Thursday, August 29, 2013

Statement on Syria

The Campaign for an Iraq War Inquiry said today that any use of chemical weapons, in Syria or elsewhere, is totally unacceptable. Allegations of their recent use in Syria can and must be investigated through the UN Secretary General's office, in co-operation with the World Health Organisation in Geneva, and the Organisation for the Prohibition of Chemical Weapons in The Hague. 

National intelligence assessments are not a sufficient condition for military strikes on Syria to proceed in a way that would be justified under international law. We would condemn, in the strongest terms, the breaking of international law governing the use of force in the current situation.  While a prohibition on the use of chemical weapons must be upheld, an escalation of the war which will lead to even more casualties and the risk of an uncontrolled spread of violence is the wrong response.  Talk of brief limited military interventions should be treated with the greatest scepticism in the light of other recent wars in which Western countries have become bogged down since 2001.  Impatience to launch an attack before UN inspectors deliver their report sends chilling reminders of the catastrophic and destabilising invasion of Iraq in 2003.

We are therefore deeply concerned that the Australian government has given strong support to the indications that a military strike against Assad's forces, led by the United States and its allies, will proceed without the findings of the UN Secretary-General's investigation being delivered, and in the absence of a UN Security Council mandate.

We question whether the responsibility to protect 'mandates international action', as Senator Carr has claimed, in a manner that is strictly retributive. International action could take a number of forms; warfare is the most costly, risky and destructive option.

In 2003, the Australian Labor Party, then in Opposition, wholeheartedly supported the UN inspection regime in Iraq, including the UN Special Commission and the UN Monitoring, Verification and Inspection Mission prior to the 2003 war. We would expect that when decisions have to be made in relation to the current crisis, the lessons of past governments will have been learned, and that the Government will be mindful of its particular responsibilities to respect and protect the role of the United Nations Security Council during its forthcoming Presidency thereof.

We call on the Australian government to use its Presidency of the Security Council to work strenuously with all parties to contribute to the resolution of this situation, and the Syrian conflict, without an escalation of armed violence.

Campaign for an Iraq War Inquiry
Suite 406, 1 Queens Road
Melbourne Vic 3004

Authorised by Paul Barratt

Wednesday, August 28, 2013

Responsibly protecting Syrians

Contribution by CIWI member NAJ Taylor

Allegations that chemical weapons have been deployed against civilians in Syria are troublesome and, if true, are abhorrent. But what facts have been established? What details are as yet unknown? And are calls for some form of military intervention warranted in the current situation?

These are the questions that should and must be asked. But already the ground has been cleared such that speculation (on all sides) has become fact, and expert opinion derided as pure fantasy. There’s a need to look more closely at these truth claims so as to reveal something altogether more meaningful. 

The facts, as I see them, are these: (1) the nature of what occurred on 21 August, and the veracity of the various claims, are hotly contested; (2) of what has thus far been said, few have the evidence or specialist knowledge at their disposal; and (3) for their part, the UN inspectors and staff at the OPCW labs will not make their findings public, and are neither in a position, nor tasked, with identifying those responsible. 

Yet the call for reprisals against “those responsible” has indeed been swift and strong. Frustrated with the Russian and Chinese veto in the UN Security Council, and at odds with the UN Secretary General’s evocation of a possible “crime against humanity”, ambassador Susan Rice resorted to tweeting an actual impossibility:

“The Syrian government must allow the UN access to the attack site to investigate. Those responsible will be held accountable.” [Italics mine]

More worryingly still, the UN special advisors for Genocide and the Responsibility to Protect echoed this sentiment last Friday in their joint statement to media:

“The alleged use of chemical weapons in Syria is yet another example of the crimes taking place in the country. All these crimes must be investigated immediately, and those responsible for committing them held to account, as an integral part of a peaceful and sustainable political solution to the disastrous conflict in Syria.” [Italics mine]

As I pointed out at the time Obama drew his “red line”, whilst condemnation for the use of chemical weapons is to be expected, reprisals would require evidence of who did it – to date nothing of what has been said has been based on a verified, independent, expert assessment of the evidence. No chemical weapons specialists have said: “this is precisely what substance/s were used, and this is who definitely deployed them.” Not one. Nor, in fact, have any governments.

The importance of attribution

Without attribution, “those responsible” can actually never be truly “held to account”. There are technical, practical, legal and political reasons for this seemingly suboptimal outcome.
Technical constraints on the UN inspections include not only the procurement of evidence, witness accounts and testimony (from medics, for example), but also the limitations of an interagency process that requires testing in multiple facilities over the course of several days.

Practical constraints include the inescapable problem that Syria is an active war zone, and UN inspectors must prioritise both their own personal safety, as well as their mission’s integrity. Ensuring the adherence to protocols including the proper handling of evidence and selection of witnesses will not be easy during the course of any conflict, whether Assad and the rebels comply or not. No one outside of the select few negotiators, likely not even the UN inspectors themselves, are aware what evidence has been supplied by Assad’s regime, the rebels, or external actors such as Russia, France, the UK, US and Israel.

The Assad government’s legal obligations are complex and not altogether as strong and as rigid as commonly supposed. Syria is not a states-party to the international convention banning the use of chemical weapons, though they are party to the 1925 Geneva Convention. Assad is under no legal obligation to facilitate inspections of Syria’s sovereign territory, despite the assertions to the contrary based on customary international law. In fact, it was Assad who agreed to the inspections currently underway under the remit of the UN Secretary General five months before the reported strikes. To be sure, there are limitations to the scope and nature of that inquiry, in part set by Assad, and in part because of the technical and practical constraints outlined above.

Simply put, verification will be difficult, and the danger remains that with no attribution expected, assumptions will be acted upon. We enter the realm of the political.

Weapons of mass destruction are always political

The political response to the incident was discernible across the sphere of governments, international organisations, epistemic communities, and civil society. Their claims might usefully be clustered into one of three categories: (1) the hawks, who advocate for use of force, whether through the UN Security Council or unilaterally; (2) the duty bound, who appear to be driven by either a repulsion of chemical weapons in general, or are beholden to positive duties to assist those in harms way in particular; and (3) the sceptics, which canvasses those who have relevant yet specialist expertise in some or other aspect of chemical weapons, and those who are (rightfully or wrongly) sceptical of all claims by government intelligence agencies.

Of the respected and most influential hawks, France expectedly threatened to use force unilaterally if necessary, and the Washington Post editorial board put the case forward in the strongest terms:  

“It would be unprecedented for the Assad regime to comply. The United States should be using its own resources to determine, as quickly as possible, whether the opposition’s reports of large-scale use of gas against civilians are accurate. If they are, Mr. Obama should deliver on his vow not to tolerate such crimes — by ordering direct U.S. retaliation against the Syrian military forces responsible and by adopting a plan to protect civilians in southern Syria with a no-fly zone.”

Unexpectedly, many measured voices such as US Senator Chris Murphy (D) and The Guardian, began to display hawk-ish tendencies too. For example, their editorial board concluded that:

“There is next to no doubt that chemical weapons were used in Ghouta in eastern Damascus, and that, unlike previous alleged attacks, they produced mass casualties…. Nor is there much doubt about who committed the atrocity.”

Of those responses which I attempt to categorise as being in some way “duty bound”, the European Union’s co-signed statement and the New York Times’ editorial was the most balanced and accurate, although some have been no less strident in mistaking allegations for punishable attribution. For example, within hours of the attacks UNICEF rightfully condemned the incident, before going on to say that:

“Children must be protected, and those who fail to protect them will be held accountable.” [Italics mine]

Likewise, Médecins Sans Frontières issued a carefully worded statement suggesting that according to its sources up to 3600 patients were treated on the day in question and that a further 355 had been confirmed dead. World news media instead reported MSF’s statement as confirmation – by way of a staff endorsement – that event unfolded in this way. For example, the BBC for hours reported the story incorrectly, until it was partially retracted and corrected. Similarly, in their haste to break a story, for some time Reuters were stating that chemical weapons had resulted in “thousands killed”, as opposed to “thousands affected”. Foreign Affairs ran a story about the chemical weapons taboo, but instead tweeted that “Assad’s use of chemical weapons in Syria, however repugnant”, despite evidence of neither claim being confirmed, and neither assertion being made in the linked article.

The reality is that the US were discussing war plans days before the alleged incident. Indeed, remarks by the Joint Chief of Staff General Dempsey on 19 August put the US strategy in the plainest of terms:

“We can destroy the Syrian Air Force… it would not be militarily decisive, but would commit us decisively to the conflict… It is my belief that the side we choose must be ready to promote their interests and ours”.

Whither the “expert” opinion?

In such a climate the expert opinions of those who have the requisite knowledge about chemical weapons and their effects are drowned out. As one chemical weapons specialist sees it:

“Instant judgement does not equal instant justice. It merely satisfies other hidden desires: the dark gratification of being able to Saddam-ise yet another political leader, the clamouring for policy objectives that have little to do with the chemical attacks as such, the uncontrollable eagerness to impart wisdom by a fast growing class of blabberati, the need to simplify complex realities for a tweeting global audience, or whatever. Unfortunately, these calls reveal more about the person’s ignorance of both the purpose and process of the investigation than the desire to know the truth (and nothing but the truth).”

The sort of evidence sought is more basic than what might be otherwise supposed – and obligates the co-accusers as much as it does Assad. For instance, as recently as June 2013 the noted chemical weapons specialist J. Perry Robinson issued a lengthy advisory opinion, which concluded that:

“Whether the many allegations of Syrian poison-gas warfare are or are not true cannot reasonably be judged on the evidence currently in the public domain… [Furthermore] the several governments which have explicitly accused the Syrian regime of using sarin nerve-gas against the rebels seem to be withholding evidence that, if disclosed, might make their charges more believable than they are. The gap in disclosure is not so much intelligence from sensitive sources or methods but is instead straightforward description for scientific audiences of the procedures that have been used for analysing physiological and environmental samples. The second conclusion is that, if the allegations are true, Syria is engaged in a form of chemical warfare whose purpose and therefore methods (small scale, pinpoint targeting, disabling) are at variance with [both historical experience and the scope of the relevant codified norms].”

How to responsibly protect Syrians

The problem the world’s states and people presently face is of grave seriousness: does the most basic of human duties to do no harm extend also to using force to protect others in harm’s way? If it does, then there must first be reliable and verified evidence, a strictly humanitarian (as opposed to political) motive, a genuine commitment to seeking a peaceful settlement, a high chance of success given a proportionate use of force, and a strict adherence to international law. The technical, practical, legal and political obstacles I have briefly outlined above must be navigated, not usurped.

Simply put, to break codified international law/s in order to preserve what’s said to be customary international law is a wholly insufficient case for a just war.

N.A.J. Taylor is an honorary research fellow at La Trobe University’s Centre for Dialogue, and a doctoral researcher at the University of Queensland.  He tweets: @najtaylor

War Powers: Why not Parliamentary control?

In Feelings of déjà vu I noted that we were once again in a position where the US is poised to undertake a military strike without awaiting the report of the UN weapons inspectors and without UN authority.

Meanwhile, in Australia the nature and extent of our involvement, if any, will be in the hands of just three men – Prime Minister Kevin Rudd, Foreign Minister Bob Carr, and Minister for Defence Materiel Mike Kelly, tipped to be Defence Minister in the event of an ALP victory on 7 September. As two of these gents are appointed on the recommendation of the third, it is reasonable to suppose that the Prime Minister will get his way, so effectively whatever we do in relation to Syria will come down to what one man decides.

This is a precarious way of making such an important decision, and as such is a problem for the Australian body politic and especially for the members of the Australian Defence Force who might be put in harm’s way.

An important part of the solution to this problem is to involve the Parliament in any future decision to deploy the Australian Defence Force into international armed conflict. The right of the Executive, rather than the Parliament, to decide to send troops to war is in the Australian constitutional context a legacy of the Royal Prerogative, which in turn has its roots in the pre-democratic notion that the power to make war is an attribute of the sovereign rather than of the people.  In any society founded on the belief that power flows from the people to the state rather than from the state to the people, it is both an anachronism and an anomaly.

A Private Member’s Bill to this effect, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], was introduced into the Senate in 2009 by Senator Scott Ludlam, but it was treated with scant respect by the major parties, and the reply from the ALP National Secretariat to the Campaign for an Iraq War Inquiry’s letter of 13 August 2013 indicates that there is no mood for change in a Labor Party led by Kevin Rudd.

Four principal arguments against Parliamentary involvement are raised by those who wish to preserve the status quo.

The first of these is the argument that minor parties might block the necessary resolution in the Senate.  For the negative vote of a minor party to be effective, however, it would be necessary that there also be a negative vote from the major Opposition party: the combined votes of Government and Opposition would make the views of the minor parties irrelevant. As it is difficult to conceive of a major (or indeed a minor) party voting against deployment of the ADF at a time that the nation is genuinely under threat, this sounds more like a concern that the involvement of the Parliament would make it more difficult for the Government of the day to inject the ADF into wars of choice – which is of course the whole point of the exercise.

Another argument is that the Parliamentary process will all take too long. This reveals a lack of understanding of the readiness levels at which most of the Australian Defence Force is held. Apart from the Ready Reaction Force at Townsville (essentially the 3rd Brigade, consisting of the 1st, 2nd and 3rd Battalions, Royal Australian Regiment, in aggregate about 4,000 civilian and military personnel), most combat elements of the ADF are held at a low state of readiness. Quite properly, most units are not maintained in a battle-ready state, and before they can be deployed a major investment in both personnel training and materiel is required in order to bring them up to the required standard.

A third argument – one often regarded as the supreme card to play – is that the Government might have access to information or intelligence which it cannot reveal.

This is an argument that simply cannot be accepted within the framework of a Westminster-style Parliamentary system. While it is certainly true that a government may be in possession of information that cannot be used in Parliamentary debate, it is fundamental to our system that today’s Opposition Leader could be tomorrow’s Prime Minister – even without an election. All that is required for the government to fall is for it to fail to win a confidence motion on the floor of the House of Representatives, at which point the Prime Minister of the day will normally advise the Governor-General to prorogue Parliament and call a general election, but the Governor-General would have the alternative of giving the Opposition Leader an opportunity to test the confidence of the House – as happened in 1975.

This being the case, it is fundamental to our national security that at the very least relevant leading members of the opposition not only be cleared to deal with national security classified information, but that at times of looming threat they be made privy to the available intelligence so that both government and opposition can conduct themselves in relation to the matter in an informed way.

The truth of this assertion is borne out by the fact that as soon as the Prime Minister decided last weekend to break of election campaigning and return to Canberra for an intelligence briefing about Syria, the Opposition was offered a briefing as well, an invitation that was taken up for the Opposition by Shadow Foreign Minister Julie Bishop.

There is a more subtle point to be made here. While secret intelligence can be very valuable in giving early warning of and filling out the detail of an emerging threat, situations will be rare in which a direct threat to Australia would emerge without any warning signs being discernible from open sources. Thus whatever secret intelligence the government might possess which confirms its suspicions about an emerging threat, it is safe to assume that for Parliamentary purposes it will be able to follow the commonplace practice of presenting a rationale which derives from open sources, and perhaps simply stating that this picture is confirmed by classified information in the government’s possession, which information has been shared with the Opposition leadership.

A further argument in support of this approach is the doctrine held by many in the intelligence community that any intelligence assessment which depends entirely upon classified information should be regarded as suspect – an astute analyst would want to know why there is no sign of this picture in publicly available information. Some argue for an 80/20 rule – 80% of the information in a sound intelligence picture should be open source information, with only 20% coming from classified sources.

Finally, there is the argument that the process would be nugatory because everyone would simply vote on party lines. This may be so, but cannot be assumed to be so. Certainly the history shows that on the occasions when deployments have been debated in Parliament, members have voted on party lines. Historically, however, these debates have taken place against the backdrop of a decision already taken. This brings into play two dynamics. First, there is the feeling of obligation towards the members of the ADF who are being put into harm’s way, the feeling that we should not undermine the morale of the troops by suggesting that they should not be participating in the conflict.

Second, there is the defensive shield: “It doesn’t matter what I think, the decision has already been taken by Cabinet and my job now is to support it and to support the young men and women of the ADF”.

I believe, however, that if Parliament itself were to be the place where the matter is decided, quite a different dynamic would come into play. If the matter is to be put to a vote in both houses, each and every member of Parliament would have to participate in that process knowing that their vote would be recorded and would be a matter of history for all time, no matter how the matter turned out. People who felt strongly about it could not absolve their consciences with the thought that the matter has been taken out of their hands; the matter is very much in their hands, and we may see what looks very much like a conscience vote.

If it turns out that the matter is decided on party lines and the government of the day wins the day, one can hardly complain that there has been a failure of the democratic process.

If we persist with the current system in which the Executive clings to the ancient prerogative of the sovereign, we will continue to face the risks of this small group decision making set out so eloquently by distinguished military historian Robert O’Neill in the final paragraph of his submission to the Senate Foreign Affairs, Defence and Trade Committee on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]:

In the past, especially in the cases of the Vietnam, Iraq and Afghanistan wars, the decision to commit forces was taken by a small group of ministers, in which the Prime Minister played a dominant role. In such a small group, inhibitions based on concerns about the major ally’s capacity to fight effectively and win within a period of a year or two (if perceived at all) can be easily swept aside by the desire of the Prime Minister, Foreign Minister or the Cabinet at large to remain close to whoever is the US President at the time of deciding. Also in this system of decision-making, broader issues such as the morality of the commitment, which was clearly a major public issue in the cases of Vietnam and Iraq, are relatively easy for the Government to ignore or set to one side. The small group setting also makes it easier to believe faulty intelligence reports, or even to dismiss them where they are inconvenient for the government’s preferred policy. Australia’s decisions on commitment to any of these three conflicts would almost certainly have been improved had the proposal been debated in both Houses of the Parliament.

The Australian public needs to be much more vigilant about the circumstances in which the Australian Government deploys the Australian Defence Force and for what purpose. This vigilance is unlikely to become habitual while a decision to send troops remains the prerogative of the executive — that is, Cabinet, meaning in practice the Prime Minister and a very small group of key ministers — an arrangement which means that a decision, once taken, can be acted upon without significant debate. Vigilance is much more likely to develop if we embrace the republican notion, one which seems fitting also for a constitutional monarchy, that the power to make war should be vested in the legislature. In any polity founded on the principle that power flows from the people to the state, rather than from the state to the people, the spectacle of the executive clinging to the ancient privileges of the sovereign is both an anachronism and an anomaly.