71 Years On, We’re Still Dodging Bullets While Australia Leads The Charge To Promote Nuclear Weapons
Early August marks the anniversaries of the atomic bombings on August 6 and 9, 1945, of Hiroshima and Nagasaki – dates which most often come and go with little to offer except a terrifying reminder of humanity’s capacity to destroy ourselves. Nevertheless, we’ve made it to 71 years, having tempted fate with tens of thousands of the most destructive devices ever created, escaping within a whisker of global catastrophe more times than bears thinking about.
Still, there are over 15,000 nuclear weapons in the hands of just nine nations – Russia, the US, China, France, the UK, India, Pakistan, Israel and North Korea. Double standards that divide the world into nuclear weapons haves and have nots are writ large – stark, provocative and unsustainable.
However, in this 71st anniversary year, some good news is creeping in. The stranglehold that the nuclear-armed states have held on the disarmament agenda is starting to unravel. In recent years, a groundswell of governments and civil society actors have demanded with increasing clarity and effect that humanitarian imperatives take precedence over the military doctrines of nine countries.
In a nutshell, the effects of a nuclear weapon explosion are so catastrophic that the weapons must never be used again. As a result, 127 nations and counting have signed the “Humanitarian Pledge” that commits them to efforts to “stigmatise, prohibit and eliminate” the weapons.
These are not empty words. The UN has initiated an Open-Ended Working Group (OEWG) which met in February and May this year in Geneva, and will meet for the last time from August 5 to 19, to discuss “legal provisions and norms” for a nuclear weapons free world.
The group will make recommendations to the UN General Assembly which meets later in the year, and negotiations for a treaty to ban nuclear weapons are high on the list of expected recommendations. Already, some nations are urging the commencement of such negotiations as early as 2017.
The OEWG’s dreary title is unfortunate, for its very existence is nothing short of historic. It is bringing us closer than we have ever been to stigmatising, banning and eliminating the worst of all weapons of mass destruction.
The Australian government’s role, notwithstanding its ineffectual murmurings about how bad the weapons are, has been to lead the charge in opposing the growing push for a ban treaty, arguing that, without the support of the nations with the weapons, it’s an impractical process. That’s a bit like arguing that we must consult with criminals about the sort of laws they’d agree to before we enact any.
It also misrepresents the purpose of a ban treaty, which is to delegitimise and stigmatise the weapons and change the legal landscape by which nations are judged.
Australia’s stance, of course, has everything to do with our reliance on “extended nuclear deterrence”, which is a preparedness to have US weapons destroy cities on our behalf. Just which cities, or in what circumstances, the government refuses to say.
Two other classes of weapons of mass destruction – chemical and biological – are both explicitly banned by treaty. In 2014, former UN high representative for disarmament affairs, Angela Kane, described the strong stigma that the prohibitions attract:
“How many states today boast that they are ‘biological-weapon states’ or ‘chemical-weapon states’? Who is arguing now that bubonic plague or polio are legitimate to use as weapons under any circumstance, whether in an attack or in retaliation?”
Let’s look at the example of the UK, whose leader in 2003 helped initiate a catastrophic war based on the lie that Iraq had weapons of mass destruction. On July 18 this year, the British parliament voted strongly in favour of renewing, at budget-breaking expense, the country’s own WMD program, the Trident nuclear submarines.
The new British PM, Theresa May confirmed that she would be prepared to press the button that unleashes them. No doubt she is aware that when Trident was chosen in 1980 as a replacement for its predecessor, Polaris, it was estimated to be capable of killing up to 10 million Russians.
If, however, a ban treaty were already in place, the pressure that could have been exerted for Britain to abandon these horrific weapons is likely to have been overwhelming. To vote to renew a WMD program is bad enough, but to do so when the vast majority of the world’s governments have banned these weapons because they are immoral and illegitimate could prove one step too far.
If we’re serious about a nuclear weapons free world, it is imperative that the current momentum for a ban treaty is not lost. The nuclear-armed states and their supporters such as Australia are doing their best to undermine it. From the perspective of the rest of the world however, criminals are not the best people to have control of the law.
Finally the “never again” plea from the survivors of Hiroshima and Nagasaki has a glimmer of optimism about it. We face enormous opportunities as well as challenges.
The release of the Chilcot Report into the circumstances under which the United Kingdom took part in the invasion and occupation of Iraq in 2003 has raised fresh questions of how Australia came to join the unfortunately named “coalition of the willing.”
Initial reactions to the Chilcot Report came from John Howard, Australian Prime Minister at the time of the formal announcement of the decision to become part of that coalition. Howard essentially argued that it was the “right” decision, taken on the basis of the best available intelligence at that time.
The current Foreign Minister Julie Bishop has expressed similar views. Both Howard and Bishop are lawyers, although that is not immediately obvious from their expressed views. Neither seems to have even a basic grasp of the principles of international law, or indeed even the law of evidence.
Successive Australian governments of both major political persuasions have refused to conduct a formal inquiry into the circumstances under which Australia joined the Iraq invasion and occupation. This is probably because both major parties are culpable in ignoring both the law and the evidence.
It is therefore important to look at the origins of Australia’s involvement, not only because of the Chilcot Report, but because what we now know about the decision making process discredits the protestations about “faulty intelligence” and good faith claims about ridding the world of an “evil dictator”, all designed to bring peace and democracy to the Middle East.
The legal starting point is Article 2 of the United Nations Charter, a document that Australia was instrumental in formulating. Article 2(3) of the Charter provides:
“All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”
Article 2(4) further provides:
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”
These two provisions are rarely cited in the context of Iraq and were completely ignored in the legal opinion provided to the Australian government.
The Charter does of course provide an exception to the general prohibition on the use of force, and that is in the self-defence provisions of Article 51. A nation may of course act in self-defence if attacked by another State. As is well settled law, there must be an actual or imminent threat of an armed attack; the use of force must be necessary; and the force used must be proportionate.
No sensible argument can be mounted that Australia was threatened by Iraq, either directly or indirectly. Claims to the contrary, made in early 2003 by the Australian government do not withstand scrutiny.
A decade of sanctions had enfeebled Iraq’s military capacity as well as exacting a devastating toll upon its civilian population. An estimated 500,000 Iraqis, mainly women, children and older persons, died as a direct result of the sanctions. Former US Secretary of State Madeleine Albright callously described those deaths as “worth it” to dismember Iraqi society.
The post-invasion death toll is well in excess of a million people. Again, it is a measure of the callous indifference to the truth about the invasion’s consequences that the Australian media persistently refer to the death toll as “more than 100,000”. While literally true the effect is to dramatically understate the true human costs of the invasion.
The only operative provision of Article 51 therefore is that force may be used pursuant to a resolution of the Security Council authorizing the use of force. Circumventing that restriction was in fact one of the central preoccupations of the UK and Australian governments.
In November 2002 the Security Council passed Resolution 1441 and the key issue was whether or not that Resolution constituted such an authorization. Chilcot devoted considerable space to this legal question, devoting the whole of Part 5 of the Report to the legal maneuvering that went on.
Suffice to say at this point that the overwhelming weight of international legal opinion, including the whole of the UK Foreign Office legal team, considered that it was insufficient to justify the use of force.
Prime Minister Howard set out the political argument for Australia to join the coalition attack on Iraq in an address on 4 February 2003 to the Australian Parliament. This was on the eve of US Secretary of State Colin Powell’s ill-fated address to the Security Council.
Howard assured the House that the government would not make a final decision to commit to military conflict (although troops had already been deployed to the Middle East) “unless and until it is satisfied that all achievable options for a peaceful resolution have been explored.”
This is to be contrasted with one of the central conclusions of the Chilcot Report that the diplomatic alternatives to war had not been pursued as far as was possible. The reasons for this will become obvious.
Howard further made the unequivocal statement that “the Australian government knows that Iraq still has chemical and biological weapons and that Iraq wants to develop nuclear weapons.” The presumed evidential basis for this bold assertion was apparently British and US intelligence. Again, the Chilcot Report refers to the opposite conclusion. The views of the intelligence agencies were much less forthright than the political spin put on them by the British Prime Minister. The same was equally true of Howard’s claims.
Howard even went so far as to repeat the discredited claim that “uranium has been sought from Africa (sic) that has no civil application in Iraq.” This was essentially an echo of George Bush’s infamous 16 words in the State of the Union address in January 2003. In fact, the 2002 US National Intelligence Estimate described that “intelligence as “highly suspect.”
This followed an investigation on behalf of the US intelligence agencies by Ambassador Joseph Wilson in February 2002, a year before Howard’s statement to Parliament that concluded that reports of Saddam Hussein seeking uranium or Yellow cake were “unequivocally wrong.”
Undeterred by the real evidence, the Howard government introduced a resolution into the House on 18 March 2003 to seek authorization for Australian military action in Iraq. The resolution relied in part on assertions about Iraq’s continued possession and pursuit of weapons of mass destruction in defiance of Security Council Resolutions. The resolution before the Australian parliament also claimed that resolutions 678, 687 and 1441 provided “clear authority for the use of force against Iraq.”
In support of this extraordinary claim, Howard tabled in the House the legal advice upon which the government purportedly relied. He said that the advice was consistent with that provided to the UK government by its Attorney-General Lord Goldsmith.
At best, that was a partial truth. In fact, the terms of Resolution 1441 provided that should Iraq be found to be in material breach of its obligations, then the matter was to be returned to the Security Council for its assessment and consideration. There was nothing in Resolution 1441 that expressly or impliedly authorized the resort to force without further consideration by the Security Council.
This was known to the UK Government because in February 2002, more than a year before the invasion, all 14 members of the Foreign Office legal team had advised the government that in their opinion Iraq could not be attacked without a specific further authorization from the Security Council.
This was also the view of the UK Attorney General Lord Goldsmith. He provided Tony Blair, the then UK Prime Minister with a detailed analysis, which reached the same conclusion. As the Chilcot Report makes clear, Blair did not provide his Cabinet with a copy of Goldsmith’s opinion. To do so would have undermined the propaganda campaign then in full swing.
Blair was not prepared to seek a resolution from the Security Council authorizing force because he knew he could not command the necessary support from the Council, even discounting the likely French and Russian vetoes. It is logically contradictory to claim, as Howard did, that the Security Council resolutions authorized force, and refuse to test that as Goldsmith had advised was the prudent course because one knows that such authorization would not be forthcoming.
Instead of confirming what the legal opinions had advised, both Blair and Howard continued to make unequivocal statements that Saddam Hussein was defying Security Council resolutions, concealing weapons of mass destruction, and pursuing a nuclear weapons program.
Chilcot again found that there was no proper basis for these statements, including the evidence of the two independent inspectors, Mohammed al-Baradi and Hans Blix that they could find no evidence of any weapons or weapons program, and that Saddam Hussein was co-operating with the inspection teams.
Goldsmith’s detailed opinion was finally provided to the Cabinet on 7 March 2003. It was clearly not what Blair and the others intent on war wanted to hear. Goldsmith was therefore sent to the United States where he conferred with Bush’s legal advisers.
Goldsmith duly returned to the UK and in a written answer to a question in the House of Lords in 337 words reversed the position he had carefully set out over 12 pages of legal argument only ten days earlier. Goldsmith’s answer said in effect that the alleged material breaches by Iraq of Resolution 678 (which dealt with the ceasefire after the first Gulf War in 1991) “revived” that resolution.
Professor Vaughn Lowe, professor of International Law at Oxford University has written, “there is no known doctrine of the revival of authorizations in SecurityCouncil resolutions” (2).
Apart from Professor Lowe, the overwhelming weight of legal opinion was that Goldsmith’s new position was untenable. A 551-page report from a Dutch Commission of Inquiry headed by a former President of the Dutch Supreme Court reported on 9 October 2010 that the 2003 invasion of Iraq “had no basis in international law.” That Dutch Report received very little coverage in the Australian media.
Sir Michael Wood used almost identical words in his evidence to the Chilcot Inquiry. Sir Michael was the Senior Legal Adviser at the foreign Office at the time of the invasion. He told the Inquiry:
“I considered that the use of force against Iraq in March 2003 was contrary to international law.” Sir Michael went on to say: “In my opinion, that use of force had not been authorized by the Security council, and had no other basis in international law.”
Whether John Howard knew about the unanimous opinion of the Foreign Office’s legal team, or Goldsmith’s detailed analysis of 7 March 2003 is not known. If he did, he did not mention it. Howard told the Australian parliament that the advice he had received was “consistent with” the UK advice. He could only be referring to Goldsmith’s 337-word parliamentary answer, because manifestly Howard’s legal advice, tabled at the same time, did not reflect either Goldsmith’s original advice, the Foreign Office legal advice, or the weight of world legal opinion.
Although the Chilcot Report did not state a specific legal view on the issue, it is clear from a reading of Part 5 of the Report where 169 pages are devoted to detailing the processes by which the legal positions were pursued, concealed from the Cabinet, modified and ultimately misrepresented, that 1441 could not operate as an authorization for the use of force, much less the “revival” of earlier resolutions.
Other critics have been less reticent. Professor Phillipe Sands QC, professor of international law at University College London said in June 2010 that documents disclosed at the Chilcot Inquiry showed that Goldsmith had a 180 degree turn in his opinion between 7 March and 17 March 2003 “in the total absence of any new facts or legal considerations.” (3)
Lord Alexander, a former head of the Bar Council of England and Wales thought Goldsmith’s 17 March 2003 answer was “risible” and said so publicly on 14 October 2003. (4)
So where did John Howard obtain legal advice so against the weight of authority? Unlike in the UK where the government at least sought the advice of its most senior legal adviser, the Attorney General, the Howard government instead obtained an opinion from two middle level public servants.
Their opinion does not acknowledge that the weight of legal opinion differed from theirs. Their interpretation of the Security Council resolutions was plainly wrong, “risible” to borrow Alexander’s terminology. They provided no evidence for concluding that Iraq was in material breach of Security Council resolutions as Howard had asserted. They also accepted the doctrine of “reactivation” when such a notion, as noted above, is unknown in international law.
As former Commonwealth Solicitor-General Gavan Griffiths wrote:
“The Australian and UK legal advises are entirely untenable. 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 UK to support the invasion of another State.” (5)
In both the UK and Australian cases, seeking legal opinions was in reality no more than window dressing, a fig leaf of attempted respectability. The decision to go to war against Iraq had been made early in 2002.
The Cheney Task Force, with its maps dividing up Iraq’s oil riches among western oil companies was one motive for waging an unjustified and illegal war of aggression. Meeting the wishes of the Israelis as set out in the 1982 Yinon Plan was another. Saddam Hussein’s decision to trade oil in other than US dollars was also a crucial factor.
At one time, Saddam Hussein had been a US ally. The British and Americans had supplied the weapons of mass destruction he used during the war with Iran in the 1980s. Once their objectives differed Saddam Hussein became expendable, and ‘regime change’, a much favoured and practiced American option became the policy.
Further confirmation of this, were it needed, comes from the report of the head of MI6, Sir Richard Dearlove, following a visit to the US. What is now known as the Downing Street Memo was written on 23 July 2002, eight months before the invasion, and well before legal opinions, UN Inspector’s Reports, or parliamentary debates.
The Memo stated in part:
- Military action was now seen as inevitable.
- President Bush wanted to remove Saddam Hussein through military action, justified by a conjunction of terrorism and weapons of mass destruction.
- Intelligence was being fixed around the policy.
The facts did not matter. A policy decision had been taken and nothing could be allowed to divert the policy objective of invading Iraq and stealing its resources.
It is a reasonable inference that the Australian government was fully aware of this. Precisely what they knew and when they knew it must await the establishment of a proper inquiry. We do know however, that the views of the two Ignoring the major foreign intelligence agencies, the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) were disclosed in a report of the parliamentary joint committee in December 2003.
The DIO and ONA had concluded:
- The threat from Iraq’s weapons of mass destruction was less than it had been a decade earlier (1991)
- Under sanctions that prevailed at the time, Iraq’s military capability remained limited and the country’s infrastructure was still in decline.
- The nuclear program was unlikely to be far advanced. Iraq was unlikely to have obtained fissile material.
- Iraq had no ballistic missiles that could reach the US.
- There was no known chemical weapons production.
- There was no specific evidence of resumed biological weapons production.
- There was no known biological weapons testing or evaluation since 1991.
- There was no known Iraq offensive weapons research since 1991.
- Iraq does not have nuclear weapons.
- There was no evidence that chemical weapon warheads for missiles had been developed.
- No intelligence had accurately pointed to the location of weapons of mass destruction.
Ignoring the evidence (not an honest belief as pleaded then and now) and an overt willingness to join US foreign policy misadventures has led to one of the greatest policy debacles in Australian foreign policy history. It has resulted in the deaths of more than a million Iraqis and millions more displaced and their lives destroyed.
It has given rise to the threat of Islamic terrorism that plagues countries throughout the Middle East, North Africa and as recent events have shown in France and other European nations.
The Nuremberg and Tokyo Tribunals following World War 2 called a war of aggression “the supreme international crime differing only from other crimes in that it contains within itself the accumulated evil of the whole.”
That the principal perpetrators of the Iraq War, Bush, Blair and Howard, have thus far escaped accountability for waging a war of aggression is unconscionable. Australia must have a Chilcot type inquiry and judicial processes must follow their inevitable conclusions.
James O’Neill, an Australian-based Barrister at Law.
A senior United Nations official has accused Ukraine’s SBU intelligence service of frustrating U.N. investigations into its alleged role in torture and other war crimes, even as the SBU has been allowed to guide the international investigation into the shooting down of Malaysia Airline Flight 17 for nearly two years.
On June 29, Assistant Secretary-General for Human Rights Ivan Simonovic criticized various “armed groups” in Ukraine for engaging in torture and arbitrary detention, adding that “The Security Services of Ukraine (SBU) is also not always providing access to all places where detainees may be kept. … OHCHR (the Office of the U.N. High Commissioner on Human Rights) also continues to receive accounts about torture and ill-treatment, arbitrary and incommunicado detention by the SBU, especially in the conflict zone.
“Torture and threats to members of the families, including sexual threats, are never justifiable, and perpetrators will be held to account sooner or later. … War crimes, crimes against humanity and grave breaches of human rights cannot be the subject of an amnesty.”
In late May, U.N. inspectors called off their Ukraine torture investigation because the SBU denied the team access to detention facilities where human rights groups had found evidence of torture.
“This denial of access is in breach of Ukraine’s obligations as a State party to the Optional Protocol to the Convention against Torture,” according to the U.N. statement at the time. Sir Malcolm Evans, head of the four-member U.N. delegation, said: “It has meant that we have not been able to visit some places where we have heard numerous and serious allegations that people have been detained and where torture or ill-treatment may have occurred.”
Yet, the SBU, which is also responsible for protecting state secrets, has strongly influenced the direction of the supposedly Dutch-led Joint Investigation Team trying to determine who was responsible for shooting down MH-17 over eastern Ukraine on July 17, 2014, killing 298 people.
Conflict of Interest
Although Ukrainian military units are among the logical suspects in the case, Ukraine was made one of five countries responsible for the inquiry and granted what amounts to veto power over what information the JIT can release. A recent internal report on how the JIT operates also revealed how dependent the investigators have become on information provided by the SBU.
According to the report, the SBU has helped shape the MH-17 investigation by supplying a selection of phone intercepts and other material that would presumably not include sensitive secrets that would implicate the SBU’s political overseers in Ukraine. But the JIT report seems oblivious to this conflict of interest, saying:
“Since the first week of September 2014, investigating officers from The Netherlands and Australia have worked here [in Kiev]. They work in close cooperation here with the Security and Investigation Service of the Ukraine (SBU). Immediately after the crash, the SBU provided access to large numbers of tapped telephone conversations and other data. …
“At first rather formal, cooperation with the SBU became more and more flexible. ‘In particular because of the data analysis, we were able to prove our added value’, says [Dutch police official Gert] Van Doorn. ‘Since then, we notice in all kinds of ways that they deal with us in an open way. They share their questions with us and think along as much as they can.’”
The JIT report continued: “With the tapped telephone conversations from SBU, there are millions of printed lines with metadata, for example, about the cell tower used, the duration of the call and the corresponding telephone numbers. The investigating officers sort out this data and connect it to validate the reliability of the material.
“When, for example, person A calls person B, it must be possible to also find this conversation on the line from person B to person A. When somebody mentions a location, that should also correlate with the cell tower location that picked up the signal. If these cross-checks do not tally, then further research is necessary.
“By now, the investigators are certain about the reliability of the material. ‘After intensive investigation, the material seems to be very sound’, says Van Doorn, ‘that also contributed to the mutual trust.’”
Another concern about how the SBU could manipulate JIT’s investigation is that the long assignments of investigators in Kiev over a period of almost two years could create compromising situations. Kiev has a reputation as a European hotbed for prostitution and sex tourism, and there’s the possibility of other human relationships developing over long periods away from home.
According to the JIT report, four investigating officers from Australia are stationed in Kiev on three-month rotations while Dutch police rotate in two teams of about five people each for a period of a “fortnight,” or two weeks.
The relative isolation of the Australian investigators further adds to their dependence on their Ukrainian hosts. According to the report, “The Australian investigators find themselves a 26 hour flight away from their home country and have to deal with a large time difference. ‘For us Australians, it is more difficult to get into contact with our home base, which is why our operation is quite isolated in Kiev’, says [Andrew] Donoghoe,” a senior investigating officer from the Australian Federal Police.
The JIT’s collegial dependence on the SBU’s information has not led to a quick resolution of the mystery of MH-17. Almost two years after the tragedy, the JIT has struggled to even pin down where the suspected anti-aircraft missile was fired, bringing down the passenger jet en route between Amsterdam and Kuala Lumpur. The location of the alleged missile firing was something that U.S. officials claimed to know within days of the crash but have kept secret.
The snail’s pace of the investigation and the curious failure of the U.S. government to share usable data from its own intelligence services have caused concerns among some family members of MH-17 victims that the inquiry has been compromised by big-power geopolitics.
Immediately after the shoot-down, the U.S. government sought to pin the blame on ethnic Russian rebels in eastern Ukraine and their Russian government backers, a charge that was crucial to getting the European Union to adopt economic sanctions against Russia. But – as more evidence emerged – the possible role of a Ukrainian military unit became more plausible.
According to the Dutch intelligence service in a report released last October, the only anti-aircraft missiles in eastern Ukraine on July 17, 2014, capable of hitting a plane flying at 33,000 feet belonged to the Ukrainian military.
Twists in the Investigation
After CIA analysts had time to evaluate U.S. satellite, electronic and other intelligence data, the U.S. government went curiously silent about what it had discovered, including the possible identity of the people who were responsible. The U.S. reticence, after the initial rush to judgment blaming Russia, suggested that the more detailed findings may have undercut those original claims.
A source who was briefed by U.S. intelligence analysts told me that the CIA’s conclusion pointed toward a rogue Ukrainian operation involving a hard-line oligarch with the possible motive of shooting down Russian President Vladimir Putin’s official plane returning from South America that day, with similar markings as MH-17. But I have been unable to determine if that assessment represented a dissident or consensus view inside the U.S. intelligence community.
Although the JIT also includes Belgium and Malaysia, the key roles have been played by the Netherlands, Australia and Ukraine, with Ukraine’s SBU arguably the most influential party as it feeds the other investigators leads to pursue.
Given the SBU’s legal responsibility to shield Ukrainian government secrets, you might think the question would have arisen whether the SBU would supply any data that might implicate some powerful political figure connected to the regime in Kiev. But there was nothing in the JIT’s update to suggest any such suspicion.
Regarding the SBU’s refusal to grant access to the U.N.’s torture investigators in May, Ukraine’s deputy justice minister Natalya Sevostyanova said the U.N. team was denied access to SBU centers in Mariupol and Kramatorsk, frontline towns in the simmering civil war between the U.S.-backed Ukrainian government and Russian-supported eastern Ukrainian rebels.
SBU director Vasyl Hrytsak said the reason for barring the U.N. team was to protect Ukrainian government secrets, adding: “If you arrive, for example, in the United States and ask to come to the C.I.A. or the F.B.I., to visit a basement or an office, do you think they will ever let you do it?”
[For more background on this controversy, see Consortiumnews.com’s “More Game-Playing on MH-17.”]
Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his latest book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).
Australia has now completed more than six weeks of an eight-week election campaign. There have been the usual claims and counterclaims from the major parties, dubious statistics, hyperbole, and a relentless focus on peripheral issues at the expense of clarity and insight.
Expenditure promises totaling billions of dollars have been made, with the principal beneficiaries being electorates with very small majorities, and therefore most susceptible to changing allegiance with the vagaries of shifting sentiment for or against the governing party or the main opposition party.
What is completely missing from the election campaign rhetoric or promises however, is any discussion of foreign affairs, defence or refugee policy.
This coyness is not unique to this election. The past several decades have seen major decisions taken without discussion as to their strategic context, the objectives of the policy, any exit strategy when the decision involves foreign wars (invariably at the behest of the Americans). This is currently the case with the wars in Afghanistan, Iraq and Syria.
Neither is there any discussion by the major parties as to whether the decisions taken about going to war, or taking steps that may lead to war, are advantageous or prejudicial to the national interest.
Also completely absent from debate is any attempt to understand and respond to a rapidly changing geopolitical context. The Asia-Pacific region is in a major state of realignment, but one would not know that from listening to the political leaders or reading the mainstream media.
The dilemma Australia’s foreign policy faces and which urgently needs addressing was set out by the former Prime Minister Malcolm Fraser when he said that Australia’s relationship with the United States had “become a paradox. Our leaders argue we need to keep our alliance with the US strong in order to ensure our defence in the event of an aggressive foe. Yet the most likely reason Australia would need to confront an aggressive foe is our strong alliance with the US It is not a sustainable policy.”
It has become impossible in the Australian context to even contemplate, let alone discuss, a possible foreign policy stance independent of that alliance with the US. This is notwithstanding a series of foreign policy disasters and quagmires that are a direct result of that alliance, including but not limited to Vietnam, Afghanistan, Iraq and now Syria.
That another potential disaster was only narrowly avoided has come to light in a lengthy essay by James Brown (Quarterly Essay #62, 2016).
Brown, a former Army Captain who happens to be the son-in-law of the current Prime Minister Malcolm Turnbull, recounts how former Prime Minister Tony Abbott sought planning contingencies from the Australian military about the possible deployment of a brigade (about 3000 troops) to Eastern Ukraine in the aftermath of the shooting down of MH17 on 17 July 2014.
The initiative by Abbott was apparently taken without reference to the Cabinet, without debate in Parliament, and certainly without reference to the Australian public.
Abbott was dissuaded from this hare-brained scheme on the advice of the Dutch Prime Minister Rutte and his own military advisers alarmed at the prospect that it could potentially lead to a direct conflict with Russia.
Although rightly critical of the lack of strategic planning in Australian foreign and defence policy, Brown is himself equally a victim of the Anglo-American mindset that bedevils Australian strategic thinking.
He refers for example, to what he says are the “brutal geopolitics” of Russian actions in Ukraine, and a “war for conquest remains a threat.” (at pp39-40).
That such a proposition could be seriously advanced is of deep concern. Brown completely ignores for example, the February 2014 American financed and organized coup d’état that violently overthrew the legitimate Yanukovich government of Ukraine.
Further, he ignores the fascist nature of the present regime in Kiev, its systematic discrimination against the Russian-speaking citizens of Eastern Ukraine, and the Kiev regime’s persistent violation of the Minsk accords. He also fails to note what is an extraordinary lack of judgment by Abbott in joining Ukrainian President Poroshenko’s Council of Advisers.
Brown is on stronger ground when he criticizes the procurement of 12 submarines and 72 F35 fighter aircraft. The submarines, which will not be delivered before 2030, are said to cost $50 billion, not including the additional $5-6 billion for their armaments.
The cost of the F35 fighters has been variously quoted at between $17 and $25 billion dollars.
The wisdom of these purchases, their strategic value if any, and the implications of their potential use in an actual war, is not open for discussion in the present election campaign. Nor are they likely to be properly analysed by whoever wins the 2 July election. Perhaps needless to add, public discussion and media coverage are conspicuous by their absence.
The 2016 Defence White Paper identified China as the most likely potential threat to Australia. Quite how this threat would manifest itself is unclear. China has no history of imperialism or military aggression in the Pacific region. Nothing in its present policy stances or conduct would suggest that is likely to change.
Australia actually fighting a war with China on its own is unthinkable. Any such conflict could only be as part of an American war, which takes one straight back to Fraser’s paradox quoted above.
When one looks at actual US behaviour in relation to China, then there is significant cause for concern that Australia could become embroiled in an American provoked war. The basis for such concern would include, for example, the American’s provocative behaviour in the South China Sea that Australia has publicly supported. Australian navy vessels take part in an annual exercise, Operation Talisman Sabre that practices blocking the vital Malacca Straits essential to Chinese trade.
Other developments, such as the Trans Pacific Partnership, specifically exclude China, and are designed to assert American commercial interests at the expense of the national sovereignty of the non-American participants to the TPP.
America’s strategic policy, as set out in the 2002 Defence Department document Vision 2020 is based upon the assumption that America should exercise “full spectrum dominance” over the entire world, including for present purposes the Asia-Pacific region.
To this should be added the progressive increase in American military bases in the Asia-Pacific region, with nuclear weapon capability, and an American provoked war with China is far from unthinkable. There is of course historical precedent for current US policy, and that was the encirclement and economic warfare waged on Japan in the late 1930s early 1940s specifically designed to provoke a Japanese attack upon the US. That is exactly what happened.
American policy in the Asia-Pacific region is replicated in Europe, where it is pursuing equally provocative and dangerous policies on the Russian borders.
If Australia did become involved in a shooting war with China, as its current military and strategic posture would almost certainly guarantee, it is very difficult to see what role the hugely expensive submarines and F35 fighters would play.
That they would play any role at all would seem to depend on a number of assumptions. The war would have to start after 2030, as that is the earliest possible date for the delivery of the submarines.
It further assumes that the F35 fighter might actually fly in a combat effective manner. Neither assumption seems to have an evidential foundation.
Any Australian involvement in a war with China also appears to seriously underestimate the effectiveness of modern Chinese weaponry. Their supersonic cruise missile for example, would quickly eliminate the aircraft carrier based system the US Navy is built around.
Similarly, a single Dong Feng 41 supersonic ICBM missile would destroy the two crucial American military installations at Pine Gap and North West Cape that are a vital component of military communications and targeting. The Dong Feng 41 has 8-10 independently targetable nuclear warheads that would eliminate Australia’s major cities in addition to the specifically military targets noted.
Australia’s involvement in such a war would therefore last at most about 30 minutes, with huge casualties and its major cities smoking ruins. That is the very real risk Australia runs with its present alliance with the US. It is something that deserves proper debate, and this election, with both major parties complicit, is not providing such a debate.
The refusal to contemplate and discuss these military and geopolitical realities has a number of possible bases. An unspoken but potent spectre over Australian politics is the fate of the 1975 Whitlam Labor government. Whitlam had made clear his intention to close the Pine Gap spy installation, which while located in Australian territory was and is completely American controlled.
The evidence is now overwhelming that Whitlam was removed in a CIA orchestrated coup (Rundle 2015). After Whitlam was re-elected in 1974, the White House sent Marshall Green to Canberra as the US ambassador. Green was known in American circles as the “coupmaster.” He had been instrumental in the coup against the Sukarno government in Indonesia in 1965 and Allende in Chile in 1973. His presence in Canberra in 1975 was not a coincidence.
It is doubtful if such an extreme step would be necessary in the foreseeable future. Both main political parties go to extraordinary lengths to remain on side with whoever occupies the White House.
This goes well beyond participating in the aforementioned wars of choice. It includes Australia’s voting record in the United Nations where it is a regular supporter of the Israeli regime, contrary to the overwhelming weight of opinion expressed in that body. Israel’s constant breaches of international law are never criticized by either the Australian government or the Opposition.
None of this is the subject of informed discussion and debate. It is not an overstatement to suggest a conspiracy of silence by the major parties to avoid asking what should be the obvious questions.
It is difficult, if not impossible, to point to any actual material benefit to Australia that flows from this ritual obeisance to American wishes. The illusion of security that it fosters, is as Fraser pointed out, a paradox and unsustainable as a policy.
The likelihood of a disastrous outcome for Australia from the American alliance is many times greater than any assumed benefit. The inconsistency of present foreign and defence policy with Australia’s national interests should be a matter of debate. It is not.
The geopolitical centre of the world is re-establishing itself in Eurasia, just as Halford Mackinder predicted more than a century ago. Russia and China, and other members of the Eurasian Economic Union and the Shanghai Cooperation Organisation are forging a new military, economic, financial and political framework. These changes are undermining the unipolar American centred world that has dominated for the past 70 years.
The question for Australia is whether it recognises the geopolitical realities dictated by its geography, its trade, and the wishes of its people for peace and stability ahead of the destruction being wrought by its traditional ally.
These are questions that need to be addressed. The major political parties and the media are failing in their obligations by refusing to discuss these issues. Their resolution is vital to the peace and prosperity of this nation.
Wilful blindness, strategic incoherence, and a misalignment of national interests are not a sound policy basis.
The fact that Techdirt has been writing about e-voting problems for sixteen years, and that the very first post on the topic had the headline “E-voting is Not Safe,” gives an indication of what a troubled area this is. Despite the evidence that stringent controls are still needed to avoid the risk of electoral fraud, some people seem naively to assume that e-voting is now a mature and safe technology that can be deployed without further thought.
In Australia, for example, e-voting is being used for the elections to the country’s Senate, but the Australian Electoral Commission (AEC) has refused to release the relevant software, despite a Senate motion and a freedom of information request. Being able to examine the code is a fundamental requirement, since there is no way of knowing what “black box” e-voting systems are doing with the votes that are entered. A story by the Australian Associated Press (AAP) explains why AEC is resisting:
The Australian Electoral Commission referred AAP to a decision by the Administrative Appeals Tribunal [AAT] in December 2015.
In that decision, relating to a freedom of information request, the tribunal found the release of the source code for the software known as Easycount would have the potential to diminish its commercial value.
“The tribunal is satisfied that the Easycount source code is a trade secret and is exempt from disclosure,” the AAT said.
Placing trade secrets above the public interest is a curious choice, to say the least. It seems particularly questionable given Australia’s recent experience with e-voting software problems:
When the ACT Electoral Commission released its counting code, researchers at Australian National University found three bugs which were subsequently fixed before an election.
When the Victorian Electoral Commission made its electronic voting protocol available to researchers in 2010, University of Melbourne researchers identified a security weakness which was then rectified before the state election.
As Techdirt readers well know, bugs are commonplace, and there’s no particular shame if some are found in a complex piece of software. But refusing to allow independent researchers to look for those bugs so that they can be fixed is inexcusable when the integrity of the democratic selection process is at stake.
President Barack Obama and his advisors spent at least a week, and as much as three weeks, planning to send up to 9,000 combat troops into eastern Ukraine, on the border with Russia, following the shoot-down of Malaysia Airlines Flight MH17 two years ago. The scheme, which was to have involved Dutch and Australian army units, with German ground and US air support, plus NATO direction, has inadvertently leaked from the publication of a report this week by a former Australian Army captain.
The military plan, according to James Brown, now head of research at the US Studies Centre of the University of Sydney, “would have consumed the bulk of the Australian Army.” Captain Brown also claims “planning for these military options consumed Australia’s intelligence agencies. The National Security Committee of [the Australian ministerial] Cabinet met every day for more than three weeks , and staff and agencies produced a frenzied stream of briefings on Ukraine, Russia and the intentions of [President] Vladimir Putin.”
According to Dutch sources, the military plan of attack was aborted when Germany refused to participate directly, or allow its bases and airspace to be used. Dutch Prime Minister Mark Rutte announced the Dutch were pulling their troops out of the plan on July 27. He said at the time: “Getting the military upper hand for an international mission in this area is, according to our conclusion, not realistic.” That was ten days after the MH17 crash. But Australian Prime Minister Tony Abbott and his cabinet continued, Brown and his sources reveal, to plan the operation with the US for another 10 days.
MH17 was shot down on July 17, 2014, killing 298 passengers and crew. Of the lives lost, 193 of them were Dutch; 43 Malaysian; and 27 Australian (plus 11 dual nationals or residents). From the first hours, the Malaysian government suspected elements of the Ukrainian military had been involved. Kuala Lumpur was reluctant to endorse the claims of the Ukrainian and US governments that Russia had been culpable, and that Russian-backed forces were directly to blame. That story can be read here.
The Dutch and Australian governments were, and continue to be, the most supportive of blame for Moscow. This was adopted as the official policy of the European Union (EU) states when they joined the US in introducing new sanctions against Russian oil companies and banks between July 16 and 31, 2014. For more details of the disagreements between political leaders on what had caused the shoot-down, read this.
Left: Malaysian Prime Minister Najib Razak with Rutte, The Hague, July 31, 2014; right: Najib with Putin, Sochi,
May 21, 2016
Rutte and Abbott combined to pressure Prime Minister Najib to drop his public scepticism, and join the police and prosecutors group known as the Joint Investigation Team (JIT). Najib is the only one of the three to discuss with Russia its assessment of the causes of the MH17 crash.
The report by Brown was cited in an Australian newspaper on Monday as an attack on ex-prime minister Abbott for “grand aspirations [which] could have exposed Australian troops to substantial danger in pursuit of lofty objectives misaligned with national interests”. Abbott lost his job when the MPs of his party combined to replace him with the current prime minister, Malcolm Turnbull, on September 14, 2015. Ukrainian President Petro Poroshenko then appointed Abbott one of his “international advisors”.
In 2014, according to Brown, Abbott “calculated that the best way to encourage the United States to retain an active role in world affairs was for Australia to lead by example: as an ally encouraging, reassuring, and perhaps even occasionally shaming the US into taking action.” The full Brown report can be read here.
Brown reveals that “military planners worked up options for Abbott that involved deploying up to a brigade’s worth of troops to Eastern Ukraine, a formation of as many as 3,000 troops”. Another proposal, which he reports as coming from Abbott’s office, was “to commit uniformed Australian military logistics personnel to help the Ukrainians improve their own systems”.
Brown, who favours special forces operations himself and the command of the Australian Army by former spetznaz officers, says “nearly 200 [special force troops] were eventually sent to Europe to support the MH17 recovery operations, staging from bases in the United Kingdom and the Netherlands to provide close support to investigators and backup for further crisis or contingency.” Less than four weeks later, according to Brown, one hundred of these men were moved to Iraq instead.
Abbott himself told Australian state radio in February 2015: “We did talk to the Dutch about what might have been done in those perilous circumstances, because certainly they were perilous circumstances. There was talk with the Dutch about a joint operation.” Abbott claimed this wasn’t his initiative. “This arose out of the most important and the most necessary discussions between the Dutch military and our own.”
This week’s report by Brown breaks news in identifying how large the Australian force was to have been. He does not report the Dutch, German and NATO planning which was going on at the same time. When asked, Brown declined to say whether he and his sources knew, or didn’t know, that Abbott was acting in concert with the others.
On July 25, 2014, the Dutch newspaper De Telegraaf reported that the 11th Airmobile Brigade was being mobilized for action in eastern Ukraine. That’s 4,500 troops, and part of a division-sized German military force called Division Schnelle Kräfte (Rapid Forces Division – unit flash, silver) of about 9,000 men.
The cover story, according to the Telegraaf, was “to ensure the 23 Dutch crash investigators and 40 unarmed military police officers can do their job.” The real objective, according to one of Telegraaf’s sources, was: “if our commandos are there, they should certainly try to arrest those responsible. [Russian] Colonel Igor the Terrible Girkin [Strelkov] and his associates.” For background on Girkin’s role in Russian plans and operations in eastern Ukraine, read this.
The Dutch newspaper didn’t reveal the Dutch troops would be deployed alongside the 3,000-man Australian force, and that the German command of Division Schnelle Kräfte would also be involved. Telegraaf claimed the operation was “not expected at the NATO headquarters in Brussels”, although it had been presented to “the authorities in Kiev before the green light [was given] and cooperation promised.”
Two days later, on July 27, the BBC reported Dutch Prime Minister Rutte as calling off the operation. “Getting the military upper-hand for an international mission in this area is, according to our conclusion, not realistic, “he said, conceding it would be “such a provocation to the separatists that it could destabilise the situation”. With almost two years in retrospect, Brown concludes, without mentioning the Dutch, Germans, or other NATO forces, “the potential for harm to Australian troops was all too real. The logic of deploying large numbers of troops into an active war zone alongside the border of a major global military power was entirely shaky.”
Russian analysts in Moscow do not regard the Australian and Dutch governments as capable of planning military action without prior encouragement by the US. The Russians did not realize at the time, they now say, that the US may have been planning a military operation in the wake of the MH17 crash. Yevgeny Krutikov, military analyst for Versiya and Vzglyad, recalls there were reports in the press “about the organization of protection for the crash site. Then Abbott offered to send about 1,000 Australian troops to cordon off the crash site. By definition, that was unrealizable stupidity.”
“The number of 9,000 is not real. For the protection of the aircraft wreckage that had fallen, the requirement is less than a militia company. The area was open fields where [the locals] had planted potatoes and sunflowers. There was no talk about the arrival of armed forces from NATO. Air support was even more unreal. By this time, Ukraine has already lost all of its aircraft, and ‘cooperation’ was not technically feasible.”
The omissions in the Dutch and now the Australian report suggest the close coordination of US and EU officials on introducing new sanctions against Russia immediately after the MH17 crash was not matched by coordination of any kind between the Obama Administration, the US command of NATO, the Dutch, Germans and Australians. To Russian observers this is not credible. Preposterous, they believe, is that the Dutch and the Australian governments, at the urging of the White House, went as close as they did to war on the Russian frontier.
Brown declines to identify or corroborate his sources for the size of the Australian armed force intended for the Ukrainian operation. He was asked to explain “that the prime minister, his advisors, the National Security Committee of Cabinet meeting every day for three weeks, the Australian intelligence agencies, and the Australian military staffs failed to ask for US assessments, US policy guidance, US logistic and other support in the event of engagement between Australian and Russian forces, and US approval of the plans and proposals considered at the time. If the Australians did obtain the US responses, would you say the proposals you attribute to Mr Abbott had US backing, at least at the outset?”
Brown refuses to answer. Was it possible for two prime ministers, the Australian and the Dutch, to start mobilizing for a combined Ukraine operation without US and NATO participation in the planning? Brown won’t say.
Instead, he ends his report with an endorsement of Obama’s Nobel Peace Prize speech of 2009: “There will be times,” Obama said then, “when nations – acting individually or in concert – will find the use of force not only necessary but morally justified… For make no mistake: evil does exist in the world.”
The Sun Herald (Sydney) of 22 May 2016 reported that the Australian families of the MH17 disaster had “served” the European court of Human Rights (ECHR) with a claim seeking compensation of $10 million for each victim.
The report referred to the “proposed respondents” to the claim being the Russian Federation and its President Vladimir Putin. The solicitor acting for the plaintiffs was quoted in a separate report claiming, “we have facts, photographs, memorandums (sic), tonnes of stuff.” He also claimed that the claim document ran to “over 3500 pages in length.”
These reports closely followed the publication of the New South Wales Coroner’s Court report into the deaths of six of the victims who were resident in New South Wales. The Coroner’s findings closely followed those of the Report of the Dutch Safety Board of 13 October 2015, attributing the deaths of those aboard MH17 to a BUK missile detonating close to the aircraft, causing the plane to disintegrate and a consequent immediate loss of life to all aboard.
It was not part of the Coroner’s jurisdiction to attribute blame, that being the subject of a separate criminal investigation (JIT). The results of that investigation are expected to be announced later this year.
The Dutch head of the JIT investigation, Mr Fred Westerbeke wrote to all the Dutch victim’s families in February 2016 giving them an update on the investigation. A query to the Australian Federal Police as to whether the Australian families might receive a similar briefing was effectively ignored.
Something Mr Westerbeke did say that was of particular interest was that the United States had released their satellite data to the Dutch Security Services. Whether that data could be used and if so in what format, was for security reasons an unresolved issue.
Those data are of considerable significance. It is known that there were three US satellites overhead the Donbass region at the material time. They had the undoubted capability of determining exactly what was fired at MH17, from precisely where, and by whom. US Secretary of State John Kerry claimed as much in an interview with NBC shortly after the tragedy.
The American refusal to publically release the data leads to the very strong inference that it is being concealed for the reason that it does not support the “blame Russia” meme so favoured by the western media.
The incuriosity of the Australian media was again on display when they gave extensive coverage to the report of the alleged claim being filed in the ECHR.
There are a number of problems with this purported claim, accepted so uncritically be the Australian media. There was a clue in the use of the phrase “proposed respondents”. If proceedings had been filed in any court, then the respondents are not “proposed”. They either are or they are not.
A check with the ECHR website on 26 May 2016 showed that there was no record of any such claim having been filed. John Helmer, on his website reports a similarly negative result when a query was made with the ECHR’s Registrar.
The problems with the alleged claim do not stop there. As noted above, the plaintiff’s solicitor said that the claim ran to more than 3500 pages. Rule 47 of the ECHR’s Rules state that the application must contain:
(e) a concise and legible statement of the facts;
(f) a concise and legible statement of the alleged violation(s) of the Convention; and
(g) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35(1) of the Convention.
Whatever else they may be, a 3500-page claim does not remotely comply with any definition of “concise.”
The ECHR Rules further provide that any additional submissions do not exceed 20 pages (Rule 47 (2) (b)) in length.
The plaintiffs have failed to provide any relevant details from their 3500 page claim (or at all) that would enable an independent observer to assess what “facts, photographs and memoranda” they have that were not available to the Dutch Safety Board Inquiry. Given the combined resources available to the Dutch led inquiry, it would be remarkable that a firm of solicitors would be able to state their claims so categorically when a major government report was not able to do so.
The plaintiff’s difficulties do not end with their lack of credibility.
The ECHR Rules further provide that any application made under Article 34 of the Convention is required to be made (Article 35(1)) within six months of the event giving rise to the application.
As the relevant event occurred on 17 July 2014, the six months expired on 17 January 2015. No explanation has been forthcoming nor any inquiry made by the incurious mainstream media as to how this potentially fatal flaw in the proceedings could be overcome.
That is not the end of the plaintiff’s woes. Rule 10(b) governs Article 34 applications to the Court. That rule requires the plaintiff to demonstrate that “the applicant has complied with the exhaustion of available domestic remedies.”
One of the plaintiffs named in the purported ECHR proceedings is Mr Tim Lauschet, a relative of one of the victims. Mr Lauschet is also the plaintiff in proceeding 2015/210056 filed in the New South Wales Supreme Court. Malaysian Airlines System Berhad is the respondent in those proceedings.
The original pleadings sought various declarations that would facilitate a claim for damages under the relevant provisions of the Civil Aviation (Carriers Liability) Act 1959. That limits liability to a maximum of special drawing rights equivalent to approximately A$215,000. There is a two year time limit for the making of such claims, so that right expires on 17 July 2016, only a few weeks away.
The purported proceedings in the ECHR makes no attempt to reconcile their $10 million claim with the liability of international air carriers which is considerably less by an order of magnitude. Neither did the media bother to ask.
The Judge politely pointed out a number of deficiencies in Mr Lauschet’s pleadings (2015) NSWSC 1365) and adjourned the matter with various timetable orders to enable the plaintiff to remedy the many deficiencies in the pleadings.
The matter has been back before the Court a further four times since that hearing, with the only apparent progress being that the plaintiff has now filed a statement of claim. It is now scheduled for a further Directions Hearing on 30 May 2016.
The conclusion for present purposes must be that Mr Lauschet has not achieved “the exhaustion of available domestic remedies.” Whether any of the other Australian plaintiffs in the purported ECHR proceeding have even started, let alone exhausted, their domestic legal remedies is unknown. But in Mr Lauschet’s case (and possibly all of the others) he therefore faces another fatal flaw.
There is one other element in this case that the mainstream media is either unaware of or has chosen to ignore. In 2012 the then Gillard government made amendments to the Social Security Act 1991 to enable payments of up to $75,000 to victims of terrorism.
Eligibility for those payments (the acronym for which is AVTOP) were backdated to 11 September 2001. A necessary pre-condition for the payment is a declaration by the Prime Minister of the day that the event concerned was a “terrorist act.”
To date there have been nine such declarations, the latest being the 13 November 2015 attacks in Paris, France. The shooting down of MH17 should qualify under most definitions as a “terrorist act.”
The relevant Prime Ministers since 17 July 2014, Tony Abbott and Malcolm Turnbull, have not made such a declaration, which would then entitle victim’s families to claim compensation under the Act.
Requests to the Prime Minister’s office for information as to whether such a declaration was going to be made, and if not, why not, were ignored. A Freedom of Information Act request has therefore been made and is currently pending.
There may be a number of reasons why such a declaration has not been made. The overwhelming weight of evidence is that only the military units of the Ukrainian armed forces had the means, motive and opportunity to shoot down MH17.
As a recently joined member of Ukrainian President Poroshenko’s “advisory council” former Prime Minister Tony Abbott would be in a difficult position if the shoot down was declared to be a terrorist act and the JIT investigation put the blame where it rightly belongs, on the Ukrainian government. It is not surprising that the announcement at the recent ASEAN-Russia meeting that Malaysia and Russia were cooperating in an investigation of the MH17 tragedy caused concern in US and Ukrainian circles.
Although the current Australian Prime Minister Turnbull has been more circumspect than his predecessor in making ill-conceived allegations against Russia and its President, he will not wish to expose himself to a finding by the JIT that does not fit the propaganda meme so assiduously pursued by the western media.
There are a number of losers in this charade, not least the victims of the atrocity and their families who deserve better than to be exploited by both politicians and dubious claims in the ECHR. The public, who might reasonably expect to be better served by their media, are also the losers.
James O’Neill is an Australian-based Barrister at Law.
World War I
During World War I, for security reasons the Australian Government pursued a comprehensive internment policy against enemy aliens living in Australia.
Initially only those born in countries at war with Australia were classed as enemy aliens, but later this was expanded to include people of enemy nations who were naturalised British subjects, Australian-born descendants of migrants born in enemy nations and others who were thought to pose a threat to Australia’s security.
Australia interned almost 7,000 people during World War I, of whom about 4,500 were enemy aliens and British nationals of German ancestry already resident in Australia.
World War II
During World War II, Australian authorities established internment camps for three reasons – to prevent residents from assisting Australia’s enemies, to appease public opinion and to house overseas internees sent to Australia for the duration of the war.
Unlike World War I, the initial aim of internment during the later conflict was to identify and intern those who posed a particular threat to the safety or defence of the country. As the war progressed, however, this policy changed and Japanese residents were interned en masse. In the later years of the war, Germans and Italians were also interned on the basis of nationality, particularly those living in the north of Australia. In all, just over 20 per cent of all Italians resident in Australia were interned.
Australia interned about 7,000 residents, including more than 1,500 British nationals, during World War II. A further 8,000 people were sent to Australia to be interned after being detained overseas by Australia’s allies. At its peak in 1942, more than 12,000 people were interned in Australia.
Residents of Australia
Most internees during both wars were nationals of Australia’s main enemy nations already living in Australia. During World War I Germans made up the majority of internees. During World War II, as well as Germans there were also large numbers of Italian and Japanese internees. Internees also included nationals of over 30 other countries, including Finland, Hungary, Portugal and Russia.
Not all internees were foreign nationals. Naturalised British subjects and those born in Australia were among those of German, Italian and Japanese origin who were interned. British-born subjects who were members of the radical nationalist organisation, the Australia First Movement, were also interned.
Men made up the majority of those interned, but some women and children also spent time in the camps.
Included in the numbers of internees accommodated in Australia were enemy aliens, mostly Germans and Japanese, from Britain, Palestine, Iran, the Straits Settlements (now Singapore and Malaysia), the Netherlands East Indies (now Indonesia), New Zealand and New Caledonia. Most famous among these groups were the Germans and Italians who arrived on the Dunera from England in 1940. The overseas internees included many women and children.
Prisoners of war
During World War I and World War II, Australia held both internees and prisoners of war. Prisoners of war were members of enemy military forces who were captured or had surrendered, whereas internees were civilians. Most prisoners of war in Australia were sent from overseas, very few were captured in Australia.
Many records do not make a clear distinction between civilian internees and military prisoners of war. The terms ‘prisoner’ and ‘internee’ were often used for both groups. In many cases internees and prisoners of war were accommodated in the same camps.
There were differences, however, in the rights of these two groups and the way they could be treated by Australian authorities. For example, prisoners of war could be made to work while internees could not. Internees also had to be paid for any work they undertook.
Internment camps were administered by the army and run along military lines. During World War I they were often referred to as concentration camps. Camps were established in re-purposed institutions such as the old gaols at Berrima and Trial Bay in New South Wales. The largest camp during World War l was at Holsworthy (Liverpool), west of Sydney.
During World War II, internees were first housed in prisons, such as at Long Bay gaol in New South Wales, or impromptu accommodation such as the Northam race course in Western Australia and the Keswick army barracks in Adelaide. The first camps were set up at the Enoggera (Gaythorne) and Liverpool military bases in Queensland and New South Wales and at the Dhurringile Mansion in Victoria.
As the numbers of internees grew, the early camps became too small. The Australian Government then constructed purpose-built camps at Tatura (Rushworth) in Victoria, at Hay and Cowra in New South Wales, at Loveday in South Australia and at Harvey in Western Australia.
Life for the internees varied between the camps, particularly between those that were temporary camps and those that were purpose-built. The conditions also depended on the geographical location of the camp, its climate, the composition of the camp population and importantly, the personality of the officer in charge.
After the wars
At the end of each war the internment camps were closed down. After World War I, most internees were deported. During World War II many internees, particularly Italians, were released before the end of the war. Others were allowed to leave the camps after hostilities ceased. Internees of British or European origin were permitted to remain in Australia after the war, including those who had been brought from overseas by British authorities. Most of those of Japanese origin, however, including some who were Australian-born, were ‘repatriated’ to Japan in 1946.
When Malaysian Airlines Flight MH17 was shot down over Eastern Ukraine on 17 July 2014, Australian politicians and the mainstream media, especially the Murdoch newspapers, were quick to apportion blame. Responsibility for the disaster was immediately attributed to Russia, either directly or thorough Russian support for the so-called “separatists” in the Donbass region.
For the Australian politicians and media it was a case of “guilty as alleged” although at that time in the immediate aftermath of the disaster there was no evidence upon which to form any conclusions.
Three days after the crash the United States Secretary of State, John Kerry, appearing on NBC’s Meet the Press TV program said that the US had
“picked up the imagery of this launch. We know the trajectory. We know where it came from. We know the timing. And it was exactly at the time that this aircraft disappeared from the radar.”
Mr Kerry did not specify how the US had this information, but it was a reasonable inference at that time that the data had come from US satellites.
Since Mr Kerry’s remarks it has been established by independent investigators that the US had at least three satellites in geo-stationary orbit over Eastern Ukraine on 17 July 2014 Two of these satellites are of the SBIRS type (GEO-1 and GEO-2), and a Space Tracking and Surveillance System (STSS) satellite. Between them they are able to perform continuous surveillance of the area of interest.
Some commentators have endeavoured to downplay the significance of this by suggesting that factors such as cloud cover impeded surveillance capability. This is self-evidently nonsense. As one of their prime functions is to detect missile launches, their defensive capability would be hopelessly compromised if something as simple as cloud cover impeded their capacity to provide a timely warning of missile launches.
The capability of these satellites certainly includes the ability to detect and track the launch of a BUK missile, the weapon most commonly described as the cause of the disintegration of MH17. They can similarly track an air-to-air missile, which is the alternative hypothesis that has been advanced.
There has been a great deal of contradictory information from official sources about this satellite data, which is itself suspicious. For example, on 19 December 2015 the Dutch chief prosecutor and coordinator of the criminal investigation into the disaster, Mr Fred Westerbeke, told the Dutch daily newspaper NRC :
“Satellite images showing how on July 17 Flight MH17 was shot out of the sky by a rocket do not exist. There has been a misunderstanding about this… There is no conclusive evidence from intelligence services with the answers to all the questions.”
If Mr Westerbeke was correct, then it clearly contradicts the claims made by Mr Kerry 17 months earlier. But Mr Westerbeke then contradicted his own earlier statements in a letter to the families of the Dutch victims in February 2016. In that letter Mr Westerbeke stated:
“The US authorities have data generated by their own security forces, which could potentially provide information on a rocket trajectory. These data have been confidentially shared with the Dutch Military Intelligence and Security Service (DISS). The DISS and the Public Prosecutor are now investigating in what form the US state secret information can be used in the criminal investigation and what will be provided in a so-called official report to the Public Prosecution. That special report can be used as evidence by the Joint Investigation Team (JIT).”
It seems a reasonable inference on the basis of that statement that the secret US satellite data does disclose the required information. Specifically, it answers the major question: who fired the missile and from where?
The issue that is publically troubling the JIT is how to use sensitive intelligence data in a public forum such as a trial of accused persons. The undisclosed problem for the JIT is twofold. If, as is widely suspected, the satellite data show that the BUK missile was fired by Ukrainian forces, then that will contradict 20 months of relentless anti-Russian propaganda. The western media are not good at admitting the error of their ways.
The second problem is the agreement of 8 August 2014 whereby the members of the JIT agreed not to disclose any information unless all the parties agreed. As one of those parties, Ukraine, is a prime suspect, it is unlikely that the evidence will ever be revealed if it in fact implicates Ukraine.
It is still the case that the Australian government has never acknowledged the existence of the 8 August 2014 agreement. It has not bothered to tell the Australian public why it entered into such an agreement when the public interest would demand a transparent and full investigation of the worst disaster to be inflicted on Australians since the Bali bombings of 2002.
Given the existence of Mr Westerbeke’s letter to the families of Dutch victims it is difficult to understand why the Australian media are persisting with the claim that the Americans have refused to release the data. Paul Malone’s claim to that effect in the Canberra Times of 12 March 2016 is plainly wrong. It is possible of course that Mr Malone is aware of the facts, but the two problems identified above prevent him disclosing those facts.
Apart from detecting the launch of a missile, the satellite data can pinpoint the precise point from which the missile was fired. In the present case that is supremely important.
The Report of the Dutch Safety Board (DSB) into the MH17 disaster, published in October 2015 only went as far as to narrow the location of the launch site to an area of 320 square kilometers. This was territory contested by both Ukrainian and separatists forces. Despite the uncertainty and non-attribution of culpability in the DSB Report, Australian politicians falsely claimed that the report “proved” that Russian backed separatists were responsible.
Apart from a complete failure by the Australian media to correct this false information, they have also failed to address two further pieces of relevant evidence found in the DSB Report.
The first piece of evidence is found in the technical appendices of the DSB Report. Appendix T (from the Dutch Intelligence Services) has clearly not been read by any member of the Australian mainstream media. This appendix stated, inter alia:
- Although the separatists had captured a Ukrainian military base at Donetsk, the BUK systems located there were “not operational” and therefore “could not be used by the separatists.”
- Although there was information pointing to the fact that the separatists had been supplied with heavy weapons by the Russian Federation, there were no indications that these were powerful anti-aircraft systems.
- Although the separatists were trained to use weapons systems, there are no indications that they were being trained to use powerful anti-aircraft systems.
- There was no evidence of any intention by the separatists to shoot down a civil aircraft.
Reports in the mainstream media imply that the firing of a BUK missile is a matter of pointing it at the sky and pushing the proverbial button. As Appendix T makes clear however, extensive training in their use is required.
Not only must the crews be trained to a high level of proficiency, for which Appendix T notes there is no evidence in respect of the separatists, the firing of a BUK missile also requires the ancillary use of radar systems. Again, there is no evidence that the separatists had such radar equipment.
There was evidence however, that radar equipment of the Ukrainian armed forces was operational at the relevant time and in the relevant location. The Russian authorities at a press briefing given on 21 July 2014 disclosed this. Again, the Australian media ignored this evidence.
Contrary to the vague generality of the DSB Report as to the launch location, we have a report by the Russian manufacturer of the BUK missile, Almaz-Antey, released at the same time as the DSB Report.
Almaz-Antey produced a detailed analysis of the data. Their conclusion was that the BUK missile was launched from the Zaroschenskoe area, which was under the control of the Ukrainian armed forces at the time. This report has never been mentioned in the Australian mainstream media, probably because its conclusions do not fit the official narrative.
Thus, Mr Malone in the Canberra Times states that the JIT investigation is “widely expected” to “confirm that the missile was launched from separatist held territory.” It would only be “widely expected” by those reliant upon the constant stream of disinformation and concealment of evidence common to the mainstream media’s coverage of the MH17 disaster.
It was noted above that there was an alternative hypothesis about the cause of MH17’s crash, namely an air-to-air missile, presumably fired by one of the Ukrainian fighter aircraft identified in the area in the Russian briefing of 21 July 2014.
The Russian forensic expert Albert Naryshkin comprehensively advanced the air-to-air missile theory in July 2015. His report (available only in Russian) concluded that although the specific weapon could not be unequivocally identified, the specific nature of the missile damage to the aircraft meant that the most likely weapon was a Python air-to-air missile.
This particular weapon was adapted for use by the SU-25 Scorpion fighter that was the type of fighter observed by Russian radar data on 17 July 2014 and reported on at the 21 July 2014 briefing.
The merits or otherwise of this hypothesis are beyond the scope of this article. Suffice to say that it was not considered by the DSB and any mention of it is conspicuously absent from the Australian media.
Three further recent developments are worth noting. The first of these was the Coronial Inquest held in Melbourne in November 2015 in respect of the Australian victims. The inquest has been reported by John Helmer on his website. Suffice to note here that the coronial inquiry was deeply flawed. It was marked by secrecy, the suppression of evidence, conflicts of interest, and a manifest desire to simply parrot the official line regardless of other evidence that is progressively emerging.
It accepted without question the conclusions of the DSB Report, even though that Report is incomplete, does not ascribe culpability as it awaits the JIT investigation, and for the reasons mentioned below, is far from flawless.
The second development worth noting is that both the Dutch and the Russians have released letters addressed to the families of the victims.
The Russian statement is by the Deputy Head of the Federal Air Transport Agency of the Russian Federation, Oleg Storchevoy. Mr Storchevoy takes the opportunity to address some of the misinformation about what Russia has and has not done to assist the official inquiry.
He notes, for example, that Russian primary radar data was provided to the DSB, together with telephone conversations and other data, in August 2014. Russian primary radar data was in fact the only such data available, as the Ukrainians had for some reason switched off their radar at the critical time.
The Russian data supplied to the DSB confirmed increased activity by Ukrainian BUK missile systems within the conflict zone ahead of the tragedy. That evidence was ignored by the DSB.
It might be interpolated here that the separatists have no air force, so the need for anti-aircraft systems to be active remains obscure. No explanation has been forthcoming from the Ukrainians.
Mr Storchevoy also drew attention to the unprecedented cooperation offered by Almaz-Antey, the BUK manufacturer which again was ignored by the DSB.
Mr Storchevoy noted that Russia has repeatedly pointed out that the Dutch technical investigation was performed in an extremely non-transparent and biased manner. He said that the Dutch authorities should also explain how they distorted facts and concealed data, and ignored important data supplied by the Russians.
These and other questions posed by Mr Storchevoy are legitimate and deserve careful consideration and response. Perhaps needless to add, no report of Mr Storchevoy’s statement has appeared in the Australian mainstream media.
The second letter was written to the families of the Dutch victims by the head of the JIT inquiry, Mr Fred Westerbeke.
Mr Westerbeke’s letter discussed, inter alia, that conclusions about the technical analysis of the aircraft debris should be available in the latter half of 2016. Importantly, as noted above, he confirmed that the Americans had provided data about the missile trajectory although the form in which that data can be used is unsettled.
Mr Westerbeke also said that the analysis of other data, including intercepted telephone calls, location data from telephones, images (unspecified), witness statements and technical calculations would enable “certain inferences” to be drawn about the rocket’s track.
Reference was also made to the English blogger Eliot Higgins who operates under the name of “Bellingcat.” Despite repeated critical analysis of Higgins’ falsification of data and manifest other errors, he continues to be reported in the western mainstream media as a reliable source.
Why western intelligence agencies, with their vast resources, would defer to one man operating out of his house in Leicester is explicable only if Higgins is seen as a useful conduit for what is invariably anti-Russian propaganda.
Westerbeke obliquely dismisses Bellingcat as a resource, as “providing no evidence of direct involvement of members of a Russian unit” in the shoot down on MH17. The claim of Russian direct involvement is one of the more sensational of Bellingcat’s claims faithfully and uncritically reported in the western media.
In the light of the Westerbeke letter, the Australian Federal Police were asked whether they agreed with the contents of the Westerbeke letter. Westerbeke had signed the letter on behalf of the members of the JIT (which includes Australia).
They were also asked whether a similar letter would be sent to the Australian families. The AFP’s response was a non-answer, saying only that the queries had been forwarded to the JIT!
Information has also been sought from the Prime Minister’s on what compensation the Australian victim families might expect. Under the relevant Australian legislation victims of terrorism are eligible for compensation up to $75,000. That possibility was raised by a number of mainstream media outlets in Australia in July 2014. In order to be eligible the Prime Minister must declare that the deaths of the Australian citizens were as a result of a terrorist attack.
The government had announced on 9 October 2013 that payments would be made to the victim’s families of other terrorist attacks pursuant to the prime ministerial declaration. The payments have been applied retrospectively, starting with the events of 11 September 2001. To date there have been 10 such declarations, the latest being the Paris attacks of 13 November 2015.
The Australian government has not declared the shooting down of MH17 to be a terrorist act for the purposes of the legislation. The reasons for this are unknown, although comment has been sought from the Prime Minister’s office.
Australian victim families still have other remedies available under the provisions of the Montreal Convention of 1999. Under Article 21 of that Convention damages of (approximately) $215,000 are set.
Potential liability of the carrier, in this case Malaysian Airlines, is however unlimited unless it can prove that the death “was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents.”
Given that the evidence appears to suggest that MH17 either flew over a war zone of its own volition or was directed to do so by Ukrainian air traffic control, discharging that onus may prove difficult.
Proceedings seeking various declarations have been launched in the New South Wales Supreme Court by Tim Lauschet (2015/210056) against Malaysian Airlines, but that case is still at a preliminary stage.
The only clear point to emerge in Australia in the 21 months since the disaster is that the government and the mainstream media are determined to, on the one hand deny the public vital information about the disaster, and on the other hand maintain the fiction that the disaster was the fault of Russian backed separatists.
That line serves to justify the sanctions imposed on Russia and the continuing demonization of President Putin. If only Prime Minister Turnbull’s plea for an intelligent and adult dialogue was sincere. If that were the case the Australian public would be better informed than they are. It seems a very vain hope.
James O’Neill is an Australian-based Barrister at Law.
There was an underwhelming sense when Pentagon boss Ashton Carter met this week in Paris with other members of the US-led military coalition supposedly fighting the ISIL terror group.
The US-led coalition was set up at the end of 2014 and in theory comprises 60 nations. The main military operation of the alliance is an aerial bombing campaign against terrorist units of IS (also known as ISIL, ISIS or Daesh).
At the Paris meeting this week, Secretary of Defense Carter was joined by counterparts from just six countries: France, Britain, Germany, Italy, Netherlands and Australia. Where were the other 54 nations of the coalition?
Carter and French defense minister Jean-Yves Le Drian patted themselves on the back about “momentum”in their campaign against the terrorist network. However, platitudes aside, there was a noticeable crestfallen atmosphere at the meeting of the shrunken US-led coalition.
One telling point was Carter exhorting Arab countries to contribute more. As a headline in the Financial Times put it: “US urges Arab nations to boost ISIS fight”.
Carter didn’t mention specific names but it was clear he was referring to Saudi Arabia and the other oil-rich Persian Gulf Arab states, including Kuwait, Qatar, United Arab Emirates and Bahrain.
When the US initiated the anti-IS coalition in 2014, fighter jets from the Sunni Arab states participated in the aerial campaign. They quickly fell away from the operation and instead directed their military forces to Yemen, where the Saudi-led Arab coalition has been bombing that country non-stop since March 2015 to thwart an uprising by Houthi revolutionaries.
But there is an even deeper, more disturbing reason for the lack of Arab support for the US-led coalition in Iraq and Syria. That is because Saudi Arabia and the other Sunni monarchies are implicated in funding and arming the very terrorists that Washington’s coalition is supposedly combating.
Several senior US officials have at various times admitted this. Democrat presidential hopeful Hillary Clinton labelled Saudi Arabia as the main sponsor of “Sunni extremist groups”in diplomatic cables when she was Secretary of State back in 2009, as disclosed by Wikileaks.
Vice President Joe Biden, while addressing a Harvard University forum in late 2014, also spilled the beans on the Persian Gulf states and Turkey being behind the rise of terror groups in the Middle East.
So there is substantial reason why the US-led anti-terror coalition in Iraq and Syria has not delivered decisive results. It is the same reason why Carter was joined by only six other countries in Paris this week and why there was a glaring absence of Saudi Arabia and other Arab members. These despotic regimes –whom Washington claims as “allies”–are part of the terrorist problem.
Not that the US or its Western allies are blameless. Far from it. It was Washington after all that master-minded the regime-change operations in Iraq and Syria, which spawned the terror groups.
In fact, we can go further and point to evidence, such as the testimony of Lt General Michael Flynn of the Defense Intelligence Agency, which shows that the US enlisted the terror brigades as proxies to do its dirty work in Syria for regime change.
The US and its Western allies conceal this collusion by claiming that they are supporting “moderate rebels”–not extremists. But the so-called moderates have ended up joining the terrorists and sharing their US-supplied weapons. The distinction between these groups is thus meaningless, leaving the baleful conclusion that Washington, London and Paris are simply colluding with terrorism.
US Republican presidential contenders and media pundits berate the Obama administration for not doing enough militarily to defeat IS. Or as Donald Trump’s backer Sarah Palin would say to “kick ass”.
The unsettling truth is that the US cannot do more to defeat terrorism in the Middle East because Washington and its allies are the source of terrorism in the region. Through their meddling and machinations, Washington and its cohorts have created a veritable Frankenstein monster.
The “coalition”that is actually inflicting serious damage to IS and its various terror franchises is that of Russia working in strategic cooperation with the Syrian Arab Army of President Bashar al-Assad. Since Russia began its aerial bombing campaign nearly four months ago, we have seen a near collapse of the terror network’s oil and weapons smuggling rackets and hundreds of their bases destroyed.
Yet Ashton Carter this week accused Russia of impeding the fight against terrorism in Syria because of its support for the Assad government. Talk about double think!
If we strip away the false rhetoric and mainstream media misinformation, Washington’s “anti-terror”coalition can be seen as not merely incompetently leading from behind.
The US, its Western allies and regional client regimes are in the front ranks of the terror problem.
On 16 November 2015 the present writer published an article in Australia’s New Matilda magazine. The article had two main objectives. The first was a discussion of the legal bases upon which one State could attack another State. The second purpose was to provide an outline of my attempts to obtain a copy of the legal advice that the Australian government said it would seek before announcing a decision on whether or not to join the United States bombing campaign in Syria.
The content of that advice was of considerable interest. The majority of international lawyers doubted that Australia had any legal basis to intervene militarily in Syria. If the government’s legal advisers had a different opinion, then that would represent a minority view and lawyers would have an interest in the basis of their legal reasoning.
The Australian government had announced on 24 August 2015 that it would be seeking that legal advice. The clear inference was that no decision would be made pending receipt of that advice.
The request under the Freedom of Information Act was refused, but the schedule of relevant documents that were provided (but I was not allowed to see the actual documents) showed that the legal advice had been given to the government on 24 September 2014, eleven months before the Foreign Minister Julie Bishop announced that the advice would be sought.
The decision that Australia was going to join the American bombing campaign 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 was advanced on which this decision had been made. There was no debate in Parliament, but even if there had been it is unlikely that the Labor Opposition would have opposed it given their supine position on all matters relating to “national security”.
The only opposition in Parliament came from Senator Richard di Natale, the Green Party leader, and Senator Scott Ludlum, also of the Greens.
On 16 November 2015, the day the New Matilda article was published, Ms 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. That it took two months to even proffer a reason was interesting in itself.
What Ms Bishop claimed was the reason for the military intervention, that it was at the request of the Iraqi government, contradicted what the government had itself said in August 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.”
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 exemplifies the arrogance characteristic of western foreign policy that simply assumes the right to bomb countries, and invite others to do so.
Ms Bishop in her radio interview of 16 November 2015 never referred to any American request, or that her former leader had solicited such a request. She preferred instead to claim that the invitation had come from the Iraqi government. For the reasons given below, that claim was in all probability untrue.
Ms Bishop’s explanation in that radio interview might have answered the query about the claimed legal basis upon which Australia was going to bomb another sovereign nation put to her by the interviewer. But there were further problems for Ms Bishop and the Australian government.
On 20 November 2015 the UN Security Council unanimously passed Resolution 2249. Despite some ill-informed media comment in the mainstream press about this resolution, it was manifestly not an authorization to attack Syria.
The operative part of the Resolution required 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 Australian government’s first problem then, is that it purports to rely on international law, and in particular Article 51 of the UN Charter. UN Security Council Resolution 2249 did not authorise action outside the terms of the UN Charter. That means that any action would have to be either in self-defence or by resolution of the Security Council. Neither condition exists. That leaves only the notion of collective self-defence.
This is the lingering fig leaf of legal respectability that the government clung to, as set out by Ms Bishop in her interview of 16 November 2015. She claimed that Australia was acting at the purported request of the Iraqi government.
Confirmation of the Australian government’s reliance upon the alleged request by the Iraqi government is found in the letter sent by the Australian government to the Security Council on 9 September 2015. Such a letter of notification of military action against another sovereign State is required under the terms of the UN Charter.
The letter stated that the Syrian government was “unable or unwilling” to prevent attacks from its territory upon Iraq. This is a highly contentious claim, and one that has no foundation in international law. Only two States, The United States and the United Kingdom have officially endorsed the “unwilling or unable” doctrine and their self-interest in doing so is readily apparent.
Among the many reasons for its rejection as a doctrine in international law is that it would open the floodgates to the extraterritorial use of force against non-state actors. That it should appear in an official letter from the Australian government to the UN Security Council is surprising. In effect the doctrine is a back door route to avoiding the restrictions imposed by Article 51 of the UN Charter that force must be utilized only in legitimate self-defence or with the consent of the Security Council.
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.”
The further problem for the Australian government however, was that the Office of the Prime Minister of Iraq issued an official statement on 3 December 2015. That statement renewed 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 did 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 be undertaken without the 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 does the Australian government.
That Iraqi government statement is a direct rebuttal of the claims made by Ms Bishop on behalf of the Australian government that the bombing of Syria was at the request of the Iraqi government. Thus, the Iraqi government demolished the remaining tiny element of potential legality for Australia’s actions.
This is not the end of the Australian government’s legal problems. The International Court of Justice has on at least two occasions in recent years pronounced that the concept of “collective self-defence” does not apply when the “defence” is against non-State actors.
ISIS is not a State in any meaningful sense of the word, 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 had no legal basis.
The Australian mainstream media had given a small amount of space to Ms Bishop’s original announcement about Australia intending to bomb Syria. There was also some coverage of the fact that Australian warplanes had carried out operations in Syria when those operations commenced in September 2015.
Almost no coverage was given to the doubts about the legality of the air operations after they had commenced. There was no coverage given to the government’s letter to the Security Council and therefore on the contentious claims made in that letter. Neither was any coverage given to the statement from the Office of the Prime Minister of Iraq. To do so would of course have fatally undermined the editorial support for the government’s actions.
But there was a further significant development that should have been disclosed by the government and given extensive coverage by the media, and that is the extent of the actual bombing in Syria undertaken by the Australian Air Force.
The Department of Defence issues, via its website, the activities of the Air Task Group as it is known, in Iraq and Syria. These data reveal that the F/A-18 fighter-bomber used by 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.
It was also however, the month that the operations initially ended. The Department of Defence figures show that zero sorties were flown in Syria in the months of October and November and 10 in December.
Some obvious questions are posed by these data. The first question is why did the bombing cease after the same month it began? The second question is why, given the controversies that surrounds the bombing, were the government and the media totally silent on the fact that the bombing had ceased in October and November?
An obvious question is why did the Foreign Minister, in her interview on 16 November 2015, not mention the fact that the bombing she claimed was legally justified had in fact ceased more than six weeks previously? The impression that she strongly sought to convey was that the bombing was both legal and continuing pursuant to the various claims that she was making.
The answers to those questions are necessarily speculative, as the government does not see fit to announce to the people to whom it is accountable, what they are doing on such a vital issue. The mainstream media are doing what they always do, which is to avoid printing any material that does not accord with their pre-determined agenda.
We do know however, that the American bombing of Syria had been singularly ineffective in diminishing ISIL’s operational capacity. Some commentators have suggested that was precisely the point. Whether Australia wished to continue being a party to that charade is an interesting point, and one that an Opposition and a media interested in the truth should pursue.
There was another development at the end of September 2015 however, that has been a singular game-changer in the Syrian theatre of operations. The Russian military intervened in the Syrian conflict. Completely unlike the position of the US “coalition”, the Russians intervened at the specific request of the Syrian government. There was therefore no doubt in international law that the Russian intervention was legally permissible.
The Russian intervention, while on a relatively small scale, has been devastatingly effective. Not only were the ISIL forces obliged to seek cover from air attacks, having enjoyed apparent immunity from the Americans and their allies during the preceding 15 months, there was also major disruption of their supply lines.
As a result of Russian air reconnaissance and satellite images, it has been established beyond doubt that ISIL was transporting stolen Iraqi and Syrian oil across the Turkish border. That oil was sold on the black market through a company with close links to President Erdogan of Turkey. Military supplies were in turn being shipped back across the Turkish border into Iraq and Syria.
There is also good evidence that wounded ISIL fighters are being treated in Turkish and Israeli hospitals. They are also trained in Turkish and Jordanian camps among other places. Both President Putin and Foreign Minister Lavrov have pointed out the financial and other support ISIL receives from other countries in the region.
The Australian media have chosen to give only minimal coverage to some of these disclosures and certainly no analysis of their implications. Those interested in discovering what is actually happening in Syria and related theatres of war are obliged to seek that information elsewhere.
The Russians have also installed the sophisticated S400 air defence system in Syria. This gives them, and their Syrian allies, the capacity to shoot down any unauthorized aircraft in Syrian air space. Again it is purely speculative, but that may also be a reason why Australian Air Force bombing of Syria, which is manifestly unauthorized, ceased for two months after the Russian intervention.
There has now been another new development. The former Defence Minister, Kevin Andrews, sacked when Malcolm Turnbull became Prime Minister in September, complained that Australia should not have rejected a request from the Americans for a greater commitment of troops to Syria. It appears that the replacement Defence Minister, Marise Payne, had rejected such a request.
Typically, neither the fact of the request nor that it had been refused were known to the public until Mr Andrews complained. Equally typically, the issue of the legal right of the US to make such a request was never discussed.
The fact that it was the Americans who were driving the push for a greater military commitment by Australia did not form part of the letter to the Security Council, and neither was it mentioned by Ms Bishop on 16 November 2015 when she told the ABC why Australia was going to join the bombing of Syria.
To stop the illegal bombing was undoubtedly correct from many points of view, not least from the standpoint of international law that Australia has increasingly disregarded in recent years. The great pity is that the Australian government had neither the moral fortitude nor sufficient faith in the Australian people to inform them of the decision to even temporarily withdraw from a war they had no business in pursuing in the first place.
Neither have we been given an explanation as to why this manifestly illegal bombing has recommenced, whether it is intended to continue, and if so on what possible legal basis. The original purported justifications have been comprehensively demolished by the subsequent revelations. Whether Mr Turnbull can resist the inevitable pressure from the Americans at his forthcoming meeting with President Obama will be closely watched.
James O’Neill is an Australian-based Barrister at Law.
Resolution severely criticises the “Occupying Power”
Can this be true?
Something important and, freedom lovers may think, rather wonderful seems to have happened at the United Nations, and it went largely unreported in mainstream media. The UN General Assembly approved a draft resolution ‘Permanent sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources’ (document A/70/480).
It was adopted by 164 to 5 against (Canada, Israel, Marshall Islands, Federated States of Micronesia, United States), with 10 abstentions (Australia, Cameroon, Côte d’Ivoire, Honduras, Papua New Guinea, Paraguay, South Sudan, Togo, Tonga, Vanuatu).
What’s so wonderful? The draft resolution pulls no punches and must have thoroughly annoyed the insatiable state of Israel, which has evil designs on the natural resources – oil, gas and water – belonging to its neighbours. The resolution is long but nicely crafted, and is reproduced here pretty much in its entirety as an aide-memoire of Israel’s long history of contemptuous disregard for its obligations.
The General Assembly,
Recalling its resolution 69/241 of 19 December 2014, and taking note of Economic and Social Council resolution 2015/17 of 20 July 2015,
Recalling also its resolutions 58/292 of 6 May 2004 and 59/251 of 22 December 2004,
Reaffirming the principle of the permanent sovereignty of peoples under foreign occupation over their natural resources,
Guided by the principles of the Charter of the United Nations, affirming the inadmissibility of the acquisition of territory by force, and recalling relevant Security Council resolutions, including resolutions 242 (1967) of 22 November 1967, 465 (1980) of 1 March 1980 and 497 (1981) of 17 December 1981,
Recalling its resolution 2625 (XXV) of 24 October 1970,
Reaffirming the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967,
Recalling, in this regard, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and affirming that these human rights instruments must be respected in the Occupied Palestinian Territory, including East Jerusalem, as well as in the occupied Syrian Golan,
Recalling also the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, and recalling further its resolutions ES-10/15 of 20 July 2004 and ES-10/17 of 15 December 2006,
Recalling further its resolution 67/19 of 29 November 2012,
Taking note of the accession by Palestine to several human rights treaties and the core humanitarian law treaties, as well as to other international treaties,
Expressing its concern about the exploitation by Israel, the occupying Power, of the natural resources of the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967,
Expressing its grave concern about the extensive destruction by Israel, the occupying Power, of agricultural land and orchards in the Occupied Palestinian Territory, including the uprooting of a vast number of fruit-bearing trees and the destruction of farms and greenhouses, and the grave environmental and economic impact in this regard,
Expressing its grave concern also about the widespread destruction caused by Israel, the occupying Power, to vital infrastructure, including water pipelines, sewage networks and electricity networks, in the Occupied Palestinian Territory, in particular in the Gaza Strip during the military operations of July and August 2014, which, inter alia, has polluted the environment and negatively affect the functioning of water and sanitation systems and the water supply and other natural resources of the Palestinian people, and stressing the urgency of the reconstruction and development of water and other vital civilian infrastructure, including the project for the desalination facility for the Gaza Strip,
Expressing its grave concern further about the negative impact on the environment and on reconstruction and development efforts of the thousands of items of unexploded ordnance that remain in the Gaza Strip as a result of the conflict in July and August 2014,
Recalling the 2009 report by the United Nations Environment Programme regarding the grave environmental situation in the Gaza Strip, and the 2012 report, “Gaza in 2020: A liveable place?”, by the United Nations country team in the Occupied Palestinian Territory, and stressing the need for follow-up to the recommendations contained therein,
Deploring the detrimental impact of the Israeli settlements on Palestinian and other Arab natural resources, especially as a result of the confiscation of land and the forced diversion of water resources, including the destruction of orchards and crops and the seizure of water well by Israeli settlers, and of the dire socioeconomic consequences in this regard,
Recalling the report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,
Aware of the detrimental impact on Palestinian natural resources being caused by the unlawful construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and of its grave effect as well on the economic and social conditions of the Palestinian people,
Stressing the urgency of achieving without delay an end to the Israeli occupation that began in 1967 and a just, lasting and comprehensive peace settlement on all tracks, on the basis of Security Council resolutions 242 (1967), 338 (1973) of 22 October 1973, 425 (1978) of 19 March 1978 and 1397 (2002) of 12 March 2002, the principle of land for peace, the Arab Peace Initiative and the Quartet performance-based road map to a permanent two-State solution to the Israeli-Palestinian conflict, as endorsed by the Security Council in its resolution 1515 (2003) of 19 November 2003 and supported by the Council in its resolution 1850 (2008) of 16 December 2008,
Stressing also, in this regard, the need for respect for the obligation upon Israel under the road map to freeze settlement activity, including so-called “natural growth”, and to dismantle all settlement outposts erected since March 2001,
Stressing further the need for respect and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem,
Recalling the need to end all acts of violence, including acts of terror, provocation, incitement and destruction,
Taking note of the report prepared by the Economic and Social Commission for Western Asia on the economic and social repercussions of the Israeli occupation on the living conditions of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan, as transmitted by the Secretary-General,
Reaffirms the inalienable rights of the Palestinian people and of the population of the occupied Syrian Golan over their natural resources, including land, water and energy resources;
Demands that Israel, the occupying Power, cease the exploitation, damage, cause of loss or depletion and endangerment of the natural resources in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan;
Recognizes the right of the Palestinian people to claim restitution as a result of any exploitation, damage, loss or depletion or endangerment of their natural resources resulting from illegal measures taken by Israel, the occupying Power, and Israeli settlers in the Occupied Palestinian Territory, including East Jerusalem, and expresses the hope that this issue will be dealt with within the framework of the final status negotiations between the Palestinian and Israeli sides;
Stresses that the wall and settlements being constructed by Israel in the Occupied Palestinian Territory, including in and around East Jerusalem, are contrary to international law and are seriously depriving the Palestinian people of their natural resources, and calls in this regard for full compliance with the legal obligations affirmed in the 9 July 2004 advisory opinion of the International Court of Justice and in relevant United Nations resolutions, including General Assembly resolution ES-10/15;
Calls upon Israel, the occupying Power, to comply strictly with its obligations under international law, including international humanitarian law, and to cease immediately and completely all policies and measures aimed at the alteration of the character and status of the Occupied Palestinian Territory, including East Jerusalem;
Also calls upon Israel, the occupying Power, to bring a halt to all actions, including those perpetrated by Israeli settlers, harming the environment, including the dumping of all kinds of waste materials, in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, which gravely threaten their natural resources, namely water and land resources, and which pose an environmental, sanitation and health threat to the civilian populations;
Further calls upon Israel to cease its destruction of vital infrastructure, including water pipelines, sewage networks and electricity networks, which, inter alia, has a negative impact on the natural resources of the Palestinian people, stresses the urgent need to advance reconstruction and development projects in this regard, including in the Gaza Strip, and calls for support for the necessary efforts in this regard, in line with the commitments made at, inter alia, the Cairo International Conference on Palestine: Reconstructing Gaza, held on 12 October 2014;
Calls upon Israel, the occupying Power, to remove all obstacles to the implementation of critical environmental projects, including sewage treatment plants in the Gaza Strip and the reconstruction and development of water infrastructure, including the project for the desalination facility for the Gaza Strip;
Calls for the immediate and safe removal of all unexploded ordnance in the Gaza Strip and for support for the efforts of the United Nations Mine Action Service in this regard, and welcomes the efforts exerted by the Service to date;
Encourages all States and international organizations to continue to actively pursue policies to ensure respect for their obligations under international law with regard to all illegal Israeli practices and measures in the Occupied Palestinian Territory, including East Jerusalem, particularly Israeli settlement activities and the exploitation of natural resources;
Requests the Secretary-General to report to the General Assembly at its seventy-first session on the implementation of the present resolution, including with regard to the cumulative impact of the exploitation, damage and depletion by Israel of natural resources in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and decides to include in the provisional agenda of its seventy-first session the item entitled “Permanent sovereignty of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources”.
This is strong stuff. But given the UN’s record will the action ever suit the words?
Astonishingly, the Israel-adoring UK government voted for it. Let us make a mental note of those 5 countries – Canada, Israel, Marshall Islands, Federated States of Micronesia, United States – which claim to be freedom loving but are evidently bent on denying the poor Palestinians theirs. And the birdbrained 10 – Australia, Cameroon, Côte d’Ivoire, Honduras, Papua New Guinea, Paraguay, South Sudan, Togo, Tonga, Vanuatu – which are so lackadaisically uncommitted to the principle of universal human rights that they sat on the fence. Maybe international civil society would like to prod them with a sharp BDS stick to concentrate their minds.
At least one country, happily, is taking a tough line – Brazil, which, says the BBC, has yet to approve the appointment four months ago of Israel’s new ambassador. Not only is the new man, Dani Dayan, a former chairman of the Yesha Council which promotes illegal Israeli settlements on stolen Palestinian lands, but Israeli prime minister Netanyahu broke the news of the appointment on Twitter before telling Brazil, according to reports.
As even Netanyahu must know, the transfer by an occupier of part of its own population into territory it occupies is considered a war crime, so why should Brazil play host to a foreigner with such a vile record? Israel is threatening to downgrade relations to “secondary level” if Brazil does not give approval to the appointment. And Israeli deputy foreign minister Tzipi Hotovely says that Dayan would not be replaced if his appointment isn’t accepted.
Since Brazil is Israel’s largest trading partner in South America you’d think the Israelis would watch their manners. The Brazilians, hopefully, won’t allow themselves to pushed around by Tel Aviv’s insufferable thugs.