18.04.2018 Author: James ONeill

Australia and the Rules Based Internal Order


One of the most frequently heard phrases from Prime Minister Turnbull and Foreign Minister Bishop is their reiteration of a belief in the “rules based international order.” This phrase is usually invoked in the context of a criticism of behaviour by foreign political leaders, or their nations. It has been invoked for example, in the case of Russia’s alleged intervention in Ukraine or Crimea, or China asserting its interests in the South China Sea.

One of the features of the selective use of the “rules based critique” is that it is never applied to the behaviour of nations considered allies. Using the above examples, the fact that the United States was instrumental in the February 2014 coup that overthrew the legitimately elected Ukraine government has never been the subject of adverse comment by the Australian government. Similarly, the provocative ‘freedom of navigation’ exercises in the South China Sea are indulged in by a nation that is not even a signatory to the United Nations Convention on the Law of the Sea.

What would be the Australian view for example, if China or Russia were to conduct military exercises in the international waters of the Gulf of Mexico. The US response to Soviet missiles on the island of Cuba in 1962 was to view such installations as intolerable. The world came perilously close to a nuclear war at that time.

The United States unilaterally abandoned the anti-ballistic missile treaty in 2002 and broke George HW Bush’s promise to Mikhail Gorbachev about NATO not advancing “one inch to the east” in exchange for Soviet compliance with the reunification of Germany. NATO missiles are now installed on Russia’s borders. A map of US military bases demonstrates an obvious pattern of encirclement of both Russia and China. Both of those two latter nations were identified as “strategic threats” in the 2017 national defence strategy documents released by the Pentagon.

There is a similar silence from the Australian government about the ongoing carnage being wrought by Saudi Arabia upon Yemen, resulting in an humanitarian disaster of epic proportions. The most recent reference to Saudi Arabia by Turnbull was in the context of seeing that nation as a suitable market for Australian arms exporters.

Russia was again the subject of denunciation for the alleged nerve agent attack upon the former Russian GRU agent and his visiting daughter in Salisbury on 4th of March 2018. Before there had been a proper investigation under the terms of the Chemical Weapons Convention (CWC) to which the UK, Russia and Australia are parties, Bishop issued a statement saying that the substance used on the Skripal’s was a “military grade nerve agent of a type developed by Russia.”

She went on to say “this attack is part of a pattern of reckless and deliberate conduct by the Russian state that constitutes a growing threat to international security.”

The same statement referred to “Russia’s threat to the sovereignty and territorial integrity of Ukraine,” and implied Russian responsibility for the shooting down of MH 17. Two Russian diplomats were expelled from Australia because of Russia’s alleged involvement in the Skripal poisoning.

That the UK government is also in breach of diplomatic and consular agreements with Russia regarding access to their citizens, and that Yulia Skripal is being held under extremely dubious circumstances after her release from hospital, is another point on which the Australian government is silent.

More recently, only last week, the US, the UK and France launched a missile attack upon targets in Syria in retaliation for what was alleged to have been a gas attack upon the civilians in the Syrian district of Douma. Turnbull expressed is unequivocal support for this action, saying, “the Assad regime (sic) must not be allowed to commit such crimes with impunity.”

If the terms the “rules based international order,” or the “rule of law” and similar phrases are to have any meaning, then they must be applied impartially to analyzing and responding to any alleged transgressions.

Part of that process is to first of all determine the actual facts; consider at all reasonable alternative explanations; give the accused a proper opportunity to respond; determine culpability for what is alleged to have happened in accordance with the very high standard demanded when serious allegations are made; to process the evidence in an impartial manner; and to have the outcome of the process determined by an independent judicial authority in a properly constituted tribunal.

The outstanding characteristic of both the Skripal and the Douma matters are that not one, or two of these basic principles were violated, but that all of them were trashed in the rush to condemn Russia (and in the case of Douma its allies Iran and Syria).

In the Skripal case, Britain’s Prime Minister May and Foreign Secretary Johnson were pronouncing on Russian guilt within days, and well before their own Porton Down establishment had determined what caused the Skripal’s illness.

Under the terms of the CWC, certain procedures have to be followed. These include referring the matter to the OPCW and providing the evidence to the accused perpetrator. None of these or the related procedures was followed. On these breaches of the CWC also, the Australian government was silent.

The OPCW, through one of it is authorised testing facilities in Switzerland, has now provided its report. A summary report has been produced for public release. The detailed report has been made available to all signatories of the CWC, which includes Australia.

Enough information has been released thus far to enable two provisional conclusions to be drawn. The first of these is that the Skripals were affected by a toxin known by its abbreviation of BX. Far from being a “military grade nerve agent of a type developed by Russia” as Bishop (echoing May and Johnson) claimed, it is an hallucinogenic toxin developed many years ago by the United States and is part of the arsenal of NATO countries including Britain.

The second provisional conclusion to be drawn from the OPCW reports is that the “purity” of the samples collected by the OPCW technical team three weeks after the Skripals were attacked was such, that the only logical inference to be drawn is that they were “planted” very shortly before they were collected. We do not know by whom, but it defies reason that it would have been the Russians.

There were a great many other implausibilities, improbabilities and contradictions in the official UK government’s claims. The evidence for this is conveniently collected in a 10 part (thus far) series by “Sushi”. None of this is reported in the Australian mainstream media.

The missile attack on Syria in response to the alleged use of gas on the civilians is a different order of magnitude. Again, all the basic principles relating to the “rules based international legal order” were violated.

This particular attack had some added elements. Eyewitness accounts (including medical) that were inconsistent with there being a gas attack at all, were simply ignored. The alleged attack was almost invariably portrayed as part of a pattern by the Syrian “regime,” (sic) despite widely available and authoritative debunking of similar claims made in the Khan Sheikhoun incident a year earlier.

The attacks were made the day the 0PCW inspectors arrived to conduct an investigation as to whether or not there had been a gas attack. Given that the attacks may well have hindered the ability of the inspectors to do their job, one might add obstruction of justice to the above list of violations of proper legal procedures.

Of the three nations participating, only the UK released a statement setting out what it termed its legal justification for the attack. Neither the US nor France made any such pretence. Turnbull’s language was purely in terms of it being retaliation for a gas attack. Not only is the proof of such still lacking, retaliation is not an accepted lawful reason for one or more nations attacking another.

Authoritative legal opinion is unanimous in rejecting the UK government’s legal argument. The arguments against the U.K.’s position paper are usefully summarised in a legal opinion provided by Professor Dapo Akande of Oxford University and reprinted in The Guardian; and an analysis by Associate Professor Marko Milanovic of Nottingham University in the European Journal of International Law’s blog.

In short, the actions of the US, UK and France were a clear breach of international law, specifically Articles 2(4) and 51 of the UN Charter and a series of decisions by the International Court of Justice.

The fact that this attack on Syria is in breach of international law is not of itself surprising. All three nations involved in the missile attack have in the past shown a similar willingness to disregard international law in pursuit of their own geopolitical objectives.

What is of note in the Australian context is that the Australian media have for the most part completely ignored the actual evidence as it applies to both the Skripal and Douma cases. They, and the politicians have been relentless in pursuing an “it’s all Russia’s fault” line.

The other conclusion that is to be drawn from the experience of the past six weeks is that when one hears politicians, of all persuasions, promote their alleged concern for a system based upon international legal norms, they may safely be disregarded because manifestly they do not believe a word of it.

James O’Neill, an Australian-based Barrister at Law, exclusively for the online magazine “New Eastern Outlook.”

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