Will Iraq war be an Australian war crime?

by Michael Salvaris,
Swinburne University of Technology

Australia' s participation in an armed invasion of Iraq without explicit UN
Security Council authority will be illegal under international and
Australian law. It will render the Prime Minister and his government liable
to be prosecuted as war criminals, and expose our servicemen and women to
the same action.

Australia is signatory to the UN Charter and the Australian government is
constitutionally bound to obey it.  The main purpose and effect of the
Charter is to outlaw war and the use of force, except in narrow and
explicitly prescribed circumstances: when a country is acting in individual
or collective self defence against an actual or imminent armed attack; and
when the UN Security Council has authorised the use of force to maintain or
restore international peace and security.

Neither of these circumstances now exist. Iraq has not attacked Australia or
any other State and is not immediately threatening to do so.  UN Security
Council resolution 1441, requiring Saddam Hussein to cooperate with weapons
inspections, does not include any automatic authorisation for force against
Iraq in the event of a breach of the resolution, either by the UNSC or any
Member State.  Even the US now concedes this.

For this to occur, the UN Security Council is required after considering all
the issues, including the report of weapons inspector Hans Blix and the
extent of Iraqi compliance, to conclude that there is a serious or potential
breach of threat to international peace, and that no other measures short of
force are likely to succeed.  Only then can it authorise force and it must
do so explicitly. This would be odd in the present case, since Blix himself
reports that weapons inspections have had at least some success and met with
significant if not total cooperation.

In fact a large number of UNSC resolutions have been disobeyed and gone
unpunished, some going back 30 years. There are currently about 91 such
resolutions, many directed at countries which constitute as serious a threat
to the peace as Iraq. Amongst others, they concern the development of
nuclear weapons (by India and Pakistan, which proceeded anyway), withdrawal
from illegally occupied lands (31 resolutions against Israel) and the
disarming of militias in Timor (Indonesia).

Australia is now also a signatory to the International Criminal Court (ICC).
This means that Australians participating in an illegal war in which many
civilians are killed and excessive violence is used may be tried and
imprisoned by the Court for crimes against humanity, war crimes, the crime
of aggression or even genocide. The Courtms statute specifically applies to
Heads of State, Ministers and bureaucrats, as well as military officers
merely obeying orders.

The extent or nature of any crimes that may be committed by Australians will
of course depend on the course of the war itself and the role actually
played by Australia. It seems likely that the impending war will be largely
based on bombing, including the deliberate bombing of civilian
infrastructure (water, power, transport etc), which caused massive civilian
suffering during and after the last Gulf War. Close fighting in cities is
also likely. Nuclear weapons may be used.

Recent reports by the Oxford Research Group and MEDACT estimate likely Iraqi
deaths this time round at between 20-30,000 (half of them civilians) in a
"conventional" war, and perhaps hundreds of thousands if it should escalate
to a nuclear war - as President Bush has threatened, if Iraq uses chemical
weapons. These estimates seem low: the 1991 Gulf War cost an estimated 1 to
1.5 million lives, including the effects of 11 years of harsh economic
sanctions, which, according to UNICEF, caused the deaths of 500,000 Iraqi
children under five: la price worth paying for", as US Secretary of State
Madeline Albright put it.

Australian politicians and military planners will have difficulties in
proving they were unaware of and did not condone or support these forms of
war, even if Australian troops themselves play a minor role.

The moral and logical fallacies of the US and Australian governmentsm case
for war are obvious enough, whether the supposed justifications are the
prevention of terrorism, upholding the UN, promoting democracy, regime
change or reducing weapons of mass destruction. On many of these issues the
US itself has very dirty hands.

However, until recently, arguments about the legality of the war seemed to
have taken a back seat. Late last year, Tony Blair received some disturbing
advice from his own Attorney General, Lord Goldsmith: he said that an attack
on Iraq without the backing of a specific UN resolution could find the Blair
government hauled before the newly established ICC. To make matters worse,
the most detailed opinion confirming this advice came from Matrix Chambers,
the legal practice founded by the Prime Minister's wife, Cherie Blair.  In
America, international lawyers including Richard Falk, Frances Boyle,  the
Lawyers Committee on Nuclear Policy and the Centre for Constitutional Rights
have offered the same advice to the US Government. Legal actions by UK and
US citizens against their own governments are currently being planned. Some
of these lawyers have also queried the UN and US failure to indict Saddam
Hussein himself for crimes against humanity, rather than killing his people.

Over the past 50 years, the international legal and human rights system has
been built up slowly and painfully, through many failures, and occasional
success. It is now facing one of its greatest tests. To succeed, it must be
shown to be as tough on the most powerful and assured transgressors as it is
upon outcast and despised members of the international community: exactly
the same principle of equality that applies to national legal systems.
Australia was one of the key builders of this system, but our record
recently has not been a proud one. Will it take Australian war crimes trials
to wake us up?

Mike Salvaris
Senior Research Fellow
Institute for Social Research
Swinburne University of Technology
Hawthorn
Email: msalvaris{at}swin.edu.a
28 January 2003

               
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Ramsey Clark: Articles of Impeachment

Articles of Impeachment of President George W. Bush, Vice President
Richard B. Cheney, Secretary of Defense Donald H. Rumsfeld and
Attorney General John David Ashcroft

The President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.
--Article II, Section 4 of The Constitution of the United States
of America

Acts which require the impeachment of President George W. Bush,
Vice President Richard B. Cheney, Secretary of Defense Donald H.
Rumsfeld; and Attorney General John David Ashcroft include:

1) Ordering and directing a proclaimed "pre-emptive", or "first
strike"

war of aggression against Afghanistan causing thousands of deaths
indiscriminately, a major proportion non combatants, leaving millions
homeless and hungry and installing a government of their choice in
Kabul.

2) Authorizing daily intrusions into the airspace of Iraq by U.S.
military aircraft in violation of the sovereignty of Iraq and aerial
attacks on facilities and persons, on the soil of Iraq, killing
hundreds of people indiscriminately, initially falsely claiming
self defense though over a period of eleven years not a single U.S.
aircraft has been struck or damaged by gunfire from Iraq, but later
admitting the targeting of defense installations in Iraq, as war
preparations they ordered progressed.

3) Authorizing, ordering and condoning direct attacks on civilians,
civilians facilities and locations where civilian casualties are
unavoidable.

4) Threatening Iraq with proclaimed "pre-emptive", or "first
strike"

attack and a war of aggression by overwhelming force and military
superiority including specific threats to use nuclear weapons while
engaged in a massive military build-up in nations and waters
surrounding Iraq.

5) Threatening the independence and sovereignty of Iraq by belligerently
proclaiming an intention to change its government by force while
preparing to assault Iraq in a war of aggression.

6) Authorizing, ordering and condoning assassinations, summary
executions, kidnappings, secret and other illegal detentions of
individuals, torture and physical and psychological coercion of
prisoners to obtain false statements concerning acts and intentions
of governments and individuals and violating within the United
States, and by authorizing U.S. forces and agents elsewhere, the
rights of individuals under the First, Fourth, Fifth, Sixth and
Eighth Amendments to the Constitution of the United States, the
Universal Declaration of Human Rights, and the International Covenant
on Civil and Political Rights.

7) Authorizing, directing and condoning bribery and coercion of
governments and individuals to cause them to act in violation of
their duty and the law, including to maintain and tighten enforcement
of economic sanctions against Iraq which continue to increase the
death rate of infants, children and elderly persons; to attack and
kill designated groups, or persons; to permit use of land, facilities,
territorial waters, or air space for U.S.

attacks on Iraq; to vote, abstain in a vote, or publicly proclaim
support for a U.S. or U.N. attack on Iraq; to defect from Iraq, or
to falsely accuse it of weapons concealment to break down opposition
to a U.S. war of aggression; and to reject ratification of the
Treaty creating an International Criminal Court, or reject its
jurisdiction over the United States.

8) Making, ordering and condoning false statements and propaganda
about the conduct of foreign governments and individuals and acts
by U.S. government personnel; manipulating the media and foreign
governments with false information; concealing information vital
to public discussion and informed judgment concerning acts, intentions
and possession, or efforts to obtain weapons of mass destruction
in order to falsely create a climate of fear and destroy opposition
to U.S. wars of aggression and first strike attacks by the U.S.

9) Violations and subversions of the Constitution of the United
States of America in an attempt to commit with impunity crimes
against peace and humanity and war crimes in "pre emptive" wars,
first strike attacks and threats of aggression against Afghanistan,
Iraq and other nations by assuming powers of an imperial executive
who is not accountable to law and usurping powers of the Congress,
the Judiciary and the people of the United States to prevent
interferences with the unlawful executive exercise of military power
and economic coercion against the international community.

10) Violations and subversions of the Charter of the United Nations
and international law in an attempt to commit with impunity crimes
against peace and humanity and war crimes in wars and threats of
aggression against Afghanistan, Iraq and others and usurping powers
of the United Nations and the peoples of its nations by bribery,
coercion and other corrupt acts and by rejecting, violations and
frustrating compliance with treaties in order to destroy any means
by which international law and institutions can prevent, affect,
or adjudicate the exercise of U.S. military and economic power
against the international community.

Ramsey Clark Former Attorney General of the United States of America
January 15, 2003

http://votetoimpeach.org/articles_rc.htm

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