The Guardian February 12, 2003


Will Iraq war be an Australian war crime?

by Michael Salvaris

Australia's participation in an armed invasion of Iraq without explicit UN 
Security Council authority will be illegal under international and 
Australian law. It will render the Prime Minister and his government liable 
to be prosecuted as war criminals, and expose our servicemen and women to 
the same action.

Australia is signatory to the UN Charter and the Australian Government is 
constitutionally bound to obey it. The main purpose and effect of the 
Charter is to outlaw war and the use of force, except in narrow and 
explicitly prescribed circumstances: when a country is acting in individual 
or collective self-defence against an actual or imminent armed attack; and 
when the UN Security Council has authorised the use of force to maintain or 
restore international peace and security.

Neither of these circumstances now exists. Iraq has not attacked Australia 
or any other State and is not immediately threatening to do so. UN Security 
Council resolution 1441, requiring Saddam Hussein to cooperate with weapons 
inspections, does not include any automatic authorisation for force against 
Iraq in the event of a breach of the resolution, either by the UNSC or any 
Member State. Even the US now concedes this.

For this to occur, the UN Security Council is required after considering 
all the issues, including the report of weapons inspector Hans Blix and the 
extent of Iraqi compliance, to conclude that there is a serious or 
potential breach of threat to international peace, and that no other 
measures short of force are likely to succeed.

Only then can it authorise force and it must do so explicitly. This would 
be odd in the present case, since Blix himself reports that weapons 
inspections have had at least some success and met with significant if not 
total cooperation.

In fact a large number of UNSC resolutions have been disobeyed and gone 
unpunished, some going back 30 years.

There are currently about 91 such resolutions, many directed at countries 
which constitute as serious a threat to the peace as Iraq. Amongst others, 
they concern the development of nuclear weapons (by India and Pakistan, 
which proceeded anyway), withdrawal from illegally occupied lands (31 
resolutions against Israel) and the disarming of militias in Timor 
(Indonesia).

Australia is now also a signatory to the International Criminal Court 
(ICC).

This means that Australians participating in an illegal war in which many 
civilians are killed and excessive violence is used may be tried and 
imprisoned by the Court for crimes against humanity, war crimes, the crime 
of aggression or even genocide.

The Court's statute specifically applies to Heads of State, Ministers and 
bureaucrats, as well as military officers merely obeying orders.

The extent or nature of any crimes that may be committed by Australians 
will of course depend on the course of the war itself and the role actually 
played by Australia.

It seems likely that the impending war will be largely based on bombing, 
including the deliberate bombing of civilian infrastructure (water, power, 
transport etc), which caused massive civilian suffering during and after 
the last Gulf War. Close fighting in cities is also likely. Nuclear weapons 
may be used.

Recent reports by the Oxford Research Group and MEDACT estimate likely 
Iraqi deaths this time around at between 20-30,000 (half of them civilians) 
in a "conventional" war, and perhaps hundreds of thousands if it should 
escalate to a nuclear war  as President Bush has threatened, if Iraq uses 
chemical weapons.

These estimates seem low: the 1991 Gulf War cost an estimated one to 1.5 
million lives, including the effects of 11 years of harsh economic 
sanctions, which, according to UNICEF, caused the deaths of 500,000 Iraqi 
children under five: "a price worth paying for", as US Secretary of State 
Madeline Albright put it.

Australian politicians and military planners will have difficulties in 
proving they were unaware of and did not condone or support these forms of 
war, even if Australian troops themselves play a minor role.

The moral and logical fallacies of the US and Australian governments' case 
for war are obvious enough, whether the supposed justifications are the 
prevention of terrorism, upholding the UN, promoting democracy, regime 
change or reducing weapons of mass destruction. On many of these issues the 
US itself has very dirty hands.

However, until recently, arguments about the legality of the war seemed to 
have taken a back seat. Late last year, Tony Blair received some disturbing 
advice from his own Attorney General, Lord Goldsmith: he said that an 
attack on Iraq without the backing of a specific UN resolution could find 
the Blair government hauled before the newly established ICC. To make 
matters worse, the most detailed opinion confirming this advice came from 
Matrix Chambers, the legal practice founded by the Prime Minister's wife, 
Cherie Blair.

In America, international lawyers including Richard Falk, Frances Boyle, 
the Lawyers Committee on Nuclear Policy and the Centre for Constitutional 
Rights have offered the same advice to the US Government.

Legal actions by UK and US citizens against their own governments are 
currently being planned. Some of these lawyers have also queried the UN and 
US failure to indict Saddam Hussein himself for crimes against humanity, 
rather than killing his people.

Over the past 50 years, the international legal and human rights system has 
been built up slowly and painfully, through many failures, and occasional 
success. It is now facing one of its greatest tests.

To succeed, it must be shown to be as tough on the most powerful and 
assured transgressors as it is upon outcast and despised members of the 
international community: exactly the same principle of equality that 
applies to national legal systems.

Australia was one of the key builders of this system, but our record 
recently has not been a proud one. Will it take Australian war crimes 
trials to wake us up?

* * *
Mike Salvaris is Senior Research Fellow at the Institute for Social Research, Swinburne University of Technology, (Melbourne). e-mail: msalvaris@swin.edu.au

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