Australian military action in Syria and international law

Four Royal Australian Air Force F/A-18F Super Hornet aircraft in "echelon right" formation in the Middle East Region.

Four Royal Australian Air Force F/A-18F Super Hornet aircraft in formation in the Middle East [image via defence.gov.au]

The decision that Australian forces were going to join the US-led bombing campaign in Syria was announced in early September 2015 and the first bombing was carried out over the weekend of 12 and 13 September 2015. No legal basis on which the decision had been made was ever given by the Australian Federal Government. There was next to no debate in Parliament, but even if there had been it is unlikely that the Labor Party (ALP) would have opposed it given their recumbent position on all matters relating to national security.

Of the few meaningful discussions that took place in the Senate, it was only Senator Richard di Natale, the Green Party (a minority party holding one House of Representatives seat and 10 Senate seats) leader, and Senator Scott Ludlum (Greens) the only ones to raise further questions over the actual legality of the proposed military action. It took two months for the Foreign Ministry to give any kind of reason at all. On 16 November 2015, Foreign Minister Julie Bishop appeared on ABC National Radio to announce that the decision to join the US bombing was made in response to a request from the Iraqi government pursuant to the collective self-defence provisions of Article 51 of the UN Charter.

The problem for the Australian government however, was that the Office of the Prime Minister of Iraq issued an official statement on 3 December 2015 renewing the Iraqi government’s “emphasis on the lack of need for foreign troops in Iraq and that the Iraqi government is committed to not allowing the presence of any ground forces on the land of Iraq, and will not ask any side, whether regional or from an international coalition to send ground troops to Iraq.” The Prime Minister of Iraq’s statement went on to repeat the Iraqi government’s position that it had asked for air support for Iraqi forces operating within Iraq. It further demanded that no activity of any kind be undertaken without the prior approval of the Iraqi government. It would appear that the Iraqi government has a firmer grasp of the limitations on military actions imposed by international law than the Australian government.

That Julie Bishop claimed the military intervention was at the request of the Iraqi government, contradicted what the government had itself said in August and then again in December 2015. According to a report in the Sydney Morning Herald the government of then Prime Minister Tony Abbott had “pushed for Washington to request that Australia expand its air strikes against Islamic State from Iraq into Syria.” This was presumably to engender support for his coalition’s flagging popularity. In acknowledging in August 2015 that the “invitation” was solicited, there was no mention then of any legal considerations that the government would have to consider. The further issue of how it was legally possible, under international law, for the United States to have any basis of inviting any country to join its bombing campaign in Syria, was never mentioned.

It further exemplifies the arrogant characteristic of western foreign policymakers that continue to assume the right to bomb countries, and regularly invites other allies to follow suit.

Australian Foreign Minister Julie Bishop

Australian Foreign Minister Julie Bishop [image via 2gb.com]

In a radio interview of 16 November 2015 Ms Bishop never made mention of any US request for support, or that the former Prime Minister had prompted such a request. She instead claimed that the invitation had come from the Iraqi government of Haider al-Abadi. As we shall examine, this claim was spurious in nature.

The United Nations Security Council unanimously passed Resolution 2249 On 20 November 2015. Although widely reported is mainstream press such The Telegraph as the UN authorisation of military action to “…eradicate ISIS safe havens in Iraq and Syria,” it was, importantly, not an all-clear to attack any Syrian territory. The resolution still commits all member states to “take all necessary measures, in compliance with international law, in particular the UN Charter……on the territory under the control of ISIL also known as Daesh, in Syria and Iraq.”

The issue for the Australian government is that, while it claims to operate within international law, Resolution 2249 did not authorise any action outside the terms of the UN Charter, and its use of military force in Syria falls outside of the conditions set forth in Article 51. That means that any action would have to be either in self-defence or by special resolution of the Security Council. So far in terms of Australia, neither condition exists. That leaves only the notion of collective self-defence. As the only semblance of legal respectability that the coalition government was able to come up with, the claim relied upon the fact that Australia was acting at the alleged request of the Iraq government.

A letter sent by the Australian government to the Security Council on 9 September 2015 confirms the Australian government’s reliance upon the purported request by the Iraqi government. Communication notifying the UN Security Council of military action against another sovereign State is required under the terms of the UN Charter. The Abbot government’s letter to the Council stated that the Syrian government was “unable or unwilling” to prevent attacks from inside its borders being launched on Iraq. A highly contentious claim, the argument seems to have no foundation in international law. The United States and the United Kingdom are the only States to have officially endorsed the “unwilling or unable” doctrine and it could be argued that their vested interests in doing so are apparent. Their bombing coalition in Syria is intervening militarily to vindicate Iraq’s self-defense interest as a case of individual or collective self-defense. The letter went on to say “in response to the request for assistance by the government of Iraq, Australia is therefore undertaking necessary and proportionate military operations against ISIL in Syria in the exercise of the collective self-defence of Iraq.”

Possible reasons for its rejection as a doctrine in international law is the precedence for the extraterritorial use of force against non-state actors. The doctrine would effectively allow a back door pathway to avoiding restrictions placed on member states by Article 51 of the UN Charter that the use of force must be employed legitimate national self-defence or with the express consent of the Security Council. It is concerning to find the doctrine in an official letter from the Australian government to the UN Security Council.

Prime Minister of Iraq Haider al-Abadi [image via news.yahoo.com]

Prime Minister of Iraq Haider al-Abadi

The Iraqi government statement of 3 December 2015 directly counters Ms Bishop’s claim of the Australian government bombing in Syria being at the behest of the Iraqis. The government of Prime Minister Haider al-Abadi destroyed any potential legality for Australia’s military actions. There are however, further legal problems for the Australian government’s actions in Syria. The International Court of Justice has twice in recent years declared the concept of “collective self-defence” not applicable when the “defence” is against non-State actors. ISIS, while being an organized community living under a provisional government is not a sovereign state in any true sense, so if Iraq had asked for such help against ISIS in Syria, (which as we have seen it did not) such a request would have still had no legal basis.

Predictably, the Australian mainstream media had given only small treatment of Foreign Minister Bishop’s original announcement that Australia was intending to send bombers to Syria, and some light coverage when those operations commenced in September 2015. Almost no coverage was given to the legal questions of joining the bombing campaign, and no report of the government’s Security Council letter and and its dubious claims. The statement from the Office of the Prime Minister of Iraq was ignored also, as it would have undermined the editorial support for the government’s actions.

A significant development in the story was the extent of the actual bombing runs in Syria flown by the Australian Air Force. The Department of Defence issues the activities of the Air Task Group in Iraq and Syria. These reports show that the F/A-18 fighter-bomber contingent of the Australian Air Force flew 18 sorties in Syria in September 2015 for a total of 143 operational hours. This was the month the operations commenced but was also – interestingly – the month that the initial operations abruptly ended. The DoD figures show that zero sorties were flown in Syria in October and November and just 10 in December.

This development may, however, have something to do with the Russian military intervention in the Syrian conflict. Clearly, for all parties involved in the conflict this has been nothing short of a game changer. Unlike the position of the US-led coalition, the Russians intervened at the specific request of the Syrian government. Therefore, there are no doubts about the legitimacy of such action under international laws. The Russian intervention, while on a relatively small scale, has been devastatingly effective. Not only have ISIS forces obliged to seek cover from air attacks, having enjoyed apparent immunity from the West and its allies during the preceding year, there has been a major disruption of their logistical support lines.

Through analysis of the subsequent Russian air reconnaissance and satellite imagery, it has been clearly established that ISIS had been transporting stolen Iraqi and Syrian oil across the Turkish border, that was then sold on the Middle East black market oil trade through a company with close ties to President Erdogan of Turkey. Weapons and vehicles were in turn being shipped back across the Turkish border into Iraq and Syria to support ISIS operations. Evidence also emerged that wounded ISIS fighters were being treated in Turkish and Israeli hospitals and trained in Turkish and Jordanian jihadist camps among other places. Russian President Vladimir Putin and Foreign Minister Sergei Lavrov have both pointed to the financial and material support ISIS and other jihadist groups such as Jabhat al-Nusra and Al-Qaeda in Iraq receive from other countries in the region.

Russian S-400 "Triumf" anti-aircraft missile system

Russian S-400 “Triumf” anti-aircraft missile system [image via rt.com]

After the Turkish shootdown of one of their Su-24 bombers, the Russians have also since installed the sophisticated S400 air defence system in Syria. This brings anti-aircraft capabilities to their forces and the Syrian Armed Forces, giving them the capacity to shoot down any unauthorized aircraft in Syrian air space. While a purely speculative assumption, it may also be a reason why the Australian Air Force bombing of Syria ceased abruptly for two months after the Russian intervention. It is unfortunate that the Australian government at the time had neither the moral fortitude nor sufficient faith in the Australian people to either provide clear information on the origin of the request for intervention in Syria or to inform of the decision to temporarily withdraw from a war there was no business in pursuing in the first place.

Perhaps a new Australian foreign policy direction is currently being sought, as Prime Minister Malcolm Turnbull has acknowledged that if “boots on the ground” are needed to defeat ISIS, local and regional troops are the key. This could be a signal that policy focus will shift from military action to pragmatism. In a speech at the Centre for Strategic and International Studies in Washington, the Prime Minister addressed the contentious issue of ground troops directly, having just visited Australian soldiers in Iraq and Afghanistan. “The destruction of ISIL requires military action including boots on the ground but they must be the right boots on the right ground,” he said. Turnbull has also previously stated that he believes “pragmatism and compromise” are the keys to success in Syria, albeit the success referred to is still the ‘Assad must go’ goal of the US-led coalition.

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