WHY DID WE GO TO WAR IN IRAQ?

A CALL FOR AN AUSTRALIAN INQUIRY Contents The Inquiry Group consists of Australians from diverse backgrounds who are concerned that there has been no in-depth, high-level and independent inquiry into how Call for an Iraq war inquiry 5 Australia decided to take part in the invasion of Iraq in 2003. Foreword As a consequence, there has been little informed public Rt Hon Malcolm Fraser AC CH 6 discussion of the lessons to be learned and the alternatives and potential improvements in the process by which Executive summary 10 Australian institutions respond to future conflicts. 1 Why an inquiry, and why now? Prof Ramesh Thakur 13

Published in August 2012 2 How did we get there? Garry Woodard, Paul Barratt AO and Andrew Farran 21 The chapters in this document have been written by members of the Iraq War Inquiry Group, and do not necessarily reflect the views of 3 What evidence was available? the group as a whole, or any individual member, in every respect. Rod Barton 29

Editor: Dr Alison Broinowski 4 How highly did the children rate? Convenor: Dr Sue Wareham OAM Dr Jenny Grounds and Dr Sue Wareham OAM 37 Layout: Tim Wright 5 What sort of inquiry is needed? Edward Santow 45 Website: www.iraqwarinquiry.org.au Email: [email protected] 6 A better Westminster way to war? Phone: 0431 475 465 Prof Charles Sampford 55 Postal address: PO Box 1379 7 The UK inquiries into the Iraq war Carlton, Victoria, 3053 Prof Gerry Simpson 67

8 Never again? Dr Alison Broinowski and Prof Charles Sampford 75

Some unanswered questions 80 Contributors 82

Cover: Iraqi children who fled escalating violence in southern Iraq. Credit: Bikem Ekberzade Above: A coalition soldier on patrol in Riyahd village in Iraq in March 2007. Credit: Andy Dunaway A young Iraqi girl waits outside her house during a clearing operation in the Rasalkoor District of Mosul in 2009. Credit: Kamaile Chan

Call for an Iraq war inquiry

The was a the government consider? If humanitarian, legal, political and none, why? strategic disaster. It has left a trail of n To what extent were death and destruction and millions the statements made to of . It has undermined the Parliament and the the role of international law and public consistent with strengthened terrorism. all the available relevant Australia’s role in the war assessments? raised very serious questions of government honesty and Australian troops are entrusted accountability. If we do not learn to help safeguard our security. Any lessons from this episode, we are suspicion that their lives, and the at grave risk of engaging in equally lives of hundreds of thousands ill-founded wars in the future. of civilians, have been placed in There are many unanswered jeopardy on the basis of anything questions in relation to Australia’s other than the most robust and decision to go to war. They include: rigorous decision-making process cannot be ignored. n What was the government’s Both the United Kingdom and decision-making process the Netherlands have initiated and timing that led to our official inquiries into their own participation in the invasion? involvement in the war; Australia n What were the objectives, has not. Nearly a decade after the and how was success to be war began, it is time we did so. defined? We call for an independent n How did the government inquiry into the decisions that reconcile conflicting led to Australia invading Iraq, intelligence assessments? and a review of the war powers n How did the government of the government, to draw out attempt to satisfy itself of the what lessons can be learned for legality of the invasion? the future. n Which of the many NGO predictions of widespread and severe civilian suffering, To sign this appeal, visit including by children, did www.iraqwarinquiry.org.au for months, and it had not been case, with all the sophistication Foreword impressed enough to sanction that that task required. The general armed measures. public had become confused What this publication shows as to whether the weapons of ow did Australian armed forces to strengthen the governmental is that the invasion of Iraq was mass destruction allegedly being Hcome to be involved in the structures against precipitous or ill- being planned some two years developed or held by Saddam US-led invasion of Iraq in 2003, considered actions in future. before, indeed immediately after Hussein existed and were being and why? What were the decision- The nature of war these days George W Bush was elected, and placed in a state of readiness to making processes that led to that has radically changed. It places an was conceived at the instigation justify both ‘national interest’ commitment? Were those processes unusual weight and responsibility of the so-called ‘neo-cons’. There and ‘self-defence’ claims. But adequate in terms of our system on a small number of troops who was a terror threat to the US and the extensive worldwide public of government as we understand it carry the major burden, while indeed to the world, but at that demonstrations against the and for the future? most people feel no consequences stage its base was essentially in prospect of invasion – exacerbated It is often stated with wide from that war. Two aspects of . The groundwork for by the persistent denial to the UN approval that a decision to ‘go to its justification that may need dealing with it was already well weapons inspector of the time war’ is the most serious act that reformulation are the concepts of developed but became a casualty of he needed to complete his task – can be taken by government. What ‘national interest’ and ‘self-defence’. the distraction caused by the Iraq suggest that an instinctive wisdom this statement belies is how those Both can be abused or exploited diversion. By March 2003 the US informed the public perception decisions are taken. Rhetorically, for self-serving purposes. Is the was well and truly committed, with which, had it prevailed, much Australia was responding to an national interest such that Australia large troop and tank deployments human loss and destruction could existing state of affairs, in the words should see itself in permanent already in the , which have been prevented. of US President George W Bush, alignment with a given power, could not brook further delay as In all this, the Australian the ‘war on terror’. But where was whose decisions on war and the heat and sandstorms of the government may have thought it the ‘terror’ in Iraq in that context? peace become our decisions? Or hot season approached. To have had no choice if it were to retain Was this armed action on a pretext, should the touchstone of ‘national pulled back then would have been the confidence of the US. But was extraneous to Iraq, premeditated interest’ in our case relate first and a humiliation. It was this premature this a misjudgement, confusing on another agenda more to do with foremost to specifically Australian over-commitment which inexorably the nature of our obligations under alliance ‘obligations’ to the US? considerations and follow from drew the US and its partners into ANZUS, which requires only These are serious questions there? Is it far-fetched to proclaim a conflict which both desired; it consultation about threats in the for Australia’s future foreign and that actions a world away involve had not reached a relevant threat Pacific region? Did the government defence policies, and how these our self-defence and hence can be level, and had not achieved the really think through the issues should be pursued within a justified under the one exception requisite diplomatic and legal basis. independently and the implications democratic framework. They are provided for the use of force in the It lacked an irrefutable rationale for our standing with Asian raised in this timely publication UN Charter (article 51)? When that in the minds of significant neighbours? Did it really evaluate to lay the basic groundwork for exception was drafted it envisaged influential Britons, Americans the intelligence presented to it a deeper inquiry. The purpose threats and acts against a state of and Australians. and ignore its flaws? Did it want of the inquiry would not be to an immediate nature leaving no In retrospect, what we now see to? Did it really consider the legal rake over old coals but to develop room for delay or reference to the were frantic efforts to create the issues surrounding the proposed a better understanding of how Security Council. The Iraq situation prerequisites by manipulating invasion objectively, or was it not warfare decisions are reached and had been with the Security Council intelligence assessments to fit the really interested? Did the Cabinet

6 7 FOREWORD formally sit down and consider areas of policy – on the lines of the all the issues calmly and clearly Chilcot inquiry in the UK, which and make a determination based has a similar and overdue purpose on that? Did it allow the prime in that country. minister as early as September 2001, More specifically, such an following a quick phone call to the inquiry could lead to a re- foreign minister from Washington, evaluation of the ‘war powers’ of invoking ANZUS, effectively to pre- government and their exercise, empt the deliberative process and and address the role of parliament commit Australian armed forces to in the authorisation of armed the proposed US actions regardless force abroad. As matters stand, of these considerations? Is this how parliament’s role is ex post facto, decisions about the commitment to approve actions already taken of our armed forces to foreign under the prerogative at a stage campaigns should be made now where the denial of finance would and in the future? The implications in effect betray the armed forces. are profound. In an age where armed conflict This study by well-informed situations often lack definition and experienced persons in the (neither war nor peace), and where practice and study of government something started has the potential in matters of defence, foreign and to creep and even spin out of constitutional affairs concludes control, the public interest requires with the proposal that the manner that the actions of the government and consequences of Australia’s of the day be better regulated and participation in the Second Gulf constrained in situations other War should be the subject of a than where the nation might public inquiry for the betterment be facing a direct armed attack and integrity of future decision- leaving no room for delay or wider making processes in these critical deliberation.

Rt Hon Malcolm Fraser AC CH August 2012

Iraqi children walk by coalition soldiers on patrol at a market in Narhwan in 8 2007. Credit: Timothy Kingston decisions were made to go to war, Australians should recall the Executive summary we cannot safeguard Australia mismatch between reasons given against undertaking ill-founded for the war and the way it was military actions in the future. conducted, and why this is the n 19 March 2013, 10 years will apparently relied. A future prime time to set up such an inquiry. Ohave passed since Australian, minister of Australia could commit An Australian inquiry The second chapter provides a British and US forces (and a Polish our country to a similarly dubious The primary purpose of this timeline of events leading to the contingent) invaded Iraq. The war, in defiance of public opinion, collection of papers is to engage war in Iraq, from January 2001, well reasons we did so, and maintained in breach of international law, at Australians in a concerted effort before the invasion, to March 2003, a military presence there for even greater cost, and with no to prevent the Iraq war experience prepared by Garry Woodard with most of the decade, were unclear demonstrable benefit to Australia. from recurring. We call for an the assistance of Paul Barratt and then and are not yet satisfactorily ‘Why did we follow America inquiry into the decisions that Andrew Farran. In their respective explained. The invasion took place without question?’ Malcolm Fraser led to Australia invading Iraq, chapters, Rod Barton evaluates without the approval of the UN asked in his Whitlam Oration on and a review of the war powers the evidence the Australian Security Council and, according 6 June 2012. Australians still await of the government with a view to government relied on before to most international lawyers, in an answer from government. improving the processes by which invading Iraq, and Sue Wareham defiance of international law. We are accustomed to holding this democracy goes to war. and Jenny Grounds investigate Coalition forces overthrew the inquiries after natural disasters and This is not to prejudge the issue. what consideration it gave in government of Iraq, and then and man-made accidents in Australia. Those who think that the original advance to the humanitarian costs in the years that followed they killed We rigorously debate and scrutinise decision was and remains the of the war. Proposing five possible and wounded many thousands of government administration and right one, the processes adequate, models for an inquiry, Edward Iraqis, as well as sustaining great expenditure, and we carefully and the outcome on balance good Santow takes into account the losses themselves. Prisoners under investigate the causes of deaths and can and should be able to make powers an inquiry would require, coalition supervision were tortured injuries, seeking to avoid future their case before an independent how it would handle classified and killed, cities were devastated mistakes and losses. The disastrous review. Others may have changed information, and the degree of and degradation of the countryside and costly Iraq war should be their minds and have much to independence it would enjoy. was widespread. treated no differently. say about how the processes Charles Sampford looks at how British and Australian public Inquiries into it have been made should be improved. Others again Westminster-style governments opinion was strongly against the by individuals in the United States who opposed it then may be as have gone to war and some of the war before it started and, while and by governments in Britain and unsurprised as they are saddened means for improving that process US public opinion was initially the Netherlands, but in Australia, by the outcome, and eager to and how these decisions should in favour, this was at a time when apart from two investigations of prevent its repetition. take into account the ANZUS around two-thirds of Americans the intelligence that informed the Treaty. Inquiries held by the UK believed that was Howard government’s decision Questions and answers are investigated by Gerry Simpson. at least partly responsible for 9/11. (one headed by an MP, the other Contributors have come together Alison Broinowski and Charles The justifications given by US and by a former Secretary of the from a wide range of disciplines, Sampford consider some next steps British leaders for the invasion, Department of Foreign Affairs each bringing particular expertise for Australia, ending with a list of which Australia accepted, were and Trade), no wide-ranging, to this collection. They raise and questions which the contributors later shown to be based on false independent inquiry has been respond to a series of questions. hope will stimulate further research information, on which Australia held. Unless we know how Ramesh Thakur considers why and discussion.

10 11 Australian soldiers from the Al Muthanna Task Group carry out range practice in Iraq with 9mm Browning pistols in 2006. Credit: US Government

CHAPTER 1

Why an inquiry, and why now? WHY AN INQUIRY, AND WHY NOW?

progressive transfer of authority to repeat its ‘victories’ in the two to use force across borders to world wars? international authorities, and the In the late Tony Judt’s words, declining casualty-cum-fatality the US today ‘is the only advanced rates with an accompanying rise democracy where public figures Prof Ramesh Thakur in the value placed on individual glorify and exalt the military’. lives, even of soldiers, in modern Britain, France and Germany lost aking a country to war is the single most solemn Western democracies. 1–2 million soldiers each in World international responsibility of any government. It War I; the US lost fewer than The progressive 120,000. China, France, Germany Trequires our soldiers to kill complete strangers solely delegitimisation of war and the Soviet Union each lost 2–11 on the authority of the government. It puts their lives on the Violence is endemic in nature and million soldiers in World War II; line. Death and serious injury to the diggers can mean broken in human relations. War between the US lost under half a million. states has been an enduring The total US civilian deaths from feature since the emergence of the two world wars was under 2000, dreams and shattered futures for determination as to whether the the current international system compared with 2–16 million deaths their families. It can leave families action was justified and how such a in 1648, ironically following the in each of Germany, Poland, the and entire villages traumatised tragedy might be avoided in future. Peace of Westphalia. But it is Soviet Union and China. in countries where the fighting Under conditions of modern far from an endearing feature Against this background of the takes place. It may sow bitter international society, for the rule of and is, indeed, an affront to the age of total wars, an important step hatred among peoples and create international law to be entrenched modern internationalised human in the development of the idea that foreign enemies for generations. It and widely established, it may be conscience and sensibility. an international community has can inspire acts of terror against helpful for the leading democratic Until the somewhat prematurely both the right and a responsibility Australian people and symbols. states to adopt an analogous policy labelled 1914–18 ‘war to end all to mute armed conflict between its This is why war must always be the with respect to war. That is, at a wars’, the organised violence of war member states was the Pact of Paris option of last resort and must never reasonable but fixed distance in was an accepted and normal part of 1928. Its signatories condemned be chosen lightly. time from when the decision to go of the state system, with distinctive ‘recourse to war for the solution Domestically, the state enjoys to war was made, an independent rules, norms and etiquette. In of international controversies and a monopoly on the legitimate use inquiry by competent authorities that Hobbesian world, the only renounce[d] it as an instrument of violence. The power and means should be conducted to review protection against aggression of national policy in relations to use violence is vested in law the decision and draw appropriate was countervailing power, which with one another’. The normative enforcement authorities, including conclusions on justification, increased both the cost of victory breakthrough, that war was an the authority to use deadly force preparations and consequences. and the risk of failure. For victors illegitimate method of dispute when warranted. Even so, in This should become a normal and defeated alike in , wars settlement, was of great symbolic most modern democratic Western and routine aspect of democratic meant displacement, destruction, significance even if it fell short of societies, every time that the use of accountability. It is merited and deprivation, privation, invasion, being an enforceable contractual force in the line of duty by a police will mark a fitting culmination of occupation and mass murder. obligation. Although the League of officer results in a death, a full three separate historical trends: the Europeans have a shared memory Nations failed to prevent another inquiry is conducted by competent increasing restrictions placed on of war as a terrible human-made world war, from the ashes of the authorities for an independent states to go to war unilaterally, the calamity: would France really want Second World War the United

14 15 CHAPTER 1 WHY AN INQUIRY, AND WHY NOW?

Nations resurrected the cause Of course, countries retained had harboured ambitions to get war might still want to argue the of securing peace. US President the right to use military force in WMD, the Iraqi programs to build case for its lawfulness, most war Abraham Lincoln meditated individual or collective self-defence. them had decayed completely. UN supporters instead are more likely on the ‘scourge of war’, an apt That was not the case in 2003. sanctions had helped to dismantle to argue that, regardless of its legal description that found its way into Iraq was not implicated in the them and UN inspections had status, it was still legitimate in that the UN Charter, whose preamble terrorist attacks of 11 September given an accurate assessment it rid Iraq and the world of Saddam begins with the clarion call: ‘We 2001. Reasons for the UN failure of Saddam’s WMD capability. Hussein. But in order to oust a the peoples of the to support the war included deep No credible evidence was ever regime based solely on might with determined to save succeeding doubts over the justification for produced to link Saddam Hussein few redeeming features to make it generations from the scourge of going to war and anxiety about the to al-Qaida or international right, established institutions and war, which twice in our lifetime human toll, uncontrollable course terrorism, while the Iraq invasion conventions for ensuring that force has brought and incalculable itself proved a powerful recruiting is legitimately exercised were set untold sorrow to Since 1945, the consequences of weapon for al-Qaida among aside by a superpower supremely mankind.’ UN has spawned war in a volatile alienated Muslim communities confident of its might and Since 1945, the and already around the world. prepared to ignore what is right. UN has spawned a corpus of law inflamed region. The war was illegal. Only the Finally, it is difficult to see a corpus of law to stigmatise Washington had United Nations, not individual how one country can enforce to stigmatise aggression and five great claims states, had the right to decide if Iraq UN resolutions by defying the aggression and for the Iraq war: was in breach of UN resolutions. authority of the world body and create a robust create a robust the threat posed Security Council Resolution denigrating it as irrelevant. norm against it. norm against it. by the proliferation 1441 did not use the key phrase The UN vision of weapons ‘all necessary means’ to enforce Why now? replaced the League’s futile efforts of mass destruction (WMD) to it, hence the need for a second First, 2013 will mark the 10th to abolish war with a provision Saddam Hussein’s Iraq; the threat UN resolution that never came. anniversary of the launch of the for states to use military force of international terrorism; the UN inspectors under Hans Blix Iraq war. A decade on is a good collectively and to abide by the need to establish a beachhead of were still doing their job and Iraq time to reflect back on the reasons, rules of the UN Charter. As such, democratic freedoms and the rule was being compliant. The US circumstances and decision- negotiations and the rule of law of law in the Middle East; the need position on legality did not apply making procedures by which a were to replace the unilateral to bring Saddam Hussein to justice to Britain and Australia because country went to any war, and to use of force. Only the Security for the atrocities committed by Congress had granted special consider its consequences. Council could take or authorise his regime; and the duty to be the war-making powers to President Second, there is by now military action to restore the international community’s enforcer. George W Bush. In her resignation widespread, although not peace. The normative primacy Each goal was badly undermined letter submitted on the eve of the unanimous, international of peaceful over forceful means, by the means chosen, and their Iraq war, , agreement that the Iraq war was and of the proposition that the collective damage to world order the deputy legal adviser to the UK morally wrong, illegal, unjustified international community has a was greater than the sum of Foreign Office, described military and had many seriously damaging stake in war avoidance, justifying their separate parts. action in Iraq as ‘an unlawful consequences for Western interests. its involvement in bilateral disputes In October 2004, the CIA’s use of force’ that ‘amounts to the The primary justification for between member states, is reported with crime of aggression’. going to war was to destroy an firmly entrenched. finality that while Saddam Hussein Although some advocates for the alleged active program of building

16 17 CHAPTER 1 WHY AN INQUIRY, AND WHY NOW? weapons of mass destruction. This inquiry into Australia’s involvement considering the two experiences and satisfactory inquiry into a past has been proven definitively false. in the Iraq war therefore would be together, including the difficult war in the midst of a new war. In 2008 former US secretary of state following in Britain’s footsteps, not question of to what extent the Iraq It is better to study the lessons Madeleine Albright said that the setting a precedent. war undermined the prospects for now when we still can: both to invasion of Iraq was ‘the greatest Fifth, since 2003 the international success in Afghanistan. avoid another war if we can, and disaster in American foreign community has for the first Seventh, the Middle East region to conduct it after due diligence policy’, worse even than Vietnam time agreed to a definition of remains as tense as ever, with the and democratic accountability in its unintended consequences. aggression. At the conclusion of volatile situation in and the if we cannot. ‘And the biggest unintended the International Criminal Court standoff with Iran over its nuclear Finally, Australia has been consequence in Iraq is … that review conference in Kampala, program threatening to descend campaigning for and is cautiously actually Iran has … won the war in Uganda, on 12 June 2010, article into internal, regional and/or hopeful of being elected to a two- Iraq.’ We need to 8 bis of the international war at short notice. year term on the UN Security study the long- The Iraq war Rome Statute Some commentators also perceive Council in 2013–14. This puts extra term effects of the was in violation was amended. Australia as being drawn into a responsibility as a member of the war on Australia’s The ‘crime of US-led strategy of containment of key international law enforcement security interests. of Australia’s aggression’ is China in the Pacific. This too has body to reaffirm its war-making Third, the international defined to mean considerable potential to flare up authority and competence, and Iraq war was obligations under ‘the planning, into inter-state conflict that could also to make sure that we have in violation preparation, entangle Australia. It would be drawn the hard lessons from a of Australia’s the ANZUS Treaty. initiation or difficult to conduct a thorough previous flawed war. international execution … of an obligations under the ANZUS act of aggression’ in violation of the Treaty. Article 1 of the treaty UN Charter. An act of aggression obligates Australia ‘to settle any is defined as ‘The invasion or international disputes in which attack by the armed forces of a they may be involved by peaceful State of the territory of another means in such a manner that State, or any military occupation, international peace and security however temporary, resulting from and justice are not endangered such invasion or attack’. We must and to refrain in their international carefully study the implications relations from the threat or use of of this and draw the right lessons force in any manner inconsistent from the Iraq war for future with the purposes of the United calls to arms. Nations’. As already argued, this Sixth, next year Australia will obligation to respect the UN also commence disengaging Charter was breached in 2003. from military combat operations Fourth, the UK has had several in Afghanistan. Because of the inquiries related to the Iraq war, geographical and chronological including one which is yet to proximity of Iraq and Afghanistan, report. An all-encompassing an inquiry could benefit from

18 19 Australian armoured vehicles in firing positions during a range practice in Iraq in 2007. Credit: Rob Nyffenegger

CHAPTER 2

How did we get there? HOW DID WE GET THERE?

TIMELINE 2001—2003

The following is a timeline built missile capability ‘sometime in the Garry Woodard with Paul Barratt and Andrew Farran around the sequence of events in next decade’. Saddam’s economic the US and the UK: infrastructure is in long-term here was no orderly, consecutive process of decision decline, his ability to project power making on whether Australia should go to war in Iraq outside Iraq is ‘extremely limited’, 2001 and international sanctions are Tin 2003. From 9/11, in 2001, Prime Minister John Howard keeping his diminished military had made up his mind to follow US President George W January from operating effectively Bush in the war against terrorism. Australian decisions were Ten days after becoming president, even inside Iraq. George W Bush meets for the first time with his national security February—August not about whether but how. It and Cabinet to the decision- principals, with ‘Mideast policy’ The US draws up a ‘liberation was taken for granted that the making processes of its two as the advertised subject. The strategy’ for Iraq. The dominant prime minister was the decision- major allies, the US and UK, principal subject is ‘how Iraq is theme in advice from the maker and that whatever was the particularly the US. Australia would destabilizing the region’ and the intelligence community and the prime minister’s decision, that not always have been involved outcome of that discussion is State Department to policymakers would be it. No minister or official in these processes, but it can that Secretary of Defense Donald during this time downplays offered advice, or dissent, on this be taken for granted that it was Rumsfeld and Chairman of the the immediacy or severity of score. Iraq was therefore unique closely informed. So a decision Joint Chiefs of Staff, General any threat from Saddam and in Australia’s post-war history, not to express a view as they Hugh Shelton, are to ‘examine our specifically any threat based on although it had many common proceeded would itself represent military options’ and ‘how it might unconventional weapons. features with the policymaking a policy position. look’ to use US ground forces to procedures for the previous An inquiry would be expected challenge Saddam Hussein. March 2001 through 2002 major war in which Australia was to elucidate the extent of Australia’s The intelligence communities involved: Vietnam. knowledge, through ministerial February produce diverse assessments of Therefore, an inquiry into communications, diplomatic CIA Director George Tenet presents Iraq’s WMD program, initially how Australia went to war in Iraq reports and intelligence exchanges, to Congress the intelligence with particular reference to should consider not Australian and of course the voluminous community’s comprehensive aluminium tubes. Australia’s decision-making processes public material on US and UK annual statement on worldwide intelligence community would themselves but rather the nature, thinking which was available in threats. The sole mention of Iraq have been involved. adequacy and relevance to the media. To what extent was this in relation to weapons proliferation Australia’s national interests of knowledge properly evaluated, and is a single sentence saying that April reactions by the prime minister what evidence is there for this? Iraq is probably conducting work The Australian government is on ballistic missiles and that, if it advised that AWB Limited is under received foreign assistance, it could intense pressure to pay kickbacks develop an intercontinental ballistic to the Saddam Hussein regime.

22 23 CHAPTER 2 HOW DID WE GET THERE?

September US Ambassador Tom Schieffer allow a nuclear attack by terrorists; May 10th Prime Minister Howard and a telephone call to Foreign the intelligence community reports Donald Rumsfeld tells Congress arrives in Washington, meets with Minister Alexander Downer. that Iraq obtained yellowcake that terrorists are seeking to acquire President Bush and attends an uranium from Niger (later rejected WMD from Iraq, Libya, North embassy barbecue with all the US 26th President Bush makes by DIO); US Deputy Secretary Korea, Syria, etc. Asked if he has a neo-con establishment from Vice- an address to the nation. The of Defense Paul Wolfowitz in plan to attack Iraq, General Franks President Dick Cheney down. Defence Intelligence Organisation Germany makes the first statement replies: ‘That’s a great question … (DIO) criticism of its tone proves about pre-emption. my boss has not yet asked me to 11th Terrorists attack the US at controversial in Canberra. put together a plan to do that.’ several locations (the World Trade March Center, the Pentagon, etc). There November Statements along the same lines June is immediate US discussion of 21st President Bush directs are made by UK Prime Minister Howard is in Washington to reprisals against Iraq. Defense Defense Secretary Rumsfeld to during a visit to address Congress. Accompanied Secretary Donald Rumsfeld construct in secret a fresh plan for by Cheney; the Foreign Office by ONA Director Kim Jones, he advises, ‘Go massive. Sweep it going to war in Iraq. expresses reservations. Thawley, on lunches with CIA Director George all up. Things related and not.’ instructions, issues an ultimatum Tenet. The doctrine of pre-emption Minutes taken by a Rumsfeld December to Saddam on Fox TV. is proclaimed (and later taken up aide five hours after the attack 28th General Tommy Franks by Howard). To a deputy raising read: ‘Best info fast. Judge presents a first draft war plan. April doubts about war, national security whether good enough [to] hit Further development of war plans, The New Yorker publishes an adviser Condoleezza Rice says: SH [Saddam Hussein] @ same with Australian participation article on pre-emption to achieve ‘Save your breath. The president time. Not only UBL [Usama bin through an Australian colonel regime change in Iraq which has already made up his mind.’ Laden].’ (This became publicly at US Central Command proves to be accurate on Bush known on 4 September 2002.) (CENTCOM). administration thinking and as a July Discussions continue for a few prediction of what would happen. MI6’s advises days until President Bush orders 2002 (Ex-Joint Intelligence Organisation UK Cabinet that the US is set on concentration on Afghanistan. director Gordon Jockel later tells war, wants to remove Saddam by Howard is briefed by well- January the Jull committee in 2007 that this military action, and is fixing the informed Australian ambassador Forces start to be reassigned from would immediately have been on intelligence and the facts around Michael Thawley (whose advice Afghanistan. State of the Union intelligence community desks in the policy. He mentions anticipated on Afghanistan, Iraq and the address: ‘Axis of Evil’ label is Canberra.) Bush and Blair meet acquiescence of Australia, which free trade agreement Howard is applied to Iraq, Iran and North at Crawford and agree on the may well have been fully informed. acknowledging to Tony Korea. Principal themes: terrorism desirability of regime change in A British Cabinet Office paper Jones on the ABC when Bush’s and WMD. Rogue regimes ‘could’ Iraq, Blair stating three desirable of 21 July predicts that ‘Australia acknowledgement is stopped by give advanced weapons to terrorists. prerequisites but not making them would be likely to participate [in the shoe-throwing incident). preconditions. Blair gives a speech the Iraq war] on the same basis as February in Texas. Howard, carrying a basic the UK’. The Foreign Office queries 12th Howard pledges support, Secretary of State Colin Powell brief on Iraq, holds talks with Blair. the legality of military action. and decides to invoke the ANZUS speaks to Congress; Vice-President Bush tells Britain’s ITV: ‘I made up Rumsfeld rejects army and air force Treaty after a discussion with Cheney says the US will never my mind that Saddam needs to go.’ secretaries’ warning of another

24 25 CHAPTER 2 HOW DID WE GET THERE?

Vietnam, saying: ‘We’re going (later criticised in the Flood report 2003 10th Howard is in Washington for to get in, remove Saddam and and by the Jull committee, which talks with President Bush. get out. That’s it.’ General Franks suggested ONA was responding to January secretly requests $700 million for ‘policy running strong’). 27th Hans Blix from the UN 11th Howard sees Hans Blix war preparations. Bush approves, Monitoring, Verification and in New York. unbeknownst to Congress. Money October Inspection Commission and is taken from an appropriation for A month of intense activity and Mohammed ElBaradei from the March the war in Afghanistan. extreme rhetoric (introducing International Atomic Energy Early March Blix and ElBaradei unmanned aerial vehicles) as Agency report to UN, the former report further progress, saying August the Bush administration seeks a more equivocal and asking for no proscribed activities have been Powell also expresses strong war resolution from Congress, more time. The tenor of the report discovered. reservations to President Bush submitting a highly contentious is that although the regime has and national security adviser Rice. national intelligence estimate. still to account for many banned 14th Howard addresses the White House chief of staff Andrew The UK National Intelligence weapons, it is cooperating well, and National Press Club and is queried Card establishes the White House Committee also produces a ‘dodgy no WMD have been found. Blair on his failure to produce evidence Iraq Group to plan and coordinate dossier’ to justify war. is in Washington; he and Bush of links between Saddam, al-Qaida the selling of the war. agree to start a war on 10 March, and 9/11 by Laurie Oakes and on November asserting there will be no serious regime change by Michelle Grattan. 7th The completed war plan is UN Security Council resolution religious or sectarian strife after the submitted to President Bush by 1441 offers Iraq a final invasion (though a CIA assessment 17th RJ Mathews from the General Franks. opportunity to comply with its has contradicted this). Defence Science and Technology disarmament obligations set out in Organisation writes to Howard September previous resolutions. February expressing reservations about the The White House Iraq Group 4th Prime Minister Howard intelligence and noting regime coordinates PR, including for and December cherry-picks foreign intelligence. change will increase the danger with allies. Significant troop deployments are At this time and through February, of dissemination of Iraqi know- made to the Middle East. ONA strengthens advice that how on WMD. 7—8th A media blitz – ‘we don’t Iraq has WMD. want the smoking gun to be a 2001—2 18th Howard quotes (new) British mushroom cloud’. Cheney presents 5th Secretary of State Powell advice that war is legal and says the ‘new information’ of a link between Australian discussions of Iraq relate addresses the UN; some of his Australian position is similar. Saddam and al-Qaida (which is to modalities and intelligence. evidence – for example, mobile later rejected by Australia’s DIO). Officials are not asked for and do factories to produce biological 19th War starts. Australian not offer advice – first reported by weapons – proves to be incorrect, troops are in action before any 12th Bush addresses the UN, former Defence Deputy Secretary and is queried, notably by France announcement and before the leading to Saddam’s agreeing to re- (Strategy and Intelligence) Hugh and Germany, which are dismissed ultimatum to Saddam has expired. admit UN inspectors on the 18th. White; confirmed (specifically for by the US as ‘old Europe’. There is a The Australian government makes the period from October) by three stalemate in the UN. public use of an ONA report, departmental heads to Paul Kelly in which uses foreign intelligence The March of the Patriots (2009).

26 27 CHAPTER 3

What evidence was available?

The UN Security Council meets on 14 February 2003 to hear a briefing on the progress of the weapons inspectors in Iraq. Credit: Evan Schneider WHAT EVIDENCE WAS AVAILABLE?

thousand inspectors, including were still discrepancies and more than 150 Australians, combed uncertainties, and as Hans Blix, the country to ensure that the the head of the UN weapons destruction carried out was done inspectorate, reported to the comprehensively and completely. Security Council on 14 February Rod Barton As part of this process, thousands 2003, ‘we do not know every of Iraqi scientists, engineers and cave and corner’ of Iraq. But stand by the fact that before we entered the war, we had military personnel involved with he also reported that there was a very strong intelligence assessment that Iraq had a Iraq’s former WMD programs nothing to indicate any renewed were interviewed and close to WMD activity. On the same day, ‘I WMD capability.’ So said John Howard on 20 July 2003 a million documents seized. In Mohammed ElBaradei, the head of shortly after he had committed Australia to war to rid Iraq short, a massive database on Iraqi the International Atomic Energy of its weapons of mass destruction. But what was this ‘very capabilities was established, and Agency, similarly reported that although it was closely held by the his teams had ‘found no evidence UN, inevitably some of the details of ongoing prohibited nuclear strong intelligence assessment’ and Sources of information filtered back to the countries that or nuclear-related activities in on what information was it based? Undoubtedly, and perhaps provided the inspectors. Iraq’, but pointed out that there Two major Australian inquiries into surprisingly to some, the greatest Following Operation Desert Fox, were ‘a number of issues … still the intelligence that led Australia source of intelligence for Iraq’s a US and UK bombing campaign under investigation.’ to war have been held, one in WMD came not from intelligence against Iraqi facilities in December Perhaps more significant than December 2003 by a parliamentary collection agencies such as the CIA, 1998, Iraq banned further weapons the lack of evidence for WMD was joint committee on ASIO, ASIS but from the United Nations via its inspections. However, when the the state of Iraq’s industries in 2003: and DSD intelligence on Iraq’s weapons inspectors. After the First threat of war again loomed in a WMD program needs facilities weapons of mass destruction, and Gulf War in 1991, Iraq was required late 2002, Iraq allowed entry of such as steelworks and chemical, the other in July 2004 by Philip by a Security Council resolution new teams of inspectors, and electronics and fabrication plants. Flood into Australian intelligence to destroy its nuclear, chemical inspections continued until almost After years of sanctions, UN agencies. Although neither inquiry and biological weapons and also the outbreak of war in March 2003. inspectors noted that factories had terms of reference sufficiently the long-range missiles that could During this time, over 300 sites had fallen into disrepair and broad to answer all the questions, deliver these weapons. Not only were visited to establish whether Iraq’s capacity to support even and each had other failings, much were the weapons themselves there were any indications that a basic WMD program was has now been placed in the public to be eliminated, but also all the weapons programs had been severely limited. Support for a domain. In addition, a total of five support facilities, materials and resumed during the three years technologically sophisticated inquiries have been conducted equipment that were used to make the inspectors had been absent. program, such as one required for in the US and the UK, with them. This included research Some of these 300 sites were those nuclear weapons, was non-existent. which Australia has intelligence- institutes, manufacturing plants suggested by countries, including Thus the largest database sharing agreements, and these and test facilities. To supervise the US, that believed they had on Iraqi capabilities, the UN have revealed further information the destruction of Iraq’s WMD intelligence on where Iraq might collection, provided no evidence particularly on the sources capabilities, the UN established an be making WMD. of any renewed WMD activity. for Mr Howard’s ‘very strong inspection commission, and from Of course, after only three Although there were some intelligence assessment’. 1991 until the end of 1998 about a months of inspections, there uncertainties and issues to be

30 31 Members of the UNSCOM team inspect mustard agent l55-mm artillery projectiles in Fallujah, Iraq, in August 1991. Credit: Shankar Kunhambu CHAPTER 3 resolved, these related to pre-1991 except for the fact that this was a weapons and whether these had single source and there was no been completely eliminated. Iraqi other corroborating information. chemical or biological weapons, if It should not therefore have been they did exist, would be at least 12 accepted as evidence of a WMD years old by early 2003 and would capability and indeed was not by therefore be of dubious utility. In Australian intelligence agencies. any case, UN weapons inspectors In fact, the so-called ‘source’ assessed there would be only small was an Iraqi in Germany. numbers of such weapons; even if He had not been interviewed by they existed, they would pose little US authorities but by German threat beyond the borders of Iraq. intelligence, which had passed on Intelligence agencies had also its findings to the CIA. German been collecting information on intelligence had, however, advised Iraq. US Secretary of State Colin the US that they believed the source Powell presented a declassified was unstable and a fabricator. The version of this to the Security German reservations were well Council on 5 February 2003. justified and the source has since Almost all of it was ambiguous and admitted that he made up the story open to other interpretations. For to get a visa and work permit to example, telephone intercepts of allow him to live in Germany. Iraqi officials could be interpreted as references to hidden weapons Assessment of intelligence but, equally, other explanations Australia had limited capacity to were possible. Similarly, satellite collect its own intelligence on Iraq, images of trucks allegedly carrying but through intelligence-sharing chemical weapons could just as agreements most, although not all, easily have been transporting of the results of special collection something more innocent. efforts by the US and UK were The most definitive, although available to Australian analysts. ultimately incorrect, piece of In addition, Australian analysts information possessed by the US were well informed on much of related to an alleged biological the information in the vast UN weapons factory mounted on a database. Of the two Australian semi-trailer. The US claimed that intelligence assessment authorities ‘the source was an eyewitness, advising the government before an Iraqi chemical engineer who the 2003 Iraq war, the Defence supervised one of these facilities’. Intelligence Organisation (DOI) At the time, this might have was the better placed to provide seemed like persuasive evidence technical advice on WMD. It

32 CHAPTER 3 WHAT EVIDENCE WAS AVAILABLE? has a branch staffed with highly almost certainly been working to available at the time. By this test, is not surprising that Philip Flood, qualified personnel who are increase its ability to make chemical DIO’s assessment that Iraq had who conducted one of the inquiries experts in chemical, biological and biological weapons.’ some old weapons but no new into Australian intelligence, told an and nuclear weapons. On the Both agencies assessed that Iraq programs was reasonable. ONA’s SBS interviewer on 22 July 2004 that other hand, the Office of National probably retained some old pre- more aggressive assessment on the evidence on Iraq’s WMD was Assessments (ONA) in the 1991 weapons in limited numbers, the likelihood of renewed weapons ‘thin, ambiguous and incomplete’. Department of Prime Minister but DIO added that over time program does not seem objectively So perhaps this is why on 4 and Cabinet has few technical they would have degraded and based. One can only speculate February 2003 the prime minister, specialists, but has greater expertise hence ‘the capacity for Iraq to on why, with the same raw in presenting his case to parliament in the political dimensions of effectively employ weaponised CW intelligence, its views diverged so for decisive action against Iraq, did the Middle East. The agencies agents is uncertain’. far from those of DIO. not refer to Australian intelligence worked in close cooperation, but but instead cited the aggressive UK produced their own independent Were these assessments Was it a ‘very strong and US assessments. assessments to the government in fair and reasonable? intelligence assessment’? In any case, the possession by the lead‑up to the war. The Iraq Survey Group reported on It is not clear what briefing John Iraq of WMD is not the point. It has become evident that up 30 September 2004 that at the time Howard received just prior to Before a decision to go to war in to September 2002 both agencies of the Iraq war in March 2003, Iraq the Iraq war. ONA and DIO had 2003, the question that should have had similar assessments of Iraq’s had no WMD and no programs different views on the evidence been asked is: did Iraq pose a threat WMD capabilities, but after to make them. This is now well for Iraq’s possession of WMD, either to neighbouring countries that date views diverged, as the established. Therefore, both and reports from both would have or to the wider international parliamentary joint committee Australian assessment agencies had been forwarded to his office. Even community, including Australia revealed in December 2003 and got it wrong, ONA more so than if he had listened only to what and its allies? Again it is not the Flood inquiry later confirmed. DIO. On the other hand, neither ONA was saying, it hardly seems clear whether this was addressed DIO maintained its previously agency had made the gross errors to be the ‘very strong intelligence by the Australian intelligence held view that Iraq had not of their US and UK counterparts assessment’ that he claims. For community, although it seems restarted its WMD programs. For that had presented the intelligence example, although ONA assessed not. And more critically, was this example, it stated on biological as definitive, had stated with Iraq had ‘almost certainly been asked by the Howard government? weapons that: ‘There ha[ve] been certainty that Iraq had resumed its working to increase its ability to We do not know the answer, but no known offensive research chemical, biological and nuclear make chemical and biological if this question was not asked, and developments since 1991, no weapon programs, and that Iraq weapons’, it does not suggest that then that was a fundamental and known BW [biological weapons] posed an imminent threat to the stockpiles of weapons had actually catastrophic failing. production since 1991 and no international community. After the been manufactured. Therefore, it known BW testing or evaluation war, British and American inquiries since 1991.’ And on chemical showed that many claims about weapons, DIO asserted: ‘There Iraq’s WMD were false. is no known CW [chemical The benchmark by which the weapons] production.’ Australian intelligence agencies ONA, however, after September should be judged is not what is 2002, was more upbeat. For known now, but whether they example, it reported: ‘Iraq has had fairly assessed the evidence

34 35 CHAPTER 4

How highly did the children rate?

An Iraqi boy watches as US soldiers conduct site surveys in the Al Ewaj region of Tikrit in September 2009. Credit: Steven King HOW HIGHLY DID THE CHILDREN RATE?

Hans von Sponeck, successive have a much greater impact on heads of the Oil-for-Food program, the Iraqi people and surrounding each resigned from that position countries than that war did. It was in protest at the effects of the estimated that new attacks on Iraq sanctions, which continued to take could lead to up to half a million Dr Jenny Grounds and Dr Sue Wareham OAM a heavy toll on innocent lives. deaths on all sides, including the Against this background, reports effects of the initial attack, ongoing he invasion of Iraq was a humanitarian disaster. This that emerged in 2002 and 2003 conflict and refugee deaths. was not the result of things unexpectedly going wrong. expressed alarm at the further The Australian launch suffering that would be inflicted by of Collateral Damage was at TDuring 2002 and 2003, many individuals and groups the impending war. Parliament House in Canberra on expressed concern about the certain harm to human health, 12 November 2002, and it received and also to the environment, if the war proceeded. Pre-war warnings significant media coverage. The In November 2002 Medact, the UK report was commended by General affiliate of International Physicians Peter Gration, former chief of the Millions of people in the streets Agriculture Organization and the for the Prevention of Nuclear War, Australian Defence Force, who in over 800 cities throughout the World Food Programme reported released a report Collateral Damage: said, ‘This is not an exaggerated world, including in Australia, could that the economic sanctions had The health and environmental tract by a bunch of zealots. It is see that Iraqi civilians, including ‘virtually paralysed the whole costs of war on Iraq. The report a coldly factual report by health children, would pay the cost for economy and generated persistent examined the short- and long-term professionals, who draw on the the actions of their leaders. What deprivation, chronic hunger, effects of the 1991 Gulf War, the best evidence available … erring on is not clear is the extent, if any, endemic under-nutrition, massive sanctions, and the no-fly zones the side of caution.’ to which the predictions of large- unemployment and widespread imposed on Iraq with continued The findings of the Collateral scale human suffering weighed human suffering’. Large-scale bombing by US and UK forces, Damage report were reinforced in the Australian government’s starvation was avoided due to an and portrayed a nation, in 2002, that in January 2003 by the Center for decision‑making process. effective public rationing system. was weakened and impoverished. Economic and Social Rights in Warnings of the likely The UN Oil-for-Food program, ‘The Iraqi people’s mental and New York, which also predicted consequences of the war presented implemented in 1996, provided physical health and well-being humanitarian disaster in the a consistent message – that Iraqi some relief but not a major were seriously harmed by the direct event of war. The Center sent a society was degraded by the 1991 improvement in the well-being impact of the 1990–91 war,’ it stated. team of experts in food security Gulf War and over 10 years of of the people, and widespread ‘They were further weakened by and nutrition, public health crippling economic sanctions, malnutrition remained. Infant the indirect effects of the conflict infrastructure, public health care, and that it would not be capable mortality, which is a good indicator in a variety of ways that stem from and emergency medicine to Iraq of withstanding further military of a country’s health status the consequences of economic to examine preparedness for conflict. The impact of the generally, had fallen to 65 per collapse, and from widespread further violence and deprivation. sanctions had been documented 1000 live births just before the 1991 infrastructural destruction and Their report, The Human Costs repeatedly during the 1990s, by Gulf War, but had risen again to damage to services and facilities.’ of War in Iraq, stated that the a multitude of UN agencies and 103 by 1998, reflecting the huge The report argued that even a international community (the non-government organisations. deterioration in health conditions best-case scenario – a short war UN and relief agencies) was As early as July 1993, the Food and in that period. Denis Halliday and comparable to that of 1991 – would unprepared for the humanitarian

38 39 A vehicle burns in Baghdad in 2006 after being hit by a mortar. Credit: Keith W. DeVinney CHAPTER 4 disaster of another war in Iraq. The to the harm that children healthcare system was extremely would suffer by a new war. fragile and grossly inadequate even before the war began. One of the On 25 February the World Food report’s authors stated that ‘Iraq Programme also warned that the has become like a vast refugee impending invasion might disrupt camp’. The authors also expressed the government food hand-outs concern that Pentagon war plans to millions of Iraqis – a system, for Iraq explicitly threatened it said, that was very effective in civilian infrastructure. delivering essential rations. (As Also in January 2003, the predicted, the distribution of food International Study Team, an rations was disrupted.) independent group of academics, Australia’s federal parliamentar­ researchers, and practitioners who ians were aware of at least some of had reported on infant mortality in these dire predictions, and many Iraq as a result of the 1991 war and expressed their opposition to our the economic sanctions, published participation in the impending a further report, Our Common war. They issued a statement in Responsibility: The impact of a early 2003 noting: ‘Civilians are new war on Iraqi children. The the first casualty of war. War will report stated that: mean further humanitarian and environmental devastation, and a n Iraqi children suffered flood of new refugees.’ significant psychological harm from the threat of war War and its effects that was hanging over them The war began on 19 March, and n Iraqi children were still in a its effects were apparent very significantly worse state than early on. In late March UNICEF they were before the 1991 war expressed concern at frequent n Because most of the 13 power cuts, leading to cuts to million Iraqi children clean water supply in Basra. In were dependent on food April the International Committee distributed by the Iraqi of the Red Cross reported that government, the disruption the medical system in Baghdad of this system by war would had virtually collapsed. Also have a devastating impact on in April UN agencies reported children who already had a that looting and lawlessness high rate of malnutrition obstructed their operations. On n The international community 2 May UNICEF reported on the had little capacity to respond dangers confronting Iraqi children,

40 CHAPTER 4 HOW HIGHLY DID THE CHILDREN RATE? including insecurity which further toll on children. The UN The violence continues war, Defence Minister Robert Hill prevented aid delivery, infectious News Service reported as early as Tragically, predictions of ongoing gave assurances that our troops illness from degraded water 17 July 2003 that over 1000 children instability and violence triggered would adhere to international supply, unexploded munitions, had been killed or injured by by the war were accurate. A humanitarian law and would not school closures and children on the cluster bombs or Iraqi munitions. further study published in attack civilian targets. However, streets, and enormous stress on Refugees from the war number The Lancet in October 2006 – from the government knew, or should hospitals with inadequate supplies in the millions. Costs of War, respected researchers using sound have known, that during the 1991 and ongoing malnutrition. The a June 2011 report from Brown techniques – estimated a figure of Iraq war, the attacks by US forces problem of insecurity was so great University’s Watson Institute for 655,000 excess deaths (deaths over on civilian infrastructure had that, by September 2003, staff of International Studies, stated that and above those that would usually destroyed much of Iraq’s electrical the International Committee of ‘3.5 million Iraqis have fled their have occurred) from the start of the generating capacity, with a the Red Cross, homes and have war until July 2006, 92 per cent of disproportionate effect on children’s Oxfam, Save the If we are to learn not returned’ since these being due to direct violence. health from contaminated water Children and anything from this 2003. That number While precision with such figures supplies (see T Nagy, Iraq: The Merlin (Medical includes 1.7 is not possible, the authors gave human cost of history, 2004). Experts on the disaster, we must million internally a possible range from 390,000 to Australians would have been naive Frontline, a UK establish how it displaced persons 940,000 excess deaths. to assume that in planning and service delivery unfolded and the and 1.8 million At the lower end of estimates of executing the 2003 invasion the organisation) had Iraqi expatriates. the death toll is the database Iraq protection of civilians would be our withdrawn their role, if any, played The UN High Body Count, which analyses press ally’s highest priority. international staff by the ample Commissioner and media reports of deaths. It has Nearly 10 years later, the from Baghdad and warnings that for Refugees puts documented 107,000–117,000 Iraqi children, women and men of Iraq were scaling down the number even civilian deaths from violence since are paying a heavy price for the their operations accurately predicted higher, estimating the start of the war until July 2012. war, as they will continue to do for in Iraq, after the its full horror. 4.7 million Regardless of the exact number a long time. They do not have the August bombing displaced Iraqis of deaths, which we will never luxury of ‘moving on’. If we are to of the UN headquarters and the since the invasion. know, the toll is enormous. learn anything from this disaster, Jordanian embassy in Baghdad. Despite great difficulties in data Far greater still is the legacy of we must establish how it unfolded The terrible plight of the collection, and in the absence of shattered bodies and minds and and the role, if any, played by the children continued. In February any official civilian casualty figures, human misery. ample warnings that accurately and March 2004 the Washington some estimates of the war’s death In 2003, before Australia went to predicted its full horror. Post, the New York Times and toll emerged. In October 2004 reported on the medical journal The Lancet the appalling conditions in Iraq’s reported a cluster sample survey paediatric hospitals, with very which estimated that the war had poor sanitation and shortages caused the deaths of approximately of essential medications and 100,000 Iraqis, with violence being equipment. Deaths and maiming the primary cause of death. The from unexploded ordnance, violence was mainly attributed to including cluster bombs, took a coalition forces.

42 43 CHAPTER 5

What sort of inquiry is needed?

Iraqi residents must wade through a lake of water due to a main break in Baghdad in 2008. Credit: Charles Gill WHAT SORT OF INQUIRY IS NEEDED?

those who have participated in the might be held in private if, for inquiry process – might have more example, the relevant portion of of a stake in their implementation. the proceedings might disclose Having said that, the strict material the publication of which party discipline within the could damage national security. Edward Santow modern incarnation of Australian There is also the option of releasing Westminster democracy might the private evidence of the hearing ssuming there should be an inquiry into the legality discourage those members who fear in the future, when the information of Australia’s involvement in the war in Iraq, there political embarrassment, were the is no longer classified and is report to criticise past governments, safe to release. Aare a number of possible models for such an inquiry. from exercising complete candour The advantages of this model These include a parliamentary inquiry (by the House of in the inquiry process. To the extent of inquiry, especially in terms of Representatives, the Senate or a joint committee); an inquiry that the inquiry members are public perception, include that inquiring into their own behaviour, it can provide a forum for a full or those with whom they have investigation of issues. However, with the powers of a Royal Parliamentary inquiries strong political allegiances, there is should there be involvement Commission; an ad hoc (judicial) One option would be to hold a risk that there could be at least a of ASIO or ASIS, the Senate inquiry without Royal Commission an inquiry through the federal perception of less independence. committee might lack the power powers; an inquiry undertaken parliamentary system. This could to receive highly classified by the Australian Law Reform be undertaken by the Senate, by senate inquiry information. Such information may Commission; or a citizens-initiated the House of Representatives or by The Senate has the power to initiate only be able to be released to the inquiry that is initiated without the a joint committee of both Houses an inquiry via its committee Opposition Leader and National involvement of the Commonwealth of Parliament. One advantage of system. This initiation, which Security Committee of Cabinet. Government. In determining which a parliamentary inquiry is that occurs by way of referral, would This model also allows model is most appropriate, the submissions and evidence given set out the matters on which the for hearings to be as open as many factors that might be taken to the inquiry could be made committee can investigate and practicable, while allowing the into account include: publicly available and covered by report. There can also be referral to committee to hear classified parliamentary privilege. (Section 16 a committee if there is a bill before evidence. The option of partial n The powers of the person(s) of the federal Parliamentary the Senate. In Chapter 16 of Odgers, publication seeks to balance leading the inquiry (such as Privileges Act 1987 provides for this the powers of committees are national security and openness, powers of compulsion for immunity). This would provide outlined. Like Royal Commissions, by allowing scrutiny of classified evidence to be given, to force immunity against defamation and there is a power to send for material but preserving the option attendance and to ascertain other legal liability in respect of persons and documents by way of publicly releasing the classified classified information) witness testimony. of summons and requests that information at some later date. n How to deal with information An advantage of a parliamentary documents be produced. Independence is also enhanced that has been or may be inquiry is that it would be There is the power to hold by the separation of the person(s) classified, including in undertaken by the legislative arm video-recorded proceedings. conducting the inquiry from relation to the final report of government, with access to the There can be a decision by the government bodies that are directly n The level of independence of senior executive. If reforms are committee to hold the proceedings involved in operations, such as the the inquiry. proposed, the legislators – at least in public or in private. Proceedings Australian Defence Forces, ASIO

46 47 CHAPTER 5 WHAT SORT OF INQUIRY IS NEEDED? and ASIS. However, such an inquiry 7. The report is presented to A Royal Commission has Witnesses and others giving would remain within the political the Parliament and may very broad powers to conduct evidence to a Royal Commission realm. As such, it is unlikely to be debated. inquiries. However, in establishing would have the same rights as if have – in perception or reality – the 8. Copies of the report are a commission of an inquiry, the they were giving evidence in the same level of independence as, for made available through government might opt to give High Court. Similarly, a Royal example, a Royal Commission. various means including the commission less than the full commissioner would enjoy all through the national powers. This could be in relation to of the immunities and privileges house of representatives inquiry and state libraries and a judicial inquiry. A judicial inquiry that a High Court justice has, The process by which the House publication on the is also created by the Governor- and a legal practitioner assisting of Representatives might initiate Parliament’s website. General through issuing letters the commission, or appearing an inquiry of this nature is 9. Government patent. There is also the ability to on behalf of a person at the summarised on the Parliament’s considers report. establish a non-statutory form of commission, would have the same website. It says: 10. Government responds inquiry into particular events. privileges that they would have in to report by presenting The Royal Commissions Act appearing before the High Court. The inquiry process may response in the Parliament. provides a Royal Commission or Royal Commissions have vary from inquiry to inquiry inquiry with powers including: special rules in relation to as circumstances demand The powers and relative merits of a privilege. Generally speaking, a but usually consists of the House of Representatives inquiry n To summon witnesses and person cannot refuse to produce following steps: would be very similar to the powers take evidence a document on the basis of legal 1. Reference received by the of a Senate committee inquiry. n To apply for search warrants professional privilege without first committee. However, it should be noted that, n To issue a penalty for the having their claim accepted by the 2. Reference advertised by definition, the government of refusal to give evidence or commissioner. through various media, the day controls the House, and so be sworn There is also a provision in and submissions sought it is less likely to be able to break n To have a person arrested for relation to the privilege against from individuals and from the strictures of political failing to appear self-incrimination. It is not an organisations. party discipline. n To inspect, retain or make excuse to fail to provide evidence or 3. Submissions received and copies of documents documents if they may incriminate authorised for publication. A Royal Commission and ad n To issue penalties in relation the person. It is only acceptable if 4. Committee conducts on-site hoc inquiry without Royal to false or misleading it ‘might tend’ to incriminate the inspections, background Commission powers evidence, bribery of person in relation to: briefing and seminars The establishment and functioning witnesses, fraud on witness, (where appropriate). of a Royal Commission is governed destroying documents or n An offence and the person 5. Committee conducts by the federal Royal Commissions other things, preventing has either been charged with public hearings with Act 1902. The Governor-General, a witness from attending, that offence and proceedings selected individuals and acting on the advice of the causing injury to a witness, relating to it have not organisations requested to government of the day, institutes employers dismissing concluded, or give oral evidence. a Royal Commission. She or he employees who are witnesses n A penalty and proceedings 6. Committee considers issues letters patent, establishing at the Royal Commission, have commenced in relation evidence and the Royal Commission and setting and contempt of the Royal to the penalty and have not prepares report. out the inquiry’s remit. Commission. been concluded.

48 49 CHAPTER 5 WHAT SORT OF INQUIRY IS NEEDED?

An ad hoc judicial inquiry is noted in 2009 that ‘non-statutory the disclosure of the identity with Australian government an inquiry that is established by inquiries may not provide legal of participants in an inquiry agencies for the protection the government in relation to a protection to inquiry members’. n Making orders relating to how of national security particular matter. It is ‘judicial’ in This indicates privilege may not a person should be examined information provided to the the sense that the inquiry is led attach to all involved in an inquiry and what documents can be inquiry, including handling by a former or serving judicial that is commenced without an shown to the person and storage officer. While this person would be enabling act of Parliament. n Adapting inquiry procedures, n Making arrangements for acting in their personal capacity, for example, implementing persons accessing national and so would not bring with them classified information arrangements with inquiry security information in the their judicial powers to deploy As the ALRC has explained, Royal participants and the course of an inquiry to obtain for the purposes of the inquiry, Commissions have tended to Australian government to security clearances. their status as a current or former deal with classified information enable agreement to be member of the judiciary might differently from ad hoc judicial reached on what portions of relative merits lend the inquiry a greater sense inquiries. It appears that there the transcript should, and The ALRC has found that Royal of independence. Such an inquiry is no prima facie right for Royal should not, be published Commissions are perceived by the can resemble a Royal Commission Commissions to have access to n Requiring inquiry public to be more independent in some respects. The issuing of classified information. The ALRC participants to provide and the public are ‘more likely letters patent by the Governor- noted some of the difficulties in notice prior to referring to to accept inquiry processes and General could be used to initiate an relation to classified information. national security information decisions’ of Royal Commissions. ad hoc judicial inquiry. The extent The Clarke inquiry into the case in the course of the inquiry, It has also commented that they to which such an inquiry would of Dr Mohammed Haneef (an ad including in submissions are ‘sometimes seen to be more resemble a Royal Commission, as hoc judicial inquiry) is indicative of n Preparing confidential independent than other types well as its relative independence, some of the problems that would volumes or annexures of the of inquiries because they are would largely depend on the extent be faced in relation to classified report and placing limits on supported by statute’. of the powers provided to the information. The ALRC has their distribution There is the disadvantage that inquiry commissioner. summarised some of the ways that n Making recommendations a Royal Commission cannot Frequently, ad hoc judicial classified information has been to the Australian government implement or legislate any of inquiries are commenced by way dealt with by Royal Commissions: regarding which parts of a its recommendations. Instead, it of an enabling act of Parliament. report should, or should not, is the legislature’s responsibility It would depend on the content n Holding hearings and be made public to consider and, if it deems it of such legislation as to whether examinations in private n Preparing abridged appropriate, to implement these there is protection of all involved in n Withholding material, such versions of findings and recommendations. the inquiry by privilege, and how as transcripts and exhibits, recommendations suitable for far such privileges would extend. from publication, or deferring publication Inquiry by the Australian Law If an ad hoc judicial inquiry is publication of such material n Examining national Reform Commission established with some powers that n Making orders prohibiting security information and The ALRC was established to a Royal Commission has, the issues the disclosure of particular preparing summaries of such conduct inquiries on difficult of privilege would resemble those documents or classes of information for use in the questions of legal and public policy. discussed above. The Australian documents conduct of the inquiry Its inquiries can be initiated only Law Reform Commission (ALRC) n Making orders prohibiting n Entering into arrangements by the Attorney-General referring a

50 51 CHAPTER 5 WHAT SORT OF INQUIRY IS NEEDED? matter to the ALRC and providing and asking a series of questions), relative merits As an obvious practical matter, terms of reference that demarcate followed by a discussion paper The ALRC is an independent the resources available to a citizens- its investigative boundaries. (setting out draft proposals for statutory authority, and so is more initiated inquiry would depend on However, the commission tends reform) and concluding with autonomous than a parliamentary those stakeholders who choose to to focus its inquiries on general a final report that contains its committee. However, it is only able back it. While it would lack the legal issues (such as privacy, sedition or reform recommendations. to inquire about the issues set out power to compel the production gene patenting) as distinct from the The final report is provided to by the Attorney-General. Further, of evidence or the appearance of legality of a particular decision. In the government, which is obliged there is no obligation on the particular witnesses, it could use order to bring an ALRC-led inquiry to table it in Parliament. The government to follow the ALRC’s the federal Freedom of Information within its statutory remit, the focus government retains full discretion recommendations, although Act to obtain government-held of the inquiry would need to be on regarding whether to implement historically a high proportion information that is not exempt from the legal process by which Australia the recommendations of the ALRC of its recommendations are disclosure. Of course, however, in enters armed conflict generally. through legislative changes. implemented by government. an inquiry such as this, it is highly This would not preclude the ALRC While the ALRC would lack likely that the government would from investigating the legality of the power to obtain classified Citizens-initiated inquiry rely on the statutory exemption Australia going to war in Iraq, but information, it does have A citizens-initiated inquiry would from disclosure in respect of this probably could not be the main experience in dealing with be an inquiry that is established information that might prejudice focus of the inquiry. questions of national security. An by a group of citizens without the national security or international Unlike judicial inquiries and example is its inquiry into classified official imprimatur of government. relations. This would significantly Royal Commissions, the ALRC information, Keeping Secrets Such an inquiry could be launched hamper the ability of such an does not wield any coercive powers Report: The protection of classified by an individual, one or more not- inquiry to obtain evidence not to require evidence or documents and security sensitive information. for-profit organisations, or a broad already in the public domain. to be given to the inquiry. As As noted above, the ALRC does coalition of stakeholders. A citizens- such, it appears that the issues have a wide-ranging power. There initiated inquiry would not attract relative merits relating to privilege being claimed is no statutory provision provided the privileges or powers that are In principle, a citizens-initiated where evidence or documents are for in the ALRC Act 1996 that deals attached to a parliamentary inquiry, inquiry could be expected to called for, like in ad hoc judicial with the issue of privilege. However, ad hoc judicial inquiry, Royal generate stronger public support inquiries and Royal Commissions, the ALRC published a policy in Commission or ALRC inquiry. given that it would be completely would not arise. However, the June 2010 in relation to submissions There are privileges, such as separate from government, which ALRC does have the ‘power to do and inquiry material. Generally, privilege against self-incrimination, would be the main subject of everything necessary or convenient the ALRC attempts to make all professional legal privilege and the inquiry. However, in practice, to be done for, or in connection submissions public. However, parliamentary privilege, which this support and its relative with, the performance of its where information is provided to it attach to various other methods of independence would rely heavily functions.’ Its modus operandi is in confidence, it will not make the inquiry that would not operate in on the people most closely to consult relevant stakeholders information publicly available. If a this method of inquiry. As such, associated with the inquiry. If the and undertake research. This request for such a document were witnesses giving evidence will not inquiry were perceived as being informs the ALRC’s thinking and made under the federal Freedom be covered by these privileges, and closely aligned to a particular is reflected in its process, which of Information Act 1982, the ALRC may be less inclined to provide political party or ideological usually starts with an issues paper has stated that in most instances it evidence, as this could expose cause, its independence would be (providing background context would be denied under section 45. them to legal action. diminished.

52 53 CHAPTER 6

A better Westminster way to war?

An Australian soldier takes part in a joint exercise with the US military at Shoalwater Bay in Queensland in 2011. Credit: Andrew Dakin A BETTER WESTMINSTER WAY TO WAR?

be satisfied of the legality governor-general. Acting on the of the decision taken. advice of the Australian cabinet, 2 The ‘prerogative’ exercised he declared war against four directly by the sovereign – belligerents. It was generally seen as the residue of the assumed that these declarations Prof Charles Sampford sovereign’s once theoretically were made under section 61 of the absolute power. These were Constitution, which now included n Montesquieu’s famous tripartite separation of powers increasingly exercised on full executive power. (executive, legislative and judicial), the power to make advice and those powers However, to put the matter which could be exercised beyond any doubt, Attorney- Iwar was clearly part of the executive power. It was the without advice came to be General HV Evatt arranged for a quintessential sovereign power when the sovereign and state called the ‘reserve powers’. formal delegation of war-making were inseparable and supposedly all powerful. 3 Statutory powers given to power from the king to the ministers or nominated governor-general under section 2 officials under legislation. of the Constitution. As it was in As legislative and judicial powers remained in the sovereign’s hands, 4 Powers that are neither war, so it was in peace with the were separated from executive it was increasingly exercised statutory nor prerogative governor-general signing off on powers and given to parlements/ by ministers appointed by the (such as the power to enter peace with Germany in 1951. parliaments and courts, the power sovereign under powers conferred contracts). In 2003, most constitutional to make war remained clearly by legislation or exercised by lawyers expected that the political within the executive power of the sovereign on the ‘advice’ of Most executive activity is carried decision would be taken by cabinet the English sovereigns. But this ministers – advice which was out through the last two but the as a whole or the security cabinet power was always subject to increasingly taken. Executive power most significant decisions are but legally authorised by the practical limitations of finding was divided into four kinds: carried out through the first two. governor-general on advice from the necessary soldiers, arms and the prime minister either exercising money to pay for them. 1 Powers given to ‘Queen-in- The war power in Australia the prerogative or through the From the 17th century, the Council’ or ‘Privy Council’ At Federation, Australia did not Federal Executive Council. power of the purse of the English in which the sovereign gain full independence. Although The governor-general, Peter parliament constrained all would make decisions in section 61 of the Constitution Hollingworth, certainly thought government action and meant the presence of, and on the vested executive power in the queen so: ‘I saw it as my duty to ask that monarchs started to appoint advice of, her ministers. and exercisable by the governor- the government of the day what ministers who could get legislation, Commonwealth countries general, this did not include the instruments, if any, were required especially money bills, through had similar bodies called the power to declare war. When the to invoke such an action or to ratify parliament. They came to be led, Governor-General-in-Council king declared war acting on his UK the decisions of government.’ With coordinated and then nominated and/or Federal Executive advisers, Australia automatically regard to Afghanistan, ‘the Prime by a ‘prime’ minister. Council. Actions can only went to war as well. Minister informed me that no order The ‘loss’ of the American be taken on ministerial In 1942, Australia adopted from the Governor-General was colonies led to the crystallisation advice but the governor- the 1931 Statute of Westminster, required. In that matter, he cited of the parliamentary system. general can ask questions became independent and hence the ANZUS Treaty as the basis for Although executive power legally and will generally want to transferred the war power to the action by the government.’

56 57 CHAPTER 6 A BETTER WESTMINSTER WAY TO WAR?

On Iraq he writes: political process by which the of the Minister’. This may not parliamentary approval decision had been made, citing sound like a delegation of power Parliamentary approval in the lower I had previously read public the process followed by Prime to the defence minister to make house was sought and secured statements made by some Minister Bob Hawke in 1991. war and there is no hint of such by both Tony Blair (in advance) academics and international However, it was widely known that an intention in the Tange report, and John Howard (retrospectively). lawyers, and, on the advice Governor-General Bill Hayden had which recommended the change, Some have sought to legislate to of the Official Secretary, I complained that he had not been or the debate that accompanied require such approval reflecting sought clarification from asked to give his prior approval it – including assurances that the requirement for congressional the Attorney-General as to and it had been assumed that this the governor-general’s powers approval under the US constitution. technical ramifications that was an error which would have would be unaffected. The other However, it should be remembered could arise under international been rectified. The claim to a long- intriguing element of the that Congress is not in a position law. I had not requested it, but standing practice was surprising governor-general’s statement is the to get rid of a president through he immediately referred the – though all of the other conflicts undertaking by the prime minister a no-confidence motion – which matter to the Prime Minister Howard cited had involved activities to take the matter before the Federal is a much broader power to who met with me to address approved by the sovereign power Executive Council ‘for noting’. It is control governments incurring the issues from available legal and did not involve a war between not clear whether there is a place in the displeasure of a majority of advice. He … informed me that sovereign states that would give rise FEC meetings for noting decisions the lower house. If parliamentary no recommendations were ever to a declaration of war. and, if so, whether it precludes the approval is required in both houses, put to any of my predecessors This does raise the question governor-general asking questions a potential check is imposed on in relation to troop deployments of the legal means by which the as he can with regard to normal governments and coalitions that to places such as Somalia, political decision by cabinet had FEC decisions (including legal ones do not control the upper house. Bougainville, Bosnia, Cambodia, been effected. Cabinet has neither such as the one he asked). Garry Woodard’s suggestion of a Rwanda, the Persian Gulf, constitutional status nor legal nationally televised joint sitting is Vietnam or East Timor. power. Political decisions reached Enhancing the process a good one but is constitutionally He had previously given there are legally executed by The process whereby decisions difficult. A variation could be that an undertaking that in such ministers, officials, the governor- to go to war are taken by cabinet, decisions to go to war be supported circumstances he would in general or the Federal Executive especially those under the effective by a majority in the lower house future request the Minister Council under one of the four control of strong prime ministers, and a majority of all MPs in both for Defence to recommend forms of executive power set out in has been queried by many, and houses, which would have the to the Governor-General in the first section of this chapter. several suggestions have been same effect. Council that the deployment It now appears clear that made for their improvement. Most But we should be careful of of Australian forces overseas be cabinet’s decision was effected of these suggested changes have expecting too much of such noted by way of recognition through a statutory power vested roots in our or other Westminster requirements. Even in the US, this of the position of Governor- in the defence minister under a systems and their adoption would constitutional provision is a limited General essentially as the titular 1975 amendment to the Defence be in complete accord with the deterrent to wars of aggression. Commander-in-Chief of the Act which vests ‘the general control longstanding Westminster tradition It did not stop the wars against Australian Defence Forces. and administration of the Defence of progress through incremental Canada in 1812, Mexico in 1846, Force’ in the minister and requires reform incorporating lessons Spain in 1898 or Iraq in 2003. When Australia went to war, the military to exercise its powers learned in institutional practice. We Much depends on the quality of the prime minister set out the ‘in accordance with any directions will briefly review them in turn. information parliament receives.

58 59 CHAPTER 6 A BETTER WESTMINSTER WAY TO WAR? legal advice Williams QC, considered that his resorts to armed force provided governor-general acting on the Blair and Howard provided legal position in cabinet and the far that the state which seeks to prerogative alone on advice or the advice to parliament. The advice greater executive responsibilities question any claimed illegality by defence minister acting under was much criticised, not least for of Australian attorneys-general Australia also accepts the court’s section 8 of the Defence Act. representing a minority view compared to British attorneys- compulsory jurisdiction over Under the cabinet handbook, among international lawyers and general meant that the solicitor- breaches of international law cited the attorney-general would not recognising either the majority general (an independent statutory by Australia as a reason for the presumably have to provide a view of the likely outcomes if officer) should be the one to use of armed force (what I call the certificate (though clarification it went to court. Blair did not provide written opinions. ‘so sue me’ approach). would need to be made as to supply Lord Goldsmith’s earlier Given this background, Seeking and hearing such whether the certificate merely and fuller advice to cabinet, let Westminster parliaments might opinions could be given to a dealt with the domestic legality or alone to parliament. Howard did consider a range of options: parliamentary committee which the international legality as well). not even consult the solicitor- reported to parliament. This There is also an opportunity for general. Parliament needs n Securing a legal opinion from would give it the time and the the governor-general to perform independent advice. the solicitor-general provided ability to handle any confidential, the role Walter Bagehot identified In some jurisdictions the they are satisfied with the privileged or secret information. for a constitutional monarch – to attorney-general has a duty to government’s brief There are many parliamentary counsel, advise and warn – and to make legal decisions and give legal n Securing independent legal and congressional committees ask questions about the legal basis advice independently of cabinet opinion on the basis that the which handle such matters with of a decision before signing off – traditionally by convention in client of the solicitor-general necessary security clearances. The on documents. the UK and Commonwealth is the government presence of opposition members jurisdictions and legislated in n Seeking an advisory opinion is no bar to their receiving such The ICC imperative Queensland. In the UK, this from the ultimate appellate briefings as they could be ministers Now that Australia has agreed included the provision of legal court. Given the gravity of following the next election. to extend the jurisdiction of the advice to parliament as well as the going to war, it would be not International Criminal Court to government. However, this can unreasonable to require the military and intelligence advice crimes of aggression and subject give rise to significant tensions as court to give this priority, but The same committee that heard itself to that jurisdiction, the US illustrated by Goldsmith’s secret the Australian High Court legal advice could also receive prosecutor’s closing statement at and public advice. Some of the has ruled it does not have the confidential briefings on military Nuremberg is coming true: ‘Let independent powers have been constitutional power to do so and intelligence assessments. These me make clear that while this law largely transferred to statutory n Establishing a standing assessments must, of course, be is first applied against German bodies (most notably that over panel of former judges or professional, independent, frank aggressors, the law includes, and prosecutions). In Australia, prominent international and fearless. if it is to serve a useful purpose the attorney-general’s ‘client’ is lawyers to provide advice. it must condemn aggression by the government and not the the federal executive council any other nations, including those parliament. Under standing As proof of good faith, Australia While the Iraq war was not which sit here now in judgment.’ orders the attorney-general cannot should also consider accepting brought before the Federal Australia will need to provide be asked for a legal opinion in the compulsory jurisdiction of Executive Council, there is merit mechanisms for evaluating question time. The attorney-general the International Court of Justice in doing so and it would appear proposals for going to war to at the time of the Iraq war, Daryl for any occasion on which it procedurally superior to both the protect ministers, governors-

60 61 CHAPTER 6 A BETTER WESTMINSTER WAY TO WAR? general and service chiefs from jurisdiction. Lawyers may advocate such. In my view, there is a strong of law one will sometimes subsequent investigation and for legal change but not pretend case to be made by those, like me, lose as well as win. But … if an prosecution. It will also need to that it has already happened. who are strong supporters of both. international controversy leads establish credible and independent Similarly professional to armed conflict, everyone loses; means for such investigation and have a critical role in the formation an alliance to be valued there is no winner. If armed prosecution within Australia to of public opinion in a democracy My support for that alliance is conflict is avoided, therefore, ensure that the ICC will not feel it – never more so than in the gravest based on shared values on which everyone wins. It is better to necessary in a future conflict. decision any nation can take. that alliance was forged and for lose a point now and then in an While Australia has five years in The military profession is which Australians and Americans international tribunal, and gain which to do this, do this it must. If it called on to risk the ultimate fought and died. Like many a world in which everyone lives gets in early, it will provide a model sacrifice during war and need to Australians, this is bolstered by at peace under a rule of law. for other Westminster democracies provide their professional opinion personal and family ties. Among and ensure that any decisions to when their civilian masters are the shared values was concern for This is a statement by an enter conflicts before that are taken considering whether or not they the international rule of law. This American president, a Republican on a sound basis and not run the are called upon to do so. Some do was recognised as co-signatories and one of the United States’ most risk of the damage so many believe not see politicians in professional of the 1928 Pact of Paris, which was distinguished and successful to have occurred. terms. We can and do and again enshrined in article 2 of the UN soldiers who led ‘United Nations’ see the greatest need for that Charter, the Nuremberg trials and forces (as they were already called) Public and parliamentary debate professionalism when they are article 1 of the ANZUS Treaty itself. in Western Europe at the time our While the formal parliamentary making that decision on behalf of President Dwight D Eisenhower alliance with the US was forged. processes are at the natural the people they serve. eloquently stated in 1959 a core The last comment is particularly centre of discussion, they do not value of that alliance that was poignant coming from an ex- operate in a vacuum but in a ANZUS reflected in the UN Charter and soldier. It also reminds us that highly charged public debate. The Mr Howard’s reference to ANZUS article 1 of the ANZUS Treaty: the US was committed to the quality of debate in parliament did not address Dr Hollingworth’s international rule of law and the will affect and be affected by that question about domestic The time has come for mankind compulsory jurisdiction of the ICJ public debate. Several important constitutional process with to make the rule of law in for most of the history of the UN, professions are involved – lawyers, respect to the Afghanistan war. international affairs as normal and longer than Australia. soldiers, journalists and politicians. But it did address an important as it is now in domestic affairs … The family connection relates Lawyers should remember that issue of national policy. We do not Plainly one foundation stone of to another great theme of the their primary duty is to the law yet know exactly what part the US this structure is the International Iraq war – the use of intelligence. and the system of justice (in this alliance played in the Iraq decision Court of Justice. It is heartening Intelligence cooperation between case international justice as well as and how this was squared off to note that a strong movement our two countries commenced in domestic justice) and should not with other issues (legality, WMD, is afoot in many parts of the 1942 with code-breaking activity use the lesser likelihood of litigation potential civilian casualties). One world to increase acceptance and the formation of the Combined to give clients the advice they want suspects that it loomed very large. of the obligatory jurisdiction of Operations Intelligence Centre at to hear – or to claim that the law The case for an inquiry does not that Court … One final thought General Macarthur’s Headquarters. is as they would like it to be rather depend on opposition to ANZUS on rule of law between nations: Members included Zelman (later than as it is likely to be determined and the US alliance, though some we will all have to remind Sir Zelman) Cowen and Caspar by a court of competent may seek to falsely portray it as ourselves that under this system Weinberger (and other less well-

62 63 CHAPTER 6 A BETTER WESTMINSTER WAY TO WAR? known bright young volunteers ourselves loyal. But those who are would lose its number-one n The potential damage to the including Lt Horrie Sampford, cheerleaders for a friend’s folly position and bring forward values we share. whom the Americans decorated are not likely to be thanked for it the time at which that might n The bad example we set for for his work). They were entrusted when the folly is realised (and I happen. American weakness rising powers. with all the secrets of the Pacific am sad to say that I thought the changes the balance of power War to provide intelligence analysis. term ‘folly’ was appropriate even in the Pacific and is not in The US cannot afford more The analysis provided did not then). A true friend warns against Australia’s strategic interests. follies of this nature. As a good always accord with the expectations folly even at the risk of that friend’s n The human cost for the friend with a perceived interest or views of ‘the brass’. But they disapproval – as Prime Minister Americans was significant in their strength and prosperity, recognised both the temptation and Robert Menzies did in warning but the suffering caused to we should help them avoid them. the folly of telling their superiors President Eisenhower he would not others was many times that. We should inquire into our own what they wanted join in conflict over Even if that were unimportant approach to war to be a more to hear rather than The US was the Taiwan Straits. to ANZUS members, the cost effective friend and a country more what they needed committed to This can take to the US in its ‘soft power’ secure and more confident of to hear. Doing the courage. In 2003, was enormous. our values. latter was neither the international we do not appear disloyalty nor rule of law and to have questioned insubordination the compulsory US intelligence but their jurisdiction of the forecasts. We professional duty publicly endorsed and the best International Court their claims to service they could of Justice for most the legality of the render to our allies of the history of war that no other and friends. To do country accepted otherwise risked the UN, and longer (according to lives, battles and, than Australia. Lord Goldsmith’s in 1942 when the contemporary balance of forces was more even, advice not published until 2006). the war itself. We should recognise the damage Support for the alliance does suffered by the United States not mean uncritical support of and the consequent risks to our an ally. All friends have flaws, perceived security interests: all nations have flaws and great nations permit great flaws as well n The war cost the US trillions as great strengths. We should of dollars, weakening the US understand rather than judge. But as a military and economic we should not offer blind support. power. This weakened the US Australia was a cheerleader for relative to China and other the American desire to go to potential rivals and increased war. We might have considered the likelihood that the US

64 65 CHAPTER 7

The UK inquiries into the Iraq war

Six-year-old Abdullah was injured during a UK cluster munition strike on Basra in 2003. Credit: DanChurchAid THE UK INQUIRIES INTO THE IRAQ WAR

prosecutions brought against UK in 45 minutes. David Kelly, an arms servicemen under British law); or a control expert at the Ministry of human rights claim under relevant Defence, who had been Gilligan’s legislation or under a regional source for the story, appeared at human rights treaty; or civil the Foreign Affairs Committee of Prof Gerry Simpson disobedience cases in which the the House of Commons, and was alleged criminality of the war forms later found dead in woods near his here are a number of ways in which the decision part of a defence to various more home. As a result, the government to go to war in Iraq might be subject to some sort minor criminal charges. established, in July 2003, an inquiry Former prime minister Tony under Law Lord Brian Hutton into Tof administrative or judicial scrutiny. This chapter Blair has had to answer questions the circumstances surrounding the considers, as possible models, three recent British inquiries before quasi-judicial panels in death of Dr Kelly. into the Iraq war, but begins by placing these in the context a manner resembling that of But what were these circum- a defendant in a criminal trial, stances? Or, more problematically, after the Labour government that what was the permitted ambit of of other possible avenues for against humanity in Iraq but he led became a world leader reviewable circumstances? At one judicial or quasi-judicial review. found that there was no evidence in establishing administrative extreme was the view that this was At the international level, the of the sort of systematic abuse inquiries into different aspects of simply a glorified coroner’s report. International Court of Justice of international law that might the Iraq war. Three inquiries were But for many others, this was an might be compelled to offer a enliven the court’s jurisdiction. set up, and are considered below. inquiry into the war itself. Lord judgement on the legality of the The ICC did not have in 2003, and The most wide-raging – and still Hutton’s job, in the eyes of the anti- war or the subsequent occupation. will only possess at the earliest by ongoing – is the Iraq Inquiry war coalitions, and in the fears of This could occur in one of two 2017, jurisdiction over the crime itself, under its chairman, John the government itself, was to put ways: either through an advisory of aggression (a crime prosecuted Chilcot. Do these inquiries offer Her Majesty’s government on trial opinion requested by an organ of successfully at Nuremberg and useful precursors or models for an and perhaps even to convict it of the United Nations, or because a Tokyo; and one that some observers Australian Iraq inquiry? criminal acts. state that has itself accepted the consider may have been committed On 24 January 2004, Lord jurisdiction of the court (around a by members of the ‘coalition of the The Hutton told the nation that third of states have) brings a case willing’ in 2003). On 29 May 2003, the BBC flagship Dr Kelly had committed suicide, against the United Kingdom (or, At the national level, there is the radio program ‘Today’ carried a admonishing the BBC severely conceivably, Australia) claiming that possibility of claims for judicial report by one of its journalists, and the Blair government gently it has violated international law by review of government decisions to Andrew Gilligan, contending (for having released Kelly’s name invading and/or occupying Iraq. go to war (the UK Campaign for that the Blair government and, without warning him, and for Before the International Criminal Nuclear Disarmament brought in particular, its press officer ‘subconsciously’ influencing the Court, individuals, too, might just such a case, unsuccessfully, Alistair Campbell, had ‘sexed up’ Joint Intelligence Committee’s be held responsible for breaches against the Blair government in an intelligence document on the intelligence warnings). Lord of international law. Indeed, the 2002); criminal prosecutions of threat posed by the Baath regime. Hutton’s report declared that the prosecutor of that court did initiate leaders or service personnel for Particular attention was given to the Blair government had made an a preliminary investigation into crimes committed during the government’s claim that Iraq could innocent mistake. But it did not still alleged UK war crimes and crimes war (there have been criminal use weapons of mass destruction the desire for judgement.

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The Butler inquiry related to the infamous Niger Only days after Hutton’s report, uranium yellowcake (President US President George W Bush Bush had referred to it, as evidence too set up an inquiry into the of Iraq’s intentions, in his 2003 intelligence received leading to the State of the Union speech). Butler, intervention in Iraq. Shortly after surprisingly, found that there was that, on 3 February 2004, Tony Blair evidence to suggest that the Iraqis entrusted a senior civil servant, had tried to acquire uranium from Robin Butler, to do a similar job Niger (though this finding itself for the UK. This inquiry touched was not fully substantiated). on matters taken up at Hutton In the end, though, the Butler and foreshadowed those currently inquiry concluded that no recent under investigation at Chilcot, intelligence had made the case for namely, the part played in the going to war more compelling than decision to go to war by intelligence it had been in, say, July 2001 than it relating to Iraq’s WMD capacity. might have been in relation to other The Butler inquiry handed states at that time. The inquiry down conclusions that were ended by stating its concern about more critical of the government the effect of the government’s and the intelligence community policy-making procedures on than Hutton’s, finding that the reducing the scope for informed intelligence provided to the collective political judgement. government was ‘unreliable’ and assessments of that intelligence The Chilcot inquiry were inflated. Butler criticised the On 15 June 2009, in the dying government also for relying too days of the Brown government, heavily on ‘flawed’ intelligence from the prime minister established an other states, for having too much inquiry into a period of decision- faith in material and assessments making before and after (2001–2009) supplied by not disinterested Iraqi the Iraq war, and into the adequacy dissidents, and for constructing of government processes that had dossiers (intended to convince led to the decision to go to war. the public) from raw intelligence There were no lawyers on the material. The intelligence panel, though the legality of the community was criticised for failing war has absorbed a great deal of the to follow validation procedures panel’s attention and international in relation to dubious human lawyers have been asked to submit intelligence and for a tendency to legal opinions to the inquiry. accept worst-case estimates. The The Chilcot inquiry began its most contentious of the findings hearings on 24 November 2009.

A coalition air strike at the edge of Fallujah, Iraq, in November 70 2004. Credit: James J. Vooris CHAPTER 7 THE UK INQUIRIES INTO THE IRAQ WAR

It has the power to request the many have been published on the ministers and officials, and thinking about appointing a appearance of officials and inquiry’s website. The inquiry has government records (some of former judge or leading barrister to politicians operating at the highest held seminars on its work. So, even them classified), any inquiry that any Australian panel, since some of levels of government during the if no report is published this will is established will be unable to the questions engaged will involve crisis, and, indeed, there have have been a valuable undertaking. conduct its work properly. nice legal distinctions and require been some very high-profile But the report may leave some Second, the membership further pursuit. appearances from the government questions unanswered. They of an inquiry panel must be Third, the information gathered side, and from the civil service. may include: What role should both independent and capable and the witness interviews must be The inquiry has generated an international law advice play of forensic examination of the made widely and publicly available enormous amount of declassified in decisions to use force? What issues. (Members should not through highly professional means material on the government’s precisely is the role of law officers, have supported the Iraq war or of communication (at Chilcot, the decision-making like the attorney- have presented the government’s ability to access full transcripts, leading up to It is vitally important general, when intelligence in support of it, as was declassified documents and video the Iraq war, a that any inquiry providing the case in the Butler committee.) evidence has been extraordinarily documentary advice (advocate The Chilcot panel has impressed useful). An inquiry, under these record that is has the full support or adviser)? in many respects. It certainly has conditions, into Australia’s decision quite revealing. of government. Should legal not allowed itself to be cowed by to go to war is clearly required. It is unclear Without access to advice be put the witnesses, and the mixture Further investigation of Australia’s when the inquiry before cabinet? of historians, civil servants and participation in the war and will conclude government ministers Full advice? politicians has worked well at engagement in the occupation its report, but and officials, and Summary advice? times. However, it may be worth could be of great benefit. it is expected government records, Conceptual to exceed a questions arise million words, any inquiry that is as well about the and is unlikely established will be nature of law to be published unable to conduct its itself: whether before late 2013. work properly. the lawfulness A controversy is or unlawfulness brewing about of acts can be whether the inquiry can publish decided by international law, or classified material that it has whether it is ‘pretty vague’ (as Jack nevertheless seen (a dialogue is Straw, Blair’s foreign minister, told underway on this question). One the Chilcot inquiry) and reducible hundred and fifty witnesses have to a matter of opinion. attested to their understanding of Australia has a close interest in what happened in the decision- three lessons that may be drawn making around the Iraq war, more from Chilcot. First, it is vitally than 20 witnesses have provided important that any inquiry has written submissions, and of tens the full support of government. of thousands of written records, Without access to government

72 73 A sandstorm near the Al Asad Air Base in Iraq in September 2011. Credit: Cecilio Ricardo

CHAPTER 8

Never again? NEVER AGAIN?

obligations which his government cost, how we would know if or had bolstered by including a joint when we had won or lost, or what parliamentary committee. As Australia’s responsibilities would PM, neither Hawke nor Howard be for humanitarian aid, rebuilding was obliged to put the invasion Iraq or coping with refugees. Dr Alison Broinowski and Prof Charles Sampford of Iraq to a vote in parliament – Even though he told the both seeking only retrospective National Press Club he could not oing to war is the most serious decision a government endorsement of cabinet’s decision. justify war if Saddam Hussein can make. War is not ‘politics carried on by other Neither involved the governor- had no WMD, he continued to do general. Unfortunately, Mr Howard so even when no WMD could be Gmeans’. It is a form of organised, pre-meditated mass did not carry through with an found, now claiming that the world killing – deliberate in the case of combatants and inevitable in undertaking to have it ‘noted’ by was safer as a result of the invasion the case of non-combatants who die and suffer as an entirely the Federal Executive Council – of Iraq. However, it was not clear which would have constituted an that Australia was a safer place. On improvement. As to the ends for 13 March 2001, Mr Howard said he predictable consequence of the prospects for success good and which Australia went to war, he took a ‘very proactive view of the decision to go to war. We need that the killing and suffering is described the task of Australian American alliance’, but could give extraordinarily good reasons to likely to be proportionate to the forces as helping the United States no assurance of the United States’ engage in it. achievable ends. Whatever one find and destroy Iraq’s weapons reciprocal protection of Australia. Geoffrey Blainey observes that thinks of Labor or Liberal, Hawke of mass destruction to stop them It could be argued that the war wars begin when the leaders of or Howard, the two Presidents being passed to al-Qaida, or being weakened the United States and its countries on both sides believe that Bush, or the decisions of each, the used to attack other countries. He ability to assist us. more can be gained from fighting vital ethical, legal and governance declared that Australia supported Finally, the decision to go to than not doing so – pointing out question is whether this is the way President Bush’s global war on war exposed Australia to the that at least one side will be wrong. we want to go to war. Immediately terror. Having repeatedly denied accusation of having waged an Eisenhower sees worse odds – in after the attacks on New York and that Australia was committed to illegal war (which would be the armed conflict, everyone loses. The Washington, DC, in September ‘regime change’ in Iraq, he told first in our history). While he Iraq war is a classic example. 2001, Mr Howard invoked the the parliament, on 4 February continued to insist that the war was Yet, 10 years after going to war in ANZUS Treaty, unilaterally 2003, that Australia would share legal, his government had taken Iraq, Australians still have received extending its application to support the burden of destroying Saddam steps which made it difficult for no comprehensive account from the United States anywhere in the Hussein. He did not specify the International Court of Justice the government about the reasons non-specific ‘war on terror’. It is whether the purpose of the long- to hear such a case. (Before that, for doing so or an evaluation of its right and proper to consult an ally planned invasion was to stop Iraq a country attacked by Australia results. The events described in the following an attack, and one ally developing nuclear weapons, take could take us to the ICJ, but Iraq chapters above indicate the ability may offer to assist another even control of Iraqi oil, reform the in 1991 and Afghanistan in 2001 of an Australian prime minister to if not bound to do so (we would Middle East one country after would have been foolish to do so). take us to war for good or ill, and hope the US would do the same if another, or something else. He He never seemed to recognise the limited checks and balances our civilians were targeted outside did not tell Australians how long the possibility that his decision to available to ensure that the cause the Pacific area). But we have he anticipated our forces would invade Iraq was wrong, nor did will be just, the ends defined, the processes for considering treaty be there, how much the war could he established a general inquiry

76 77 NEVER AGAIN?

into the war as the British have government regard for the done. This has not prevented views expressed. Australian researchers seeking to learn the lessons of the Iraq war. These changes are being proposed John Langmore has pointed to by those who do not wish Australia the danger of a risk-averse public to repeat what many see as the service that shirks its responsibility illegality, errors of intelligence, loss to speak truth to power. He and of life, humanitarian catastrophes, Garry Woodard remind us of and huge waste of money and the dangers of removing the material that occurred in Iraq boundaries between policy and – along with the damage to intelligence, lessons we thought we Australia’s international standing. had learnt. More suggestions for They will not passively accept improvements in the way we go to that an invasion is ‘in the national war include: interest’, nor compliantly agree that continuing a long, costly war is n Requiring support in one ‘staying the course’, ‘getting the job house, both houses or a done’ and ‘the right thing to do’. televised joint sitting If we do not take this n More comprehensive opportunity, a decade on from information provided to the invasion of Iraq, Australia is parliament, including at risk of being drawn into future independent legal advice wars that do us much more harm. and full military and They could go as badly for us as intelligence briefings given to for those we fight, and we could a parliamentary committee make lasting enemies of powerful n Final sign-off in Federal countries which should remain Executive Council major trading partners. following the issue of a We are obliged, therefore, certificate of legality by to demand that the Australian the attorney‑general government be democratically n Acceptance of compulsory accountable for future decisions jurisdiction of the ICJ for to go to war, and for the results any wars we engage in, and of such decisions. To achieve provision for the investigation this change, an Iraq war inquiry, and prosecution of the crime long overdue, is a necessary first of aggression (as will be step. The implementation of necessary after 2017) recommended changes in the way n Promotion of well- decisions for war are made is a informed public debate, and necessary second step.

Prisoner abuse at Abu Ghraib Prison in Iraq in November 2003. Credit: US Government 79 Some unanswered questions whether Iraq posed an actual n Were any contingency plans threat? If there was a threat made by the government to assessment, what did it say? help reduce and deal with n Philip Flood, who conducted the predicted enormous ur group has not taken an government and other key a post-war inquiry into humanitarian effects of Oimmutable position, nor do stakeholders; powers, for Australian intelligence, the war? we claim to have addressed all the example, to compel witnesses described the evidence concerns that others may have. to give evidence; timing, on Iraq’s WMD as ‘thin, Legal issues This is a collection of papers, report and recommendations. ambiguous, and incomplete’. intended to stimulate debate and How does Mr Howard n Were the Australian lawyers invite support to coalesce around Intelligence reconcile this with his drafting the government’s optional courses of action. We have According to the intelligence presentation to parliament advice in contact with those gathered some possibilities together inquiries in Australia that on 4 February 2003? drafting advice for the British under several headings to assist followed the 2003 Iraq war, views and American governments, discussion, which we list here in diverged between ONA and DIO Humanitarian issues and which Australian the form of questions. concerning the nature of the ministers or ministerial evidence for the possession by Iraq n Were any UN, NGO or staff were informed? What Models for an inquiry of WMD. We need to know: other reports of the effects other legal advice did the A number of models exist for of the 1991 Gulf War, the government seek? What legal an inquiry including a Royal n What was the Australian economic sanctions and advice was provided to the Commission, a ‘judicial’ inquiry, a intelligence advice given the likely effects of a further governor-general? parliamentary inquiry, an inquiry to the government in the war considered in the n Why did the Australian undertaken by the Australian lead-up to the war and how government’s decision to go government change its Law Reform Commission or was the divergence of views to war in 2003? If not, why acceptance of the compulsory other government body, and a between the two assessment not? If so, which reports, and jurisdiction of the citizens‑initiated inquiry. agencies reconciled? how much weight was given International Court of Justice n Was the intelligence advice to them? when it did? Was its response n On the relative merits, challenged at the time by any n What degree of civilian in parliament on the war which model would be most members of the government, suffering did the government misleading? appropriate for our purposes? and if so by whom? expect from the war, and n Why did the prime minister n What should be the scope n What was the nature of the what level of suffering was fail to bring the decision to go of this inquiry? That is, what challenges, what was the considered acceptable? Did to war to the Federal Executive issues should it be permitted response by the assessment the government request Council as he had told the to consider? agencies and how were estimates of civilian governor-general he would? n How should the proposed doubts resolved? casualties? inquiry be established with n Was the intelligence given to reference to key issues the government restricted to including: confidential advice on the possession by and classified information; Iraq of WMD, or was wider securing independence from advice also provided on

80 81 the Commonwealth Committee International Institute for Public Contributors of Eminent Persons in 1989 and Ethics. He is Foundation Dean and Chairman of the UN Committee Professor of Law and Research, on African Commodity Problems. Professor in Ethics, Griffith Paul Barratt AO spent over 30 Research Associate at the University Mr Fraser is a senior adviser to University, and Adjunct Professor, years in the Commonwealth public of Wollongong. She is the author/ the International Crisis Group, QUT and York University. He service. Key appointments include editor of 11 books and many articles honorary chairman of InterAction has completed 25 books and 111 Secretary of the Department on the Australia/Asia interface, Council and a member of the articles/book chapters. Foreign of Defence, Secretary of the on the United Nations, and on Asia-Pacific Leadership Network fellowships include Visiting Senior Department of Primary Industries Asian Australian fiction. She wrote for Nuclear Non-Proliferation and Research Fellow at St John’s College and Energy, Deputy Secretary of Howard’s War (2003) and Allied and Disarmament. He has written two Oxford and a Fulbright Senior the Department of Foreign Affairs Addicted (2007). books, Common Ground (2002) Award to Harvard. In 2002, he was and Trade, and Special Trade and Malcolm Fraser the Political a member of a task force on threats Representative for North Asia. He is Andrew Farran served as a Memoirs (with Margaret Simons, to democracy co-chaired with now an independent consultant in diplomat and ministerial adviser 2010). Mr Fraser writes articles for Secretary Albright. Prof Sampford a specialised advisory firm. between 1962 and 1971, including The Age, The Conversation and is a barrister and has been as executive assistant to Sir Arthur Project Syndicate. In June 2012 he consulted by business, government Rod Barton is a former Director Tange in Defence in 1971. He was gave the Whitlam Oration, calling and various parliaments. of Strategic Technology, Defence a senior lecturer in constitutional for more independence and Intelligence Organisation. In and international law, and sub- confidence in Australian foreign Edward Santow is the Chief 1991 he became a UN weapons dean of graduate studies in the and defence policy. Executive Officer of the Public inspector, a job that he was to work Law Faculty, Monash University, Interest Advocacy Centre, an at for the next 13 years, including from 1972 to 1985. Since then he has Dr Jenny Grounds is President independent, non-profit law and as a special adviser to Hans Blix, directed businesses in professional of the Medical Association for policy organisation. He is also Executive Chairman of the UN publishing, trade policy advising Prevention of War (Australia) and a Senior Visiting Fellow at the Monitoring and Verification and sheep farming. He was a GP in rural Victoria. She trained University of New South Wales, Commission on Iraq. Following President of the Australian Institute and worked at the Repatriation a board member of the National the 2003 Iraq war, Rod Barton was of International Affairs (Victoria) Hospital in Heidelberg and later Pro Bono Resource Centre employed as the senior adviser from 1987 to 1990. He is a member in community health in inner and a member of the federal to the CIA in the hunt for Iraq’s of Chatham House (RIIA) and IISS, Melbourne, working with refugees government’s Information Advisory missing weapons by the Iraq UK, and a regular contributor to from many different war situations. Committee. In 2009, he received an Survey Group. He is the author of print and online media. Australian Leadership Award. His The Weapons Detective: The inside Prof Charles Sampford is previous appointments have been story of Australia’s top weapons Rt Hon Malcolm Fraser AC CH Director of The Institute for in the UNSW Law School and the inspector (2006). served as Australia’s 22nd Prime Ethics, Governance and Law Gilbert + Tobin Centre of Public Minister from 1975 to 1983. (a joint initiative of the United Law, the Australian Law Reform Dr Alison Broinowski, formerly Since leaving government, Mr Nations University, Griffith, QUT, Commission, a Sydney law firm, an Australian diplomat, is a Visiting Fraser has played an eminent ANU, Center for Asian Integrity and as associate to Justice Heydon Fellow at Australian National role in international relations, in Manila and OP Jindal Global of the High Court of Australia. University and an Honorary including as Co-Chairman of University, Delhi), and President, Steven Hampson, who contributed

82 83 to the article, is a Practical Legal Dr Sue Wareham OAM is a Training Intern at PIAC. Vice-President of the Medical Association for Prevention of Prof Gerry Simpson is a Professor War (Australia) and a member of International Law at the of the management committee University of Melbourne where he in Australia of the International holds the Kenneth Bailey Chair. Campaign to Abolish Nuclear He also is a Visiting Professor at Weapons. In April 1999 she took the London School of Economics part in an international delegation where he was a Professor of to Iraq to investigate the impact of International Law until 2009. Gerry economic sanctions on the Iraqi has written several books and people. She is a Canberra GP. numerous articles. His next book, The Margins of International Law, Garry Woodard is an honorary will be published in 2013. Senior Fellow lecturing at the University of Melbourne and a Prof Ramesh Thakur is former ambassador to Burma, Director of the Centre for China and Malaysia, member Nuclear Nonproliferation and of the board of the Australia– Disarmament at the Australian Japan Council and the Museum National University, Professor of Victoria, member of the of International Relations in the Administrative Appeals Tribunal, ANU’s Crawford School of Public national president of the Australian Policy, and Adjunct Professor in the Institute of International Affairs Institute of Ethics, Governance and and patron of the Australia–Burma Law at Griffith University. He was Council. He is the author of Asian formerly Senior Vice Rector of the Alternatives: Australia’s Vietnam UN University and UN Assistant decision and lessons on going to Secretary-General, Professor of war (2005) and Now We Know International Relations at the about Going to War in Iraq (2007). University of Otago, and Head of the Peace Research Centre at the ANU. He is the author/editor of over 40 books and 400 articles and book chapters, and is a member of international advisory boards of institutes in , Asia, Europe and North America.

A young Iraqi girl watches coalition troops conducting atmospherics in Al Qurna in 84 April 2010. Credit: Christopher Wellner An Iraqi woman and her family sit outside their mud hut while coalition soldiers visit their farm house near the Sinjar mountains in northern Iraq to inspect a well in 2009. Credit: Carmichael Yepez ‘How did Australian armed forces come to be involved in the US-led invasion of Iraq in 2003, and why? What were the decision-making processes that led to that commitment? Were those processes adequate in terms of our system of government as we understand it and for the future?’ Rt Hon Malcolm Fraser AC CH, Foreword