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Legislating for War Powers Reform: a report

On 23 October Australians for War Powers Reform held a one-day Seminar at the ANU in Canberra attended by around 20 former senior defence personnel, public servants and specialist academics.

It concluded that Parliament should become much more closely involved in government decisions to send Australian armed forces into combat abroad; that this parliamentary reform also needs support of several mutually reinforcing mechanisms, to spread the responsibility for war decisions and to safeguard against reckless decisions; and that Australia should return to the pre-2003 formal process of the Governor-General in Executive Council issuing war orders under the War Prerogative. The ‘short-cut’ practices in and since the 2003 Iraq War of the Prime Minister making such decisions alone, or in secret National Security Committee of Cabinet, and of these decisions then being given effect by the Minister of Defence using his/her administrative powers over the ADF under the Defence Act, bypass proper process, do not have a sound legal basis, and pose real dangers for ADF personnel sent into combat under such orders with duties to kill, capture and destroy the enemy forces.

The Seminar was opened by Melissa Parke MP who said Australia continued to muddle along with a ‘low-quality, low-integrity’ mode of decision-making on peace and war. We had helped to create the present Middle East military disaster by taking part in the 2003 Iraq War. There was no clear international legal basis for Australia’s present military operations against ISIS in Iraq or Syria. We had wasted our UN Security Council term of membership, in failing to take initiatives for UNSC-authorised peace action.

Six expert speakers from military, international law, government policy and media backgrounds presented discussion papers. Consensus was reached as follows.

The War Prerogative which passed from the Crown to the Governor-General in 1941-42 is still the only proper way to commit Australia’s armed forces to warlike operations abroad, either under UN Security Council authority or in ‘wars of choice’ without such authority.

Though Australia no longer declares wars, Australia’s obligations under the UN Charter and the developing ICC and ICJ international judicial regimes make any Australian warlike operations not under UN Security Council authorisation potentially illegal, and put at risk the ADF personnel ordered to fight in them. This is why such decisions should be shared, debated and supported as widely as possible. Under our system of parliamentary representative democracy, there must now be more thorough parliamentary and public debate on war-making decisions. These decisions should no longer be left to the whims of Prime Ministers, who do not under Australia’s constitution possess the War Prerogative.  

AWPR does not propose that Parliament micromanage Australia’s future wars. But Parliament should engage in sober and informed debate on the strategic rationale and justification for deploying Australian soldiers into any armed conflict theatres of operation. A debate in Parliament could be initiated by a Government statement that provides a clear basis of the legal authority; the strategic justification for the overseas deployment, indicating the level of commitment, the goals and objectives of the mission and safeguards against mission creep, and the relationship of the size and means of Australian contribution to the overall mission goals; an indication of the likely timeframe of deployment and what would constitute success, in the event of which Australian soldiers could be withdrawn.

Most decisions to send the ADF into combat operations abroad have long public lead times, sufficient to set up parliamentary committee hearings and to obtain expert advice, by which the Parliament as a whole can become better informed. The seminar looked at how this might have been done in the case of the 2003 Iraq War.  With the media doing its job of informing the public, issues involved in Prime Ministerial decisions to go to war could be more widely shared in the Australian community, whose children have to fight these wars, through the parliamentary process.  

The final recommended safeguard against bad decision-making would be that the Governor-General, at the Prime Minister’s request, issue formal War Orders in Executive Council. The Seminar looked at how such Orders might have been drafted in recent cases. A former Chief of the Defence Force opined that he would be comfortable to lead ADF war operations on the authority of such an Order. 

The Seminar reached no agreed view on whether it would be desirable to record such recommended policy changes in specific legislation; or whether AWPR’s proposed reforms in war decision-making might be achieved more simply, for example by consensus commitments of party leaders. It might not be necessary to amend the Defence Act, which Sir Arthur Tange’s historic reforms had conceived as primarily about the administration and supply of the ADF. 

The Seminar agreed that the next step would be for AWPR committee members to offer to present these findings for discussion with representatives of the political parties.

- Tony Kevin

This report can also be accessed on the front page of our website.
AWPR's Dr Alison Broinowski was on last week's Q&A! She challenged Australia's involvement in wars, including the current bombing of Syria and Iraq. You can still catch the episode here on ABC iview.
Shadow Minister for Foreign Affairs, Tanya Plibersek, recently delivered a speech calling for a parliamentary debate on the Government's strategy in response to the crisis in Iraq and Syria. You can read it here.

"Against this backdrop of heightened uncertainty, the Australian public deserve a clear outline of the strategy for our personnel who are being placed in harm’s way."
Tennessee Congressman John Duncan speaks out against war in this impassioned speech, which is well worth reading.

"We need to stop trying to run the whole world... It is not the fault of the American people, but it is the fault of our liberal, elitist foreign policy establishment that there is so much hatred for America in the Middle East."
The AWPR has a new article from Ramesh Thakur titled: Why Russia is Right to Choose the Bad in Syria for Fear of the Worse. Originally published in The Wire, you can read it here.

The Kunduz Hospital Bombing Tragedy

All of Médecins Sans Frontières remains deeply shocked and saddened after the MSF trauma hospital in Kunduz, Afghanistan was struck by a series of aerial bombing raids around 3am on Saturday 3 October 2015, as part of the battle of the Afghan government and US forces to regain control of the city previously taken by the Taliban.

The hospital was full at the time of the attack and 10 patients, including 3 children and 12 MSF staff members were killed, 37 people were injured including 19 MSF staff members. The MSF team in Kunduz was operating the only hospital capable of carrying out war trauma surgery in a region devastated by violent combat. Today the population has no other facility capable of providing this kind of life-saving care, constituting a second catastrophe in terms of access to healthcare for thousands of people.

This tragedy occurred despite all parties to the conflict being fully and regularly informed of the GPS coordinates of all our medical facility locations. MSF takes great care to ensure all its medical facilities are in no way militarised, as it is only through ensuring fully independent and impartial action to assist those in times of conflict that we can call for the neutrality of our medical facilities to be respected by all.

We will never find words adequate to express our shock, sympathy and solidarity with all who have been so tragically impacted by this horrific, avoidable event referred to by the military as ‘collateral damage’ and as ‘a consequence of war’. Once more it shows the absence of basic, elementary respect provided to civilians and medical workers caught in conflict and to the Geneva Conventions legislated to protect medical workers in conflict zones. Kunduz hospital was fulfilling a rare role in this region, providing care to all.

The Australian Defence Force is part of the US Coalition in a number of wars. In Afghanistan 41 ADF personnel have been killed, 261 Australians wounded, many others adversely affected by the Afghanistan deployments. We as the Australian body politic send predominantly young Australians into danger, putting their lives and their long term mental health in harms way on the turn of potentially a single person’s decision and worldview, our laws allowing a prime minister of the day to send Australians to war.

Increasingly our nation stands ever more isolated amongst democracies in perpetuating this executive power. There are many dreadful unintended consequences of war and in MSF’s case we must continually weigh up and try to hold in balance the overwhelming medical needs of a population against the risk to courageous MSF staff working in war zones and our duty of care to them.

It is my view consequences such as those outlined here should be considered and debated when the case for war is weighed up in our houses of parliament and a decision to send our fellow Australians to war is either made or vetoed by our parliamentary representatives

I refer you to the Médecins Sans Frontières International President Dr Joanne Liu’s statement and her call for an independent investigation into the Kunduz hospital attack. Please support her call and send the sign to your networks. Afghanistan: Enough. Even war has rules.

Finally, this on ABC News 24, by Andrew Quilty photographer from Sydney. Horrendous.

Susanne Weress

Image: surgery in the aftermath of the attack, MSF.

Finally, we have printed a fresh round of brochures to provide an introduction to the campaign, our ideas and goals. If you can help disseminate them in your community or workplace, please get in touch by emailing and we will be happy to post you a bundle.

Australians for War Powers Reform
The views expressed in this Bulletin are those of the authors and do not necessarily reflect the policy or position of Australians for War Powers Reform or the Campaign for an Iraq War Inquiry (Inc). Readers should note that both Australians for War Powers Reform and the Campaign for an Iraq War Inquiry (Inc) seek a diversity of views and opinions in order to identify common ground.
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