle” support for preemptive war stating:

The United States is clearly no longer going to allow problems to fester and threats to remain unresolved. The need to act swiftly and firmly before threats become attacks is perhaps the clearest lesson of 11 September, and is one that is clearly driving US policy and strategy. It is a position which we share, in principle.

Proponents of the theory argue that September 11 put into sharp focus the new security threats that emerged with the end of the Cold War. They argue that the post-1945 system characterised by containment and collective decision making on security threats was designed to control large-scale inter-state conflict and, as such, has not kept pace with the changed international environment. The new threats concerned not only what used to be known as “rogue states”, but also international terrorists, especially in a technologically advanced environment. Although the weapons currently owned by rogue states are relatively crude compared to the threats posed by Soviet arsenals during the Cold War, they are potentially more explosive because of the possibility of these weapons falling into the hands of terrorists.

It is important to note that at no stage did the Bush administration or Howard Government officially argued that international law needed to be set aside. Rather, they called for some creative re-reading of the law. “It’s time for a new and distinct doctrine of preemptive action,” Hill argued. “But in the meantime those responsible for governance will continue to interpret self-defence as necessary to protect their peoples and their nations’ interests.” This is why, two weeks after Bush declared an end to major combat operations in Iraq, Howard was able to state in Parliament that the “Australian military forces participated with just cause, in an action properly based in international law, which resulted in the liberation of an oppressed people.”

The idea of preemptive self-defence only had two fleeting appearances in Australia as the Government quickly learned how politically unwise such statements were in a country bordered by populous Muslim neighbours and states scourged with their own terrorism problems. The Government quickly dropped the rationale following strong rebuke from some of Australia’s East Asian neighbours, although the factual justification underscoring the argument itself – that Iraq’s weapons of mass destruction (WMD) would end up in the hands of terrorists – remained the cornerstone of the Government’s case for Saddam’s removal.

Disarming a tyrant and upholding international law

The Government, however, did not limit creative interpretations of international legal principles to the doctrine of self-defence. At the same time it started flagging the preemptive argument, the rhetoric about Iraq’s WMD began to surface. The legal justification for dealing with this threat sheds some light on the Government’s level of imagination in reading both the facts and the law.

The self-styled Coalition of the Willing (“Coalition”)’s factual case against Saddam is well known. Saddam was said to possess massive stocks of chemical and biological weapons and was seeking to redevelop Iraq’s nuclear capabilities. He is said to have obtained dual-use or mobile facilities to evade detection and deceive weapons inspectors. Coalition members said Saddam made a mockery of the UN by “thumbing his nose” at the will of the Security Council (SC). They argued that Iraq must be disarmed in order to bring about security in the region, enforce SC Resolutions and deter other rogue states from similar ambitions.

We now know that some of the claims were, at best, exaggerated. What is less well known but equally elaborate is the legal justification for the removal of these weapons by force without an explicit resolution from the SC. The Australian Government’s legal justification relied on a series of existing UN resolutions on Iraq to claim that authorisation exists for war directed towards disarming Iraq of WMD and restoring international peace and security.

According to the Government’s advice, SC resolution 687 (1991), which set out the ceasefire conditions after the first Gulf War, ceased to be effective because of Iraq’s past and ongoing breaches of that resolution as confirmed by SC resolution 1441 (2002). As such, the breach reactivated an earlier SC resolution 678 (1990) which sanctioned war against Iraq to eject it from occupying Kuwait. This existing authority for war would only be negated “if the Security Council were to pass a resolution that required member states to refrain from the use of force against Iraq”, the advice says.

Most notable about this advice was the junior level of those who wrote it – a middle-ranking officer in the Attorney General’s department and a legal officer in the Foreign Affairs department. It is unclear why the Government failed to approach Australia’s top law officers for such an important advice. Fairfax journalist Margo Kingston cynically speculated that it was “perhaps because a more senior lawyer would not have put his [sic] name to such unequivocal advice”.

The advice was laden with assertions and the selective use of SC resolutions. Former Commonwealth Solicitor General Gavan Griffith QC called it “a fanciful proposition, an Alice in Wonderland inversion of meaning of plain words in the resolutions themselves.” Leading international jurists such as Hilary Charlesworth have dismissed the advice as flawed. She argues existing resolutions only authorised the use of force in the event of a further invasion by Iraq of Kuwait and a further resolution would be required to determine whether there had been a breach by Iraq severe enough to justify war. Indeed, for the thirty-four foremost Australian jurists who signed a February 2003 statement against the war, far from being legal, it may well constitute a war crime.

Liberating an oppressed people

During most of the early debates on whether to invade Iraq, the Government did not focus much attention on Saddam’s human rights records, which was clearly consistent with Australia’s attitude when Iraq was still a strong trading partner. Human rights would get a mention generally as an afterthought. Answering questions at Howard’s National Press Club address in March 2003, he said, “… if Iraq had genuinely disarmed, I couldn’t justify on its own a military invasion of Iraq to change the regime. I’ve never advocated that. Much in all as I despise the regime.” This is a repeat of an earlier comment he made in September 2002 in the context of Saddam’s human rights record, when he said: “I have made it very plain … that my priority, the priority of the Australian Government, is getting rid of the weapons”.

As it became clear that the public were not willing to support a war based on the elaborate continuing SC authorisation rationale and the re-reading of the self-defence principle, the Government began to push the moral and legal idea of “liberating an oppressed people”. Known as the “humanitarian intervention” rationale, it became the centrepiece for post-conflict justification for the war.

The humanitarian justification is an idea that states can morally and legitimately intervene by force in the affairs of another state in order to protect against or avert large-scale violations of the human rights of citizens of that state. This idea derives its authority from the need to balance state sovereignty with the moral necessity to act in the face of widespread suffering. Indeed, the SC under Article 42 of its Charter has in the past authorised military action against states by declaring that a situation is a “threat to international peace and security”.

Of the three members of the Coalition, Britain’s Tony Blair was by the far the most enthusiastic to have endorsed this principle. In a July 2003 conference of “progressive” world leaders, he caused controversy when he flagged the idea of the “responsibility to protect”, an emerging norm in the humanitarian intervention discourse. In a draft communiqué, which was later rejected by the conference, he suggested:

Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.

This is a verbatim statement of one of the principles to come out of the International Commission on Intervention and State Sovereignty (ICISS)’s 2001 report, The Responsibility to Protect. As an abstract principle, few people would object to the idea of coercive intervention in situations of grave suffering, such as Rwanda in 1994 in which close to a million people were needlessly slaughtered. In practice, however, armed interventions almost inevitably come with its own humanitarian costs in term of “collateral damage” in both civilian death and damage to civilian infrastructure. More importantly, humanitarian interventions are almost always tied to great powers’ strategic priorities. When the strategic stakes are sufficiently high, rushing into war becomes all too tempting. The alternatives are non-military resolutions which are often limited in scope and can leave the undesirable status quo intact.

That is why the ICISS report also sets out principles aimed at restricting the circumstances in which intervention could occur. Blair and other members of the Coalition seemed to have ignored these inconvenient details. When these principles are measured against the facts leading up to the War on Iraq, the idea that the invasion was to liberate a suffering people begins to look hollow.

The requirements of “just cause” and “last resort” demand large-scale human suffering that cannot be prevented by other means. Such requirements may have been present when Saddam was gassing the Kurds and the Shi’ites, but not in early 2003 and not while UN weapons inspector Hans Blix was pleading for more time. But what is even more troubling for Coalition members wishing to use this argument is the requirement of “right intention”. The fact that the Australian Government had offered the humanitarian intervention rationale almost as an afterthought severely undermined the credibility of such reasoning. Howard’s insistence that the war was to “liberate an oppressed people” might also have rung true had his Government not been so devoted to deterring those fleeing from Saddam’s brutal dictatorship from seeking refuge in Australia by holding them in remote detention camps, and denying them their voice and legal status.

The peak US-based human rights organisation, Human Rights Watch, agrees. Its latest World Report ruled out the idea that Iraq war was a case of humanitarian intervention and warned against using the principle to justify the war as such. “If [the war’s] defenders continue to try to justify it as humanitarian when it was not, they risk undermining an institution that, despite all odds, has managed to maintain its viability in this new century as a tool for rescuing people from slaughter,” the report said.

Conclusion

The Government has given many noble reasons for going to war against Iraq and yet we are still left with the unsettling impression that the true reasons for war have not yet been fully revealed. The Government’s justifications appear to have been developed on the run, reflecting more or less the discursive twists and turns in the US and, less so, the UK. While various justifications were added and subtracted in public discussions over time, fostering the US-Australian alliance and the idea of “sticking by your mates” seems to have been the only original and consistent Government rationale. But this was not the main justification offered to us in the lead up to the war. When the interests of the world’s most powerful liberal democracy is equated with the interest of Australia and the rest of the world, honest and reasoned decision-making seems to have given way to an alliance-building agenda gone mad.

Minh Nguyen is a researcher at the Uniya Jesuit Social Justice Centre.

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