FK: The Federal Government is considering a request from the United States to extend airstrikes against ISIS targets from Iraq into Syria. Labor is yet to offer bipartisan support; it’s seeking more information about the legal basis of operating across the border.
But Bob Carr, former Foreign Minister, says Australia has a moral obligation to stop ISIS militants committing mass atrocities against civilians.
He also says there are no legal impediments for Australia to support this action: “That’s reflected in the principle of responsibility to protect (R2P) that the nations of the world agreed on in 2005. I’m not saying that it is iron clad, I’m not saying it can be applied to what’s happening in Syria clearly and unequivocally.”
That’s former Labor Foreign Minister Bob Carr speaking on AM this morning.
Well, Gareth Evans is a former Foreign Minister too, of course, in the Hawke and Keating Labor governments. He’s also a lawyer, a former head of the International Crisis Group, and he’s now Chancellor of the Australian National University. Gareth Evans, welcome back to Breakfast.
What’s your view? Should Australia expand its military operations into Syria?
GE: There is one very good reason for doing that and three very bad ones. The good reason I think is essentially that articulated by Bob Carr earlier this morning, and that is to contain ISIS/Daesh to stop it perpetrating atrocity crimes against Iraqi people, as we know from experience that it is all too capable of doing. There is ample moral and, in a sense, political justification for that under the R2P principle adopted unanimously by the UN general assembly in 2005. The legal justification is much greyer, but I think it is just sufficient to make this defensible. We perhaps can come back to that.
The three bad reasons are, first of all, to drain the Middle East swamp of terrorism – to continue the “war on terror”, if you like, in yet another guise. Of course we want that draining to happen and there are good homeland security reasons among others for that. But it is not going to happen with this kind of military intervention.
The second bad reason is to re-establish the rapidly eroding boundaries of states in the region. That may or may not be a worthy geopolitical objective, but again, I think it is not a fight for which we want to be putting Australian lives at risk.
The third bad reason – probably the worst of all – is because the US wants us to do this (or we want the US to want us to do it). As I have often said: “Whither thou goest, there I goest” might be good theology, but it really is lousy foreign policy for an independent country.
FK: It has been driving our foreign policy for a long time now, hasn’t it? Under the ANZUS agreement, it is generally assumed that “whither the US goest, there goes Australia”
GE: That is in the context of where either of us is directly at risk. But just to be engaged in military adventures around the world because we think that is going to strengthen the US alliance, and be of importance to our longer term and wider security interests, I think is a wrong-headed basis for us, here as elsewhere, to act. It was very stupid to do that in 2003 and, again, I don’t think that is any kind of justification for doing it now. There has to be a separate and important, defensible, justification, apart from that.
FK: Let’s go to that, the good reason as you describe it, which is the reason to protect civilians, Wasn’t there as good, and as strong, a moral reason two years ago when more than 100,000 civilians had been killed in the Syrian civil war? The world did nothing much. So why now?
GE: Well, of course there was a good moral reason then. But it’s complicated because you have a multitude of prudential criteria to apply and the issue there, apart from legal issues and so on, was whether or not a military intervention would in fact have done more harm than good, and put even more civilians at risk. That sounds a hard call now in retrospect when we’ve got nearly 250,000 people dead in Syria, but it was a reasonable call to make at the time.
The further problem of course, then, was that you didn’t have a UN Security Council resolution authorising military action. And you couldn’t really claim that there was any element of self-defence, which is the other rationale under the UN Charter, and which I think gives some kind of cover for the kind of operation we’re talking about now, going across the border from Iraq into Syria: that’s the notion of collective self-defence under Article 51 of the Charter.
FK: Collective self-defence of whom? All of us, or the Iraqis?
GE: No, not all of us. It’s assisting Iraq to defend its own people from attack initiated or based across the border. And that in turn would only enable a military response against the ISIS/Da’esh source of that attack. It would not allow a response against the Syrian government, because they are not the source of the threat to the Iraqi people at the moment.
I say this is grey because even though collective self-defence is well recognised under Article 51, there is some case law saying that doesn’t apply when the threat comes from a non-state actor, as distinct from the state. However that is controversial as a matter of international law, and may well be changed the next time this is litigated. This is very grey, and nobody can pretend otherwise.
Julie Bishop and the US State Department use another kind of justification that this is ‘ungoverned territory’ that we are talking about: in effect, completely empty space, and therefore, you can more or less do what you like legally. I don’t think that stands up to very close scrutiny, because whatever we think of ISIS/Da’esh, it is certainly occupying and governing that space at the moment. I think that it is much better to ‘hang your hat’ on the collective self-defense justification, with all its limitations and all its uncertainties.
FK: Well, also the ‘ungoverned territory’ definition, it basically writes off the Syrian government as having any role or any control here. I mean the Syrian government has not given permission, has it, for bombing strikes?
GE: No it hasn’t. It has given a kind of tacit permission but it is deeply anxious about any open-ended intrusion of foreign forces into Syrian space because if ISIS then happens then to be displaced, will it be able to peel out to re-occupy that space, or will the Western countries want to go all the way into Damascus? That’ll be Assad’s calculation at the moment, and that makes Syrian support for this pretty problematic. So you are not going to get an overt invitation, and given the dynamics of the Security Council at the moment, unfortunately you are not going to get Security Council endorsement for this.
So if you’re going to do the humanitarian stuff, and really, this is the rationale for that, then you’ve got to do it on the kind of basis that I suggest. It is important to remember how big a rationale this is. We know from the experience of the Yazidis, and of people in those towns in Iraq that these jihadists have occupied, that they will commit mass atrocity crimes, and we do have an international responsibility to do everything we can to contain and stop that.
FK: And is there likely to be some reticence, given that under the R2P doctrine that you mentioned earlier, that was the doctrine that the world used also to go into Libya? Of course, Libya these days is not just a kind of a basket case politically, and in terms of civil society, but it is also where ISIS is extending into. This is not the kind of an example that we would want to repeat, is it?
GE: Sure. Libya shows the problems that you get involved in when you expand these mandates, or let them creep out. It began as a civilian protection mandate explicitly given for military action by the Security Council. That mandate, however, was transformed by the intervening NATO forces into a kind of open-ended war-fighting mandate to cause regime change – to get rid of Gadhafi entirely. That did not have international consensus, and as a result, we had a terrible mess where originally there was consensus.
I mean it is very, very important that we recognise that these atrocity crime situations are real. When we do have tens, scores of thousands of people with their lives at risk, there is a wider international responsibility not just to stand back and wring our hands. And sometimes military action will be the only way you can contain or avert this, although often there will be other forms of sanction pressure, or International Criminal Court pressure, arms embargoes, diplomatic mediation, and so on – that can do the job.
Libya is a messy, messy case. But it doesn’t stand as a precedent against doing military action when there is a narrowly conceived objective articulated, and that objective is maintained, and we don’t get ourselves into mission creep.
[Transcript prepared in Professor Evans’s Melbourne Office]