The Sydney Morning Herald

By Malcolm Jorgensen

Unusually for an Australian election a substantive debate over foreign policy has entered the campaign. Pronouncements on military intervention in Syria demonstrate significant differences in the world views of Prime Minister Kevin Rudd and Opposition Leader Tony Abbott.

Yet the positions of both reveal a concerning disregard for Australia's historic commitment to international law.

The catalyst for the crisis is Syrian President Bashar al-Assad's recent alleged use of chemical weapons against rebel forces and civilians in the country's civil war. This crosses the “red line” set out by US President Barack Obama, and Secretary of State John Kerry described the actions as a “moral obscenity”.

Both Australian leaders joined the condemnation but diverged in their policy responses. Rudd strongly supports US military intervention and Australian leadership through its presidency of the United Nations Security Council. Abbott remains sceptical of both intervention and Australian involvement. Neither grounded his position in the national interest of upholding the Security Council's pivotal role in authorising military action.

The influential Australian professor Hedley Bull wrote about the often competing values of “order” and “justice” at the heart of international law. The creation of the five permanent seats on the Security Council was an attempt to establish a stable order among the great powers to debate contested issues of justice. The council can deliver justice in specific cases, such as the 2011 Libyan intervention, but this flows from the order of the UN system.

Although the number killed in the recent attack is estimated at 1400, this is a fraction of the more than 100,000 victims of the two-year war. As such the abrupt enthusiasm for a limited intervention solely to halt chemical attacks is not about bringing justice to Syria but rather a response to a particular challenge to global order.

A core concern for Obama is that failing to enforce established norms will itself pose “a danger to our national security”. Moreover, because these standards are underwritten by political power, the US is equally concerned to defend the credibility of its threats.

To protect these interests, the administration is looking to the precedent of the 1999 air strikes on Kosovo carried out by the North Atlantic Treaty Organisation despite a Russian veto in the Security Council.

The problem with this policy is that, in defending order created by chemical weapons prohibitions and credible American power, the US threatens the more fundamental legal order of the UN system. The effect has already been the flourishing of military force outside of legal regulations, most prominently in the 2003 Iraq War.

Former prime minister John Howard has defended his support for that war on the very basis that the widely supported Kosovo intervention “had no more or less legal authority than the operation in Iraq”.

The Iraq invasion was carried out for reasons of US national security rather than humanitarian grounds as in Kosovo and Syria, but once the UN order is removed, options are necessarily reduced to a subjective debate over the relative merits of security versus justice.

If Obama treats Kosovo as the rule rather than an exception, the UN system is dead already. Both advocates and sceptics of international law will be united in rejecting the authority of the Security Council over military interventions.

Rudd describes the Security Council as “the No. 1 legal entity in the world on matters of global security”. Yet Foreign Affairs Minister Bob Carr asserts that the Syrian case “mandates a response”, even without UN authorisation.

Abbott has meanwhile reiterated his approval of the Iraq War, and previously dismissed Australia's bid for the Security Council role as a vanity project “for an uncertain purpose other than a nebulous sense of temporarily enhanced international status”.

In short, the government is adopting the wrong policy for the right reasons, and the opposition the right policy for the wrong reasons.

The Security Council is imperfect and in critical need of reform but Australia's apparent consensus on the irrelevancy of the system will leave nothing in its place but the application of raw political power to determine matters of war and peace.

The proper approach for the US and Australian governments is to strongly support the global legal order as the surest means to achieving the ends of justice. Justice here means the end to all casualties in Syria, not only those delivered by a means offensive to outsider sensibilities. The father holding his dead child aloft described so emotively by Kerry grieved for the fact of death, not the method by which it came.

Maintaining forceful pressure on Syrian allies, particularly Russia, is the surest strategy for ending hostilities. By operating from within the legal order, the onus is on Syria's supporters to show, against all the evidence, that Assad is not violating international law and to punish him where he does.

If the US and Australia are the ones to bypass international law they cede legal authority and, in so doing, destroy the very system that can best deliver real justice to Syrians.

This article was originally published at The Sydney Morning Herald