THE deaths of five Australian soldiers in Afghanistan on August 30 helped to re-kindled the debate about Australia’s involvement in that gruesome war.

Why did Australia decide to take part? When will our troops be withdrawn? What really is the objective? What will happen when all the allied forces leave?

These are important issues to discuss, but of greater significance, I believe, is the way Australia makes decisions about engagement in war in foreign countries.

Well-intended people have sought to place legal definitions on how wars are to be conducted since the mid-1800s, the most relevant being the first Geneva Convention signed in 1864 and the Third Hague Convention of 1917.

Australia has signed and ratified later versions of these “rules of war” Conventions, but appears to be in serious breach of the clause in The Hague document which clearly states:The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.

In the US, the Constitution vests in the Congress the power to make a declaration of war. The last time that was used was after the Japanese attack on Pearl Harbour which brought America into World War II.

The US has flouted its constitutional responsibilities in almost all the wars it has initiated since then.

In Britain, only the monarch has the power to declare war, under that quaint device titled The Royal Prerogative. Britain’s last formal declaration of war was with Germany on September 3, 1939, after the Nazi invasion of Poland. Australia’s Prime Minister Robert Menzies committed Australia to take part hours later.

But Australia did not then have, nor has it since defined, any formal or constitutional process for declaring it is at war with another country. The Australian constitution is silent on the issue.

There is an ambiguous Clause 61 which vests all Commonwealth power in the Queen, which the monarch’s local agent, the Governor-General exercises. But as Mr Fawlty said: “Don’t mention the war”, because the constitution certainly does not.

The Defence Act drawn up in 1903 and amended over the years, enables the G-G to issue a Proclamation for citizens to be called up to military service “in time of war” and requires approval of the proclamation by both houses of parliament.

The Act refers to the issue of a proclamation of a state of war “or the danger thereof”, but does not define the authority required to make such an announcement, and, interestingly, defines “war” as meaning “any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force.”

Politicians and bureaucrats have manoeuvred around this apparent impasse which imposes an international obligation on Australia to properly declare any war in which it chooses to involve its troops, and the constitutional and legislative lack of a defined way of doing so. For instance, Australian troops committed to serve in Korea and Malaya were not being sent to war, but to “war-like” operations or “confrontations”.

In more recent times, though, Australia appears to have obediently, obsequiously, followed the US into wars – Iraq and Afghanistan being the most recent – and this despite the fact that the US has ignored its own constitutional requirement to have Congress make a declaration of war.

In doing so Australia has placed itself in a most dubious legal position. The Australian Council for Civil Liberties asked then Prime Minister Kevin Rudd to define the Australian process for making a declaration of war. He refused to respond.

If it is the case that Australia’s war games are technically illegal – they are certainly in breach of The Hague convention – then an argument could be made that our military people are also being made to partake in illegal activities. If a soldier in a declared war kills an enemy, that (sadly enough) is legal. But if a soldier kills a person from another country in an undeclared war, the question must be asked: is that technically murder?

A simple resolution for the problems would be for the Australian Parliament to adopt legislation that enables it to obey its international treaty obligations before going to war, and that might just enable the parliament to debate the merits or otherwise of the recommendations.

That way, at least, the Australian people would become aware of the issues, arguments for and against, and – of vital importance – the legality of any decision to send Aussie soldiers off again to remote killing fields.

*Tony Reeves is a Woolloongabba-based non-fiction author and long-standing freelance journalist.

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