For the past two years, Paul Brereton, a New South Wales Supreme Court judge and Army Reserve major general, has been conducting an investigation into the conduct of members of the SAS in Afghanistan. While the findings are not yet known, leaks from within the Australian Defence Force (ADF) have suggested that as many as five cases involving unlawful killings have been uncovered.
Much of the media commentary surrounding the allegations has centred on the potential criminal prosecution of these alleged offences. But a further legal issue can arise from investigations of this kind – the alleged victims (or their families) might bring civil claims against Australia’s armed forces, seeking compensation for their suffering.
Cases of this kind have occurred in other countries. In the United States, a number of high-profile habeas corpus petitions have been filed against the government by people who claim they were unlawfully detained by US armed forces on suspicion of being insurgents in Iraq and Afghanistan.
Claims for damages have also been successfully brought by former Iraqi detainees against private military contractors over their alleged torture at Abu Ghraib prison in Iraq.
British courts are also currently considering a numberofcivil suits arising out of British involvement in the conflicts in Iraq and Afghanistan.
One of those claimants, Yunus Rahmatullah, was arrested by British forces in Iraq in 2004 on suspicion of being a member of Lashkar-e-Taiba, a terrorist organisation with links to al-Qaeda. He was “rendered” by British forces to the custody of the US army in Afghanistan, where he was detained for over ten years without charge or trial and, he alleges, tortured.
Rahmatullah denies ever being a member of a terrorist organisation. He has made a well-publicised claim for compensation from the UK government, under the country’s Human Rights Act.
Why are civil claims against soldiers controversial?
We are all exposed to potential civil liability in our day-to-day lives. If we drive negligently and cause an accident, for instance, we may find ourselves liable to pay compensation to those we have harmed. The same is true of public institutions and authorities, such as hospitals and the police. Few would suggest this is unfair or unreasonable.
However, the extension of civil liability to the armed forces is controversial. Former Army officer Bill O’Chee, for instance, recently argued forcefully against such liability:
Service personnel who commit crimes are already subject to military criminal proceedings, and this is rightly so. However, exposing them to claims for personal injury claims would be perverse and entirely unjust.
The very idea that highly paid lawyers in comfortable courts in Australia can understand, let alone litigate these cases, is fanciful at best.
How absurd it would be for our servicemen and women to be subjected to damages claims in these circumstances, let alone be asked to find the money for legal costs and a possible damages order against them.
Should these civil claims be permitted?
Such civil liability claims have never been brought against individual ADF personnel in Australia before. This would be new legal territory. And nobody is seriously suggesting these soldiers should personally bear the burden of defending civil claims arising from the Afghanistan and Iraq wars. Rather, any potential claims are likely to be defended by the Commonwealth.
This is the way civil claims against police officers in Australia are typically resolved. In such cases, individual officers will often be required to give evidence as to their version of events. Yet the costs of defending the case, and the compensation (if any) paid to the plaintiff, are borne not by the individual officers, but by the relevant public authority.
Despite the controversy surrounding them, there are still good reasons to allow civil claims of this kind to proceed.
First, criminal and civil claims serve different purposes. A successful criminal prosecution may leave a victim with a feeling of vindication, but it typically does not result in monetary compensation. As a result, it may matter little to victims or their families if the soldiers responsible are professionally disciplined, since they may receive no compensation for their loss.
Secondly, the notion that civilian courts are not competent to adjudicate on military matters is seriously problematic.
Nobody could deny that military personnel are forced to carry out their duties in extremely difficult conditions. It is also true that many lawyers and judges have difficulty appreciating the fraught circumstances in which military decision-making occurs.
But the answer to these difficulties is not the abandonment of such claims altogether. Judges are often faced with the task of making difficult decisions about matters on which they are not experts. Civil justice would simply not work if courts threw up their hands whenever they were faced with such challenges.
Greater accountability for the military
Finally, if the Commonwealth were somehow able to avoid liability for potential civil damages in these types of cases, the ADF may have less incentive to conduct military operations in ways that safeguard the rights of civilians caught in conflict zones.
Given the limited accountability for military decision-making in the public sphere, the possibility of accountability in a civil court would promote stricter adherence to international conventions on war.
Many of the victims who may bring claims of this kind are unlikely to excite public sympathy. For example, one of the claimants in the UK cases, Serdar Mohammed, was arrested while leaving a ten-hour firefight with British troops, discarding a rocket-propelled grenade launcher and ammunition on his way.
But we shouldn’t allow our moral judgement of claimants like Mohammed to erode our commitment to the rule of law. Public authorities, and especially our armed forces, should be held accountable for their actions to the limits imposed by law.
During the second world war, a young Aboriginal soldier, Private Clarrie Combo from New South Wales, exchanged mail with Mrs F. C. Brown from Loxton, South Australia — a white woman whom he had never met.
Very few letters penned by Aboriginal soldiers who served in either of the two world wars survive, yet one of Clarrie’s letters has endured in what might seem a surprising context. Mrs Brown contacted the young soldier after seeing an advertisement calling for volunteers to “adopt” Aboriginal soldiers. His reply was printed in her local newspaper, and its survival provides us with a rare opportunity to learn about military service from an Aboriginal soldier’s perspective.
Clarence Combo was born in Wardell, New South Wales, on 14 September 1919. Young Clarrie grew up in a harsh environment — Kinchela Aboriginal Boys’ Training Home near Kempsey. Consistent with government plans to assimilate Aboriginal people into white Australian society, children like Clarrie were forcibly removed from their families. At Kinchela, boys were called by their allocated numbers rather than names. Identities and cultures were stripped away.
In a country where discriminatory legislation and practices precluded Aboriginal people from earning a fair wage, voting, marrying non-Aboriginal partners, buying property or entering a public bar, it is not too difficult to imagine why some young Aboriginal men signed up for the military when war broke out. An estimated 1,000 Aboriginal soldiers served in the Australian Imperial Force as black diggers during the first world war. By the mid-20th century it was easier for Aboriginal men to sign up, so around 3,000 served Australia during WWII.
Shortly after WWII began, the Melbourne-based Aborigines Uplift Society, founded by non-Aboriginal activist Arthur Burdeu, created a comforts auxiliary for Aboriginal soldiers. The idea was that women could “adopt” an Aboriginal soldier. They would correspond with him and arrange comfort parcels to be sent to him at the front.
In the Society’s August 1940 Uplift newsletter, Burdeu explained how “native women have not the resources to do as their white sisters, though they are already at work”. In Queensland, for example, children at the Purga Aboriginal Mission sewed underpants, toilet tidies, calico bags and hussifs (sewing kits), and knitted socks, mittens and balaclavas. Yorta Yorta women and children at the Cummeragunja Reserve (located in New South Wales) were also involved in knitting for the war effort.
Newspaper advertisements ran across Australia inviting women to contact Burdeu about “adopting” an Aboriginal soldier. With at least one son-in-law serving Australia, Mrs Brown may have felt compassion for those men whose families could not afford to send them parcels.
Corresponding with Mrs Brown
On September 25, 1941 the Murray Pioneer and Australian River Record published one of Clarrie’s letters to Mrs Brown under the headline “Aboriginal’s Appreciative Letter”. Clarrie opened his correspondence with Mrs Brown by thanking her for writing to him. He wrote: “it is very nice of you to write to someone you do not know”. At a practical level, Clarrie advised Mrs Brown that he wore size seven boots, as she had offered to knit socks for him.
The young private’s letter provides a unique perspective on his experiences serving abroad. “I was in action for the first time in Greece,” he told his correspondent. He described Greece as “the nicest country that I have been in since leaving Australia”, then marvelled at having seen snow for the first time.
However the horrors of war included being “attacked practically every day by the German planes”. He told Mrs Brown how “a few of my pals were killed over there … There were German planes in the sky all day long and they were always bombing”.
What’s left out of correspondence can also be telling. In War Dance: A Story of the 2/3 Aust. Inf. Battalion A.I.F., Ken Clift provides an insight into racial attitudes amongst some of the men, telling of an altercation between two Australian soldiers, an Aboriginal one named Clarrie and an Indian or Afghan soldier, Tom. As the men argued heatedly, Tom allegedly called Clarrie: “You black bastard”. Clarrie was said to have retorted, “Well Tom, you’re no bloody glass of milk yourself.” Clarrie’s correspondence with Mrs Brown omits any mention of such tensions.
Over five years’ service, Clarrie’s tours of duty included Egypt, Libya, Greece, Crete, Syria, Sri Lanka (formerly Ceylon) and New Guinea. He suffered illness and injuries. In 1941 he caught sandfly fever, an ailment commonly suffered by soldiers fighting in North Africa. His “Proceedings for Discharge” notes that Clarrie received two war injuries, one to his right forearm and the other, a gunshot wound inflicted in New Guinea in June 1945, to his left forearm.
Clarrie’s war experiences included seeing some of his mates injured or killed. He would also have been expected to fire on enemy combatants. However, his correspondence with Mrs Brown, replete with anecdotes about foreign lands and peoples, highlights how being part of Australia’s war effort in the mid-20th century also gave him insights into other places and cultures.
Fortunately, Clarrie survived the war. He was one of five Aboriginal soldiers welcomed home to Wardell by the Cabbage Tree Island Women’s Guild just before Christmas 1945. By the mid-1960s Clarrie was chairing the Aboriginal Cooperative at Cabbage Tree Island and participating in national conferences advocating equal rights for Aboriginal people.
major publications take the bulk of the premises for war for granted — namely the US’s legal and moral right to wage it — and simply parse over the details.
The air strike proceeded without publication of proof that Syria was responsible for the alleged atrocity in Douma. Reports are emerging that cast doubt on the official narrative.
Regardless, swift action was demanded and taken. Inspectors from the Organisation for the Prohibition of Chemical Weapons are only now gaining access “to establish facts around the allegations of chemical weapons use in Douma”.
Strikes illegal under international law
Alongside claims for justification from the Trump administration, similar rhetoric featured in statements from French and British leaders. French President Emmanuel Macron claimed there was no doubt Syria was responsible for a chemical attack on civilians, in gross violation of international law. He said:
We cannot tolerate the trivialisation of chemical weapons, which is an immediate danger for the Syrian people and our collective security.
British Prime Minister Theresa May agreed, saying “we cannot allow the erosion of the international norm that prevents the use of these weapons”. May identified the lack of consensus in the UN Security Council as a driving factor in the joint military action.
Even this week the Russians vetoed a resolution at the UN Security Council which would have established an independent investigation into the Douma attack. So there is no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian regime.
The United Nations Charter contains a prohibition on the threat or use of force against another state. Exceptions to this rule of international law are tightly constrained:
Under Article 51 of the Charter, states retain a right to individual and collective self-defence in the case of an armed attack.
Under Chapter VII of the Charter, the Security Council may authorise military force to restore international peace and security, if non-forceful measures have failed.
The British government has published a brief asserting the legality of the air strike on Syria as an exercise of “humanitarian intervention” (effectively invoking the doctrine of the “Responsibility to Protect” or R2P, without explicitly mentioning it).
The argument is that the UK and its allies were entitled to use force against Syria because:
there was convincing evidence of large-scale and extreme humanitarian distress;
there was no practicable alternative to using force in order to save lives; and
the use of force in response was proportionate and time-limited to relieve humanitarian suffering.
Yet the R2P doctrine does not establish a new legal basis for the use of force. It allows for the use of force as “humanitarian intervention” only within the provisions of Chapter VII of the Charter, in the case of grave international crimes.
The Labour opposition in the UK has released its own legal opinion, sharply contradicting the government and asserting that the strikes were illegal.
Illegal but legitimate?
The allies responsible for this week’s air strike have not claimed explicit authorisation under the Charter. Instead, their aim has been to establish the legitimacy of the strike. This approach was endorsed by the European Union and Australian Prime Minister Malcolm Turnbull.
The Assad regime cannot be absolved of its brutality. Indeed, it is a fundamental objective of the post-second world war international legal order to save humanity from the “scourge of war” and promote human rights.
And there can be little doubt that the international legal system is far from perfect, having failed to protect populations around the world from gross violations of humanitarian and human rights law.
In Syria, hundreds of thousands have been killed over seven years of civil war, and millions are now refugees or internally displaced. The complexity of the conflict has seen monitors cease to estimate a death toll.
However, efforts to establish an alternative foundation for military action, beyond what is currently legal, pose risks that must be grappled with.
If states are permitted to determine when force is warranted, outside the existing legal framework, the legitimacy of that framework may be fatally undermined. How could any consistency of response be ensured? By what standard will states distinguish between benevolent and “rogue” regimes?
Leader of the UK opposition, Jeremy Corbyn, challenged Prime Minister May on these grounds:
Does the humanitarian crisis in Yemen entitle other countries to arrogate to themselves the right to bomb Saudi positions in Yemen, given their use of cluster bombs and white phosphorous?
It is relevant in this context that Saudi Arabia is a highly valued client of the British arms industry. According to War Child UK, total sales to the kingdom have topped £6 billion since the conflict in Yemen began. The UK has refused to support a proposed UN inquiry into allegations of Saudi war crimes in Yemen.
Meanwhile, crimes against humanity and gross human rights violations are alleged against Myanmar, the Philippines and Israel, among other states, without attracting the kind of “humanitarian intervention” undertaken in Syria.
Humanitarian intervention or regime change
Jeremy Corbyn has made the case for diplomacy as the only reasonable way forward. Syria should not be a war theatre in which the agendas of external actors take precedence, he argues.
The only winners have been the military contractors and oil companies that have pocketed historic profits, the intelligence agencies that have grown exponentially in power and influence to the detriment of our freedoms and the jihadists who invariably used our interventions as their most effective recruiting tool.
Central to US strategic thinking is the relationship between Syria and Iran. US Ambassador to the UN, Nikki Haley, seemed to say that a condition for US withdrawal is that Iran cease to function as an ally of Syria.
A head-spinning series of events in the past few weeks have taken us from the United States pulling out of Syria, to analysts predicting the beginning of a third world war.
What has really happened in Syria, what are the ramifications of the joint strike from the US, France and Britain, and what can we expect from the key players?
Certainly, the mess in Syria and heightened tensions in the Middle East make us all fear an impending world war, especially when both the Russian and US presidents engage in a round of chest-thumping. Despite this, there is no certainty that a world war will be triggered from the Syrian conflict.
A world power like the US is seldom reactive. It often uses events as key moments to implement new policies or shift policies. An apparent correlation of events with policy implementation justifies the policy in the eyes of internal constituents and the wider international community.
Since the beginning of the Syrian conflict in 2011, Russia has followed an open and consistent policy: declare Syrian President Bashar al-Assad’s regime the legitimate government of Syria, always support his regime to ensure it doesn’t collapse, and morally justify its involvement as a struggle against terrorism. The unspoken policy is to build up a challenge to Western dominance over not only the Middle East, but geopolitical world order.
Yet, the US, and by extension Western policy on Syria, was tentative, unclear and seemed to change course over the seven-year conflict.
Under Barack Obama’s administration, the US consistently stayed out of direct involvement in the Syrian conflict. Busy with the Iraq exit, Obama missed the window of diplomatic opportunity in the crucial early months of the Syrian uprising in 2011. When violence started, Obama elected to provide limited military support to opposition groups, hoping they could muster enough power to dismantle Assad.
The Obama administration shifted its policy after a chemical attack in Eastern Ghouta in 2013 prompted it to push for a United Nations resolution demanding the destruction of chemical stockpiles. This in turn gave impetus to peace talks in Geneva. Apparently, the stockpiles were not destroyed, as we have seen more chemical attacks.
Obama admitted his strategy failed, as the “US was muscled out of Syria” by an increasingly bold Russian President Vladimir Putin. His support allowed Assad to gain the upper hand in Syria with the fall of Aleppo in December 2016. Efforts to make progress in the Geneva talks were continually stalled. The parties failed to make any meaningful progress even as late as 2017.
In the early months of his presidency, the expectation was that Trump would change the US policy on Syria. It was uncertain what trajectory it would take, and when it would come to pass.
Not much happened until yet another chemical-gas attack by Assad in April 2017. The US responded with a massive missile attack, taking out 20% of Assad’s air force. The result was that the Trump administration committed to a more active involvement in Syria and the complete dismantling of the Islamic State presence in the country, but not necessarily the removal of Assad.
It is now apparent there was a fundamental difference between Trump and the key people in his administration in their understanding of the US’ Syria policy.
For Trump, it was always about eliminating IS. On April 3, he announced that the US’ primary mission in Syria was “getting rid of ISIS”. Since this had now been completed, he could bring the troops home.
Yet, in December 2017, Defence Secretary James Mattis said the US would continue its presence in Syria as a “stabilising force” beyond IS.
In January 2018, former Secretary of State Rex Tillerson confirmed the US would stay in Syria beyond IS, adding that the continued US presence aimed to prevent Iranian and Assad forces regaining territory “liberated with help from the United States”.
So, Trump’s withdrawal intentions, or rather the public announcement, came as a surprise to his own administration as well as the international community. In response, the US special envoy for the global coalition against IS, Brett McGurk, said:
We are in Syria to fight ISIS. That is our mission, and our mission isn’t over, and we are going to complete that mission.
Trump’s withdrawal announcement opened the ground for other players to assert their plans. On April 4, Russia, Iran and Turkey held a summit in Turkey, at which Putin announced:
We have agreed to expand the entire range of our trilateral cooperation in Syria.
The trio’s plan included an intensified Turkish operation in northern Syria. Turkish President Recep Tayyip Erdogan vowed “to clear all terror groups from Syrian border, including the YPG,” the Kurdish military force that was backed by the US in its bid to eradicate IS from Syria.
It seemed Syria would be left to Russia, Iran, Turkey and Assad. Until, of course, the most recent chemical attack in Douma, a suburb near Damascus, on April 7. The attack was blamed on the Assad government even though it vehemently denied it, and there were allegations of rebel involvement.
Importantly, the chemical attack conveniently served the faction in the US administration advocating for a greater involvement in Syria. Their arguments pushed Trump towards retaliation. In a matter of days, Trump went from vowing withdrawal from Syria to saying they have a “big price to pay”.
The most recent events in Syria were really about aligning Trump’s understanding of Syrian policy with that of the state and military establishment. The policy is to stay in Syria beyond IS, preventing its revival and preventing Iranian and Assad forces from regaining territory.
It is unlikely there will be any other military strikes by the US and its allies anytime soon. There are two possible wild cards though – Trump’s unpredictability and a possible Russian retaliation.
Elements within the US administration in favour of continued US involvement in Syria will have to keep Trump calm – give him reasons why he should continue committing to Syria, while preventing a direct Russian-US confrontation. Building a coalition with France and Britain prior to the missile retaliation served this purpose. It gave Russia the impression that the matter was a concern with the international community, rather than just the US.
Trump’s exaggerating nature and bombastic language in his tweets run the risk of escalating the situation. But they also help contain Russia, which is always unsure what Trump may say and do next.
A Russian response beyond condemnation is unlikely. Putin recently won a landslide victory in the March presidential elections. He is in no hurry to thump his chest into an all-out brawl with the US due to internal politics.
Furthermore, Russia is already in a diplomatic crisis over the assassination attempt of a former spy and his daughter with a nerve agent in London.
The US, Britain and more than a dozen European countries expelled Russian diplomats in retaliation. Putin is already quite vulnerable in the international scene. He will not enter a fight he is not certain to win.
While the US and its allies may feel morally justified in attacking the Assad government targets, any such intervention is unlikely to help the people of Syria. They will continue to be collateral damage caught in the crossfire of geo-politics.
Mehmet Ozalp, Associate Professor in Islamic Studies, Director of The Centre for Islamic Studies and Civilisation and Executive Member of Public and Contextual Theology, Charles Sturt University
Once again, unfortunate civilians are trapped in the “hell on earth” that the Syrian civil war has become. This time it is the turn of the 400,000 residents of Eastern Ghouta, ten kilometres east of the capital Damascus. Latest reports put civilian casualties at 520 and thousands wounded under the heavy assault launched by President Bashar al-Assad’s ground forces supported by Russian air strikes.
It seems conditions in Syria are getting worse, and there is no end to the conflict.
The end to any violent conflict comes when either the warring sides realise the devastation they cause and make peace; outside intervention sways the warring parties to end the conflict; or there are clear winners delivering a crushing defeat to their enemies.
None of the warring factions seem to care about the devastation of the seven-year civil war. Almost the entire country is rubble – more than 400,000 people have died, there are 5 million Syrian refugees and more than 6 million displaced. Unfortunately, the peace option seems highly unlikely.
There had been international intervention through peace initiatives since 2013, when the then US secretary of state, John Kerry, lamented that Syria “heads closer to an abyss, if not over the abyss and into chaos”. It was a chemical attack in Eastern Ghouta that prompted the United Nations to pass a resolution in 2013 demanding the destruction of chemical stockpiles and giving impetus to peace talks in Geneva. All efforts to make progress on these talks were continually stalled. The parties failed to meet even as late as 2017, painfully expediting Kerry’s apocalyptic prediction.
The Geneva talks were paralleled by a Russian-led peace initiative in Kazakhstan and later in Sochi. These talks could not have been expected to succeed, given that Russia’s unconditional and active support of the Assad regime hampered any attempt at brokering a peace deal.
Apart from the vested interests and insincerity, the biggest stumbling block has been disagreement over who to include in the peace process. The US does not want Assad or Iran involved; Turkey does not want the Kurdish People’s Defence Unit (YPG); and Russia does not want any of the jihadist rebel groups.
The sheer number of rebel groups is another issue. In the relatively small area of Eastern Ghouta alone, there are three rebel groups, which often bicker with one another.
Since the conflict began in 2011, nearly 200 separate rebel groups have sporadically emerged. Although most of these later merged into larger entities, there are still too many groups. Their inclusion in any peace process has been problematic, because it is unclear who actually represents the Syrian opposition, not to mention the groups’ refusal to sit at the same table.
Then there is the thorny issue of ideological and religious differences. Shiite Syrians and a segment of secular Sunni Muslims support the Assad regime, whereas the largest chunk of the rebel groups are Salafi jihadists. The exceptions are the Kurdish YPG and the largely weakened Free Syrian Army.
All along, Assad’s regime has been claiming it is fighting IS, Al-Qaeda and other Salafi jihadist groups to keep Syria a modern secular state. Putin is pushing Assad to wipe out these groups, spurred by the deep fear they could mobilise radical Muslim groups within Russia’s borders.
The US and Europe are in the cognitive dissonance of wanting neither Assad nor jihadist groups to gain control in Syria. They don’t want Assad, but they like his argument of protecting a modern secular Syria. The unspoken preference is for Assad over any Jihadi rebel group.
So, the lack of an effective peace intervention and the impossibility of parties sitting down to negotiate leaves only the option of fighting it out until clear victors emerge.
This leaves the Assad regime with a free run to assert itself as the only feasible and legitimate government in Syria, a possibility that may indeed eventuate.
This is the strategic line the Assad regime has drawn thick on the ground. It explains why Assad forces have ignored the UN’s 30-day ceasefire resolution. Putin’s disregard for the resolution, by reducing it to a farcical five-hour window, shows that neither Assad nor Putin wants the rebels to regroup and gain strength. They want a quick and absolute victory, even if it is a bloodbath.
Just as it is almost certain that the rebels of Eastern Ghouta will fall, it is equally certain Assad forces will next intensify the siege of Idlib, a northeastern city held by the Salafi jihadist rebel group Tahrir al-Sham (HTS). This pattern will continue until all rebel groups are wiped out.
It is unlikely there will be any fighting between Assad forces and the Kurdish YPG, as that would mean an open confrontation between Russia and the US. After the US supported the YPG, it successfully ended Islamic State’s presence in eastern Syria. The US has made it clear it is there to stay, establishing a 30,000-strong border security force as a deterrent against IS regrouping, but more importantly to stop Assad attacking Kurdish regions once he clears the ground of rebel groups in his territory.
The wild card in Syria is Turkey’s unpredictable president, Recep Tayyip Erdogan. He aims to establish Turkey in northeastern Syria as a third major player along with Russia and the US, by fighting alongside elements of the Free Syrian Army to capture the Kurdish-controlled district of Afrin.
Whether Russia and the US will allow Erdogan to realise his objectives remains to be seen. He may find he is out of his league when things get tough on the ground, forcing him out of Syria.
The Syrian conflict will end only if the Russian-supported Assad regime wipes out all Salafi jihadist rebel groups and regains control of western Syria and its most important cities. This may be before the end of 2018. In the meantime, the international community should be prepared to lament more civilian casualties.
Mehmet Ozalp, Associate Professor in Islamic Studies, Director of The Centre for Islamic Studies and Civilisation and Executive Member of Public and Contextual Theology, Charles Sturt University
One of the coldest northern winters for many years proved a piece of good fortune for the Winter Olympics in South Korea, but it may be the last happy moment on the Korean Peninsula for a long time. A war there is a distinct possibility. Some form of military action to disrupt North Korean nuclear weapon developments is even more likely.
Diplomacy may have run its course. We are at the most dangerous moment since the Korean War armistice in 1953. A war today could have unimaginable consequences: a catastrophic death toll, missile strikes beyond the peninsula, the first nuclear bombs to be used in conflict since Hiroshima and Nagasaki.
The risk has long been real – and in 2018, with Donald Trump in the White House, it is alarmingly high. Events unfolding on the Korean Peninsula and in Washington are pointing in a direction that is difficult, but essential, to contemplate.
A fear of mass civilian casualties and the perception that North Korea has a low bar on pre-emption have haunted US administrations. At least ten major North Korean atrocities and provocations since 1967 have been essentially passed over. The response has been sporadic attempts at diplomacy, backed by ever-tightening sanctions.
The Obama administration, faced with a paucity of good options and a hope that at some point the North Koreans would bend, articulated the Allied tactic as “strategic patience”. The Trump administration has said those days are over.
What has changed to bring us to this point? The first shift is the emergence of Kim Jong-un as supreme leader following his father’s death in 2011. Clearly the most insecure of the dynastic line, Kim’s regime has been marked by regular and brutal purges of his retinue and deepening oppression of his people.
North Korea’s nuclear capabilities are entwined with Kim Jong-un’s legitimacy. Recognition of North Korea’s status as a nuclear power is non-negotiable. Last year there were 23 tests of missile capability, culminating in the launch of the Hwasong-15 intercontinental ballistic missile (ICBM). At that point, Kim declared his program “complete”.
Kim’s 2018 New Year statement attracted attention for its outreach to South Korea, an obvious attempt to drive a wedge between the United States and its ally. This produced a flurry of diplomacy to include the North in the Winter Olympics.
For some, this raised hopes. But most observers had the sense that we had been here before, and none should be fooled. More significant was Kim’s indication that North Korea will focus on “mass-producing nuclear warheads and ballistic missiles for operational deployment”.
The second major change in the Korean situation is the election of US President Donald Trump. Trump’s approach to national security has deviated more from his campaign promises than any other set of policies.
He has dismissed allies, including South Korea, even suggesting that nation might want to provide its own nuclear umbrella. He sensed his voter base was tired of American commitments and wars, yet now finds himself on the verge of a war that would dwarf any in recent times.
Trump’s grasp of most matters in international politics and military affairs is rudimentary. His interventions, by tweet or otherwise, provoke instant mockery among the informed community. But he is the man in charge, and so his views bear close analysis. They reveal his method of processing the information and intelligence he is receiving. In response to a New Year nuclear boast from Kim, Trump tweeted:
Most commentary mocked this schoolyard exchange, but it was significant. Trump is seriously contemplating a war to disarm North Korea of its weapons.
Man in the middle
It would be folly to assume that Trump’s views are not widely held within his administration. His national security advisor, H.R. McMaster, who has described North Korea as “the greatest immediate threat to the United States”, is a leading proponent of military action.
This has posed some unique challenges for the secretary of defence, Jim Mattis, who understands the scale of a likely conflagration. Mattis has repeatedly warned that a conflict with North Korea would be “catastrophic”, while also providing assurances of the ultimate outcome – total US victory and the end of Pyongyang’s nuclear program – so as to maintain deterrence.
Mattis works in tandem with the secretary of state, Rex Tillerson, to achieve a diplomatic solution through a tighter sanctions regime. But Mattis matters to Trump; Tillerson doesn’t. Trump was angry about Tillerson’s suggestion that the US was prepared to begin talks with North Korea without preconditions.
We consider this to be a very reckless regime. We don’t think we need a band-aid and we don’t think we need to smile and take a picture. We think we need to have them stop nuclear weapons and they need to stop it now.
Trump’s principal source of advice is the Pentagon, which for years has worked on military options to pre-empt North Korea. The Pentagon’s primary duty is to work out how things can be done, a different task from saying whether they should be. Those who carry the diplomatic argument are sidelined.
This leaves Mattis in the weighty position of having to find both a solution and the enabling argument.
Mattis says the US has some potential military options that would not result in the devastation of Seoul, though he has not provided any details. How would it be done?
An apparent “preferred option” is the use of joint CIA and special forces teams – like those used in Afghanistan in 2001 – to seize the nuclear sites.
However, a covert operation of this kind would probably not be a standalone activity – extensive use of bombers and cruise missiles is likely. The possibility of a broader war through an accident or misinterpretation is substantial.
What would be the North Korean reaction to a limited punitive event? If Kim is as “rational” as is commonly claimed, a cruise missile strike to pre-empt a test would hardly trigger a massive response. Most likely, it would be a hit at a soft South Korean target or military base, or a cyberattack.
But neither a limited operation nor a wholesale assault on North Korea’s nuclear capabilities could be attempted without having in place the mechanisms for an all-out war. Defending Seoul would require the rapid degrading of the mortar, rocket, missile and artillery capabilities ranged against it.
Given the erosion of North Korea’s conventional capabilities, that might be doable. The problem would lie in what Kim might do in a situation where his regime’s survival was in question. Has he secreted nuclear weapons that could unleash devastation on South Korea and Japan? Half-a-dozen weapons would be economy-destroying; a dozen would be civilisation-destroying.
This brings us back to the question of why Trump would try. For him, the game is simple: North Korea shall not have an ICBM.
For the experts and advisers advocating a pre-emptive strike, it goes to the nature of Kim’s regime. North Korea is a nuclear power like no other, and its intentions are an open question. Does North Korea desire a nuclear capability simply for deterrence and regime survival, or does it have a more aggressive ambition to use that capability to try to reunify the peninsula?
It is difficult to imagine that a pre-emptive US strike can do anything other than risk the devastation of South Korea and Japan, with dreadful human and environmental consequences. Small wonder former Trump strategist Steve Bannon said, before leaving the White House: “There’s no military solution, forget it.”
There is a closing, not closed, window for diplomacy. Any attack would need to be preceded by a comprehensive diplomatic strategy involving China. The US might want to test the waters with China and North Korea on solutions involving a major stand-down rather than entire elimination of North Korea’s nuclear capability.
We probably have not yet seen the full weight China is capable of bringing to bear on North Korea. It would have to be a great deal to bring Kim to heel, and it is difficult to envisage such an outcome that would not undermine his sense of his regime’s legitimacy.
It is not yet midnight, but as the crisis deepens, the diplomatic and military options get more and more complex. In averting catastrophe, having a bigger nuclear button will not guarantee success. That is obvious to most informed observers.
But is it obvious to Trump? The answer is unknowable. What is certain is that his own sense of legitimacy is bound up in North Korea having no ICBMs. Richard Haass, president of the Council on Foreign Relations, puts the prospect of war at 50/50.
The prediction is chilling. This is going to be a hard year.
That judgment remains valid, but last week a sliver of light appeared. Motivated at least in part by concern over the march toward confrontation we describe, both during and after the Olympics South Korean President Moon Jae-in has sought to buy time for diplomacy.
High-level negotiators from the South, following meetings with the North, reported a possibility their counterparts might be prepared to put their nuclear capability on the table in return for security guarantees.
Some analysts suggest the latter means the removal of US forces and guarantees to the South they might think about it, essentially a delaying tactic. Moon wants to test this at a meeting with his counterpart. Trump himself said this might be a start. Certainly in terms of management of allied relationships, the US would want to see what it means, though public statements by the North suggests it is pressing on with the nuclear plan.
Past experience would indicate this is nothing more than an effort at confusion. Still, we don’t know how the other side of the hill interprets Trump’s obvious preparedness for war. The US will certainly need to do some thinking about a matter that has attracted only sporadic attention to date – what does a diplomatic end game look like?
One senses the US clock is still ticking to midnight, and this is not an endless process without credible developments. A hard year ahead remains the case.
The prospect of South Korean and North Korean athletes marching together under a “unification” flag at this month’s Pyeongchang Winter Olympics signifies a brief respite in tensions rather than being a genuine thawing on the Korean peninsula.
After an initial surge of optimism in response to Pyongyang’s decision to accept Seoul’s offer to march as one Korea, reality has started to bite with the mechanics of implementing the deal.
While welcoming the Pyeongchang initiative, many South Koreans have pushed back against the decision to merge both countries’ women’s ice hockey teams, calling out the sexist nature of the decision (not a single woman was involved in determining the merger).
Meanwhile, citing “insulting” behaviour on the part of South Korean media, the North Koreans have cancelled a joint cultural performance with South Korea, scheduled for next week.
Understandably, the Pyeongchang “thaw” has attracted major headlines. But it obscures the significant possibility that we will witness major conflict on the Korean peninsula in 2018.
The South Korean government has worked hard to engage North Korea in structured dialogue in an effort to defuse the nuclear-armed state’s continued military threats. But there is nonetheless a growing risk that the Trump administration will authorise limited military strikes against the North’s weapons of mass destruction, conceivably within the next few months.
Despite extracting a commitment from the US that any military action against North Korea is contingent on first gaining South Korea’s endorsement, there is justifiable concern among South Koreans that the Trump administration will act unilaterally if US intelligence assesses Pyongyang is about to deploy an operational nuclear-armed intercontinental ballistic missile (ICBM) force.
Given the extent to which we have underestimated the sheer pace of North Korea’s nuclear and missile development over the past decade, this intelligence assessment might happen sooner than we think. Donald Trump would then face a difficult problem: how to avoid being the president who allowed North Korea to achieve the capability to hit the US homeland with nuclear weapons.
Since coming to power, the Trump administration has been deliberating over whether to carry out preventive strikes to degrade Pyongyang’s ability to sprint to the finish line of acquiring a deployable ICBM that can hit the continental US with a nuclear payload.
An increasingly popular assumption is that the price of living with a nuclear-armed North Korea that can destroy prime targets on the US mainland is higher than risking a second Korean War. And this is not just the musings of a few hardheads in the Pentagon: a growing number of Americans believe some form of military action against North Korea is justified if sanctions and diplomacy fail to achieve denuclearisation.
Most worrying of all, a belief seems to be gathering pace that the US can somehow launch “surgical” military strikes while containing a larger conflict, because Kim Jong-un will not respond for fear of triggering an overwhelming retaliatory response.
There are two basic flaws underlying what one expert has termed “the myth of the limited strike”. The first, and most obvious, is that it’s highly unlikely Kim Jong-un will believe the Trump administration’s assurances that “surgical” strikes are not the opening phase of an all-out US assault aimed at overthrowing the regime.
When the US goes to war, it tends to go full throttle – in recent times, this has translated into regime change (think of Afghanistan, Iraq, and Libya). Why would the leadership in Pyongyang assess that this time around would be any different?
The second major flaw in the argument is that what is portrayed as limited in Washington, and among some armchair strategists supporting this course, will inevitably be seen in Pyongyang as a major assault on North Korean territory and its prized strategic assets.
Even in the scenario that Kim Jong-un actually believed the Trump administration did not intend to implement regime change, as Van Jackson notes, his position as North Korean supreme leader would be untenable domestically if he did not respond with force.
Pyongyang would have a compelling incentive to retaliate early with any nuclear reserve that survived a US first strike. In this scenario, the North Korean leadership would confront a stark choice of either using these weapons of mass destruction to maximum effect or risk losing them in follow-on US precision munition strikes.
As I have argued elsewhere, like all new nuclear powers, North Korea will place a premium on permissive command and control systems that allow authorities to use nuclear weapons whenever they want. This will be reflected in a hair-trigger launch posture if it perceives an imminent threat.
Whichever way you cut it, a US first strike against North Korea would almost certainly trigger major war on the Korean peninsula, with a high risk of escalation to full-scale nuclear conflict. While the appalling humanitarian consequences of this don’t need to be spelt out, the strategic illogic of the arguments advocating a first strike must be continually reinforced.
We and our colleagues from around the world – including experts from Australia, Canada, the United States, Russia and China – are undertaking a multi-year project to provide a definitive guide on how law applies to military uses of outer space.
The aim is to develop a Manual on International Law Applicable to Military uses of Outer Space (MILAMOS) that covers times of tension and outright hostility.
The ultimate goal is to help build transparency and confidence between space-faring states.
This should reduce the possibility of a war in space, or if it does happen, reduce the impact on the space infrastructure that we have all come to rely on so heavily.
The satellites we rely on
We rely on GPS signals for many things, including navigation, communication, banking, agriculture, travel and the internet itself. It’s estimated that 6-7% of GDP in Western countries depends on satellite navigation.
Communications satellites are applied not just for direct broadcast television, but also to enable many terrestrial networks. In remote areas of the world, they may be the only means of communication.
Satellites help us get weather forecasts and improve agricultural production. They also help us to plan disaster relief, find and mine natural resources, monitor the health of the environment and many other applications.
‘Expect’ war in space
In the military context too, satellites have become essential. In June this year, US Secretary of the Air Force Heather Wilson said a future war in space is likely and the US is investing heavily in maintaining its military dominance in space. She commented:
We must expect that war, of any kind, will extend into space in any future conflict, and we have to change the way we think and prepare for that eventuality.
The first Gulf War in 1991 has often been called the first space war, though it wasn’t actually fought in outer space. Rather, the US and coalition forces relied heavily on GPS and other satellite technology to conduct that conflict.
Since then, space-based assets have enabled even greater capability for land, sea and air forces.
There are only five global treaties specific to space. Chief among them is the 1967 Outer Space Treaty, but only one of its provisions (Article IV) directly deals with military activity – it prohibits the placement of weapons of mass destruction in space.
This includes things such as anti-satellite missiles, directed energy weapons (including lasers), electronic warfare, cyber warfare and dual-use technology, such as on-orbit servicing (“mechanic”) satellites.
A combined effort
The MILAMOS project is led by three universities: Adelaide here in Australia, McGill in Canada, and Exeter in the UK. It received some funding from the Australian and Canadian governments, as well as from private donors.
It relies on expertise from the International Committee of the Red Cross, the Union of Concerned Scientists and from the major space-faring states, principally the US and Russia, but also China and other countries.
They participate in a strictly personal (rather than representative) capacity to provide an authentic account of what the law is, not to negotiate what states would like the law to be.
Even so, reflecting a true consensus position on the law, in spite of the strongly held personal positions of individual experts, can be challenging. But that is what the project aims to achieve in nine workshops over three years.
Even though these manuals are not formally endorsed by states, they are an essential reference for those who work in the field. This includes military practitioners, government lawyers and policy advisors, the media, public advocacy groups and other non-government organisations.
Final publication of the manual is expected in 2020. Paradoxically, the MILAMOS contributors earnestly hope that the manual will only ever remain on the shelf and never be used.
In March 2003, the Howard government involved Australia in an illegal military invasion of Iraq. The consequences of that war continue to be devastating for the people of Iraq and the wider Middle East. The prime minister was able to opt for invasion because in Australia the sovereign power to take the gravest decision, the commitment of the Australian Defence Force to international armed conflict, rests with the executive – in practice, often the PM alone – rather than with parliament.
Since 2014, further military deployments have taken place in Iraq. The bombing of Syria continues. Several months ago, the prime minister announced unqualified support in principle for the United States in possible military action against North Korea.
All these developments reinforce the dangers typically associated with secretive small-group decision-making. Closed decision-making breeds hubris; and hubris, the friend of folly and recklessness, often results in disasters. All are a curse for democracy. That is why the Sydney Democracy Network, in partnership with Australians for War Powers Reform, convened a public forum on the subject of the urgent need for war powers reform.
When governments kill in large numbers they always do so for a good reason. We must be on guard against that. – Howard Zinn
Australian politicians talk about ending terrorism but they make decisions that carelessly or inadvertently stir the pot and radicalise people. This then reinforces the dominant public narrative and makes military incursions superficially acceptable. Unfortunately, vigorous debate in Australia is encouraged only within the limits imposed by “unstated doctrinal orthodoxy”, particularly in relation to foreign policy.
Not only are the people who control what we know determining our future, the government secrecy surrounding Australia’s historical record deliberately obfuscates our understanding of what is going on right now. Symptomatic is the way the Australian Defence Force (ADF) has recently been found to be one of the least transparent military coalition members in Syria. The ADF won’t reveal “where they bomb, when they bomb or what they bomb”.
Syria’s recent history reads like a contemporary illustration of Chris Clark’s conclusion in Sleepwalkers: how Europe went to war in 1914. The period analysed in that book shows that great powers had more than one enemy, and that executive decision-making was chaotic.
War was a consequence of decisions made in many places, with their effect being cumulative and interactive. These decisions were made by a gallery of actors who otherwise shared a fundamentally similar political culture.
On September 9 2015, Australia’s permanent representative to the United Nations, Gillian Bird, wrote to the UN Security Council president claiming that Article 51 of the UN Charter recognises the inherent right of states to act in individual or collective self-defence when an armed attack occurs against a UN member state. States must be able to act in self-defence when the government of the state where the threat is located is unwilling or unable to prevent attacks originating from its territory. Bird alleged that the Syrian government had, by its failure to constrain attacks upon Iraqi territory originating from ISIS bases within Syria, demonstrated that it was unwilling or unable to prevent those attacks.
Unauthorised and uninvited
The Australian government was not questioned about how Syria was unwilling or unable to prevent those attacks. It was not asked how airstrikes would affect the Syrian population and infrastructure.
There was no link between ISIS, a non-state actor, and Syria. ISIS was not acting under instructions from, or the direction or control of, the Syrian government. Western governments made no attempt to work with the morally disgraceful Assad regime to actually enable it to prevent attacks emanating from its territory (and indeed Australia didn’t recognise the legitimacy of the regime).
Moreover, the Syrian government didn’t invite us to carry out airstrikes in Syria, and there was no UN Security Council resolution authorising the use of force. Neither the Australian government nor the opposition provided a clear explanation about why in August 2015 there was no clear legal basis for Australian involvement in Syria, but by September 2015 there was.
There was no rational discussion about our strategic ends. There was certainly no mention of the fact that in 2014 we already had embedded ADF personnel in Florida contributing to operations against ISIS in Syria.
There was, however, a letter, dated September 17 2015, from the Syrian government to the Security Council. The mainstream media did not report it, but the letter was referred to in documents I received following FOI requests. The letter disputed Australia’s unwilling and unable claims and pointed out that the Syrian Arab Army had, over four years, been fighting ISIS, the al-Nusrah Front and other groups being supported by Turkey, Jordan, Saudi Arabia, Qatar and Western states.
The letter called on others to co-ordinate with Syria. It said the international coalition led by the US had yet to achieve anything tangible in its war on terrorist organisations.
The Syrian government had a point, particularly since US President Barack Obama had already told VICE News (on camera) that:
ISIS is a direct outgrowth of al-Qaeda in Iraq that grew out of our invasion in 2003, which is an example of unintended consequences.
What was omitted from the political and public discourse in the lead-up to Australia’s decision to become involved in Syria was the fact that Syria had experienced a severe drought between 2007 and 2010. The drought spurred as many as 1.5 million people to migrate from the countryside into the cities, creating significant social and economic tensions.
In 2012 the UK’s MI6 co-operated with the CIA on a “rat line” of arms transfers from Libyan stockpiles to Syrian rebels after the fall of the Gaddafi regime. That same year, Russia proposed that Assad could step down as part of a peace deal. The US, Britain and France were so convinced that the Syrian dictator would fall that they ignored the proposal.
By this stage, the UN human rights commissioner had already confirmed 60,000 Syrian fatalities between March 2011 and November 2012. The current estimate is almost half a million deaths.
In September 2014 the US Congress determined that the US$500 million CIA program to arm Syrian rebels had failed. Arms had been ending up in the hands of the al-Nusra Front, and Jordanian intelligence officers were selling arms on the black market.
The following month, The New York Times reported that a CIA report had concluded that “many past attempts by the agency to arm foreign forces covertly had a minimal impact on the long-term outcome of a conflict”. The report came a month after Australia had delivered weapons to Kurdish Peshmerga fighters and a month before our successful delivery of 18,000kg of crated weapons from Albania to Erbil in Iraq.
On March 21 2015, international aid agencies and human rights groups released the Failing Syria report. This found that UN Security Council powers had failed to alleviate the suffering of civilians as the conflict intensified.
Two months later, the International Crisis Group released its own report warning that military aid had been given without an underlying strategy, which would prolong the battle with ISIS and inflame other local conflicts between intra-Kurdish rivals. The report noted that the US-led coalition had remained silent about Kurdish land grabs in disputed territories.
In May this year, Amnesty International urged the US and other countries to stop arms transfers that could fuel atrocities. This followed confirmation by a US Defence Department audit that the army had failed to monitor over US$1 billion worth of arms and other military equipment transfers to Kuwait and Iraq, which have ended up in the hands of ISIS.
A show for the domestic audience
In August 2015 rumours began to circulate that the then prime minister, Tony Abbott, had pushed for the US request to join airstrikes in Syria. Only five days before the bipartisan decision was made, Amnesty International reported that 220,000 people had been killed in Syria. Another 12.8 million needed humanitarian assistance and 50% of the population was displaced.
Still, at a reported cost of A$500 million a year for our air war against ISIS, and regardless of international law, we were first in with the US, beating our British counterparts who delayed plans for a parliamentary vote. A number of military strategists were of the view that Australia’s involvement was a show for the domestic audience.
The irony, of course, is that six days after the decision to conduct airstrikes in Syria, we had a new prime minister. Shortly after that a document titled “ADF Operations in the Middle East” was produced in response to my FOI request. It confirmed that “the prospects for a political or military solution are poor”.
The word “poor” seems highly inadequate. In order to supply arms to Syrian rebels, the Pentagon relies on an army of contractors from military giants to firms linked to organised crime. Saudi Arabia (a Western ally) and Qatar are providing clandestine financial and logistical support to ISIS, while Iran and Russia support Assad. Turkey is fighting the Kurds and the US-supported opposition groups, but is fighting with Russia against ISIS.
There are drone strikes and bombs being dropped by the US, Belgium, Jordan, Netherlands, Bahrain, Saudi Arabia, United Kingdom, France, United Arab Emirates, Turkey, Israel, Denmark and Australia. There is disturbing evidence of the al-Nusra Front’s access to sarin gas. And to top it off, a Bulgarian journalist recently uncovered Azerbaijan Silk Way Airlines offering diplomatic flights to private companies and arms manufacturers from the US, Balkans and Israel and the militaries of Saudi Arabia, United Arab Emirates and US Special Operations Command to ship weapons around the world, including to Syria, without regulation.
Hidden agendas lead to humanitarian disaster
Our politicians continue to support the US, an ally that has historically forsaken the exploration of peaceful means and diplomatic solutions in favour of force and aggression. Under the pretext of responding “with decency and with force” to humanitarian concerns and the responsibility to protect civilians, Australia extended airstrikes into Syria.
Decency? Every war is a war on children when armed conflicts kill and maim more children than soldiers. Perversely, more soldiers die from suicide and peacetime incidents than war.
And then there’s the matter of secrecy. On January 6 2017, I issued an FOI request to the Defence Department for copies of documents confirming or specifying the dates, locations and outcomes (numbers of military and civilian casualties) of airstrikes by Australian forces in Syria. On January 20 2017, I received an email simply confirming that “the Department does not specifically collect authoritative (and therefore accurate) data on enemy and/or civilian casualties in either Iraq or Syria and certainly does not track such statistics”.
For all the political protestations about concern for civilian lives, we are not even trying to count our victims. To date, we have only claimed responsibility for the deaths of Syrian soldiers in airstrikes in September 2016.
This year, as if Australia wasn’t already an aircraft carrier for the US, the government decided to sell military equipment to Saudi Arabia. Overnight, Defence Industry Minister Christopher Pyne became a dedicated arms salesman, announcing that he wanted Australia to become a major arms exporter on a par with Britain, France and Germany, and to use exports to cement relationships with countries in volatile regions such as the Middle East.
Perpetual war has devastated the Middle East. Others rightly argue that a government that devotes the bulk of its budget to arms manufacturing implicitly makes a moral decision that militarism is more important than the creation of well-being for the population.
The difficulty is that Australians still aren’t told the truth about why we became involved in Syria. Those decisions seem to have been made in furtherance of unstated international coalition agendas rather than on open and objective assessments of their merit. This state of affairs is made profoundly worse by the fact that the decision to go to war was an executive decision, not a decision made democratically after full and open parliamentary debate based on the best objective information available.
We are fighting a difficult battle for transparency in these disturbingly Orwellian times, but the battle can and should be waged for as long as we have the will and the means to do so. Our best weapons are an accurate historical and geopolitical perspective and truth.
When it comes to war, our government needs to be more transparent and to open up decision-making on whether to become involved. Politicians and military personnel must be accountable for the human consequences of what they perpetrate in our name. It is our collective responsibility to do what we can to hold them to account.