Australia Prepares Legal Case for
War over ‘Non-sovereign Nation’ Taiwan
Alison Broinowski / Pearls and Irritations

Australia is inventing an unheard-of way to go to war at the invitation of a ‘non-sovereign nation’ — an obvious reference to Taiwan. The Government’s intent seems to be to have it ready for the conflict with China that US Generals keep telling us is coming.

(April 12, 2023) — When it reported on 31 March, the Inquiry into Australia’s Entry into Overseas Conflict produced little of the reform called for by civil society groups, and recommended by 94 out of 113 submissions to the multi-party Parliamentary Committee. Instead it reaffirmed the status quo, under which the Prime Minister, in effect alone, can decide the ADF should go to war.

After statements by Defence Minister Richard Marles and Foreign Minister Penny Wong, that was expected. But a surprise in the Committee’s report was not what it had to say about the role of the Executive, but that of Governor-General, who has not been consulted before recent wars.

Proposing that the role of the Commander in Chief, as set out in section 68 of the Constitution be restored, the Committee recommended that it ‘be utilised, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation given that complex matters of legality in public international law may arise in respect of an overseas commitment of that nature’.

If that means what it seems to, the Governor-General will be asked to approve the ADF being dispatched to an expeditionary war of choice that doesn’t meet the tests of legitimacy in international law. ‘Complex matters of legality’ which the report cites in explanation are always involved in public international law: that’s not the problem. What the Government seems to want is to be able to commit Australian forces to an aggressive war without either a UN Security Council resolution or the ‘invitation of a sovereign nation’.

What’s the non-sovereign nation? Obviously, Taiwan. And why will restoring the war power to the Governor-General do the trick? Because that’s in the Constitution, and indeed it’s how we entered World War I. Of course, the Governor-General can and should ask for information about such a war, but he is then obliged to give assent.

So the Prime Minister, the Defence Minister, the ADF high command and the troops will all be off the war crimes hook, and they need only wait to be told by Washington when to go. The ICC is unlikely to investigate the Governor-General.

The Report’s recommendation brings Australia into line with the US in another way. The UN Charter which our governments signed in 1945, contained a cop-out, Article 98. It allowed member states to make ‘reservations and declarations’ exempting themselves from some of its obligations and interpretations.

Of 193 nations, some 110, mainly from the global south, have signed Article 98 agreements with the US, undertaking not to surrender American service people for investigation by the International Criminal Court.

The US made its own reservations and declarations under Article 98, stating that:

• The US reserves the right to decide whether to comply with Security Council decisions in accordance with its constitutional processes
• The US reserves the right to use military force in response to an armed attack on a member state without first seeking authorisation from the Security Council
• The US reserves the right to veto any decision by the Security Council it believes to be against its national interest
• The US reserves the right to make its own decisions about the use of military force in situations it perceives as a threat to its national security
• The US is not bound by the decisions of the International Court of Justice if it involves domestic matters [eg Guantanamo Bay or other US military prisons].

The second of these reservations is the one Australia is seeking to emulate: war without US Security Council authorisation. We have done that already in Iraq, we could do it again. What we are doing now is adding the clause about doing it with no invitation from a ‘sovereign nation’. With or without an invitation from Taiwan, which is not a sovereign nation, we could do it tomorrow, or in two or five years’ time, which ever suits Washington.

For reminding me about Article 98, I am indebted to Mike Smith, whose short play about the US and war crimes is bidding for production by Canberra Repertory Theatre. He wonders if Australia has a similar arrangement, but neither of us has the time it will take to get an FOI response to that question.

Dr Alison Broinowski AM is a former diplomat, author and academic. She is President of Australians for War Powers Reform.

Prime Minister Scott Morrison

Looking for Loophole to Break
International Law to Wage War against China
Everyday we inch closer to war.  This is an important development (below).  You know that we are close when the lawyers start dusting off the law books looking for an escape hatch, a threadbare excuse to wage aggressive war.

This is very important.

The US, Australia, Japan, Korea, and the Philippines cannot get involved in a war on the side of the Taiwan separatist forces without breaking international law.  That is because Taiwan is not a sovereign nation according to international law (UN Res. 2758) and therefore cannot invite another military to fight with or for it.  They are a rump government that lost a civil war that currently happens to be squatting a piece of territory that does not belong to them.  They could no more call for other countries to wage war against China anymore than the Basque or Corsican separatists could ask China to intervene for their cause by waging war against France.

If China did so, it would be breaking international law, and waging a war of aggression against a sovereign state (France).   Likewise, the US, Japan, Korea, etc.

Because of the profound illegality (and immorality) of this, both from the standpoint of international and domestic law, the Aussies are preparing a legal escape hatch, section 68, approval by the Governor-General.

The Governor-General (CG) is the representative of the UK monarchy in Australia, and therefore has extraordinary plenipotentiary powers to override the will of the people.  The CG is the law, the sovereign, the executive unto himself.  He gets to wage war and control the military.

In practice, the CG is supposed to be purely ceremonial, like the Queen, but in certain instances (such as this, and the 1974 CIA coup of Gough Whitlam) the Governor-General is instrumental.  He is the joker in the deck that trumps all other cards, the anti-democratic ace-in-hole that the deep state pulls out when it is so desperate that it no longer cares about keeping up the pretense of democracy,

By invoking this section, this gives Oz a threadbare domestic legal excuse to wage war of aggression. But note, it is still a violation of international law. 

In fact, it is “the supreme international crime”, as the Nuremberg court defined it, “differing only from other war crimes in that it contains within itself, the accumulated evil of the whole”:

Proposing that the role of the Commander in Chief, as set out in section 68 of the Constitution be restored, the Committee recommended that it ‘be utilised, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation given that complex matters of legality in public international law may arise in respect of an overseas commitment of that nature’.

If that means what it seems to, the Governor-General will be asked to approve the ADF being dispatched to an expeditionary war of choice that doesn’t meet the tests of legitimacy in international law.

‘Complex matters of legality’ which the report cites in explanation are always involved in public international law: that’s not the problem. What the Government seems to want is to be able to commit Australian forces to an aggressive war without either a UN Security Council resolution or the ‘invitation of a sovereign nation’.

What’s the non-sovereign nation? Obviously, Taiwan. And why will restoring the war power to the Governor-General do the trick? Because that’s in the Constitution, and indeed it’s how we entered World War I. Of course, the Governor-General can and should ask for information about such a war, but he is then obliged to give assent.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.