“Those who failed to ensure that Australia’s participation in this war was legitimate should not escape their share of culpability for the atrocities in Afghanistan.” By Albert Palazzo.

Afghanistan: the illegitimate war

The waging of war is governed by internationally agreed upon laws. Australia is a signatory to many – including the Law of Armed Conflict, also known as international humanitarian law. The limitations on what the military is allowed to do in war are well known to those who serve in the Australian Defence Force (ADF). These limitations include the proper treatment of non-combatants and persons hors de combat, which refers to enemy wounded and prisoners or other persons under one’s control. To violate these rules, to kill civilians or enemy soldiers under your control, is a war crime and punishable in a court of law.

Since the 2020 release of the Brereton report into possible war crimes by Australian special forces soldiers in Afghanistan, the military and the nation have awaited the matter’s resolution. To date, a former soldier has been charged with murder and investigations continue into the alleged actions of others.

There is, however, an issue that goes beyond the commission of war crimes. Were Australians sent to fight a war in Afghanistan that was not legitimate?

Whether a war is legitimate or not is determined by the application of another set of rules and practices, although these are not codified like war crimes. It is often forgotten that soldiers, at least in the modern democratic tradition, do not start wars – they fight on their government’s order. The commission of state-sanctioned violence is reserved to the state and the decision to go to war is made by the government. In Australia, the decision for war is a responsibility of the government, perhaps the most serious one it can make.

The just war tradition is one of the principles by which a war’s legitimacy is weighed. The just war tradition evolved over centuries as an attempt to place moral accountability on the decision for war (jus ad bellum) and in its waging (jus in bello) in order to minimise the destruction and misery it causes. Combined, jus ad bellum and jus in bello provide criteria with which to determine if a war is “just”. For Australia’s war in Afghanistan, several criteria are of particular relevance: right intention, discrimination and proportionality.

The 19th-century philosopher of war Carl von Clausewitz, in his renowned book On War, provides another perspective on how to assess a war’s legitimacy. For Clausewitz, a nation goes to war to achieve a policy objective. It is the objective that gives war its purpose. If a state accepts the risk, expense and destruction of war, its purpose must be well defined and well understood. Further, not only should the government understand its reasons for using force but so should its instruments – the soldiers who apply the force and the citizens who provide soldiers with the means.

Both the just war tradition and On War argue that those who decide for war must be judicious in how they make the decision and in how they act upon it. To weigh Australia’s success in meeting this mandate one must first pinpoint the reason for sending soldiers to Afghanistan – in other words, the political objective.

This should be a fairly straightforward task, but unfortunately it is not. When it existed, the Afghanistan home page on the Department of Defence website offered no illumination. It did state Australia was committed to a stable and secure Afghanistan but never explained what that meant, how it could be accomplished or why the Australian public should care. The “2020 Defence Strategic Update” located Afghanistan outside Australia’s area of strategic interest, as does the 2023 “Defence Strategic Review”. Afghanistan is a distant geographic outlier from areas of much greater importance to Australia, yet it has been the location of Australia’s longest war.

Australia did have a policy objective for this war, but it was not one directly associated with Afghanistan. Australia’s objective was to support the United States in order to strengthen the alliance with its superpower protector. In theory, this is a perfectly acceptable policy objective. It is alluded to in numerous documents and was vividly illustrated when Prime Minister Anthony Albanese stood alongside US President Joe Biden at an AUKUS announcement. Australia’s part in the war was never about Afghanistan – it was all about Washington.

For a war goal to be legitimate, however, the government must acknowledge its existence. A policy objective that is not fully articulated to those doing the fighting, or to the citizens supporting them, undercuts the moral justification for the war. Australia’s objective in going to war in Afghanistan was treated as something that those in the know were supposed to assume but not discuss, at least not in public. Alliance management is not a good enough rationale because its achievement required the harming of a third party – the Afghan people.

The absence of a well promulgated and disseminated political objective represented a dereliction of leadership. Politicians have the responsibility to state the reason for going to war to the citizenry, and military leaders need to remind them of its centrality to war’s purpose if politicians fail to do so. In a democracy, the public has an obligation to hold its leaders accountable.

Australia failed the tests of discrimination and proportionality in the conduct of its operations. Non-combatants are to be protected and the population’s safety needs to be central to the mission. The US style of war, in which Australia’s special forces were integrated, did not prioritise that goal. Proportionality requires combatants not to use force that exceeds strategic or tactical benefits. Force must be the minimum necessary. When a target, perhaps a single person, is obliterated by a B-52 strike, for example, the level of force is far in excess of requirements. War must serve an end that is worth the death and destruction it brings. The war in Afghanistan failed this test, both during its waging and in hindsight.

There is another critical question. In it lies the moral ambiguity of the war in Afghanistan: if a war fails to meet the standard of legitimacy, is it possible to fight it legitimately?

There are questions underneath this main question. Does the absence of legitimacy cause troops to be unsure why they are there and what they are meant to do? Does the ambiguity wear on those deployed multiple times, returning to a conflict that is filled with danger but lacking in meaning?

The Australian Defence Force has admitted to the failings of its special forces. The investigations launched by the Brereton inquiry continue. More criminal charges may result. The ADF is also a learning organisation. In 2021 it issued a reform plan to address its moral and behavioural failures and to ensure that military personnel act in accordance with the law, defence values and the expectations of the Australian public.

But what of Australia’s political leaders? After all, the ADF went to war on the orders of the nation’s civilian leadership. Have our politicians collectively learnt the critical importance of making sure their decisions meet the just war standard? Have they conducted an inquiry into their own decision-making or authorised a lessons analysis? Do Australia’s war leaders now know the importance of not creating a morally ambiguous situation?

I do not know the answer to these questions, but I have my doubts.

The shadow of illegitimacy cast over the Afghanistan war created an outcome that requires an explanation more nuanced than soldiers doing bad things. When the Australian government failed to set and disseminate a proper political objective, it became far harder for the military to assess the worth of a particular objective in accordance with Clausewitz’s thinking and the criteria of the just war tradition. When the government did not ensure that the tactics employed were proportional, it failed in its oversight obligation.

It is in such a flawed policy landscape that tactics such as “whack-a-mole” flourish. When this happens, killing can become an end in itself. The government created an ethical vacuum that contributed to soldiers losing their moral compass. It was not the responsibility of those who were on the ground in Afghanistan to ensure the war’s legitimacy. That responsibility belonged to the nation’s political leadership.

The argument made here does not excuse those who may or may not have committed war crimes in Afghanistan. If illegal acts occurred, those who committed them must be held to account. However, crimes occur within an environment that encourages or discourages their commitment. The lack of a political objective meant Australian troops were sent to fight in an illegitimate war without a clear understanding of why they were there. Some were sent too many times.

Those who failed to ensure that Australia’s participation in this war was legitimate should not escape their share of culpability for the atrocities in Afghanistan. They did not commit the crimes themselves, but their decision to go to war without the necessary thoughtfulness of purpose contributed to them. If someone is unwilling to accept the unenviable burden of leadership, then they should not seek it. Having sought and accepted it, leaders need to be held responsible for their actions. Soldiers are alleged to have committed atrocities in Afghanistan but, if they did so, it was against the backdrop of a rudderless military campaign. Australia’s leaders need to acknowledge that they share in the blame. 

This article was first published in the print edition of The Saturday Paper on July 22, 2023 as "Afghanistan: the illegitimate war".

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