Furthermore, reports have suggested that our troops and government officials in Iraq may have been complicit in the torture of captives, and the indiscriminate killing of civilians. If true, these actions are also defined as War Crimes under international laws to which Australia remains a signatory.
Our major political parties and media establishments continue to ignore this inconvenient truth, perhaps because they all share a degree of complicity. But this issue remains critically important, not least because millions of people around the world now view Australia as an outlaw state that supports US Empire-building, Oil Wars, and torture.
If we do not pursue this issue, and hold perpetrators accountable for any wrong-doing, then we sacrifice any future notion of Australian moral authority on the world stage. Future Australian governments may use these precedents to justify similar actions.
Was The War Legal?
Defenders of the invasion initially pointed to United Nations Resolution 1441 as proof of the war's legality. This begged the obvious question: why did Bush, Blair and Howard desperately seek a further UN resolution before the invasion? We later learned that their top legal experts (including, at least originally, the UK Attorney General) had advised that any invasion would be illegal without additional UN authorisation. The last word on this matter goes to former UN Secretary General Kofi Annan, who personally declared the invasion illegal in September 2004:
"I have indicated it was not in conformity with the UN charter. From our point of view, from the charter point of view, it was illegal."Nowadays war supporters reluctantly acknowledge that the invasion of Iraq was "technically illegal", but claim such actions have become necessary in this "new, post-911 world". They argue that international laws such as the Geneva Convention are "quaint" antiquities, and the "war" against terrorists demands a whole new "framework of thought", including the right of "pre-emptive" invasion and new attitudes towards the detaining and torture of prisoners.
In making such claims, these warmongers set themselves in opposition to a wide range of existing laws, both domestically and internationally. They do so defiantly, arguing that those who are prepared to operate outside the law are actually "brave" and "patriotic".
Ironically, these war supporters invoke twisted interpretations of those very same laws in order to keep themselves and their "heroes" out of jail. They do not allow their ideological opponents the same scope for defying existing laws. They do not seek to test their claims at the highest legal levels, nor have they proposed a new framework for international laws.
Instead, they baulk at the very idea of international legal institutions like the UN or the International Criminal Court (ICC). They favour the neo-conservative model of a 21st Century US Empire, where a heavily-armed Uncle Sam operates as a frontier sheriff, with regional "deputies" enforcing his "with us or against us" rules. Those who seek legal clarifications in this new world order, such as the families of detainees in US gulags like Guantanamo Bay, are eternally disappointed.
In Washington, the ultimate legal defence for war supporters is the concept of an over-riding "executive privilege". As Richard Nixon once expressed it:
"When the president does it, that means that it is not illegal."That didn't go down too well with the US public back in 1974. But a young Dick Cheney (who worked under Donald Rumsfeld in Nixon's administration) clearly thought it could be presented as a legitimate legal argument. Successive US Attorney Generals have shared Cheney's narrow interpretation of such "executive privilege", which is based on a very selective reading of the US Constitution (where the term is not even mentioned). Although George W. Bush has repeatedly invoked this executive privilege, it has never been fully tested in US courts.
In London, the British government continues fending off strong demands for a full inquiry into the Iraq War. Twelve Labour MPs rebelled when a demand was tabled in the Commons on March 17th this year. PM Gordon Brown reluctantly promised a full inquiry, but delayed it until the British military “work is over” in Iraq. Foreign Office minister Mark Malloch-Brown clarified these remarks on BBC television, promising that the inquiry will be held once there are no British troops "deployed and in danger in front line roles in Iraq.” It's still not clear when that might be, although British troops have now withdrawn to bases outside Basra and did not take part in recent military action there.
So much for the UK and US positions. What is Canberra's excuse for failing to pursue a full inquiry into Australia's shameful role in Iraq? The concept of "executive privilege" exists only very loosely in Australian law. And the British excuse of "protecting the troops" (which has never even been proffered here) will no longer be tenable once Australian combat troops are withdrawn from Iraq in a few months time. So how does the Australian government defend our nation's involvement in this War Crime?
The shocking fact is that Canberra has never even tried to mount a legal justification for the illegal invasion of Iraq.
Avoiding The Question
When John Howard first articulated his support for Bush's concept of "pre-emptive" invasion, the horror of 9/11 was still fresh in our memories. The Australian media and large parts of the population went along with the idea. As we later learned, however, Saddam had no WMDs, did not support Al Qaeda, was being contained by UN sanctions (like them or not), and therefore did not pose a credible threat to anybody (least of all us). Public support for further pre-emptive action died down, but the Howard government never admitted any wrong-doing.
The new Rudd government has so far refused to even contemplate the idea that the invasion might have been illegal. Rudd is walking a fine line: removing "combat troops" (what other kind are there?) from Iraq while leaving other Australian soldiers in the country with massive naval and air support, and still loudly supporting the Australian participation in Afghanistan. As anti-war activists noted before the election, Rudd's stance is really not all that different to Howard's, just slightly less unappealing at the ballot box.
It is left to outsiders like Mahathir Mohamad to raise the issue of War Crimes in the media. But even Mahathir's recent speech was muffled when British police restricted entry to the Imperial College London venue where the former Malaysian PM accused Bush, Blair and Howard of War Crimes.
Does the lack of media interest reflect a lack of public support? I don't think so. Readers' comments at ABC Online and even sites like the (Murdoch owned) Perth Times regularly show significant support. I ran a poll on this blog which was showing overwhelming support until Tim Blair's rightwing blog readers arrived.
As Gandhi once said of Western Civilisation: "I think it would be a good idea". The same might be said today of Western support for international laws. Our governments love to invoke such laws when it suits, but consistently undermine them when it does not. And over the past decade, sadly, that seems to be increasingly the case.
In the absence of government or media support for such international laws, we, the people of the "free" world, must demand accountability. And given Kevin Rudd's evident reluctance to even discuss these important issues, there's only one way we Australians are going to get answers about our nation's recent past: we need to demand an Royal Commission into the Iraq War now.
UPDATE: Prof Q solicits legal advice. Duplicated at Crooked Timber, where a reader supplies some valuable links to legal opinions on the war.
And when the last law was cut down and the devil turned around on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast – man’s laws, not God’s – and if you cut them down, and you’re just the man to do it, do you really think that you could stand upright in the winds that would blow then?
- From "A Man For All Seasons"
"We really don’t need anybody’s permission.”
- George W. Bush, as quoted in NYT on March 11, 2003.