The Iraq Inquiry Report (2009-2016) documents how Tony Blair committed Great Britain to war early in 2002, lying to the United Nations, to Parliament, and to the British people, in order to follow George Bush, who had planned an aggression on Iraq well before September 2001.

Australian Prime Minister John Howard conspired with both reckless adventurers, purported ‘to advise’ both buccaneers, sent troops to Iraq before the war started, then lied to Parliament and to the Australian people. He continues to do so.

Should he and his cabal be charged with war crimes? This, and more, is investigated by Dr George Venturini in this outstanding series.

Australia’s involvement in Iraq (continued)

Now to more serious matters: the legality of Australia’s intervention in Iraq.

Paragraph 3 of the document reproduced in Part 34 reads:

“Howard said that the Iraq issue was one of morality and not just legality. However, he agreed to table immediately in Parliament the text of the legal advice that had been provided to the Australian Government from DFAT and the Attorney-General’s Department. He said it was consistent with the advice given to the British Government by Lord Goldsmith (FCO telnos 116 and 117 to Washington), that we fed in to his office his morning and which he also tabled.”

So, the Iraq issue was not just one of legality. In the hands of the Howard government it became an exercise of fixing the law around the policy – surely a perversion of the legal process and, in the end, of any respect for morality.

DFAT and the Attorney-General Department had been asked: “ … whether, in the current circumstances, any deployment of Australian forces to Iraq and subsequent military action by those forces would be consistent with Australia’s obligations under international law. The short answer is ‘yes’. Existing United Nations Security Council resolutions provide authority for the use of force directed towards disarming Iraq of weapons of mass destruction and restoring international peace and security in the area. This existing authority for the use of force would only be negated in current circumstances if the Security Council were to pass a resolution that required Member States to refrain from the use of force against Iraq.

4. Following Iraq’s invasion of Kuwait, the Security Council adopted Resolution 678 (1990) (‘SCR 678’). Operative paragraph 2 of SCR 678 provides as follows:

“Authorises Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.”

5. Operative paragraph 3 of SCR 678 provides:

“Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 above.”

6. SCR 678 and the other resolutions of the Security Council mentioned below were adopted under Chapter VII of the Charter. Acting pursuant to the authority given in SCR 678, armed action was taken against Iraq in 1991.
7. Following that action, the UN adopted SCR 687 (1991) on 3 April 1991. Operative paragraph 1 of that Resolution provides:

“Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of the present resolution, including a formal cease-fire.”

The resolutions affirmed included SCR 678.

8. SCR 687 required Iraq to ‘unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of all chemical and biological weapons and all stocks of agents … all ballistic missiles with a range greater than one hundred and fifty kilometres…’. It also required Iraq to yield the chemical and biological weapons to a Special Commission and to destroy the missiles under the supervision of the Commission.
9. Paragraphs 33 and 34 of SCR 687 provides:

“33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States co-operating with Kuwait in accordance with resolution 678 (1990);

34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.”
35. Between the adoption of SCR 687 and the present day, the Security Council has found that Iraq has failed to comply with its obligations under SCR 687. (Endnote 2.) This culminated in the adoption by the Security Council under Chapter VII of the UN Charter of SCR 1441 (2002) on 2 November 2002. In its preamble, this resolution recalled that SCR 678 authorised Member States to use all necessary means to uphold and implement SCR 660 and all relevant resolutions subsequent to SCR 660 and to restore international peace and security to the area. It also recalled that SCR 687 ‘imposed obligations on Iraq as a necessary step for the achievement of its stated objective of restoring international peace and security in the area’. Furthermore, the preamble provides:

“Recalling that in its resolution 687 (1991) the Council declared that a cease-fire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein.”

11. The operative paragraphs of SCR 1441 include:

“1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991).

“2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council … “4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and co-operate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below. … “12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and need for full compliance with all of the relevant Council Resolutions in order to secure international peace and security.

“13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violation of its obligations.

“14. Decides to remain seized of the matter’.

12. Since that Resolution was adopted, Dr Blix, the Executive Chairman of UNMOVIC has briefed the Security Council on a number of occasions. In his briefing on 7 March 2003, Dr Blix was positive about advances in Iraqi co-operation. However, he noted that co-operation ‘cannot be said to constitute “immediate” co-operation. Nor do they [initiatives] necessarily cover all areas of relevance’. The claimed destruction of all WMD remains unverified. There is no doubt that Iraq remains in breach of its obligations under Security Council resolutions. SCR 1441 confirms a continuing breach of SCR 687 and other relevant resolutions. Dr Blix’s conclusions confirm the failure to comply with and co-operate fully and immediately in the implementation of SCR 1441.
13. A further draft Security Council resolution was tabled by the US, UK and Spain on 24 February 2003. A UK/US draft amended Resolution was tabled on 7 March 2003.

Reasons

14. In our view, Iraq’s past and continuing material breaches of SCR 687 have negated the basis for the ‘formal cease-fire’. Iraq, by its conduct subsequent to the adoption of SCR 687, has demonstrated that it did not and does not ‘accept’ the terms of SCR 687. Consequently, the cease-fire is not effective and the authorisation for the use of force in SCR 678 is reactivated.
15. We do not believe that the authorisation contained in SCR 678 has expired (endnote 3) or that, coupled with SCR 687, it was confined to the limited purpose of ensuring Iraq’s withdrawal from Kuwait. Nor do we believe that the Security Council has either expressly or impliedly withdrawn the authority for the use of force in SCR 678 in all circumstances.
16. Operative paragraph 2 of SCR 678 set out above itself contains no limitations in terms of time. Nor is the purpose for which the authority to use force was given confined to restoration of the sovereignty and independence of Kuwait. The authority to use force also was to uphold and implement ‘all subsequent relevant resolutions and to restore international peace and security to the area’. That purpose holds as good today as it did in 1990. There is no finite time under the Charter in which the authority given in a Security Council resolution expires. Nor is there any indication in resolutions subsequent to SCR 678 that the authority for the use of force contained in that resolution has expired. Indeed, subsequent resolutions indicate to the contrary. (Endnote 4.)

17 Given the existing authority for the use of force, suggestions that there is a legal requirement for a further resolution are misplaced. Also, suggestions that the use of force in Iraq in the absence of a further Security Council Resolution would be ‘unilateral’ are wrong.

18. It has been suggested (endnote 5) that a number of relevant UN Security Council Resolutions refer to further action being taken by the UN Security Council, thus precluding UN Member States themselves from taking further action. In this respect, reference has been made to operative paragraph 34 of SCR 678 that states, in part, that the Security Council may ‘take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region’. In our view, this does not remove the authority given to Member States in SCR 678.
19. As at the date of this advice, the Security Council is considering a further draft resolution tabled by the United States, the United Kingdom and Spain. The content of that resolution is not settled. However, failure to adopt that resolution would not, in our view, negate the existing authority to use force. As noted above, in current circumstances that authority would only be negated by a Security Council resolution requiring Member States to refrain from using force against Iraq.

Bill Campbell QC First Assistant Secretary Office of International Law Attorney-General’s Department

Chris Moraitis Senior Legal Adviser Department of Foreign Affairs and Trade

12 March 2003” [Endnotes omitted].

(The Memorandum of Advice on the Use of Force Against Iraq, provided by the Attorney General’s Department and the Department of Foreign Affairs and Trade, March 18, 2003. The government’s legal advice on using force, The Sydney Morning Herald,19 March 2003).

It is a position that John Howard confirmed while delivering a lecture to the Lowy Institute of Sydney on 9 April 2013: ‘Iraq 2003: a retrospective’.

“My Government never saw the obtaining of a fresh SC resolution as a necessary legal pre-requisite to action the removal of Saddam. It was always our view that Resolution 678, dating back to 1990 provided sufficient legal grounds for the action ultimately taken. That was reflected in the formal legal advice tendered to the Government, and subsequently tabled in Parliament. [Footnote no. 8. Memorandum of advice to the Commonwealth Government in the use of force against Iraq. Tabled by the Prime Minister in the House of Representatives, 18 March 2003. Prepared by the Commonwealth Attorney-General’s Department and FAT, 12 March 2003]. By contrast there was great political value, especially for the British Government, fighting much internal British Labour Party resistance, if an explicit authorisation for military action were obtained. To have tried, albeit unsuccessfully, for a new resolution added weight to the moral and political case being built for a military operation.

The Clinton administration thought that 678 gave blanket legal coverage for all the military action it took to enforce the terms of that resolution. There was wide acceptance of that view, including in Australia. When Australia agreed, at President Clinton’s request, to send Special Forces to the Gulf in 1998 to support “Operation Desert Thunder” by the Americans and the British against Saddam’s WMD capacity as well as other strategic assets of the regime, because of another round of defiance by Iraq of UN resolutions, the Opposition readily concurred. Kim Beazley accompanied me to Campbell Barracks to farewell the men. We were as one on the correctness of their mission.” (Iraq 2003: a retrospective, Lowy Institute, 9 April 2003).

Howard may derive comfort from the fact that the Leader of the Opposition “readily concurred.” But that does not make it right.

Dr. Gavan Griffith, AO QC, Commonwealth Solicitor General between 1984 and 1997, the immediate predecessor of the 1998-2008 Solicitor General David Michael John Bennett AC QC, said so. He though that it was Alice in Wonderland nonsense. John Winston Howard may be a good Anglican, but he talks and behaves like a countryside Jesuit: his ends invariably justify the means.

Here is how Dr. Griffith opened his notes: “The tabled joint ‘Memorandum of Advice’ of the First Assistant Secretary, Office of International Law, Attorney-General’s Department and the Senior Legal Adviser, DFAT, has insufficient substance to bear the weight of the Prime Minister’s reliance to justify the invasion of Iraq by Australian defence forces.

This Advice invokes the authority of Security Council Resolution (SCR) 678 of 15 July 1991 to justify the unilateral use of force by Australia. It is plain that the authority of para 3 for the use of force of that 12 year old resolution expired with the Gulf War and successive resolutions of the Security Council leading to SCR 1441 of 2 November 2002. [Emphasis added].