Dear Mr Turnbull,
RAAF Operations in Syria and related matters.
I refer to the recent operation around Deir al-Zor military airport in Eastern Syria, in which between 62 and 83 Syrian soldiers who had been fighting IS militants were reported to have been killed by Coalition-led air strikes. The Department of Defence has acknowledged that Australian aircraft were among a number of international aircraft taking part in this Coalition operation.
I refer also to my letters of 1 March 2016 and 29 April 2016 regarding the authorisation of the use of military force and the deployment of Special Forces.
Australians for War Powers Reform calls upon the Government to:
- Cooperate fully with the review of the incident that is to be undertaken by the US-led Coalition – as the Government has undertaken to do.
- Establish as a matter of urgency an appropriately constituted Australian inquiry to establish the facts relating to the RAAF’s role in the planning and conduct of this operation, and the steps involved in authorising RAAF participation, the outcomes of this inquiry to be reported promptly to the Parliament.
- Make a clear statement to the Parliament about Australia’s objectives in Syria, addressing in particular our military and political objectives, what success would look like, how long the campaign is expected to take, what it is expected to cost, and how our participation in the Syrian civil war serves Australia’s national interests.
In relation to the second point above, the proposed inquiry should address the legal basis for the relevant RAAF elements to be deployed on combat or combat-related operations in or in relation to Syria. There are three elements to this:
- In the absence of an immediate threat to Australian territory, or of an invitation from the Syrian Government, what is the basis in international law for ADF elements to be engaged in combat operations in or in relation to Syria?
- The process by which the deployment of the ADF to Northern Iraq was authorised. Was this authorised by the Governor-General under s61 of the Constitution following formal advice tendered by the PM to the Governor-General or the Governor-General in Council, or did the Government rely on the administrative powers of the Minister for Defence under the Defence Act?
- The process by which the extension of operations to Syria was authorised.
Our principal concern in relation to the authorisation process is that, as noted in my letter of 1 March, under Australian law, only the war prerogative could safely and uncontroversially authorise the deliberate offensive causing of death, destruction or capture against the enemy. The Governor-General is the only official to whom the power to exercise the war prerogative has been given and, being commander-in-chief, is the only one who can issue orders to the ADF to exercise powers under that prerogative. The powers of the Minister of Defence referred to above were clearly never intended to have that purpose. When the regrettable circumstances arise that cause us to require members of the ADF to go overseas to kill or capture people, or destroy their property, we must ensure that there can be no question of their being held personally liable for these actions arising from legal flaws in the procedure authorising their deployment.
We have two other major concerns regarding the current deployment to the Middle East theatre of operations:
- As far as we can ascertain, we do not have a formal invitation from the Iraqi Government to be there – a government actually engaged in an internal civil war. We would be grateful if you would confirm whether an invitation was received in 2014 from the Government of Iraq to send Australian SAS/training troops to Iraq, and if so, when. If there is a formal invitation, AWPR requests that a copy be made available to us, and recommends that a copy be tabled in the Commonwealth Parliament.
- Whether or not there is a Status of Forces Agreement covering the ADF deployment to Iraq. It is our understanding that our Special Forces and military instructors are engaged in Iraq without a Status of Forces Agreement and many, we understand, are on diplomatic passports to ensure immunity in case of legal entanglements. As well as being a misuse of diplomatic passports – these people are not diplomats – this situation denies ADF members deployed in Iraq the benefit of treaty-level arrangements defining the circumstances in which they may kill or capture Iraqi citizens or foreign insurgents, or destroy property, or what will happen if they commit a breach of Iraq civil law. We suggest also that over the longer term this misuse of diplomatic passports undermines their protective value for Australian diplomatic personnel worldwide.
We look forward to your response on these important matters.
Paul Barratt AO
President, Australians for War Powers Reform
Image: bombing of Deir al-Zor airport in Eastern Syria.