Why supporters of ANZUS should support an Australian Inquiry into Iraq

Australian troops leaving Iraq. Department of Defence

Going to war is the most serious decision a government can make. War is not “politics carried on by other means” as German statesman Von Clausewitz once asserted.

It is a form of organised, pre-meditated mass killing – deliberate for combatants, inevitable for non-combatants. Saying that does not make me a pacifist (which I am not). But it does emphasise that we need extraordinarily good reasons to go to war. Those good reasons abounded in the World War II when the US alliance was forged. The UN Charter, ANZUS and other treaties which the US and Australia promoted recognise that such compelling reasons might recur – as, unfortunately, they have. This is one reason why I remain a strong supporter of this alliance and those treaties.

But the recognition that there may be good, even compelling, reasons to go to war should never blind us to the tragic frequency of error – often pursued with the highest motives. For Geoffrey Blainey, wars start when the leaders on both sides believe that more can be gained from fighting than not – pointing out that at least one side will be wrong. Eisenhower saw worse odds – “everyone loses”. For many, the 2003 Iraq war is a classic example.

I support a call for an inquiry into the Australian decisions that led us into Iraq – and a review of the war powers of the government with a view to improving the processes by which this democracy goes to war.

In doing so, I do not prejudge the issue. Those who think that the original decision was right, the actions lawful, the processes adequate, the outcome (on balance) good, can and should be able to put their arguments to an independent review. Others who disagreed with the decision then or since should have their criticisms tested. Each should welcome an inquiry seeking to discover whether mistakes were made and how to avoid mistakes in the future.

Process

In 1991 and 2003, constitutional lawyers expected that the political decision for war would be taken by cabinet and legally authorised by the Governor-General on advice from the Prime Minister. Both Governors-General thought so. But it appears that in each case, the Defence Ministers took us to war using a 1975 amendment to the Defence Act not intended to have any effect on the governor-general’s role (for which Jim Killen sought and got assurance).

Whatever one thinks of Labor or Liberals, Hawke or Howard, both Presidents Bush, or the decisions of each, the vital ethical, legal and governance question is whether this is the way we want to go to war. This question should concern partisans worried about the misuse of powers by political opponents. It is very much of concern for those, like me, who avoid partisanship and recognise that bad decisions are found at all points on the political spectrum. Few checks seek to ensure that the cause will be just, the ends defined, the prospects for success good and the likely killing and suffering proportionate to achievable ends.

There are many suggestions for improving the decision making process: parliamentary vote, Governor-General sign-off, independent legal advice, full intelligence/military briefings to security cleared cross-party parliamentary committees. All build on precedents in other English speaking democracies.

ANZUS

The case for an inquiry is not founded on opposition to ANZUS. I base my case on my support for it. That alliance is based on shared values on which that alliance was forged – including the international rule of law. This value is reflected in our commitment to the 1928 Pact of Paris, the UN Charter, the Nuremberg/Tokyo trials, Article 1 of ANZUS and the 2005 World Summit. President Eisenhower (American President, republican and soldier) put it as eloquently and poignantly as any:

The time has come for mankind to make the rule of law in international affairs as normal as it is now in domestic affairs … One foundation stone of this structure is the International Court of Justice. It is heartening to note that a strong movement is afoot in many parts of the world to increase acceptance of the obligatory jurisdiction of that Court.

We will all have to remind ourselves that under this system of law one will sometimes lose as well as win. But … if an international controversy leads to armed conflict, everyone loses … It is better to lose a point now and then in an international tribunal, and gain a world in which everyone lives at peace under a rule of law.

The legality of the 2003 Iraq war is a major issue. The vast majority of international lawyers call it illegal and their views constitute a source of international law. I have not called the war illegal and would like to think that Iraq was not, in fact, our first illegal war. Those who genuinely believe that it was legal should want the opportunity to demonstrate the validity of their arguments before a court of competent jurisdiction or, at least, an independent tribunal.

The ICC Imperative

The legality of wars is even more important now. America’s Nuremberg prosecutor said:

while this law is first applied against German aggressors, the law … must condemn aggression by any other nations, including those which sit here now in judgment.

The jurisdiction of the ICC is being extended to crimes of aggression meaning ministers and service chiefs could find themselves in the dock if they engage in a war of similarly contentious legality. Australia will need to provide mechanisms for evaluating proposals for going to war to shield our leaders from subsequent investigation and prosecution. While Australia has five years in which to do this, do this it must. If we act early, it will provide a model for other Westminster democracies.

Intelligence

I am very conscious that intelligence cooperation was a central feature of the US-Australian alliance from its inception. My father was an intelligence analyst at Macarthur’s headquarters and decorated by the US for his work. The analysis he and colleagues provided did not always accord with the generals’ expectations. They recognised the temptation – and folly – of telling superiors what they wanted to hear instead of what they needed to hear. The latter constituted neither disloyalty nor insubordination but the best service they could render to allies and friends. To do otherwise, risked lives, battles, and in 1942 when the balance of forces was more even, the war itself.

While the risks in 2003 were not existential, the Iraq war did America enormous damage. It cost trillions. It weakened America relative to potential rivals, increasing the possibility and rapidity with which it could lose its position as #1 military and economic power and it significantly damaged American “soft power” and provided a bad example for rising powers.

If you care about America, you should care about this. If you think that a strong US is important to Australia, you should doubly care. In supporting America in 2003, we may have considered ourselves loyal friends. But those who are cheerleaders for a friend’s folly are not thanked when the folly is comprehended. A true friend warns against folly even at the risk of that friend’s disapproval – as Menzies’s warning we would not fight over the Taiwan Straits.

We cannot rule out having to go to war again, or needing American military help. Let us learn from the past to minimise the potential for mistakes in the future.