In September 2015 the Australian government decided that it was joining the US-led “coalition” to fight in Syria in what was described at the time as a war against the terrorist group ISIS (also known as ISIL, IS or Daesh). The decision was purportedly made following the receipt of legal advice as to the legality under international law of Australia joining that particular war. It was subsequently revealed that the government had received the legal advice a year earlier than when it said it was “waiting” for the advice.

The contents of that advice have never been disclosed, although the overwhelming weight of international legal opinion was that any intervention in Syria (by Australia or anybody else) that was other than by invitation of the Syrian government (which it didn’t have) or pursuant to a Security Council resolution (which doesn’t exist) would be illegal. The lies, obfuscations and secrecy by the Abbott-Turnbull government have been unwavering ever since.

It is well established that Australia’s adherence to international law is at best a flexible concept. There is now further evidence however, that Australia is, at the very least, also a party to war crimes being carried out in Syria by what are invariably described as “warplanes of the US-led Coalition.”

That coalition includes, in addition to Australia and the US, Denmark, Netherlands, France, Germany and Jordan. The war crime in question is the use of white phosphorous, a particularly nasty form of weaponry that burns through skin and bone, and is a fire that cannot be extinguished by water.  Its victims die a horrible and painful death.

The use of white phosphorous in situations where civilians, the civilian population, or civilian objects are the target, or where there is a military target but the military object is located within a concentration of civilians is prohibited.

That prohibition, along with definitions and a great deal more besides, is found in the Protocols that form part of the Convention on the Prohibition and Restriction on the Use of Certain Conventional Weapons that came into force on 2 December 1983. Australia signed the Convention on 8 April 1982 and formally ratified it on 29 September 1983. It has been part of our law therefore for 34 years exactly.

There have been a steady series of reports out of both Iraq and Syria on the use of white phosphorous by coalition airplanes. That use has been in civilian areas.  As may be inferred from the above definitions as used in the Convention and the three Protocols, it does not matter that civilians are not directly targeted. The bombing of civilian areas where there are highly likely to be “concentrations of civilians” is prohibited. There are plenty of examples in criminal law where lack of intent is not a defence if one is acting recklessly.

The criminal law of parties is also instructive in this context. A “party” is the person who actually carries out the criminal act, (in this case dropping white phosphorous munitions) or someone who does some act to aid, abet, counsel or procure the carrying out of the act that constitutes the offence.

Applying that to the Syrian situation there are innumerable public statements from Australian politicians that are readily discerned as aiding, abetting counselling or procuring the US to continue its illegal war in Syria.

There is also specific evidence from the Department of Defence’s own website of the illegal activity. The website, under the rubric of Operation Okra sets out the record of operational activity by RAAF aircraft in Syria. The relevant activity by the RAAF in the present context is that the E7A planes provide the electronic facility for locating the targets that are then bombed, and the KC30A planes refuel them to enable them to stay aloft and carry on bombing. The details are previously described in Gumshoe News on 22 September 2017.

By most definitions both of these acts by the E7A and KC30A RAAF planes constitute “aiding and abetting” the commission of the war crimes. Within the past few days white phosphorous has been deployed by “coalition air planes” against civilians in Idlib province, in Deir ez Zor province (where Syrian Army and Russian forces have also been attacked by the US or its terrorist proxies), and in the city of Raqqa.

On 28 September 2017 the Syrian Foreign Ministry wrote letters to both the Secretary General of the UN and the President of the Security Council demanding an immediate halt to the US led airstrikes that it accurately described as “illegal”.

This was preceded two weeks ago by the Russian Foreign Minister Sergei Lavrov also reiterating that any military forces in Syria not there at the invitation of the Syrian Government or pursuant to a Security Council resolution were there “illegally.”

It will come as no surprise to learn that Lavrov’s warning; the participation in war crimes by Australian forces; and the Syrian demand that the US led coalition should cease its activities immediately has not been reported in or on any mainstream media outlet in Australia.

It seems that blind adherence to the wishes of our “joined at the hip” ally, the US, extends to refusing parliamentary debate, suppressing public discussion in the mainstream media, and extensively participating in war crimes. One seriously questions why Australia even bothers to try and maintain the manifest fiction that it is committed to the rule of law and its obligations under the various Charters that it readily signs up to but then simply ignores.

James O’Neill

*Barrister at Law and geopolitical analyst.  He may be contacted at [email protected]u