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Tuesday, Sep. 11, 2012

Let posterity see how the Iraq war was created


CANBERRA — When the Iraq War Inquiry Group (of which I am a member) issued a public call for an inquiry into the decision-making that lay behind Australia's participation in the 2003 invasion of Iraq, members of the then-Howard government dismissed it in effect as yesterday's news.

They argued that the focus should be on today's and tomorrow's security challenges rather than on trying to re-guess matters and decisions of years past.

The response by the Howard government Cabinet ministers was hardly surprising. But the response from the present Labor Government was surprising, considering its firm and principled opposition to the Iraq war back in 2003. Both the defense and prime ministers rejected the call, saying that since lessons had already been learned, a fresh inquiry is not warranted.

I argued the case for an inquiry in these pages on Aug. 23 ("Australia's call for thoughts on Iraq"). For many Australians, the Iraq war remains troubling as unfinished business. Political closure on that tragic episode will be assisted by a public inquiry.

Democracies are upheld as more peace-loving than other forms of government. That being so, its leaders who go to war should be subject to credible forms of democratic accountability for acts of war. Such accountability mechanisms are currently missing in parliamentary democracies like Australia, Britain, Canada and India.

Nor has closure been achieved globally. Recently, Nobel Peace Prize laureate Desmond Tutu refused to share the stage with former British Prime Minister Tony Blair and pulled out of a scheduled international event in Johannesburg. He explained his decision in an Observer article this month

Tutu wrote that the "immorality" of the U.S. and British invasion of Iraq in 2003 has destabilized and polarized the world "to a greater extent than any other conflict in history." President George W. Bush and Blair "fabricated the grounds to behave like playground bullies and have driven us to the edge of a precipice where we now stand" with respect to Syria and Iran.

Even more pointedly, Tutu asks why African leaders should be arraigned before the International Criminal Court (ICC) while Blair joins the international speakers' circuit.

"In a consistent world, those responsible for this suffering and loss of life [in Iraq] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague."

For a war of choice, the damage inflicted by Iraq on the United States has been enormous: to blood, treasure, reputation and soft power.

Conventional wisdom holds that the war was illegal, immoral, caused many deaths and great humanitarian suffering, and inflicted grave strategic setbacks to Western interests. Conventional wisdom can be wrong. The most effective way for those who believe the war was right and produced a good outcome is to overturn the orthodoxy by challenging it in a credible and open inquiry. That's why they should support the call, as otherwise the harsh orthodoxy will prevail as the dominant judgment of history.

The legality of the 2003 Iraq war remains contested. Most Australians would be uncomfortable at the thought that this might have been our first illegal war. Professor Charles Sampford, Foundation Dean of Law at Griffith University, notes that the majority of international lawyers believe it was illegal.

Those who believe otherwise should have the opportunity to demonstrate the validity of their arguments before an independent tribunal.

This is all the more important now that countries have extended the ICC's jurisdiction to crimes of aggression. Because this cannot be applied retrospectively, Bishop Tutu's call for Blair and Bush to be tried at the ICC may be unrealistic. But the agreed definition — "invasion or attack by the armed forces of a State on the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack" — will concentrate minds in future decisions on war.

From 2017 Australia must make decisions to go to war with procedural safeguards that shield political leaders and military commanders from subsequent investigation and prosecution in the ICC dock at The Hague.

Before dispatching troops to Iraq in 2003 as instructed by his government, the British chief of the Defense Force (CDF) asked for a clear legal opinion from his attorney general. His Australian counterpart simply acquiesced to the government call. How should the CDF respond to a parallel situation after 2017?

Urging caution before choosing war is a counsel of care and due diligence, not pacifism. In recent decades, presidential and parliamentary governments alike have experienced growing centralization of powers in the head of government at the expense both of legislatures and the Cabinet.

A dominant prime minister — Blair, Howard, Stephen Harper, or Indira Gandhi — can single-handedly take a country to war against opposition in Cabinet and the country. This makes it important to locate or create institutional arrangements where prime ministerial recklessness can be queried and checked.

Should the prime minister effectively decide on his or her own without full Cabinet or caucus debate?

Do Parliament and the people have the right to be consulted and given accurate information about the intelligence assessments?

Should leaders have to answer subsequently to an independent forum for acts of aggression or is international criminal accountability only for the West to impose on the rest as Archbishop Tutu alleges?

Unless Australia believes that it will never again be involved in a war — in which case its defense force should be disbanded — these questions are legitimate, important and future-oriented.

An inquiry would help to elucidate the pros and cons of different approaches to entrenching accountability mechanisms. Central to it is the need to reaffirm and enshrine the rule of law as being critical to civilized society domestically and internationally.

The international jungle can be harsh and unforgiving. Australia cannot rule out having to go to war again, or requiring military help and protection from allies.

The will to wage war will weaken in both America and its allies if citizens begin to lose faith in the justice of the cause, in the integrity of the process by which the decision to go to war is made, and in the democratic accountability of their leaders on this gravest of government responsibility.

Ramesh Thakur is professor of international relations at Crawford School of Public Policy, Australian National University, and adjunct professor at the Institute for Ethics, Governance and Law, Griffith University.


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