Iraq War Crimes

Iraqi War Crime

(NB. Unless part of an attributed citation, all times in this article are Australian Eastern Standard Time.)

Between 18 March and 20 March in 2003 at the outset of the Iraqi war, a group of Australia’s most senior politicians may have committed a war crime.

What was the alleged War Crime?

One of the war crimes specified under section 2 (b) of article 8 of the Statute of the International Criminal Court done at Rome on 17 July 1998 (“Rome Statute”) is “Killing or wounding treacherously individuals belonging to the hostile nation or army”. Article 8 also says that the International Criminal Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy.

At midday on 18 March 2003, the United States President George W. Bush issued an ultimatum to Iraq demanding that Saddam Hussein and his sons leave Iraq within 48 hours of that time and, if they refused, military conflict would commence at a time of choosing of the United States. The ultimatum period expired at midday on 20 March 2003.

The Australian Government said that it would observe the ultimatum period. Cabinet ordered Australian armed forces to participate in the Coalition of the Willing. As a result of that decision, numerous Iraqis were killed or wounded before the ultimatum period expired, that is while Australia was not at war. Between the announcement of the ultimatum period and its expiry, the Australian Prime Minister, John Howard, the Australian Minister for Foreign Affairs, Alexander Downer, and the then Australian Minister for Defence, Robert Hill, made numerous statements giving the impression that Australia would not attack Iraq until the ultimatum period had expired.

The deception worked. Australia launched a sneak attack causing numerous Iraqi casualties while no Australian was wounded or killed. This was a treacherous act by a nation that prides itself on ‘the fair go’.

Evidence of the Australia Attack on Iraq before the Ultimatum Period expired

The following contains a significant amount of official, Australian government evidence that Australia attacked Iraq and inflicted a significant number of Iraqi casualties before the ultimatum period had expired.

(In the following, bolding has been added.)

1. In Special Gazette no S125 of 6 July 2005, the Governor-General of the Commonwealth of Australia declared:

warlike operations in which members of the Australian Defence Force who render service with the forces known as:

(i) Operation Falconer the Australian Defence Force contribution to the United States led military operations to remove the threat of Iraqi weapons of mass destruction that:
(A) commenced on 18 March 2003 and ended on 30 April 2003.

2. In a speech at Garden Island in Sydney on 16 April 2004 concerning the crew of the Australian warship HMAS Kanimbla, the Governor-General of the Commonwealth of Australia said: “Kanimbla is being awarded the Gloucester Cup for sustained outstanding service in warlike operations. Specifically, it’s been recognised for its work as the command ship for the multinational Maritime Interception Force Screen Commander during Operation Falconer. The ship entered the Middle East Area of Operations on 14 February 2003. It made a major contribution to the effectiveness of interception operations from 22 February to 18 March, and to combat operations against Iraq on 18 March.”

3. On 19 March 2003, the Australian Minister for Veterans' Affairs for and on behalf of the Australian Minister for Defence, determined that service rendered as a member of the ADF allotted for service on or after 18 March 2003 with OPERATION FALCONER is warlike service for the purposes of subsection 5C(1) of the Veterans' Entitlements Act 1986.

4. The Australian War Memorial website (http://www.awm.gov.au/iraq/sas.asp) states: ”Elements of 1st Squadron, SAS, entered Iraq on 18 March 2003, and may well have fired the first shots of the war” as described by Colonel John Mansell in an overview of Australian Special Forces contribution to Operation Falconer (see below).

5. In an article in Engineers Australia Magazine Online November 2004, Major Peter Tinley, Member of the Order of Australia, who served as the Deputy Commander for the Special Forces Task Group in Iraq, stated: ‘In the early hours of 19 March 2003 an SAS squadron breached the 3m-high sand berm that forms the Iraqi border.”

6. An Australian Department of Defence publication entitled “The War in Iraq and Operations in the Middle East in 2003”, signed by Senator the Hon Robert Hill, Minister for Defence, states: “The Australian Government on 18 March authorised the ADF to take part in Coalition operations. Subsequently the SAS entered Iraq by air and land. Entry by vehicle involved breaching an earth mound and trench system to negotiate a way through the network of Iraqi border guard posts. They crossed the border successfully without contact, but 30 kilometres inside Iraq the force met numerous enemy vehicles. This engagement was one of the first ground contacts of the war. Iraqi soldiers engaged the Australians but were overcome by the Australian patrol’s fire power. When they surrendered, they were disarmed and SAS medics treated the wounded Iraqi soldiers before releasing them.” The article is silent in regard to any Iraqi deaths.

7. In a Department of Defence media release MSPA 90503/03 dated 9 May 2003 and entitled “Colonel John Mansell provides an overview of Australian Special Forces contribution to Operation Falconer”, Colonel Mansell says:

Firstly in the insertion. This in itself was quite an achievement. The force inserted by night by vehicle and helicopter into areas remote from friendly conventional forces. The intent was to insert clandestinely and get deep into the assigned area before the sun came up.
The vehicle insertion involved breaching an earth and boom and trench system in negotiating a network of Iraqi guardposts undetected. This was achieved successfully, however 30 kilometres inside Iraq the force bumped into a number of enemy vehicles. These were engaged by fire and then detained.
As they later found out, this was one of the first ground contacts of the war. This was the incident where the SAS medics rendered first-aid to a couple of wounded Iraqi soldiers …
So much for the insertion. The troops may have thought the insertion was demanding and exhilarating, but there was lot more to come and what followed certainly set the tone for the campaign. The intention of the commander on the ground was not to sit back and wait for the enemy to come to him, or wait for him to deploy his scud missiles. Rather, he undertook to commit to aggressive operations to unmask the enemy in terms of his intent, his location and his strength …
This phase coincided with exceptional heavy period of activity in the first week of the war. Virtually every day the SAS were in some form of heavy contact with the enemy …
On the second night in Iraq, a good proportion of the SAS force was involved in a raid on what turned out to be a well-defended radio relay station. This was a carefully planned and coordinated activity. It was conducted by night and it involved a very methodical ground and airborne surveillance activity to collect as much information about the site as possible.
The attack used carefully placed cut offs and a sequenced assault to clear the facility, and then it was followed by close air support to destroy the tower.
Surprise was achieved, and a sharp but one-sided firefight ensued with a significant number of casualties from the enemy …
And on the following morning an SAS element was involved in a running firefight for a significant number of hours. They were engaged by five or six armed vehicles, but the SAS used superior tactical manoeuvre and an application of heavy weapons to destroy most of the force …
QUESTION: Mark Forbes from The Age, Colonel. You talked about that initial engagement as being one of the first exchanges by ground forces. There were some suggestions, I think, emanating from a fellow called George Bush that it might have actually been the very first engagement on the ground in Iraq. If that is correct, do you know - can you tell us roughly the time and date of that occurring? And can you also now tell us when the insertions that you described there actually occurred? At what point was the first time that SAS forces actually entered Iraq?
COLONEL MANSELL: This, for us, was always going to be clearly going to be quite a sensitive activity getting this timing right. But the main thing to focus on was that we committed operations after the government committed to operations in Iraq. And the idea was to take advantage of the first period of daylight - sorry. Take advantage of first period of darkness after that words was given.
QUESTION: So at what time did that actually occur? What was the time and date of that actually happening?
COLONEL MANSELL: As I said, it was the first period of darkness after the government announced that Australia would be - commit to operations in support of the US against Iraq.

The Australian Defence Forces admitted that Australian armed forces inflicted casualties on Iraqis before the ultimatum period expired.

What did Howard, Downer and Hill do?

Iraq maintained an embassy in Canberra during the period leading up to the expiry of the ultimatum period. It is reasonable to believe that the Australian Government expected the Iraqi embassy to monitor senior Australian politicians and their statements concerning hostilities with Iraq and report those remarks back to Iraq. Between the announcement of the ultimatum and the expiry of the ultimatum period, Howard, Downer and Hill made numerous statements or participated in media interviews to the effect that Australia would not attack Iraq before the ultimatum period expired.

At a press conference on 18 March 2003 and as Prime Minister of Australia, Howard said that he had authorised “Australian forces already deployed in the Gulf region as part of any US-led coalition operation that may take place in the future” to participate in military action against Iraq. At that press conference, Howard also said the decision to go to war was taken at a Cabinet meeting that morning. Downer and Hill attended that Cabinet meeting.

(In the following material, boldinghas been added. All of the interview extracts were taken from the relevant official Australian Government Ministerial websites.)

As recorded in the House of Representatives Hansard, John Howard said shortly after 2.00 pm on 18 March 2003: “Around midday today, Australian Eastern Standard Time, President Bush delivered an ultimatum to the Iraqi leadership: Saddam Hussein and his sons must leave Iraq within 48 hours or face military conflict. Nobody wants a military conflict.”

In an interview between John Howard and Paul Bongiorno on 18 March 2003, the following was said:
Bongiorno: 48 hours to war, is there any likelihood Saddam Hussein will heed George Bush’s ultimatum and get out of Iraq.
Howard: It doesn’t seem likely. Perhaps if all members of the Security Council had joined the President in saying that, perhaps he would have.
Bongiorno: So the ultimatum in a sense is really giving notice to non-combatants and other workers, including the inspectors to get out of Iraq.
Howard: It’s also a last expression of hope that maybe he will, but I don’t think that’s likely but it’s the right thing to do and it certainly does give other people an opportunity of getting out and that is the right thing to do as well.

In an interview by Matthew Abraham and David Bevan of Alexander Downer on 18 March 2003, the following was said:
Bevan: Alexander Downer, how soon will Australians be in battle?
Minister: Well, that's an operational question. We've made the decision now, what we are expecting is in about three quarters of an hour President Bush to deliver his address and he will be issuing an ultimatum to Saddam Hussein and his regime which will be, I think, I'm not 100% sure of this, as I say, in the early hours of this morning an ultimatum for Saddam Hussein and his regime to go into exile within 48 hours. So, there will be a period where we will have to wait and see what the response to that ultimatum will be.
Bevan: But, you expect that that ultimatum will have a 48-hour deadline and we can take it for granted that there won't be any attack during that 48 hours? So, an attack is at least 48 hours away.
Minister: A major attack is at least 48 hours away, but I wouldn't go into all the details of operational questions.

In an interview between Alexander Downer and Neil Mitchell on 18 March 2003 the following was said:
MITCHELL: Are we at war?
DOWNER: Well it remains to be seen what will happen over the next 24 hours or so, or it might be 48. Once the President has made his statement and issued his ultimatum, I think in those 48 hours we'll see whether Saddam Hussein decides that it's best for him and for his people for him to stand down and to go into exile and to allow (tape ends)
MITCHELL: (tape resumes)... deadline?
DOWNER: I expect a 48 hour deadline. I spoke to Colin Powell in the middle of the night and he was saying he thought it would be 48 hours, but the President hadn't finally decided. So we just have to wait and see, you know it might be 36, it might be 72, we just don't know. But we'll find out in a minute.

In an interview of Robert Hill at 5.15 pm on March 18 2003, the following was said:
Journalist: Well let me just finally very quickly ask you about the statement from the Iraqi Foreign Minister, Naji Sabri, in front of our five o’clock bulletin, he told reporters in Baghdad that any child in Iraq knows that Mr Bush’s ultimatum will be rejected. In other words Saddam Hussein is not going to take his two children and leave. I guess that means the obvious doesn’t it that we’ll have war and probably within days?
Senator Robert Hill: Yes. That’s – I think that’s much more likely than not. Whilst there’s hope for a peaceful resolution I would certainly retain that hope. This is a last chance. Even at this last moment it’s not too late. And if you argue that regime survival has been what’s driven Saddam Hussein, his regime is not going to survive and this is his one chance to get away. So I don’t think it’s likely that the chance will be accepted but I would hope it would be.

In an interview between Alexander Downer and Philip Clarke on 19 March 2003 the following was said:
Journalist: Do you think war will start tomorrow, noon?
Downer: Yes, I think there's every chance that that's going to happen, because what we were hoping was that Saddam Hussein would take advantage of the 48 hour ultimatum, but it doesn't look to us as though he is going to take advantage of that – that he's going to stick it out.

In an interview between Robert Hill and Steve Price at 7.50 am on 20 March 2003, the following was said:
Steve Price: I’m being joined now by Defence Minister Robert Hill. Thanks for your time Minister. Do you have any idea what’s going to unfold today?
Senator Robert Hill: Well our forces are under operational orders and I assume the same as with the United States and Britain so the action to disarm Saddam Hussein could commence any time.

In an interview between Alexander Downer and Neil Mitchell on 20 March 2003 the following was said:
Journalist: Minister, any advance on when you think the war might start?Downer: Well the deadline is about to arrive, at midday today, Australian time. And I think we should expect information about military action at any time now. But of course this is a matter that's in the hands of the commanders on the ground. It's not any longer a matter for politicians.
Journalist: But do you expect Australian forces to be in combat by the end of today?
Downer: That's going to be a matter for the Australian Commanders.

In a doorstop interview of Alexander Downer on 20 March 2003, the following was said:
Journalist: Minister, any advance on when you think the war might start?
Downer: Well the deadline is about to arrive, at midday today, Australian time. And I think we should expect information about military action at any time now.

These statements seem to indicate an Australian government policy to mount a deception about when Australia intended to attack Iraq while ordering Australian troops to attack under cover of the deception. The objective of such a policy would have been to make Iraq feel (comparatively) safe and secure from attack until after the ultimatum period expired so that Australian forces could take advantage of surprise, in the process maximizing the effectiveness of the Australian attack while minimizing the number of Australian casualties. Such a policy would seem to breach Article 8 of the Rome Statute in that it was treacherous and procured the killing and wounding of Iraqis.

The Law

In 2002, the Australian Parliament passed the International Criminal Court Act 2002 (“Act”). The Act states that its primary object is to facilitate compliance with Australia’s obligations under the Rome Statute. Australia also codified in the Commonwealth Crimes Act many of the war crimes specified in the Rome Statute. However, the war crime of “killing or wounding treacherously individuals belonging to the hostile nation or army” was not codified into the Crimes Act. As such, a prosecution for the alleged war crime does not appear possible under Australian law.

The Rome Statute provides for signatory states to lodge a complaint with the International Criminal Court. Article 1 of the Rome Statute says that applicable law to be applied by the Court is:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.

As such, the alleged breach of Article 8 applies to clause (a). Article 8 of the Rome Statute states that the Court shall have concern with war crimes “in particular when committed as part of a plan or policy”. The actions and words of senior Government ministers appear to reflect a Government plan and policy to deceive the enemy and gain an unfair advantage through treachery.
The behaviour of the Australian Government also seems to breach the provisions of Article 1 of the Hague Convention’s Laws of War: Opening of Hostilities (Hague III); October 18 1907 III Convention Relative to the Opening of Hostilities (“Convention”) which requires states to give explicit warning, either in the form of a declaration of war or an ultimatum with a conditional declaration of war, before beginning hostilities. Australian armed forces commenced hostilities against Iraq before the conditional declaration of war made by President George W. Bush became effective. By declaring that it submitted to Bush’s timeframes, the Australian Government breached the Convention, rendering the possibility of a prosecution under clause (b) of Article 1 of the Rome Statute, namely the breach of an applicable treaty and established principles of the international law of armed conflict.

Positions of high political office do not protect Australian politicians from the International Criminal Court. Article 27 of the Rome Statue states that an individual’s official position provides no protection: “In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute … Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”.

Under the International Criminal Court Act 2002 and Australia’s obligations as a signatory to the Rome Statute, if the Prosecutor of the International Criminal Court commenced an investigation of the alleged war crime, Australia would be obliged to provide all relevant assistance to the Prosecutor (within certain considerations). In that regard, it is interesting to note Alexander Downer’s comments when endorsing the Rome Statute at a speech in Rome on 15 June 1988 entitled “The International Criminal Court: Our Commitment to Future Generations”. Downer said: “Australia strongly supports the view that national jurisdiction should take precedence over the jurisdiction of the Court (International Criminal Court) where that national jurisdiction is able and willing to deal effectively with war crimes. However, the Court must also be able to determine whether a national jurisdiction can deal effectively with alleged crimes by way of investigation and prosecution. Sham investigations or proceedings at the national level cannot remain unchallenged.” How Australia would respond to the International Criminal Court’s Prosecutor is uncertain.

The Moral Dimension

In October 2007, an Australian soldier was killed in Afghanistan. The Australian media devoted substantial newsprint and airtime to his death and the effect on his wife and two children. Each of the Iraqi casualties caused by Australia’s attack in March 2003 under the cover of the ultimatum was someone’s son or father, brother or cousin, nephew or uncle. Each one had a personal story no less compelling than that of the Australian soldier. When considering Australia’s actions, it’s important not to forget the human dimension of those who died or were wounded on the end of Australia’s treachery. There is no reason for any one of them to be denied justice.

When Japan launched its sneak attack on Pearl Harbour in December 1941, President Franklin Delano Roosevelt described it as a “date that would live in infamy”. While the number of Iraqi casualties may have been less than the 2,000 plus Americans at Pearl Harbour (although that can’t be said with certainty because the Iraqi casualties were not counted), Australia’s sneak attack on Iraq is no less deserving of infamy. The Australian government probably knew that Iraq had no WMDs and certainly believed that Iraq posed no threat to Australia. Most informed legal opinion says that the war was illegal, even if WMDs had been in Iraq. When viewed in that light, Australia’s deception and sneak attack is an even uglier stain on the country’s reputation and history.

The Australian Government has never explained or been asked to account for the launch of a sneak attack against Iraq. Howard, Downer and Hill have never explained why so many falsehoods were uttered about when the war would start and why Australia attacked Iraq before the Bush ultimatum expired. If Australia’s opposition to war crimes is to be taken seriously, these politicians must be held to account. At the very least, they must explain why they did and said what they did.

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