By Malcolm Jorgensen
Tony Abbott’s decision to join US-led airstrikes in Syria brought a degree of legal and military coherence to Australia’s role in the fight against Islamic State (IS). Confining military action to the territory of Iraq has served to reinforce both a perverse interpretation of international law, and strategic incoherence in Australian military involvement. Resolving those legal and military inconsistencies is welcome, but leaves unanswered the intractable political questions that stand in the way of restoring peaceful governance to the Middle East.
Iraq would be within its rights under the United Nations Charter to use force in self-defence against an aggressor state, and could do so ‘collectively’ with allied assistance. Legal controversy arises, however, where the aggressor isn’t the Syrian state, but a terrorist organisation operating within its territory. This has led to serious questions about the legality of intervening in a sovereign state without consent, with Shadow Foreign Minister Tanya Plibersek initially arguing that there’s ‘no such clear legal basis for Australian involvement in Syria.’
The Australian government has repeatedly referred to areas of Syria under IS control as‘ungoverned space’, where attacks are launched with impunity into Iraq, which is thereby empowered to respond. That mirrors the US legal argument that President Bashar al-Assad’s loss of government control has left him ‘unwilling or unable’ to prevent entire regions of Syria being used as a base for IS. Those statements provide an example of the US and its allies seeking to adapt rules of international law to the changing nature of global security threats.
Competing sovereignties are at stake here, with Syria’s claim to inviolability of its formal territorial boundaries proving incompatible with Iraq’s real enjoyment of sovereign rights. International law resolves uncertainty not as politically disinterested rules, but rather as a set of evolving principles developed by states to advance international peace and security. Where law risks becoming the guardian of lawlessness, states are obliged to engage in global conversation to realign rules with common political and moral purposes.
Confusion surrounding existing legal rules is evident in a problematic analysis by former foreign minister Gareth Evans. For Evans, international law is ‘just sufficient to make defensible the extension of the operation into Syria without that state’s consent.’ In saying this, Evans necessarily adopts the ‘unwilling or unable’ corollary to self-defence ‘to the extent that we—along with the US—would be assisting Iraq to defend its own people from attack initiated or commanded across the border.’ That remains a narrow right that can’t encompass actions against the Syrian government.
That’s no black-letter legal interpretation, but advocacy of the enlarged right of self-defence. Yet Evans erroneously speaks of Foreign Minister Julie Bishop and the US State Department’s reference to ‘ungoverned territory’ as being ‘another legal justification’ altogether. It is the same doctrine Evans presumes, albeit while mischaracterising the government’s position as a claim to ‘completely empty space, where international forces can more or less do what they like.’ In announcing airstrikes, Abbott emphasised that ‘we have no legal basis at this point in time for wider strikes in Syria and we don’t intend to make wider strikes in Syria.’
Evans’ most troubling (and contradictory) conclusion is to deny the legal absence of governance, since IS is ‘certainly occupying and governing that space at the moment.’ The very purpose of rules on the use of force is to provide legitimate means for addressing threats to international peace and security when states turn to lawlessness. Evans’ interpretation appears to suggest a legal barrier to defeating any terrorist organisation once they gain a sufficient level of control within another state’s territory.
Evans’ recommendation that it’s ‘better to hang one’s hat on the collective self-defence justification’ is a case of furious agreement that the ‘unwilling and unable’ standard is a necessary evolution to make international law work. Plibersek has belatedly confirmed Labor’s acceptance of the principle—more than a year after it was set out by our allies to provide policy guidance. Where there’s legal consensus between the government and the Opposition’s most distinguished foreign policy elder statesman—as well as author of the influential ‘Responsibility to Protect’ doctrine—the evidence is compelling that the law has shifted.
Establishing a clear legal position is equally important to the coherence of Australian military strategy. It makes no tactical sense to limit airstrikes according to national borders that the enemy doesn’t recognise. But more significantly, Australia’s modest airpower contributes more to the legitimacy than material capabilities of coalition forces. It’s insincere to support a campaign that already includes US airstrikes in Syria, yet claim to have no position on their validity. If Australia intends to lend legitimacy to a cause it believes in, the clearest way is to join a likeminded legal coalition.
Clearing legal and military hurdles to Australia’s enhanced role answers none of the political questions about who will ultimately establish effective governance across Syria, and how regional powers can be engaged to support that outcome. But as a minimum entry point, there’s ample basis under international law for supporting coherent military action. Protestations about ambiguous legality can no longer be maintained as a diversion from engaging in the real discussions necessary to stem the tide of human misery extending from Syria.
This article was originally published at The Strategist