One of the most common phrases heard from senior Australian government officials including the Prime Minister and the Foreign Minister is Australia’s belief in what it is pleased to call the “rules based international order.” This phrase is usually used in the context of implied or explicit criticism of another nation with whom Australia is in disagreement. For example, Australia is very prone to criticizing Russia’s “annexation” of Crimea, or China’s assertion of its claimed rights in the South China Sea.

The inference one is expected to draw is that other countries may breach international law but Australia is a model of probity by comparison. This claim looks slightly tattered in the light of Australia’s manifest breaches of international instruments that it is a signatory to in its treatment of refugees, or the bullying of East Timor over the development of maritime resources.

As serious as these matters are they pale in comparison with the waging of a war against another sovereign nation. The history of Australia’s involvement in the waging of a war against the sovereign government of Syria is a case in point.

On 16 September 2014 the then Prime Minister Tony Abbott gave an interview to the ABC. In the interview he expressed as reservations about Australia becoming involved in a war that was being conducted by the United States, mainly through its support of proxy terrorist groups who it was financing and arming in conjunction with its allies Saudi Arabia and Israel.

”The legalities” he said, “of operating inside Syria are quite different from the legalities of operating in Iraq at the request and in support of the Iraqi government.”

Two weeks after that interview the Australian government received legal advice dated 30 September 2014 that it failed to disclose or even indicate that it had received such advice. Abbott was overthrown in an internal coup by Malcolm Turnbull on 15 September 2015.

One week prior to the coup Australia had written a letter to the United Nations Security Council on 9 September 2015. In that letter Australia claimed that the United States was justified in making military strikes against Syria on the basis that Syria was “unwilling and unable” to prevent the use of its territory to conduct terrorist attacks against Iraq.

Curiously, the United States made the same claim in its letter to the Security Council justifying its actions on Syrian sovereign territory, but their letter was dated 23 September 2014. In other words, it took a whole year and a change of prime minister to persuade Australia that its actions could be justified in terms of the “unwilling and unable” doctrine. We do not know why the Australian government changed its mind, particularly as it had been sitting on legal advice about the advisability or otherwise of joining the Syrian war for nearly a year.

We do not know because the matter has never been debated in the Australian parliament and neither has the Australian government released the legal advice, which it had received in September 2014. Rather, its public statements on the matter have being misleading. For example, in August 2015 the Foreign Minister said that no decision would be made on whether to join the American assault upon Syria until it had received legal advice. She did not disclose that the Australian government had in fact received the legal advice nearly a year earlier.

As the government has refused to release the legal advice we do not know whether or not that advice relied upon the “unwilling or unable doctrine.” It is not a minor matter as the status of such a doctrine can best be described as dubious in international law, and without that fig leaf of legal respectability, there is no other basis upon which Australia could claim any entitlement to wage war in Syria.

Interestingly, when the Foreign Minister Julie Bishop was interviewed on ABC radio after the publication of an article by this writer criticizing the illegality of the decision, she claimed that the decision to join the war in Syria was made “pursuant to the collective self defence provisions of the article 51 of the UN Charter, and at the request of the Iraqi government”. No mention at all was made of the reliance upon the “unwilling or unable” doctrine.

There were a number of problems with the Foreign Minister’s explanation. First, the Office of the Prime Minister of Iraq issued a statement saying that it had made no such request of the Australian government. No written evidence of any such request has ever been produced by the Australian government. Furthermore, in their own letter to the Security Council dated 20 September 2014 the Iraq government had only asked for help within its own territorial boundaries to enable it to regain control of its own borders.

Specifically, Iraq did not invoke article 51 of the UN charter. The linking of an explicit request for help in the exercise of collective self-defence is legally significant as it is a precondition for the involvement of third nations, as has been recognised international law since the Nicaragua Case in 1986.

Equally curiously, neither the United States nor Australia that reportedly rely upon the “unwilling or unable” doctrine mentioned collective self defence in the numerous debates that took place in the Security Council before 30 September 2015, more than one year after strikes against Syria began.

The Syrian government has consistently protested in formal letters to the Security Council against the involvement of Australia and others on their territory. In their letter of 21 September 2015 to the Security Council Syria again complained that the actions of Australia and others did not follow any consultation with the Syrian government and that Australia (and others) had distorted both the provisions of international law and the UN Charter.

A similar complaint has been made by the Russian government, who unlike the United States and it’s so called coalition allies, is in Syria at the specific request of the sovereign Syrian government. Iranian, Iraqi and Hezbollah troops operating in Syria are similarly there at the request of the Syrian government.

Neither did Australia call upon the numerous relevant resolutions of both the United Nations Security Council and the General Assembly is providing legitimacy for its position. Not a single one of those resolutions makes any reference to either article 51 or the unwilling or unable argument.

On the contrary, United Nations Security Council resolution 2178 (2014) specifically called upon “member states to cooperate and consistently support each other’s efforts to counter violent extremism”. On the 19th of September 2014 the Security Council reaffirmed “it’s respect for the sovereignty, territorial integrity and political independence of all states in accordance with the UN Charter.”

On 18 December 2014 the General Assembly reaffirmed “its strong commitment to the sovereignty, independence, unity and territorial integrity of the Syrian Arab Republic and to the principles of the Charter.” There is no single document emanating from either the Security Council or the General Assembly that approves any unilateral military action, much less one relying upon the dubious doctrine of “unwilling or unable.”

This is hardly surprising. To adopt such a doctrine would significantly lower the thresholds contained in both Article 2.4 (the general prohibition on the use of force)  and Article 51 (self defence) of the Charter. The Armed Activities decision of the International Court of Justice (2005) reinforces this view. The court expressly stated that the inability to put an end to  irregular military activities does not justify a violation of Article 2.4.

Applied to the Syrian situation, the fact that as of 2015 Syria and it’s Russian, Iraqi, and Hezbollah allies had not then succeeded in defeating the ISIS terrorists did not justify third party intervention. Bishop’s statement and Australia’s letter to the Security Council is based on the assumption that Article 51 could be applied two non-state actors such as ISIS.

There is absolutely no support for this view, neither in international law texts nor any judgement all the International Court of Justice. Even if Iraq had asked for Australia’s help, as claimed by Bishop but refuted by the Iraqi Government, it would still be insufficient to justify Australia attacking Syrian territory. Under Article 39 of the UN Charter it is the Security Council that is the competent body to determine any threats to peace and to make the appropriate recommendations to restore International peace and security.

It is increasingly clear that the Syrian government with the assistance of its legitimate allies has succeeded in almost completely liberating its major cities from the terrorist occupation they have suffered for many years. This is despite the blatant  obstruction  by the United States that continues to support its proxy terrorist allies, and has openly attacked Syrian government forces, as well as occupying Syrian territory and setting up military bases. It has declared its intention to remain in Syria, despite the complete absence of any legal justification for doing so.

The Australian government for its part has made a token reduction in its military operations in Syria, but typically refuses to disclose details; continues to criticize the Syrian government; and remains unwavering in its support for the continuing illegal actions of the United States in Syria. It also seems incapable of acknowledging the critical role played by Russia in helping the sovereign Syrian government rid its territory of the terrorist menace.

Given that the fig leaf of legal respectability that the Australian government claimed for itself in respect of Syria has been demolished both in the legal and practical terms the time is now long past for the Australian government to withdraw completely for all military operations in Syria, and take some steps to match its rhetoric about its compliance with, and adherence to, the rules based international order with its actions.

Does Australia Believe in International Law: The Case of Syria

James O’Neill

Barrister at Law and geopolitical analyst. He may be contacted at joneill@qldbar.asn.au