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)
It is now facile to assert that without the further resolution authorising the use of force, now abandoned, SCR 678 has revived (or may be regarded as continuing) as authority for the use of force at the whim of Australia as a self-appointed member of the “Coalition of the Willing”. The question “Willing for What?” has its answer: Willing to act in breach of plain obligations of international law and comity between nations.”
Dr. Griffith continued: “I cannot characterize the advice as an opinion. The short paragraphs 14 to 18 of the brief seven page advice read as weak best arguments for the use of force. Para 34 of SCR 678, cited in para 18, denies the continued authority of that resolution to support present action by individual states, as does the entire SCR 1441.
The final sentence of the advice concluding that the authority of SCR 678 to use force “would only be negated by a Security Council Resolution requiring Member States to refrain from using force against Iraq” is a fanciful proposition, an Alice in Wonderland inversion of meaning of plain words in the resolutions themselves. It is unsupportable. The authors are making it up.” [Emphasis added].
It is significant that the authors of this Advice, on the important issue of giving legal sanction to war, do not even entitle it as ‘Opinion’. Its brevity and lack of force is exceeded only by the one-page ‘Opinion of the United Kingdom’s Attorney-General tabled in the United Kingdom Parliament, that makes the completely untenable assertion that “all resolution 1441 requires is a report to and discussion by the Security Council of Iraq’s failures, but not to express further decisions to authorize force.”
To this end the Australian and United Kingdom legal advices are entirely untenable. They are arrant nonsense. They furnish no threads for military clothes. It is difficult to comprehend that the fanciful assertions (they are not arguments) of the two advices have been invoked by Australia and the United Kingdom to support an invasion of another state. It does not appear from his published remarks that President Bush made any such attempt to clothe American action with the authority of the Security Council. This has the advantage of making the unilateral basis of his country’s actions plain.”
Dr. Griffith lamented that “the Memorandum of Advice [was] not subscribed by Henry Burmester QC, former head of the Office of International Law and now Chief General Counsel of the Attorney-General’s Department and the most senior and experienced international lawyer in Commonwealth service. Nor by Professor James Crawford SC, Professor of International Law at Cambridge, who commonly advises and appears for the Government in International law matters. I could suggest none available to the Commonwealth better qualified to give disinterested and expert advice.”
In fact Professor Crawford had already expressed his opinion, along with fifteen other experts in international law; see: ’War would be illegal’, in letters to The Guardian, 7 March 2003, already mentioned in the part of this essay titled ‘Was the war legal?’
In closing Dr. Griffith declared himself “at a loss that this important matter of legal support has not been supported at this highest expert level readily available to the Government. Instead, the Government has been content to table a mere ‘memorandum’ of assertion, signed off at the departmental level of First Assistant Secretaries.”
This was particularly striking in that the ‘memorandum’ ignored “the authority of the opinion by 43 Australian international lawyers as to the plain breach of international obligations by Australia absent a further Security Council”.
Those law experts had signed a letter declaring that “the initiation of a war against Iraq by the self-styled ‘coalition of the willing’ would be a fundamental violation of international law” which could “involve committing both war crimes and crimes against humanity”. They warned that Australian military personnel and government officials faced the threat of being hauled before the International Criminal Court if they took part. (Coalition of the willing? Make that war criminals, The Sydney Morning Herald, 26 February 2003).
Finally, Dr. Griffith indicated his preference for “the opinion by Robinder Singh QC of Matrix Chambers, London, to be found at web site publicinterestlawyers,” which is reasoned and compelling argument for the lack of support provided by the aged SCR 678.” (G. Griffith, QC, ‘Notes on the legal justification for the invasion of Iraq and Security Council Resolutions 678 and 1441’, published in (M. Kingston, This war is illegal: Howard’s last top law man, The Sydney Morning Herald, 21 March 2003).
Dr. Griffith’s opinion, particularly as supported by English and Australian specialists in international law, appears totally persuasive. The opinion of Lord Alexander of Weedon, QC, chairman of the English Bar Council, has already been considered at length. Distinguished members of the legal community in the United Kingdom have concluded without ambiguity that the war was unlawful. This view was set out with clarity and force by Lord Bingham, the former Master of the Rolls, Lord Chief Justice and finally Senior Law Lord, in his book The rule of law, Penguin, London 2011, see in particular pp.122-127.
This will be the starting point for the examination under the present international law of Australia’s invasion of Iraq. For years a group of determined Australians has been calling for the establishment of an Inquiry into Iraq war – presumably in the form of a Royal Commission. The history of such commissions, at least in Australia, is not encouraging to the discovery of the truth and subsequent action onto it. Usually such commissions are appointed by government, and that means limited powers, preservation of certain privileged interests, and in most cases lack of action of the offered recommendations. Such commissions and their fate are one further confirmation of the duplicity, sickness and philistinism of The System. Governments ignore, a new generation comes, the old and the new ignoramuses go to sleep – such is deliberately calculated in what passes for democracy in and about an indifferent populace.
This does not exclude an examination under domestic legislation of what is plainly an act of aggression.
Australia is a founding member of the United Nations. It was an active participant at the 1945 San Francisco Conference, during which the U.N. Charter was negotiated, and was there represented by the Minister for External Affairs Dr. Herbert Vere Evatt, QC KStJ, ‘Doc’ Evatt, who played a significant role in drafting the Charter.
It is the view of successive governments that ever since Australian foreign policy has been informed – at least in theory – by the underlying principles and purposes of the United Nations: to maintain international peace and security, to develop friendly relations among nations, and to achieve global cooperation.
In 1945 the London Charter of the International Military Tribunal defined crimes against peace as follows: “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of the foregoing;” war crimes or crimes against humanity. (Constitution of the International Military Tribunal, Art. 6 (a), I. CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL, The Avalon Project, Yale Law School).
At the International Conference on Military Trials, held in London on 23 July 1945, for the prosecution of prominent members of the political, military, judicial and economic leadership of Nazi Germany who had planned and committed war crimes, Mr. Justice Robert H. Jackson of the United States declared: “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoke against us.” (The Avalon Project: International Conference on Military Trials …, Minutes of Conference Session of July 23, 1945).
On 21 November 1945 the same R. H. Jackson, now as Chief Counsel for the United States and prosecutor at the Nuremberg trials, in his Opening Statement before the International Military Tribunal said: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” (Robert H. Jackson: Opening Statement Nuremberg Trials, 1945).
On 21 November 1947, one year after the end of the first Nuremberg trial, held by the Allied forces after the second world war for the prosecution of prominent members of the political, military, judicial and economic leadership of Nazi Germany who had planned and committed war crimes, the United Nations passed General Assembly Resolution 177 in order to codify what became known as ‘Nuremberg Principles.’ The original language reads:
“177 (II). Formulation of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal.
The General Assembly decides to entrust the formulation of the principles of international law recognized in the charter of the Nürnberg Tribunal and in the judgment of the Tribunal to the International Law Commission, the members of which will, in accordance with resolution 174 (II), be elected at the next session of the General Assembly, and direct the Commission to:
(a) Formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal and,
(b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above.”
In order to fulfil this mandate, the International Law Commission – which had been set up under U.N. Resolution 174 – codified seven principles and adopted them on 29 July 1950.
“Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal.
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). [Emphasis added].
(b) War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.” [Emphasis added]. (Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal 1950. Text adopted by the International Law Commission at its second session, in 1950 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the principles, appears in Yearbook of the International Law Commission, 1950, vol. II, para. 97. Copyright © United Nations 2005. Principles of International Law recognized in the Charter …).
When read together, the first three principles say: Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. In a civilised country, the ministers of the Howard government of 2003 should be concerned.
Tomorrow: Australia’s involvement in Iraq (continued)
Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.