International Norms after Ukraine: Nuclear Weapons and Atrocity Crimes

Presentation to Diplomacy Forum Roundtable, Australian National University, Canberra, 5 September 2022

I’ve been asked to talk to you today about the current state of play in relation to two of the most important international norms to have been established in the post WWII era - to the advocacy and application of both of which I have devoted a lot of my professional life over the last few decades, but both of which are showing signs of real fragility in the current post-Ukraine world.

I am referring to the norm against the use of nuclear weapons (which has existed since their first and only aggressive use in Hiroshima and Nagasaki, when their status as the most indiscriminately inhumane weapons ever devised was almost immediately recognised), and the norm of the responsibility to protect peoples against genocide and other mass atrocity crimes (which is of much more recent origin, being first recognised in the 2005 UN World Summit).

But first a few words about the place of norms generally in contemporary international relations. It is part of an age-old question. What exactly is it that primarily determines whether states, in their relations with each other, live in peace or go to war, how well they cooperate economically, how committed they are to global rules and institutions, and how decently they behave on issues like respect for human rights, and finding cooperative solutions to big common problems (what I like to call ‘good international citizenship’ issues)?

If former Prime Minister Tony Abbott is to be believed (remembering what he said when asked by Angela Merkel what was driving Australian policy toward China) the most relevant motivations, in states’ international priority setting, are ‘fear and greed’. Though I guess Abbott is nobody’s idea of an international relations theorist, nor one of our more subtle foreign policy practitioners, those who embrace the Realist School of international relations (where what matters most in their international priority-setting is states’ raw power, and their calculation of material advantage and disadvantage) would regard him as being right on the money.

But there have always been at least two other generally acknowledged drivers of international behaviour. They are reflected in the two other major camps of international relations theory – Liberalism, with its emphasis on international institutions and cooperative problem solving, and Constructivism, with its emphasis particularly on the power of ideas and normative principles. It’s not just fear and greed that matter, but the instinct for cooperation and commitment to principle.

It’s always a mistake to over-simplify and over-theorise explanations of international behaviour. Practitioners like me tend to live in a theory-free zone: very rarely do we talk in terms of any of the familiar academic school labels, with all their multiple variations, and in my experience even more rarely do any of us act consistently, year after year, with any one of them. But these labels do have some rough descriptive utility. And I do think it fair to say that in the current international environment there does seem to be evident a troubling shift toward crude might-is-right realism, with competition becoming ever more confrontational between the major powers, and an accompanying sense of retreat from cooperative internationalism and principle-driven behaviour.

This has been most evident in Russia’s waging of aggressive war against a sovereign state in indefensible defiance of the most fundamental international norm of them all, and the most fundamental rule of the UN Charter, and also its commission of multiple atrocity crimes in doing so; China’s ever more assertive regional behaviour and joining Russia in veto wielding in the Security Council; America’s comfort with waging trade wars, inability to live with anything less than global military primacy, and inability to conceive of any rules-based international order it does not dominate; the struggle of international institutions like the WHO, WTO, and the offices of the UNHCR and UNHCHR to have any effective impact on the major global problems with which they are wrestling; the ineffectiveness of regional organisations in curbing regional conflicts (like ASEAN in Myanmar); and the internal trends in so many countries toward illiberal democracy and outright authoritarianism which have fed into so many of their international postures.

All is not complete doom and gloom. Cooperative progress continues to be made on climate change; Russia has faced enormous international pushback on its legally and morally indefensible behaviour in Ukraine (albeit with not much support for this from most of the developing world); a global treaty to ban nuclear weapons (albeit with no buy in yet from any of the nuclear-armed states or their allies) has come into force with strong support from a majority of the world’s states; and the WTO has shown some recent signs of emerging from the paralysis that has gripped it in recent years.

But it’s much easier to find examples pointing in the opposite direction. And it's hard to find leaders anywhere uncompromisingly propounding the virtues of cooperative security, liberal internationalism, adherence to established international norms and what I would generally call good international citizenship – otherwise known as plain human decency in the conduct of international affairs. I would find it much more difficult now than I did five years ago to write a memoir with the title Incorrigible Optimist!

Use of Nuclear Weapons

Since the early 1950s – when it began to sink in that their destructive capacity really was infinitely greater than anything previously seen – the deliberate aggressive use of nuclear weapons has long been seen as inconceivable (at least in circumstances where the very survival of a state is not at stake) by the leaders of any country thinking of itself, as civilised, and wanting to be thought so by others.

Presidents Truman, Eisenhower and Kennedy rejected military advice to use nuclear weapons in the Korean War of 1950-53, the Taiwan Straits crises of the 1950s, and the Cuban missile crisis of 1962, and the force of this profound normative taboo has been repeatedly stated since. Even that extreme hard-headed Cold War realist US Secretary of State John Foster Dulles said that if the US had used nuclear weapons in Korea, Vietnam or against China over Taiwan, ‘we’d be finished as far as present-day world opinion was concerned’.

With the Advisory Opinion of the International Court of Justice in 1995 (a case in which I, as Foreign Minister and former Attorney-General, appeared representing Australia) came significant legal support for the principle that the use of nuclear weapons would always be indefensible under international humanitarian law – at least other than ‘in extreme circumstances of self-defence, in which the very survival of the State would be at stake’, an important qualification on which the court was strongly divided.

The most succinct high-level political articulation of the principle that nuclear weapons should be thought of as unusable was the Reagan-Gorbachev joint statement of 1985 that ‘a nuclear war cannot be won, and must never be fought’ – which was collectively reaffirmed by the P5, in their role as Nuclear Weapons States parties to the Non-Proliferation Treaty in January this year, as part of the lead-up to the just-concluded NPT Review Conference.

All that said, the norm against nuclear weapons use appears to be now on less solid ground than it has perhaps ever been, above all with Russia’s President Putin making multiple statements in the context of Ukraine, suggesting that he believed that nuclear weapons were very useable indeed, not just for deterrence but warfighting, especially using so-called ‘tactical’ (as distinct from ‘strategic’) weapons in the belief that by their use a conventional conflict can be terminated on favourable terms: the so-called ‘escalate to de-escalate’ doctrine. When Russia annexed Crimea in 2014 Putin announced his readiness to put Russian nuclear forces on alert, and actually did so in the immediate aftermath of his invasion in February this year.

In recent weeks Russian nuclear talk has been less strident, with more language indicating that the purpose of the country’s nuclear arsenal is to respond to existential threats to national survival, rather than less extreme scenarios. But there is no doubt that there has been more talk in more countries – not just Russia - in recent times of the salience of nuclear weapons than there has been in living memory, and the Bulletin of the Atomic Scientists has been perfectly justified in that context in moving, over the last three years, the hands of its famous Doomsday Clock to 100 seconds to midnight, the closest they have been in the clock’s long history, extending back to the height of the Cold War years.

Despite the coming into force of the Nuclear Ban Treaty (TPNW) early this year the dream of ‘global zero’ seems as far from realization as it has ever been. There is no prospect at all of any of the nuclear armed states, or the US’s ‘umbrella state’ allies like Australia, joining the treaty any time in the foreseeable future, and the overall state of play remains desolate:

• Despite the big reductions which occurred immediately after the end of the Cold War, and the continuing retirement or scheduling for dismantlement since by Russia and the United States of many more, over 13 000 warheads are still in existence, with a combined destructive capability of close to 100 000 Hiroshima - or Nagasaki-sized bombs.
• Around 6300 nuclear weapons remain in the hands of Russia, 5600 with the United States, and around 1300 with the other nuclear-armed states combined (China, France, the United Kingdom, India, Pakistan, Israel and—at the margin—North Korea).
• Past arms control agreements (incl ABM, INF, Open Skies and New START) are either dead or on life support.
• In our own Indo-Pacific region, delivery systems are being extended, weapons are being modernised and their numbers are increasing.
• A large proportion of the global stockpile—nearly 4000 weapons—remains operationally available.
• Most extraordinarily of all, some 2000 of the US and Russian weapons remain on dangerously high alert, ready to be launched on warning in the event of a perceived attack, within a decision window for each president of four to eight minutes.
• There are alarming signs that the nuclear taboo which has been an important inhibitor of aggressive first use of nuclear weapons in the past, is weakening – with the Russia’s President Putin talking up the useability of nuclear weapons, including tactical weapons, in language not heard since the Cold War years.
• NPT Review Conference has just ended with no agreed statement, with Russia – entirely predicably - vetoing the final draft because of its reference to the nuclear risks associated with its Ukraine incursion. Although there are some positives in that final draft text, initial hopes for a really strong focus on nuclear risk reduction, including explicit support for NFU, faded completely away in the final negotiating process.

All of this really does matter, because as the Australia-initiated Canberra Commission put it – ‘So long as any state has nuclear weapons, others will want them. So long as any state has nuclear weapons they are bound to be one day used, if not deliberately then through accident or misadventure. And any such use will be catastrophic for life on this planet as we know it’.

The fact that we have not had a nuclear weapon used in conflict for over seventy-five years is not a result of statesmanship, system integrity and infallibility, or the inherent stability of nuclear deterrence. It has been sheer dumb luck. Given what we now know about how many times the supposedly very sophisticated command-and-control systems of the Cold War years were strained by mistakes and false alarms, human error and human idiocy, given what we know about how much less sophisticated are the command-and-control systems of some of the newer nuclear-armed states, and given what we both know and can guess about how much more sophisticated and capable cyber-offence will be in overcoming cyber-defence in the years ahead, it is utterly wishful thinking to believe that this luck can continue in perpetuity.

To break out of the impasse in which we now find ourselves will require a number of things. Harnessing the power of emotion, to recapture among both publics and policymakers that sense of horror about the sheer indiscriminate inhumanity of these weapons that lies behind the normative taboo I began by describing. Harnessing the power of reason – by making the kind of hard-headed strategic arguments against nuclear weapons that are capable of moving policymakers - that in fact they are at best of minimal, and at worst of zero, utility in maintaining stable peace. And recognizing the necessity not to make the best the enemy of the good - by accepting that the only way of making any progress toward disarmament for the foreseeable future will be by focusing on minimization rather than elimination - on the kind of step-by-step risk-reduction agenda mapped out in the Japan-Australia ICNND initiated by Kevin Rudd in 2009.

Above all it will require from all the relevant political leaders around the globe the kind of moral and intellectual commitment to a nuclear weapon free world that we saw fleetingly from US President Obama, but which has gone missing almost everywhere since.

The Responsibility to Protect

If the question mark about the norm against the use of nuclear weapons is whether it will continue to be observed, that about the norm of the responsibility to protect populations against genocide and other mass atrocity crimes is when, if ever, it will be effectively observed at all.

Despite the enormous progress which seemed to have been made at the UN World Summit in 2005, when heads of state and government unanimously adopted the R2P principles (the British political and Holocaust historian Martin Gilbert – perhaps excessively, but I’ll take it – describing this as ‘the most significant adjustment to national sovereignty in 360 years’) there are now – seventeen years later -- plenty of cynical voices to be heard to saying that the whole enterprise has been a complete waste of time, or worse. And looking at the mass atrocity crimes that have continued to occur in places like Sudan, Sri Lanka, Myanmar, Yemen, Syria, and now Ukraine, and that’s not an easy argument to contest. But contest it I do, for reasons I will spell out.

First, the background. Slaughtering people not for anything they do, but simply for who they are – their national, ethnic, racial, religious, or political identity – is morally as bad as it gets. Yet in the twentieth century that was the fate of at least 80 million men, women and children, including Armenians in Turkey, Jews in Europe, suspect classes in the Soviet Union and China, communists in Indonesia, non-communists in Cambodia, Bengalis in former East Pakistan, Asians in Uganda, Tutsis in Rwanda, and Muslims in the former Yugoslavia.

With a new explosion of genocidal violence in the Balkans and Central Africa in the 1990s, it became apparent that, even after the horrors of the Holocaust and all the many developments in international human rights and humanitarian law that followed World War II, the international community was still a completely consensus free zone when it came to ‘humanitarian intervention’ or the ‘right to intervene’ to halt or avert mass atrocity crimes. Kofi Annan as UN Secretary-General put the challenge in stark terms to the General Assembly in 2000: ‘If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?’

Kofi Annan’s plea stimulated Canadian Foreign Minister Lloyd Axworthy to initiate the International Commission on Intervention and State Sovereignty – which he asked me to co-chair, with the Algerian diplomat Mohammed Sahnoun, leading an extraordinarily distinguished cast of characters including, among others, Cyril Ramaphosa, now President of South Africa and former Philippines President Fidel Ramos. And we came up in our 2001 report with a whole new way of approaching the problem of mass atrocity crimes committed behind sovereign state borders which at last made it politically possible for the global North and South to find common ground.

Four major factors contributed to our report’s favourable reception, which led to its core concepts being embraced – after a long and complicated diplomatic process which I won’t try to describe here – in the 2005 World Summit resolution adopted unanimously by the UN General Assembly. First, the language we used – the ‘responsibility to protect’ being much less inherently abrasive than the ‘right to intervene’. Second was our emphasis on multiple actors sharing that responsibility, not just the big military players. Third was our strong emphasis on preventive strategies, not just reactive ones. And fourth was our identification and support for a whole continuum of reaction measures, not just military ones but including diplomatic isolation, and sanctions and embargoes, and threats of International Criminal Court prosecution.

Our objective in crafting our report and recommendations concept was not to create new international legal rules nor undermine old ones. Our intended contribution was not to international relations theory but political practice. We wanted to create new standards of international behaviour which states would feel ashamed to violate, compelled to observe, or at least embarrassed to ignore. Above all, we simply wanted to ensure that when genocide, ethnic cleansing or other crimes against humanity or major war crimes were being threatened or committed behind sovereign state borders, the rest of the world would regard this as everyone’s business, not nobody’s business.

And that was the view which eventually prevailed five years later. The 2005 UN General Assembly resolution identified three distinctive ‘pillars’ of responsibility: that of a state to its own people not to either commit such mass atrocity crimes or allow them to occur (‘Pillar One’); that of other states to assist those lacking the capacity to so protect (‘Pillar Two’); and that of the wider international community to respond with ‘timely and decisive action’ if a state is ‘manifestly failing’ to meet its protection responsibilities – including ultimately with coercive military force if that is authorised by the Security Council (‘Pillar Three’).

So what is the status of those prescriptions today? My argument is that R2P was designed to be four big things – a normative force; a catalyst for institutional change; a framework for preventive action; and a framework for effective reactive action when prevention has failed – and that against these benchmarks, while there is zero room for complacency, if we take hard, objective stock of what has, and has not, been accomplished there is much to celebrate, and much still to be reasonably optimistic about on each of these four fronts, including even the last.

I have spelt out my argument in some detail elsewhere but in summary the key points are these.

Normatively, the concept of ‘the responsibility to protect’ has achieved a global acceptance unimaginable for the earlier concept of ‘the right of humanitarian intervention,’ which R2P has now rightly and almost completely displaced. Many states are still clearly more comfortable with the first two pillars of R2P– the responsibility of states to protect their own citizens, and to assist others to do so – rather than the third: taking timely and decisive collective action when prevention has failed. And there will always be argument about what precise form action should take in a particular case. But there is no longer any serious dissent evident in relation to any of the elements of the 2005 Resolution. The best evidence for this lies in the General Assembly’s annual debates since 2009, which have shown consistent, clearly articulated and overwhelming numerical support for what is now widely accepted as a new political (if not legal) norm, and in the more than one hundred resolutions and presidential statements referencing R2P that have now been generated by the Security Council.

Institutionally, R2P has brought more organized attention to civilian response capability, and to the need for militaries to rethink their force configuration, doctrine, rules of engagement, and training to deal better with mass atrocity response operations. Importantly, more than sixty states and intergovernmental organizations – most recently the Organization of American States – have now established R2P ‘focal points’ – designated high-level officials whose job is to analyse atrocity risk and mobilize appropriate responses. They have been encouraged to do so by indefatigable lobbying and secretarial support from the Global Centre for the Responsibility to Protect, the New York ad Geneva based NGO whose International Advisory Board – full disclosure! – I continue to chair, and whose website, I have to say, is an excellent resource for anyone interested in any aspect of R2P. I want to acknowledge in this context the strong support that successive Australian governments – both Coalition and Labor – have given to the whole R2P enterprise – as active members of the UN Friends of R2P group, and as generous donors to the Global Centre.

Creating a culture of more effective support for the institution of the International Criminal Court (ICC) is crucial not only for the trial and punishment of some of the worst mass atrocity crimes of the past, but to deter future perpetrators. Implementation of the ICC’s mandate may not always have been perfect in its early years, but the court does not begin to deserve the attacks upon its integrity it has endured from some African leaders and, above all, the Trump administration. There are encouraging recent signs that the wheel may be turning for international criminal justice, with the support now evident for the ICC’s Ukraine investigations, and also the momentum being generated by the Gambia-initiated case filed against Myanmar at the International Court of Justice (which adjudicates the behaviour of states, not individuals) for their atrocities against the Rohingya.

Preventively, R2P-driven strategies have had a number of successes, notably in stopping the recurrence of violence in Kenya, the West African cases of Sierra Leone, Liberia, Guinea, Côte d’Ivoire and The Gambia, and in Kyrgyzstan. Today, some volatile situations such as the ongoing crisis in Central African Republic, get recurring Security Council attention of a kind unknown to Rwanda in the 1990s. Strong civilian protection mandates are now the norm in peacekeeping operations. And the whole preventive toolbox—long-term and short-term, structural and operational—is much better understood.

But, although prevention is very much the regular UN flavor of the month – and has been the main focus of successive Secretary-General’s reports and General Assembly debates – action still lags behind the rhetoric. Part of the problem of getting sufficient resources to engage in successful prevention is the age-old one that success here means that nothing visible actually happens: no-one gets the kind of credit that is always on offer for effective fire-fighting after the event.

Reactively, is arguably where it matters most that R2P make a difference – stopping mass atrocity crimes that are under way, whether through diplomatic persuasion, stronger measures like sanctions or criminal prosecutions, or through military intervention. On the positive side have been success stories again in Kenya and Côte d’Ivoire, and (at least initially, in stopping the almost universally-feared massacre in Benghazi) Libya, as well as the partial successes that can be claimed for UN operations in the Congo, South Sudan, and the Central African Republic. But against these must be weighed serious failures in Sri Lanka, Sudan, Myanmar, Yemen and – above all - in Syria; as well as, one has to now add, Ukraine.

The crucial lapse in Syria occurred in mid-2011, when the Assad regime’s violence was one-sided and containable. Driven by the perception, not itself unreasonable, that the Western powers – the US, UK and France – had overreached in Libya by stretching a limited mandate to protect civilians into a regime-change crusade, a number of Security Council members then over-reached in the other direction. Seeing as they did another slippery slope ahead of them in Syria, there was no majority support for a resolution even just to condemn the regime’s violence against unarmed civilians. And with the Syrian leadership sensing its impunity, the situation deteriorated quickly into the full-scale civil war still dragging on disastrously today. Re-establishing Security Council consensus in these hardest of cases will be extremely difficult, not least with the current toxic dynamics of US relations with both Russia and China: though of course it is the case that the R2P reactive toolbox has plenty more tools – not least sanctions – which, unlike the use of military force, don’t need Security Council endorsement to be widely applied.

I should perhaps add, in the context of the use of military force, that one of the perennial criticisms of R2P is that its military dimension involves blatant double standards, never being likely to be invoked not only against a veto-wielding P5 member of the Security Council, but against any major military power that fails, however blatantly, to meet its R2P responsibilities. But that criticism is misconceived. What is involved here is not double standards but a realistic calculation of the balance of harm, one of the prudential criteria that should always be applied before any military action (other than self-defence) is undertaken against another country. No matter how badly China, for example, might behave in Xinjiang or Tibet, any military intervention would inexorably lead to full scale war, with casualties and immiseration on a much greater scale than anything that could conceivably have been averted by such action. Just as any direct military action against Russia by NATO or any of its members to stop the atrocities its invading military has been committing would inevitably trigger a much wider war – in the worst case a nuclear one – with an exponential increase in casualties and suffering.

Whatever the uncertainties that lie ahead in the medium term, I am optimistic enough to believe that R2P has a future, in all its dimensions. As one of those who conceived it, I can attest that R2P was designed for pragmatists rather than purists, with full knowledge of the messy reality of real-world state motivations and behaviour. It was designed not to create new legal rules but rather a compelling new sense of moral and political obligation to apply existing ones.

And for all that continues to go wrong, real progress has been made in achieving just that: a new norm of international behaviour which – overwhelmingly, if obviously not universally – states do feel ashamed to violate, compelled to observe, or at least embarrassed to ignore. It is notable that Russia has regularly invoked the language of R2P to try to justify its interventions in Georgia and Ukraine since 2008 – most recently with claims that Ukraine was committing ‘genocide’ against those of Russian ethnicity in the Donbas: these claims don’t pass any pub test for their accuracy, but they are evidence of the real salience of the norm.

While there will always be argument about what preventive or reactive tools are appropriate in particular cases – and while occasional thuggish defiance of any global consensus is, unhappily, probably inevitable – it is much harder than it used be to identify any state anywhere whose leadership sees no place for any toolbox at all.

I see little visible stomach anywhere for a return to the bad old days when genocide and other appalling crimes against humanity committed behind sovereign state walls were of no concern to anyone but their victims – when a Henry Kissinger could say to his Thai counterpart six months after the Khmer Rouge had marched into Phnom Penh, ‘You can tell the Cambodians we’ll be their friends. They’re murderous thugs, but we won’t let that stand in the way’. While ‘Never Again’ has too often in the past been a hollow cry, with the advent of R2P I think we can say it has at least recovered its power to shame.