It's war, not 'a mission': Abbott incorrect on Iraq action
Cabinet has authorised Australian air strikes and the deployment of Australian special forces to fight Islamic State militants in Iraq, Prime Minister Tony Abbott has announced.
"ISIL has effectively declared war on the world," Mr Abbott said on October 3. "The world is responding."
"Earlier this week Royal Australian Air Force aircraft began flying support missions in Iraq. Today Cabinet has authorised Australian air strikes in Iraq at the request of the Iraqi government and in support of the Iraqi government," he said.
"Also, subject to final legal documentation, Cabinet has authorised the deployment of Australian special forces into Iraq to advise and assist Iraqi forces."
Mr Abbott warned the deployment could be lengthy - "certainly months rather than weeks".
Asked if Australia was now at war, he said: "I know that you'd love to have that headline, but it's not strictly accurate."
This has been Mr Abbott's position since mid-September, when he first announced that Australia would sendup to 10air force planes and 600 personnel to the Middle East.
"I think strictly speaking it's best described as a mission rather than as a war," he told Radio 3AW on September 16.
ABC Fact Check investigates whether Australia's commitment in Iraq constitutes a war.
Abbott's three reasons to call it 'a mission'
Mr Abbott has repeatedly cited three reasons for describing the military action as "a mission".
The first is that Australia is responding to an invitation from the Iraqi government. "We are not in combat against another country. We are engaged in combat operations against an insurgency in support of the legitimate government of Iraq," Mr Abbott said on October 3. He told the Nine Network on September 15 that being welcomed by the Iraqi government was "one of the fundamental differences between this potential commitment and the commitment that was made 11 years ago". In 2003 troops from Australia, Britain and the United States invaded Iraq in the Second Gulf War.
The second reason is that the objective is humanitarian. "It is a combat deployment but it is an essentially humanitarian mission to protect the people of Iraq and ultimately the people of Australia from the murderous rage of the ISIL death cult," Mr Abbott said on October 3.
The third reason is that Australian forces will not act alone. Asked at a media conference on September 16 why he didn't use the word "war", he said: "Australian forces have no intention of engaging in independent combat operations." In his 3AW interview he told host Neil Mitchell: "And I stress, Neil, that we're not talking about independent combat operations by Australia, we're not talking about ground combat operation by Australia, we're talking about military advisers to be placed with the Iraqi security forces and the Peshmerga Kurdish forces."
Other government figures have also rejected the word "war".
Attorney-General George Brandis called Australia's involvement a "humanitarian mission, with military elements" on September 15. "I don't think it's correct to describe what we are speaking of as a war in the first place," he said.
Treasurer Joe Hockey told a media conference the same day that Australia had to "fight back" against IS. Asked by a journalist if that meant Australia was at war with IS, he said: "No, there's specific definitions about those sorts of things... this is a humanitarian initiative."
Can war be defined?
Several Australian and international experts tell Fact Check that legal definitions of war are no longer straightforward. As an international legal term, "war" faded when the UN Charter came into being after World War II. "Armed conflict" has become a more widely used legal term ever since the Geneva Conventions of 1949 laid down humanitarian rules that should apply when conflicts break out.
In 1995 the Appeals Chamber of the International Tribunal on the former Yugoslavia, established by the UN, found that "an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State".
Two years later, the tribunal discussed this definition, saying it "focuses on two aspects of a conflict; the intensity of the conflict and the organisation of the parties to the conflict". It said where non-government parties were involved, the definition distinguished an armed conflict from "banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law".
Professor Ben Saul, an expert on the law of war at the University of Sydney, says the definition of war matters for several reasons.
"If we are engaging in military hostilities or supporting others to engage in military hostilities then the Geneva Conventions apply to our forces in Iraq. That means we are responsible for not targeting civilians, not causing excessive civilian casualties, complying with all the rules about the means and methods of warfare and the right weapons to use and so forth, and at the end of the day Australian forces have war crimes liability if they overstep the mark," he told Fact Check.
The Macquarie Dictionary defines war as "a conflict carried on by force of arms, as between nations or states, or between parties within a state".
The internationally recognised Uppsala Conflict Data Program (UCDP), at Sweden's Uppsala University, defines a "warring party" as a "government of a state or any opposition organisation or alliance of organisations that uses armed force to promote its position".
Marc Weller, Professor of International Law from Cambridge University, tells Fact Check that lawyers look at the definition of war in two ways:
One relates to the set of rules in the Geneva Conventions on conducting hostilities, or "humanitarian law".
The other relates to the legality of sending armed forces abroad, or "the law on the use of force".
What the experts say
Professor Weller says where the legality of sending armed forces abroad is concerned, the Australian government is right to say that the issue of "war" does not arise. "This is an operation conducted (at least in Iraq) with the consent of the Iraqi government," he said. "Hence it is not legally controversial and no additional legal justification for the use of force is required."
Professor Saul agrees that in this regard Australia's 2014 commitment differs from 2003. "Here, I think, the international community recognises that the current Iraqi government is the legitimate government of Iraq, entitled to request foreign states to come to its assistance; so our involvement in Iraq is entirely legal under international law."
But he considers Australia is at war.
"What's critical here is whether Australian forces are directly engaging in military hostilities in Iraq, and potentially in the future in Syria as well, and if the answer to that is yes because we are bombing IS forces, we're flying air cover for others who are bombing IS forces, then the answer is very simple: yes we are at war," Professor Saul said.
"If on the other hand we are just providing humanitarian relief for food drops and so on, then in that case we are probably not at war in the legal sense."
He also says IS meets the condition in the UN tribunal's test of being "an organised armed group".
On Mr Abbott's point that the operation is humanitarian because Australia's objective is to "protect", he says: "Legally, what really matters is what we are doing not why."
Mary Ellen O'Connell, Professor of Law and International Dispute Resolution at Notre Dame University in the United States, tells Fact Check the relevant criteria in international law are "very different from Mr Abbott's".
"Australia is in a 'war' or armed conflict when it engages in intense armed fighting with another organised armed group. Airstrikes using military planes, launching missiles and dropping bombs against the IS fighters are engagement in combat - regardless of the purpose," Professor O'Connell said.
Sidney Jones, a terrorism expert and director of the Institute for Policy Analysis of Conflict in Indonesia, says: "Yes, I think it is a war. From the beginning, the conflict in Syria [from where IS spread into Iraq] was seen in apocalyptic terms as a battle between good and evil."
James Brown, the Lowy Institute for International Policy's military fellow, agrees that Australia is at war.
"Defence looks at these kind of operations and classifies them in two ways: are they war-like or are they non-war-like," he said.
"If they're war-like there's a chance of combat against an armed adversary and there's a chance of casualties too, and this deployment will be a war-like deployment, so it is a war."
On the Prime Minister's claim that Australia's commitment in Iraq is best described as a "mission", Mr Brown says: "If we were sending commandos on a 24-hour raid you might call it a mission, but if you're sending military forces on a sustained military campaign that's expected to last months if not years, which is the case here I think, you'd be calling it a war."
He says "twisted terminology" is being used "to distinguish from the 2003 Iraq military campaign and I think to avoid legitimising IS as a state".
Gabriella Blum, Professor of Human Rights and Humanitarian Law at Harvard Law School, says: "Whether a war can be fought against a non-state actor is a question of much controversy among international lawyers, but as a factual matter, the answer is yes. Think Israel vs Hezbollah or Hamas, the US vs Al Qaeda."
Professor Blum dismissed a warring party's choice of terminology. "The existence of war (or, more correctly, an armed conflict) depends only on the level and scale of hostilities between the warring parties, not on any unilateral declaration or description," she told Fact Check.
"Both parties can deny the existence of war for political reasons, and yet as a factual, objective matter, they would be at war."
What the US is calling it
Terminology among US officials has been fluid, sometimes contradicting Australia's descriptions. Secretary of state John Kerry said on September 14 there was "a kind of tortured debate going on about terminology". Like Mr Abbott, he made a distinction with the 2003 Iraq war.
"If people need to find a place to land in terms of what we did in Iraq originally, this is not a war," he said. "This is not combat troops on the ground. It's not hundreds of thousands of people. It's not that kind of mobilisation. But in terms of Al Qaeda, which we have used the word war with, yes, we went - we're at war with Al Qaeda and its affiliates. And in same context, if you want to use it, yes, we're at war with ISIL in that sense."
Did the last war ever really end?
Professor Tim Dunne and Dr Emily Tannock, of the School of Political Science and International Studies at the University of Queensland, argue that the war itself has never ended. Writing for the Lowy Institute think tank's blog The Interpreter, they describe the latest involvement as part of "an Iraq war that has been waged across a quarter of a century".
This "long war in Iraq" has "three incarnations": the UN-led intervention of 1990-91 to liberate Kuwait; the war of "regime change" of 2003; and 'the third war". They describe this one as "the war against the Islamic State".
Professor Dunne and Dr Tannock acknowledge that Iraq's request for military assistance in the "third war" makes it different from the second one, when the US and its allies invaded Iraq. Nonetheless, they maintain that each stage of the "long war" has "recurring themes". In all three conflicts, the West has cited humanitarian and national security issues, and has seen the battles as a "war for civilisation against barbarism". They conclude: "Each campaign has produced endings which later turn into periods in which the intensity of violence has lessened, only to escalate again as the long war continues."
Australia's Chief of Army, Lieutenant General David Morrison, appeared to take a similar view in a speech on September 23. Fairfax Media reported him as saying that the "ongoing battle against Islamic militants" may come to be seen as one lengthy and protracted set of conflicts, presenting "almost existential challenges". He said: "I do wonder whether we are actually in the early days of the next long war... I sense with some despair that we probably are."
The bottom line
Mr Abbott's point that Australia has been invited to send troops by the Iraqi government is relevant to the legality of Australian actions under the international law on the use of force. However, it is not relevant to the question of whether Australia is at war.
Experts tell Fact Check Mr Abbott's second point - that the objective is humanitarian - does not affect whether it constitutes war. And his third point - that Australian forces will not act alone - is also not a decisive factor.
Experts say war is determined by the intensity of hostilities and whether the opposition is an organised armed group.
The verdict
Mr Abbott's claim that Australia's commitment in Iraq is "best described as a mission rather than as a war" is incorrect.
Sources
Tony Abbott, media release, September 14, 2014
Tony Abbott, media conference, September 14, 2014
Tony Abbott, media conference, September 16, 2014
Tony Abbott, Radio 3AW interview, September 16, 2014
Tony Abbott, Nine Network, September 26, 2014
Australian War Memorial, War history, Second Gulf War
George Brandis, Sky News interview, September 15, 2014
Joe Hockey, media conference, September 15, 2014
Charter of the United Nations, signed June 26, 1945
Geneva Conventions, 1949
Appeals Chamber of the International Tribunal for the former Yugoslavia, Prosecutor v Dusko Tadic, October 2, 1995
International Tribunal for the former Yugoslavia, Prosecutor v Dusko Tadic, May 7, 1997
Video, John Kerry on CBS News 'Fact the Nation', September 14, 2014
Transcript, John Kerry on CBS News 'Face the Nation', September 14, 2014
Department of Peace and Conflict Research, Uppsala University, Definition of armed conflict
Department of Peace and Conflict Research, Uppsala University, Definition of warring parties
Tim Dunne and Emily Tannock, The long war in Iraq: A quarter-century and counting, September 22, 2014
The Sydney Morning Herald, Army chief predicts a long war as US and Arab states hit IS in Syria, September 24, 2014