International Law at the Coalface

Remarks by Gareth Evans at Melbourne Journal of International Law Annual Reception, Melbourne, 22 August 2006

I must at the outset make what to this company will be a rather shocking confession: I’ve never really focused on or been immersed in international law as an academic or intellectual discipline. Despite the best efforts of Hans Leyser some 40 years ago at Melbourne Law School to initiate me into its mysteries, and all the meddling with various bits of international law and practice that I’ve engaged in over many of the decades since, I’m afraid my knowledge of even the basics of the discipline is lamentably shallow: I’ve been fearing all evening being accosted by someone waving a cocktail sausage or pickled onion wanting to know what I thought about the current scope of ius cogens, and whether it’s reach is coterminous with obligations erga omnes. That sort of thing, I’m afraid, reduces me to the vapours.

I do stand in awe of the knowledge of almost everything under the sun that seems to be the stock in trade of the good international lawyer. And I stand even more in awe of the sheer, relentless productivity of the textbook writers among you, whose output seems better measured in kilograms, and in some cases tonnes, than mere pages. But I have to shamefacedly acknowledge that I’ve read only a minute amount of what you and your colleagues have written, not least in the no doubt thoroughly exemplary pages of the Melbourne Journal of International Law.

You might not be surprised – or as surprised as I would like you to be! – to learn that my modest understanding of its doctrinal underpinnings hasn’t stopped me having strong views about the role of international law in the scheme of things. I’ve been consumed, just about as long as I have been involved in public policy, with the notion of the centrality, and primacy, of a rule-based international order – above all in the area of peace and security. And I have had a lifelong admiration for those in this country and beyond, across the spectrum of elegance from Bert Evatt to Ninian Stephen, who have shared that passion and tried to do something about it in their practice of international law and diplomacy.

Part of my passion is straightforwardly based on Australia’s national interests, given the relative modesty, in global terms, of our political, economic and military power. Even when we seek, as we regularly have done throughout our history, to leverage up our influence and self-protection by shamelessly harnessing, and occasionally subordinating, ourselves to the interests of some great and powerful notional protector, I can’t believe other than that our interests, like just about everybody else’s, are best served by a rule-based rather than realpolitik-based international order.

The other main underpinning for that passion is a straightforward distaste - which remains unsuppressed despite years now of tramping diplomatic corridors and sitting around international conference tables – for the sheer moral indecency of conducting international life either without principled standards, or with double standards. For most international players, I’m afraid, familiarity tends to breed indifference, rather than contempt, for these things. But even the rigorous insensitivity training I received in 21 years of Australian party and parliamentary politics doesn’t seem to have overcome it in me.

All of which has made for considerable frustration as I’ve hacked away at the coalface, trying to make that vision of a rule-based international order actually mean something in practice. Apart from institutional reform of the UN itself, the most Quixotic enterprise of all, and an unequal struggle that I have after nearly twenty years of sustained effort just about abandoned, my own efforts have tended to focus on three inter-related but distinct areas –genocide and other crimes against humanity, the rules and principles governing the use of military force, and weapons of mass destruction. Just about all of those efforts have indeed been frustrated, but there have been a handful of highlights along with the low-lights along the way, and let me spend a little time remembering some of them with you.

Genocide and Other Crimes Against Humanity

My first real exposure at practical working level to the horrors of genocide and crimes against humanity came with my involvement in Cambodia. I had developed a strong affection for the country and its people from my backpacking student days in the 1960, had watched with horror the genocidal reign of Pol Pot and real distress the ongoing civil war that followed it, and was determined in government to try to do something about it, a chance that came with the peace process we initiated in 1989 that came to fruition in the Paris Peace Accords in 1991.

That experience taught me many things (including obvious ones, like never expecting the P5 countries to ever acknowledge that anyone other than themselves could possibly have made a major contribution to achieving a UN-focused peace settlement...). In particular it drove home to me the absolute necessity on occasion, to negotiate directly across the table with those who bear or share responsibility for great crimes (in my case the Khmer Rouge leader Khieu Samphan) if that’s what it takes to get a result. The notion now expressed by some of the great and powerful that there is something self-evidently wrong or inappropriate in dealing directly with an Iran or a Syria, a Hizbollah or a Hamas or a Kim Jong Il, seems to me to be self-evidently misconceived: the whole point of diplomacy is to find accommodation not with your friends but with those who are manifestly not.

One issue still not fully resolved in Cambodia, and preoccupying many of us in multiple situations around the world, is that of transitional justice: finding ways in post-conflict societies of satisfying the hunger for punishing the guilty, while at the same time not undermining the prospects for community reconciliation. The short answer for those who would seek a single model – based on South Africa’s Truth and Reconciliation Commission or anything else – is that there isn’t one: every situation is different, and the only safe guide for policy makers is to listen very carefully indeed to what people on the ground are telling them about how they want the balance struck; what kind of institutions, local or international or some hybrid of the two, they want engaged; and the extent to which they do genuinely want to put the past behind them and just move on.

I was a very strong supporter of the creation of the International Criminal Court, as a crucial new ingredient in overriding the culture of impunity that has sustained so many deadly conflicts in the past, and have with my senior Crisis Group staff spent many hours discussing with the Chief Prosecutor and his team the many issues and dilemmas that arise as the Court finds its feet. Perhaps the trickiest of all these dilemmas is the one that often arises when a conflict is still ongoing, and which is certainly troubling policymakers (and my own organization) right now in the cases of Uganda (with the Lord’s Resistance Army leaders under indictment), and Darfur (with senior government officials in Khartoum under investigation). The issue, as it’s often crudely put, is justice versus peace: whether indictments should be issued or proceeded with in cases where prosecution seems manifestly deserved, or rather some amnesty offered in the hope or expectation that it will shorten the conflict.

My own view is that some form of amnesty can be justified in exceptional circumstances, with a controversial but I think good example being Nigeria’s conditional protection of Charles Taylor from the jurisdiction of the Sierra Leone special court to get him out of Liberia in 2003 and avert a final battle for Monrovia which would certainly have cost many lives. But it’s always a question of case by case judgment, and the question boils down to whose judgment it should be. I would suggest that in the case of the ICC it is unfair and inappropriate to put the burden on the shoulders of the Prosecutor and the Court itself to exercise any necessary discretion here: far better for the prosecutor to focus single-mindedly on the prosecution process, letting the UN Security Council – as it could under a broad reading of Article 16 of the Rome Treaty – make any amnesty-type decision that the overall situation might justify.

The larger question raised by genocide and other major crimes against humanity, particularly since the end of the Cold War, is when if ever it is right for states to take coercive action, in particular military action, against another state for the purpose of protecting people at risk within it: the issue of so-called ‘humanitarian intervention’. Given the passionate attachment of many countries to their sovereignty, and the perception that Articles 2(4) and 2(7) of the UN Charter give them all the immunity from external attention they want, this was an extraordinarily divisive issue throughout the 1990s, with the catastrophes produced by non-forceful intervention in Rwanda and Srebrenica, and the argument about intervening without authority in Kosovo. The good news is that the international community is much closer to consensus now than it ever has been on the proper conceptual response to the questions in issue.

What we have seen over the last five years is the emergence, with astonishing speed - almost in real time - of a new international norm of really quite fundamental ethical importance and novelty in the international system, and one (dare I utter it in this company?) that may ultimately become accepted as a new rule of customary international law. The divisive discourse about a ‘right to intervene’ has given way to a wholly new conceptualization of the issue in terms of ‘the responsibility to protect’, viz. that while the primary responsibility for protecting its citizens from man-made catastrophe certainly remains with each sovereign state itself, in the event of a state failing to discharge that responsibility, as a result of either incapacity or ill-will, then it shifts to the wider international community, which has the responsibility to act, as forcefully as ultimately proves necessary, to halt or avert the harm in question.

I was present at the creation of the responsibility to protect concept, or ‘R2P’ as aficionados now call it for short, in my capacity as Co-Chair of the Canadian-government sponsored International Commission on Intervention and State Sovereignty, which produced its report of that name in 2001. I also had the good fortune to be a member of the Secretary-General’s High Level Panel on Threats, Challenges and Change, which generated the key peace and security recommendations for last year’s World Summit, and was able in that role to ensure that the merits of the ‘R2P’ were fully understood and embraced. And I was actively involved in a good deal of the lobbying which led to that concept (though very little else) being adopted as one of the unanimous resolutions of that Summit, meeting as the UN General Assembly, although most of the credit goes to the Secretary General himself, who was indefatigable in his support, and then Canadian Prime Minister Paul Martin who actively lobbied key holdout states at the last minute – an example which if emulated by other heads of government in other areas might have meant a good many more reform measures being agreed.

The emergence and general embrace of the R2P idea is a contribution to public policy of which I am very proud, and which I hope will prove enduring. Further good news in this respect is that the concept has been embraced not just by the General Assembly but also now, in April this year, by the Security Council itself, the only UN organ which purports to exercise real executive authority. But I have to acknowledge that the story is incomplete. The less good news is that there has been little evident will so far by the Security Council to put practical operational flesh on the conceptual bones, in Darfur or anywhere else. And, not least because of the misuse of the R2P concept by some countries to justify the intervention in Iraq (as the WMD and terrorism rationales fell away), the forces of resistance to the whole idea of the responsibility to protect still remain quite strong, particularly in the Arab-Islamic world and our own Asian region. The real test will be when the next unequivocally clear and conscience-shocking Rwanda-type case comes along, as it is unhappily bound to. I can’t guarantee that the international community will not, yet again, be found wanting.

The Use of Force

One of the main pieces of unfinished business in relation to R2P, and indeed in relation to peace and security issues more generally, has been the unwillingness of the World Summit last year or the Security Council to accept the parallel recommendations of the Canadian ICISS commission, the High Level Panel and the Secretary-General that a set of guidelines be adopted by the Security Council as to when it is, and is not, appropriate for military force to be used. One of my remaining missions in international life is to try to achieve some further progress on this front, an aspiration that has not been lessened by recent events in the Middle East, and the recurring enthusiasm expressed by many policymakers and commentators who should know better for the concept of preventive war.

The context here is not just the narrow one of coercive intervention in the exercise of the responsibility to protect, but any exercise of military power under Ch VII of the UN Charter - and indeed the evaluation of the legitimacy of any purported exercise of the self-defence power under Article 51 of the Charter. The proposed principles, five ‘criteria of legitimacy’, are straightforward, and have a long pedigree in Christian ‘just war’ theory, while at the same time not offending any other established mainstream religious or cultural precepts governing the use of force. In short they are the seriousness of the harm being threatened; the primary intent or purpose of the proposed military action (whether it’s to halt or avert that harm or for something else); the issue of last resort (whether there are reasonably available peaceful alternatives); the proportionality of the response; and the balance of consequences – whether more good than harm would be done.

It’s not a realistic aspiration to imagine these principles being codified any time soon into formal international law. There may be now a highly developed body of international humanitarian law governing how force is to be used, particularly as it affects civilians, in the context of a conflict once started (ius in bello, as you know much better than me), even if this law is, as often as not, honoured more in the breach than the observance. But so far as ius ad bellum is concerned (and please correct me if I’ve mixed them up…) once one gets beyond the bare bones of Article 51 and Chapter VII, there is a lamentable shortfall of agreed principles about the conditions under which resort to war is justified in the first place, and no evidence of any real willingness by any of the major players to fill the vacuum.

As I’ve found for my pains in endless debates on this issue in the corridors of the UN and in capitals, in the case of the U.S. (and some of the other P5 members peering from behind its skirts on this issue) it’s a matter of not wanting to inhibit maximum freedom of action to act ad hoc, case by case; in the case of many G77 countries (or at least the group’s more cynical leading members) it’s a matter of not wanting to embrace anything that implies that the use of force is ever permissible.

The argument for having a set of agreed guidelines, with moral but not legal force, is not that they would be self-executing, producing agreed outcomes with push-button consistency, or even that they would be observed at all. As I had occasion to say, in another context, to a retreat for UN Security Council members a couple of years ago, in the immortal words of Australian Prime Minister Ben Chifley, “the trouble with gentleman’s agreements is that there are not enough bloody gentlemen.” The argument is simply that with such guidelines in place, with much press and commentariat attention being then focused on how well the arguments for and against each of them are standing up, the chances of having no debate at all on their substance would be much diminished, and the prospects of finding real consensus on what are, and are not, suitable cases for military treatment would be much enhanced.

Weapons of Mass Destruction

The highlight here for me was undoubtedly the role Australia played in bringing to conclusion in 1992, after some twenty years of very inconclusive negotiations, the Chemical Weapons Convention, which remains the most comprehensive of all the various WMD treaty regimes – an achievement that so exhausted the Geneva Conference on Disarmament that it hasn’t until very recently been able to agree even on an agenda for negotiating anything else! Along with doing a mass of very professional treaty-drafting, one of the most useful of all the catalytic roles we played was convening in 1989 a global conference in Canberra of all relevant government and chemical industry players, which did more than anything else to get the diplomatic endgame going. The idea for that initiative in fact came from the then US Secretary of State James Baker, who in a phone call from mid-Atlantic said to me in almost these words: ‘we have too much baggage to do this ourselves; you guys are knowledgeable, and have a reputation for real independence of mind, so you wont be seen as just carrying our water’. Those were the days…

We also expressed some independence of mind in arguing before the International Court of Justice for the illegality of nuclear weapons, in the 1996 case initiated by the UN General Assembly which succeeded in some of its objectives but – like most advisory judgments of that august body – has not done much to change the world’s behaviour. That was the only occasion on which I ever appeared before the ICJ, and I remember it best for the total inconsequentiality of the oral proceedings, with uninterrupted set-piece presentations and absolutely no questioning or other substantive exchanges between bench and bar. I enjoyed the majestic formality of it all, but my part could perfectly well have been played by a well-trained Major Mitchell cockatoo.

The Labor government also showed some independence of mind in initiating the Canberra Commission on the Elimination of Nuclear Weapons, which gathered together an extraordinary cross-section of the world’s best minds on these issues, including former heads of the UK defence forces and US Strategic Air Command, to produce a strongly argued unanimous report, the key lines of which still resonate and have been picked up directly in the just-published report of the Blix Commission on Weapons of Mass Destruction (not altogether surprisingly, since I was a member of it) : “So long as any state has … nuclear arms others will want them. So long as any such weapons remain in any state’s arsenal, there is a high risk that they will one day be used, by design or accident. And any such use would be catastrophic.”

The essence of the Blix Commission’s argument, like the Canberra Commission before it, is that while nuclear weapons cannot be uninvented, they can – with sufficient international will – be outlawed, as chemical and biological weapons have been, and that, not least because of the double standards issue, not much progress is likely to be made on non-proliferation unless visible progress is also made on disarmament by the nuclear weapons states. These themes continue to preoccupy me now in the very extensive and detailed work the International Crisis Group has been doing on possible solutions to the current stand-offs in relation to North Korea and Iran, and as recently as last week in discussions I had in New Delhi on the India-US nuclear deal. But it’s very hard going getting sanity, rationality and proper attention to the underlying issues of principle into this debate: politics of one kind or another always seems to triumph, as it seems to now be the case, for example, in Britain with the non-debate over the Trident replacement. One of my greatest disappointments was that the Canberra Commission report, published after the change of government in Australia in 1996, was effectively disowned by the Howard administration, although a coalition of other states led by Canada did work hard to put it on to the international agenda.

Not all of my experiences with the Canberra Commission were ones of unrelieved gloom, however. Putting together the membership of the commission – a critical, but often oddly haphazardly neglected, element in getting good, credible results from these bodies – had its moments of delight, not least when I called former British Prime Minister James Callaghan asking him to participate. “I’m afraid, my dear boy, I couldn’t possibly do the job justice”, he said, “I’m a cloof you see”. “What on earth”, I asked him, “is a ‘cloof’?”. “A Clapped Out Old Fart, of course”, he replied.

I think I know better now how he feels. And perhaps that is an appropriate note on which to conclude, wishing you well in your endeavours to educate and inform the next generation of international lawyers rather more successfully than your predecessors manifestly succeeded with me.