Jus ad bellum

By skepticlawyer

Many people don’t realise that going to war (or other, ancillary military activities) in Australia doesn’t require legislative approval; the executive — that is, the Prime Minister and Cabinet — can make the decision without involving all our elected representatives. This is relatively common around the world, although it is also common to find countries that require parliamentary approval in some or other form.

The issue has become a live one again because — as Robert Merkel over at LP points out — the former chief of the Australian Army, Peter Leahy, has called for parliamentary approval to be instituted. This would represent a serious shift in Australia’s jus ad bellum (‘laws to war’) and is, I think, a good idea. It would prevent excesses like Iraq, but still allow deployments where there is considerable popular support for participation. Robert notes:

The Australian Democrats, and the Greens, have tried to pass legislation requiring such parliamentary approval, the first attempts to do so dating back to 1985. The latest attempt is the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]. Both the major parties oppose such a change; some of their public objections can be found in the Senate committee report on the bill.

To the Greens and the Australian Democrats, one may now add the Liberal Democrats (Australian version). I’ve just been sent a party press release where Mark Walmsley, the party’s candidate for the WA Senate points out the following:

Since the initial Iraq engagement there have been two Federal elections, resulting in two new Parliaments taking office. However there has been no parliamentary review of the initial decision.

“The Liberal Democrats believe that following an election, all ongoing Australian military engagements should be re-affirmed as a priority by the new Parliament.

“Unless two-thirds of Parliamentarians vote to stay the course, plans should be drawn up for a prompt withdrawal,” Mr Walmsley said.

The Liberal Democrats want the vote to be carried with a two thirds majority of a joint sitting of both houses as well, ensuring that — if nothing else — any participation at the least has the support of both major parties.

I like the idea of making it difficult for the state to go to war. Many years ago, US Army psychiatrist M. Scott Peck pointed out that Western countries were at their most dangerous when they unleashed their ‘specialists’, and that these ‘specialists’ included their militaries. There is no doubt it is now harder to get the public angry about our soldiers, sailors and airmen being killed overseas in large part because they are all volunteers. They are seen to have made a choice. Were they conscripted, as during the Vietnam War, there is a strong sense that, should one of them be killed, he has been deprived of choice in a very direct way. Not for nothing does Peck note that the opposition to the Vietnam War grow loudest when both the Australian and American governments began to conscript.

To my mind, then, we need to expose war-fighting decisions to public scrutiny by other means. Forcing a parliamentary debate and vote is one way to do it. It also means that, while we still unleash our volunteer specialists, we do in a way where they are not seen to serve the interests of a narrow and unrepresentative group of people.


  1. Miss Candy
    Posted June 18, 2010 at 8:38 pm | Permalink

    The problem is that the deployment of any military is a fundamental prerogative of the executive. The reason is that it is the last resort of a government trying to hang onto power by a parliament that may be tearing itself apart or seeking to disband itself. The alternative reason is that wartime action should is presumed to be only necessary in the compelling national interest and should simply not be bound by the usual democratic processes, which may leave the country flailing in the face of military necessity.

    The other problem with providing Parliament with a “veto” in effect is that executive governments are bound by strict confidentiality at times – certainly for cabinet-in-confidence matters, but also for intelligence and security briefings. This confidence can be essential for the safety of the community – either ours or those of another nation state. Unfortunately it conflicts with the open requirements of Parliament.

    It’s a tricky, old, classic and insoluble argument – does one hamstring (?) the executive in its most fundamental “execution” of its prerogative, for the sake of parliamentary veto (not just scrutiny). It’s a very difficult question and arises in a range of areas.

    There are other options too, which you kind of touched on – like compulsory debate in Parliament, as happens in the US. Perhaps that would negotiate the two imperatives of security and transparency.

  2. Posted June 18, 2010 at 9:02 pm | Permalink

    Miss Candy has a point, although moving to a state of war for defensive purposes is /not/ synonymous with deployment of forces in the sovereign territory of another state.

    This is especially true for overseas deployments that take months to plan (think how long it took to build the forces for Iraq II).

    Deployments /not/ required for defence of the nation, but for humanitarian purposes (e.g. East Timor) are easily handled by sending the troops in complete with blue helmets or something similar.

  3. Posted June 18, 2010 at 9:35 pm | Permalink

    Robert Merkel addresses the ‘cabinet-in-confidence’ issues nicely over at LP, I thought, such that I don’t think they hold. The congressional debates in the US are a good check, although that said they didn’t stop Congress abdicating its powers to the President in 2003.

  4. Peter Patton
    Posted June 19, 2010 at 4:08 pm | Permalink

    SL’s point about ‘unleashing the “specialists”‘ has an even more unsavory inflection in modern western liberal democracies – unleashing the NON specialists.

    In countries such as the US, Australia, and the UK, committing to wars is more often than not about domestic politics – especially upcoming elections – rather than any real threat to national security, let alone sovereignty.

    If we are going to remove such a fraught decision from the PM or cabinet, I’d suggest going the whole hog, emulate the Athenians, and hold a national plebiscite of hoi polloi.

  5. Peter Patton
    Posted June 19, 2010 at 4:33 pm | Permalink

    Given the current High Court, I doubt even parliamentary legislation could over-ride executive privilege in deciding to go to war. It was Justice French who led the Federal Court pro-Ruddock “executive privilege” majority decision in the Tampa Case. He is now French CJ of the High Court

  6. Posted June 20, 2010 at 8:18 am | Permalink

    In countries such as the US, Australia, and the UK, committing to wars is more often than not about domestic politics – especially upcoming elections – rather than any real threat to national security, let alone sovereignty.

    This is a good point. It particularly obtains in the disgraceful case of Bill Clinton with not so much war but the bombing of foreign territory to distract everyone from his under the desk extra curricula.

    But Australia is different from the UK and the USA in that it has very little military power and is in a traditionally vulnerable position. We act, always have, like a vassal state in an attempt to keep our overlords interested. I think also there’s an element of historical ambition at play. Politicians here with grand ambitions would very much like to be players on the world stage. John Howard’s support for the Iraq War could be seen in this light, likewise Kevvie’s forays into Asia-Pacific Ec type ‘community’ building.

    It really is bollocks that the cabinet has the power to take us to war. Around hald the country felt very strongly against it at the beginning now it’s a vast majority. All because of American pride and hubris. The Americans got sucked into Afghanistan which is exactly what bin Laden was trying to accomplish. They went to Iraq because Cheney and Rumsfeld were hard at work for their constituency. And the result is that a handful of nutcases bent on destroying the West has now swelled to hundreds of thousands. Well done.

  7. Posted June 20, 2010 at 10:39 am | Permalink

    [email protected]

    But Australia is different from the UK and the USA in that it has very little military power and is in a traditionally vulnerable position. We act, always have, like a vassal state in an attempt to keep our overlords interested.

    1. Little military power, given our large per-capita spend, (check your friendly CIA world factbook), says a lot about our spending innefficiency.

    2. We are more vulnerable than our lower-spending kiwi friends, who use smarter “nice guy” tactics to avoid giving offence and attracting threats, while we try to “punch above our weight” and act belligerently, which in the schoolyard, encourages bigger bullies.

    3. Vassal state certainly. See ECHELON, one big reason why we, especially our SIGINT sites, are legitimate targets, and why we copped the Chinese “shot across the bows” cyberattacks of May 2001, which I and quite a few of my observed directly.

  8. Peter Patton
    Posted June 20, 2010 at 2:03 pm | Permalink


    You are right to distinguish our position from the that of a super power (especially the US). I am ‘on-side’ with the realpolitik of us committing to war coalitions as a necessity of keeping onside with the big boys, but there are limits.

    1. How can we ever know if the US will pay us back? OTOH, it is not just the US we are schmoozing. There were/are lots of other nations in that coalition, and most highly reputable ones at that. The COW was hardly a rogue’s gallery of nasty reviled regimes.

    2. One answer to this reveals an even more shockingly cynical reality about Australia’s diplomatic militarism. It is seen as good “on the job training” for our military to get involved in actual real combat, rather than just ‘joint military exercises.’

    3. How are we to balance the cynical realpolitik against the reality we are talking about real live human beings – our family, friends, etc – we are prepared to so blithely commit to do out diplomatic bidding.

    I have friends/acquaintances/family in the military. The diversity of opinions on this aspect of our militarism is just as wide within the military as among us civilians. I suppose there is an element of we all know that if you sign up, you are signing up for “diplomatic wars” as well.

    It is on this point that Howard did extremely well. His cunning made sure our soldiers were as far as away as possible from real danger, and thus casualties were incredibly low.

    4. Still, I think the government needs to be far more upfront about these diplomatic realities. Let’s face it, there is not an Australian in any pub anywhere who is not aware that we usually commit troops even when our own safety is not threatened. And it seems as a people we are quite OK for that. But as you noted, Iraq was probably beyond the pale.

  9. Peter Patton
    Posted June 20, 2010 at 2:06 pm | Permalink


    We are more vulnerable than our friends across the ditch coz they ain’t got nothing nobody wants. No land. No minerals.

  10. Posted June 20, 2010 at 2:31 pm | Permalink

    Is the prerogative constitutional or not? If constitutional, then an act of Parliament is not going to be enough.

    Parliamentary approval strikes me as a reasonable notion, though there are some tricky bits to work out.

    Strategically, Australia participates in order to obligate. That actually worked for us in things such as East Timor (the US did not care, but it cared that we cared) and the US-Oz Free Trade Agreement.

    As for UN actions, I agree with the ADF policy: don’t unless we can engage in peace enforcement not peace “keeping”.

    Afghanistan was an inevitable consequence of the Taliban (a regime almost no one recognised anyway) harbouring Osama after 9/11. One can certainly cavil about performance in the intervention, but some military action was going to happen and it is not one, given Australia’s longstanding policy of participating to obligate, we were going to pass on.

    Leaving aside the moral/legal rights and wrongs of Iraq II, actually it has been a broad strategic plus. The new Iraq is much less of a strategic problem than Iraq under Saddam, the performance of al-Qaeda in Iraq was so appalling even the “Arab street” noticed and Shia democracy in Iraq has been destabilising of the mullahs in Iran. The notion that it further “radicalised” folk is not born out over the longer term by opinion polls or recruitment rates.

    And the Kurds finally got an even break, which is a major moral plus in itself.

  11. Posted June 20, 2010 at 4:33 pm | Permalink

    Peter on Oz v NZ…

    Canada, which /does/ have considerable resources, is also a financial beneficiary of the “Mr Nice Guy” approach.

    Even Bin Laden, in his tirades, specifically pointed to the Nordics as being nice guys, domestically and internationally, and therefore not legitimate targets of islamist ire.

    The whole issue of democratic mechanisms for committing to war, declared or not, would be less problematic if there was consistent application of the principles determining a threat to stability. Averting eyes from Dimona while ranting about Iran, or even North Korea, as nuclear weapons holders is an obvious hypocrisy.

    When experts like Hans Blix point out that a threat is hollow, and those appointing him ignore the intelligence, then aggression is for domestic political advantage and indicates a failure of democracy in the belligerents concerned.

    Perhaps belligerence should be treated like euthanasia in Holland – automatic triggering of a charge sheet, review by police prosecutors to validate that all the boxes are ticked correctly, or the doctor is up for murder.

    This of course requires someone to draw up a list of boxes and how they can be ticked, and no politician would so constrain themselves of the opportunity for a Falklands/Malvinas electoral miracle.

  12. Peter Patton
    Posted June 20, 2010 at 4:37 pm | Permalink


    I am no constitutional expert (or any sort of expert for that matter 🙂 ), but as our resident legal experts are at Balmoral this evening, I shall share my folk-understanding.

    Executive prerogative luxuriates in that liminal space between the Constitution, common law, convention, residual royal privilege, and “who the F knows.”

    1. Constitutional. Consider s.61

    The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor?General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

    Just read that simple, single sentence. There’s no legalese, or tricky qualifications. Basically, the G-G can do whatever she wishes, whenever she wishes.

    But we know the G-G does not; she will always rubber stamp stuff. But whose stuff?

    s. 62

    There shall be a Federal Executive Council to advise the Governor?General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor?General and sworn as Executive Councillors, and shall hold office during his pleasure.

    That is, the executive says, “oy, sign off on this” and she does.

    On the issue at hand – going to war – we have s. 68.

    The command in chief of the naval and military forces of the Commonwealth is vested in the Governor?General as the Queen’s representative.

    Do you get my drift so far? Not ONE mention of parliament.

    So basically, the executive (basically, the PM) does what s/he pleases when it comes to war. In theory, Her Excellency Quentin Bryce, could wake up tomorrow, and announce we are invading Tuvalu!

    2. Common Law.

    The HC has held the parliament CAN prescribe/limit executive privilege through legislation.

    But as I said above, the most recent judicial thinking (Full Court, Federal Court) is that even if parliament DOES try to enforce some legislative brakes, the courts will be less likely to support trumping the prerogative, the more the issue concerns sovereignty/security etc.

    French CJ allowed Ruddock his Tampa. So I can’t imagine the HC going anywhere near telling the current PM s/he can’t go to war with whomever s/he wishes, or when.

  13. Patrick
    Posted June 21, 2010 at 5:46 am | Permalink

    I disagree with requiring parliamentary approval. First, I agree with the broad brush of PP’s comment that it would at best be unenforceable (ie, Parliament could squeal, but not bite, unless it was willing to attempt to try the PM for contempt – to which, ah haha).
    Second, I don’t quite understand what is stopping Parliament from reviewing our present engagements now, that would be magically removed by requiring it to do so.
    Third, I have considerable difficulty with the concept itself, both fundamentally and practically.

    Practically first, what is war? When is parliamentary approval to be required? Can we contribute intelligence towards UAV strikes in Pakistan? What about UAV strikes in Yemen or Somalia?

    Can our special forces participate in manned raids in those places?

    Could we send more soldiers to East Timor to assist the local government?

    Conceptually, does any other country do this? Perhaps if executive wielding of this power is the problem the answer is making the executive more accountable to the people, not ‘more parliament.’

  14. Miss candy
    Posted June 21, 2010 at 10:28 am | Permalink

    Patrick – you’re absolutely right.

    First, when is military action war or not war? (this is one of the big problems of the terms jus ad bellum and jus in bello)

    Second, when is it domestic political vs national interest? And who determines that?

    As to the ability of Parliament to determine that it can have supervision over some prescribed military actions, I have no such doubts, if it is the Parliament’s intention. I don’t think it’s a dilemma that’s even akin to a Parliament voting a nation out of existence, and the Parliament remains the core of executive responsibility. If the Parliament can block supply, it can block the use of the military. It’s as simple as that.

    I just seriously doubt that any government – which has that power in its hands – would be interested in circumscribing it by legislation.

  15. Posted June 21, 2010 at 4:12 pm | Permalink

    Dave – Little military power, given our large per-capita spend, (check your friendly CIA world factbook), says a lot about our spending innefficiency.
    Is it inefficiency or hi-tech; both? I actually have no idea.

    We are more vulnerable than our lower-spending kiwi friends,

    Two terms for the future: Submarine, Fiji; and one for the present: China.

    who use smarter “nice guy” tactics to avoid giving offence and attracting threats, while we try to “punch above our weight” and act belligerently, which in the schoolyard, encourages bigger bullies.

    The Kiwis are behind us and can count on us to shield them from invasion. So they think. We’re the only Western country of significance on this bit of the blue ball and so we bark loud so people don’t notice are jaws aren’t much chop. (Unintended, seriously).
    ECHELON is also the main reason that the US needs us.

  16. Posted June 21, 2010 at 4:20 pm | Permalink

    Patrick – I agree in spirit with everything you said at #8. The thing is the realpolitik realities are set there by nature. States are organic things that morph thru time because of, against and despite their wills, which themselves change. For example: we will, soon, have to take more responsibility for our defense. This will change us forever.

    The most fundamental reason for war is resources. We have not yet produced a better answer globally to this problem then war. Treaties, alliances, empires, these things limit war but until the entire globe is subject to the rule of law* we will continue to fight them.

    So I sadly must admit of very unpleasant facts like the work experience argument for entering wars. It’s one of the few good things about our current misadventures.

    * By ROL I don’t necessarily mean government.

  17. Patrick
    Posted June 22, 2010 at 3:56 pm | Permalink

    Just to prove my point (not PP’s with which Adrien agrees!), today we had the leaders of both major parties affirming the house’s support for the ongoing engagement in Afghanistan.

  18. Posted June 22, 2010 at 6:40 pm | Permalink

    I think Afghanistan would be approved under both Leahy’s regime and the adapted LibDem version. Iraq, not so much. The debate would at least be pretty lively.

  19. Posted June 24, 2010 at 1:15 pm | Permalink

    Canada is shielded by the US, Ireland by the UK, New Zealand by Australia. In each pair, the bigger country is more militarily active, the smaller one more inclined to “nice guy neutralism”. It is not greater virtue, it is geographical privilege.

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