Friday, May 31, 2013

Ending undeclared wars: repeal of authorizing legislation

Michael Krepon has a useful piece at Arms Control Wonk commenting on President Obama’s speech on the use of armed drones for assassinations of alleged Taliban- and Al Qaeda-linked terrorists in Pakistan, Yemen, Somalia and elsewhere.

Leaving aside Obama’s attempt in the speech to limit the number of drone killings and tighten the criteria for such actions, Krepon makes an important connection in the argument about both the legality and strategic prudence of drone assassinations by linking the issue back to the foundation legal authority for these killings: the joint resolution of both houses of Congress resulting in the Authorization for Use of Military Force [AUMF, Public Law 107-40, 2002]

With its shades of the 1964 Gulf of Tonkin Resolution, the key passage is :

“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2011, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

While discussing the Obama speech, Krepon provides some useful additional material for the now widespread discussion of US drone strikes – including the Justice Department White Paper on drone strikes dated November 8, 2011 and leaked to the media in February, 2013, and Archbishop Desmond Tutu’s brilliant 12 February New York Times critique.

But the really important issue for those concerned about accountability and transparency of commencing contemporary wars comes when Krepon points that despite the announced winding down of the US troop presence in Afghanistan, there are no signs that Congress is reconsidering the basic authorizing legislation for the “war on terror”: the Authorization for Use of Military Force.

Since contemporary wars are rarely declared, such national legal authorities as AUMF or the Gulf of Tonkin Resolution are extremely important – at both the start and end of conflict. A related case in point is the use of UN Security Council resolutions, such as Security Council Resolution 1386 (2001), passed on 20 December 2001. This resolution, renewed annually by Security Council vote:

1. Authorizes, as envisaged in … the Bonn Agreement, the establishment … of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas …;

2. Calls upon Member States to contribute personnel, equipment and other resources to the International Security Assistance Force, and invites those Member States to inform the leadership of the Force and the Secretary-General;

3. Authorizes the Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate;

The Australian government cites UNSC 1386, together with a request for assistance from the Government of the Islamic Republic of Afghanistan, as the legal foundation for 12 years of Australian involvement in the war in Afghanistan. This involvement will not end with the withdrawal of the ADF from the Oruzgan province bases at Tarin Kowt and elsewhere – Special Forces (SAS and other units) will continue to cooperate with US special forces and the Afghan National Army for an unspecified period.

The legal force – and legitimating potency - of UNSC 1386, like the Congressional Authorization for Use of Military Force, will continue until they are repealed – in the US Congress and the UN Security Council. In fact, “repeal” of UNSC 1386 actually need not be explicit. Simply failing to pass the annual renewal would be sufficient. But in the US case, as with the Gulf of Tonkin repeal resolution in June 1970, explicit de-authorising legislation is needed.

The procedures for ending – and for delegitimating – these “undeclared” wars is politically critical. As Krepon points out, while Obama may be opting for a little more prudence in the use of armed drones as global tools of assassination, there is no sign that their American framing through the “war on terror” is about to end. US drone killings in Pakistan, East Africa, and the Arabian peninsula will continue, and Australia is involved – through Pine Gap, and through the assistance provided by SAS forces operating in Africa.

Just as we need transparency and accountability for taking Australia to war, we need more thought about how to end such involvements – particularly in the case of “the war on terror” and their future cousins.

Monday, May 27, 2013

Pilger on Gatsby and Iraq

In today’s online edition of The Guardian, Australian journalist John Pilger surveys the mess that is contemporary Iraq, under the headlines

We've moved on from the Iraq war – but Iraqis don't have that choice

Like characters from The Great Gatsby, Britain and the US
have arrogantly turned their backs and left a country in ruins

After surveying the horrendous spike in cancer cases and birth defects which local doctors and World Health Organisation researchers attribute to the use by US and UK forces of over 300 tonnes of depleted uranium (a metal which is highly toxic aside from its radioactivity), he writes:

Iraq is no longer news. Last week, the killing of 57 Iraqis in one day was a non-event compared with the murder of a British soldier in London. Yet the two atrocities are connected. Their emblem might be a lavish new movie of F Scott Fitzgerald's The Great Gatsby. Two of the main characters, as Fitzgerald wrote, "smashed up things and creatures and retreated back into their money or their vast carelessness … and let other people clean up the mess".

Wednesday, May 22, 2013

Substitute question marks for exclamation marks

Substitute question marks for exclamation marks

The Japan Times
Wednesday, May 22, 2013

 A terrible tragedy is unfolding in (fill in the name of your favorite trouble spot). Something must be done. This (choose from sending troops, air strikes, enforcing a no fly zone, arming rebels) is something. Therefore it must be done.

Such is what passes for much of policy advice by some analysts, many unembarrassed by their dismal record on Iraq 10 years ago. The latest trouble spot of choice for their penetrating insights is Syria. And the latest development to have heightened their excitability is claims of chemical weapons — sarin, a banned nerve gas — having been used there.

Two sensible pieces of policy advice for dealing with violent conflicts in that region: (1) If you understand the problem, you have been misinformed; (2) If you are confronted with a series of exclamation marks, substitute each with several question marks.

The Syrians have used chemical weapons! They have crossed our red line! We must join the fight!

Time out!

Who is alleging the use of chemical weapons by whom? Each side accuses the other. How independent, credible and reliable are the sources and the evidence? Not definitive enough to jump to conclusions. Sarin seems to have been used, but we do not know how, when and by whom. The time-lag and long communications chain in getting soil and biological samples to Western scientists increase their vulnerability to being tainted and challenged on authenticity.

On May 6, Carla Del Ponte, a former Swiss attorney general and war crimes prosecutor at The Hague and one of the lead U.N. investigators into the use of chemical weapons in the Syrian civil war, said that according to reports she had seen, “there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas … on the part of the opposition, the rebels, not by the government authorities.” But the use of chemical weapons by government forces could not be ruled out.

The independent International Commission of Inquiry, set up by the U.N. Human Rights Council in August 2011, immediately distanced itself from her remarks, clarifying in a press release that it had reached no definitive conclusions on the use of chemical weapons by any of the conflict parties in Syria. In other words, the situation is so confusing and fluid that even members of the U.N. inquiry team are speaking at cross-purposes. On the same day, Russian foreign ministry spokesman Alexander Lukashevich expressed deep concern that world public opinion was “being prepared for possible military intervention” in Syria.

There’s the rub. Both sides are engaged in a vicious propaganda war. It is worth remembering that after the Iraq fiasco in 2003, the Western media’s credibility among others is zero in assessing weapons of mass destruction claims. Not to mention Israel’s nuclear arsenal — the real WMD — as the elephant in the Middle East’s WMD room and how it dents Western governments’ credibility.

Declaring the use of chemical weapons to be a critical red line sent a warning to the Assad regime. But it also sent a signal to the rebels that they could maneuver the West into joining the fray on their side by provoking the regime into using such weapons or manipulate the evidence to suggest this has been done. Thus those already pushing for U.S. involvement have exploited the use of sarin as a selling point in the internal Washington debate, just as WMD was a marketing gimmick against Iraqi leader Saddam Hussein.

Who are the rebels? What is their agenda? What would be their policies if in government? How dominant are the Islamist fighters? How many are foreigners? How much of a blow back should Western countries, including Australia, expect from battle-hardened jihadists when they return “home” from Syria? By intervening, are we going to deliver Syria to al-Qaida just as the U.S. delivered Iraq to Iran? Are we falling into the trap of moral relativism in ignoring terrorist outrages against Western-unfriendly regimes that we despise?

What of the fate of the non-Sunni populations in Syria if a hardline Islamist regime takes power — the Alawites, Druze and Christians? Can we be confident that horrific atrocities will not be committed on them? If we break Syria as a functioning state, will we not own the murderous anarchy that ensues?

As U.S. statesman Henry Kissinger supposedly said of the Iran-Iraq war (1980-1988), it’s a pity both sides can’t lose. Faced with wars of choice, we would do well to heed Oliver Cromwell’s famous appeal to the General Assembly of the Church of Scotland in the mid-17th century: “I beseech you, in the bowels of Christ, think it possible you may be mistaken.”

The divine right of kings to rule over subjects did not give way to the divine right of Westerners to choose other people’s regimes for them. Better to be taunted for doing nothing, than to be hated and despised as invaders and conquerors for “liberating” ingrates from despots.

Question marks help to bring nuance to policy analyses and choices. U.S. President George W. Bush famously warned against being nuanced to death. Look where the preference for simplistic analyses and solutions got him in Iraq.

The American people understand the need for caution. In a recent poll, only 15 to 25 percent believed North Korean and Syrian crises require immediate U.S. action, against 56 to 62 percent who said the United States has no responsibility to act.

There is no humanitarian crisis so grave that it cannot be made worse by military intervention. “We must do something” is a slogan, not a policy. Good intentions are no guarantee of good policy nor of good outcomes when meddling in foreign lands. The one guaranteed result of Western intervention would be to intensify the civil war and multiply the killings. Only a political solution in which all sides have a stake in the new Syrian order will reduce atrocities and provide the basis for social and political stability.

Ramesh Thakur, professor in the Crawford School of Public Policy, Australian National University, is co-editor of “The Oxford Handbook of Modern Diplomacy.”

Monday, May 20, 2013

A question of accountability as HMAS Sydney joins USN Carrier Strike Group

As we know from the Iraq and Afghanistan wars, many ADF personnel have been embedded in US military forces, serving alongside US military personnel, often in war zones. The most recent example concerns the insertion of the RAN guided missile frigate HMAS Sydney into the United States Navy's Seventh Fleet, home ported in Yokosuka, Japan. The Sydney will become part of the protective screen for the core of the fleet the Nimitz-class aircraft carrier USS George Washington (CVN-73), and operate as a part of the Washington's Carrier Strike Group.

The question arises of the legal status of the Sydney as part of the Carrier Strike Force in the event that it is drawn into maritime conflict with North Korean forces in the Japan Sea or the Yellow Sea.

The Sydney will be taking part in the Carrier Strike Group's normal activities in the region, including multinational naval exercises and port visits in Japan and South Korea. For the Navy "this is a premium opportunity to gain an intimate working knowledge of how warships interact in a Carrier Strike Group to achieve a vast array of different and dynamic missions, while still achieving the primary aim of protecting a high value asset such as a carrier".

There's nothing remarkable about this deployment as such, except for the quite real possibility that the carrier strike force, and the Sydney along with it, will be required to take part in a deterrent show of force in response to North Korean provocations. This was exactly what the Washington carrier group did in late July 2010, after the sinking of the ROK navy ship Cheonan.

For this blog, the deployment of the Sydney as an embedded part of the US Navy's sole carrier strike force in the Pacific raises important issues of Australian government accountability in the event of armed conflict. The issues are not straightforward, but could include:
  • what are the command arrangements for the Sydney in the event of hostilities?
  • if hostilities are anticipated, what arrangements are there for consultation between the Australian and US governments about the possible role of the Sydney
  • given that the Sydney is to be part of a protective screen for the George Washington, what rules of engagement are in place for non-US Navy elements in the Carrier Strike Group? 
Tension in the region has died down a little, following the completion of joint US-ROK naval exercises last month, and consequent DPRK agitation and provocation. Buit nothing is guaranteed in that part of the world, and as the 2010 sinking of the Cheonan and the artillery shelling of Yeongpyeong Island by the DPRK show, not much short of anything can easily happen. 

Moreover, the dark historical memory that is never far away in these tit-for-tat incidents happening out of public sight at sea is the Gulf of Tonkin Incident, when an alleged attack by North Vietnamese torpedo boats on a US Navy destroyer in August 1964 provided the Johnson administration with the political momentum to persuade both houses of Congress to pass a joint resolution authorising the president to use US forces to defend any member of SEATO that requested assistance - opening the way to the massive US escalation of the Vietnam War in 1965-66. Here the key fact is that it was many years, and many lives lost, before it was conclusively demonstrated the sup[posed North Vietnamese attacks simply did not take place. 

Now, questions about the accountability of the Australian government for the actions of Australian warships embedded in US naval task forces raises particular versions of the more general problem of weak or non-existent parliamentary and legal limits on the Australian government's war powers.

Warship to join US fleet in hot zone: Japan base for frigate, Brendan Nicholson, The Australian (26 April 2013)