Protecting the Vulnerable: How Lawyers Can Help

Keynote Dinner Address by Prof the Hon Gareth Evans AO QC, Chancellor of ANU and President Emeritus of International Crisis Group, to the 2010 Australian Law Students’ Association (ALSA) Conference, Adelaide, 12 July 2010

When I first started studying law, back in ancient times – a couple of your lifetimes ago, back in the early ‘60s – law students looked a little different from the way most of you do now: the guys all wore short hair, tweed jackets, skinny ties, grey trousers and brown suede shoes; the girls angora twin-sets, pearls and tweedy skirts, the only redeeming feature being that hair grew longer and skirts dramatically shorter as the decade progressed. The overwhelming majority of my contemporaries did law because they wanted to practice it: or thought they wanted to or, perhaps more often, knew their parents wanted them to. For some of them it wasn’t so much law as such, but that it was a professional degree – and med was out because they couldn’t cope with the maths or the blood.

There were a few who did law for other reasons: that it would look good on their CVs if they decided to go into business, or diplomacy or maybe even politics; and even a handful who thought that – wherever else they ended up – it might at least be useful to have the rigorous intellectual training, in logical and linear thinking, that a law degree then, as now, was rather optimistically thought to involve. But I don’t think there was anybody much who did law because they were passionate about public policy, about social and institutional change, about serving the community, and saw law – and a legal training – as a vehicle for achieving it.

I can’t pretend that at the time I had any very clear, let alone radical, vision of what I wanted to do with my own law degree. As a working class kid from a respectable family I grew up without any exposure to the legal profession whatsoever. I did law basically because I could – because I had the marks to get in, because it was a flash professional degree that didn’t involve cutting people up or drilling teeth, and because (when combined with Arts) it went on long enough for me to have a great time at university. Which I duly did, paying far more attention to student politics, and the other pleasures of 60s student life, than I ever did to Property, Mercantile Law or Equity.

The idea of law as a vehicle for human liberation, for protecting human dignity and advancing human security in the broadest senses, and not as a source of limitation or constraint – not just something you practised as a technical vehicle for the rational management of personal, business and property affairs and community safety – was not then central to anyone’s thinking. It certainly didn’t feature very largely on the program of law student society conferences, or at least not Melbourne’s: the annual preoccupation for us, as I recall it, was who would win that year’s Harry Curtis Trophy – a fur-lined jockstrap – as the perpetrator of the weekend’s worst social atrocity.

This was a time when books and plays were banned, people were still being executed, abortion was completely illegal, there were no administrative law protections worth the name, racial or sexual discrimination or land rights legislation was undreamed of, and there were no Aboriginal legal services or community legal services as we would now recognize them. Law reform commissions, if they existed at all, worked on cutting edge issues like negotiable instruments and cattle trespass.

I cut my own teeth as a law reformer – and as someone who gradually came to the belief that law and a legal training could be harnessed in the cause of great public policy developments – mainly through my involvement, as a campus rather than law school activist, on issues such as anti-censorship, anti-capital punishment, abortion law reform and anti-apartheid. A little bit later, as an articled clerk in a small city law firm, which had previously given as much attention to social justice as it had to hunting elephants, I generated a number of near heart-attacks among the partners after persuading them to take on some extravagant but doomed litigation, which became a considerable cause célèbre at the time, on behalf of the teenage son of a mud-brick dwelling artist from Eltham who had been expelled from school because his hair was too long (closer to his waist, I have to concede, than his collar). And it was in this period, and the years after, that I really started to get concerned about indigenous people – and particularly kids – breaking out of the cycle of criminality and neglect to which they had been condemned by generations of legal mismanagement.

But I guess my real awakening to the sense that a legal career could involve something a bit more emotionally satisfying than sorting out drainage easements came after my return from study in Oxford as a lecturer in law at Melbourne University, teaching constitutional and a variety of civil liberties-law related courses – and in an environment where I had the time and, as an academic, some credibility (those were the days!) – to work on changing public attitudes and political directions. I also had the benefit of being reasonably close to the action in Canberra, where during the Whitlam Government I worked as an adviser on human rights issues to Attorney-General, and on the emerging issue of land rights to the Aboriginal Affairs Minister.

So for most of the decades of the 70s and 80s I was consumed – as a young agitator, academic and policy adviser, then as a somewhat less young opposition member of parliament and eventually minister – with a series of major domestic law reform crusades. The issues included sex and race discrimination legislation, trying to get support through Lionel Murphy as Attorney for a full-scale legislated bill of rights, arguing as a member of Michael Kirby’s new Australian Law Reform Commission for significant liberalization of criminal investigation law and procedure, and fighting the breaches of constitutional convention which had occurred in 1975 and on constitutional reform issues more generally. Then, when I became Attorney-General myself, in the early ‘80s, I tried not only to keep all these balls in the air, but added to them efforts, among many others, to further liberalize family, anti-discrimination and freedom of information law, and to introduce a more aggressive approach to environmental protection law. I’ll spare you now any more detailed stories of all these efforts to use essentially legal strategies to improve the quality of governance in general and protect the vulnerable, but I bear some of the scar-tissue to this day…

For most of the two decades which followed – the ‘90s and the noughties, which brings me rather closer to your own generation – I have been much more preoccupied with international than domestic issues, first as Foreign Minister for nearly eight years to 1996, then as President and CEO of the International Crisis Group for ten years after 2000, and throughout that time as a member of various international policymaking commissions and panels. While law-related issues were a constant preoccupation in a whole variety of problem areas on which I worked – for example the need to have much more effective rule-of-law delivery as core components of peacekeeping and peacebuilding missions, and the need to somehow reconcile the competing claims of peace and justice when trying to resolve conflicts – there are two big policy issues I have pursued more than anything else during this period, and on which I want to focus a little more specifically this evening: eliminating mass atrocity crimes, and eliminating the threats posed by nuclear weapons. Both of these areas have been characterized by a failure of both international law and international policy to protect those who should be protected, and my mission in life has been to at least try to energise a much more effective response by the international community.

In coming to grips with the issue of mass atrocity crimes – genocide, ethnic cleansing, and other large scale war crimes and crimes against – committed within a sovereign state, the starting point is to recognize that until very recently there was simply no generally accepted principle in law, morality or state practice to challenge the core notion that it was no-one’s business but their own if states murdered or forcibly displaced large numbers of their own citizens, or allowed atrocity crimes to be committed by one group against another on their soil.

Even after World War II, with the awful experience of Hitler's Holocaust encouraging the embrace of new legal norms – the recognition of individual and group human rights in the UN Charter and, more grandly, in the Universal Declaration; the recognition by the Nuremberg Tribunal Charter in 1945 of the concept of “crimes against humanity”; and the signing of the Genocide Convention in 1948 – things did not fundamentally change. The overwhelming preoccupation of those who founded the UN was not in fact human rights or internal conflict but the problem of sovereign states waging aggressive war against each other. And what actually captured the mood of the time, and the mood that prevailed right through the Cold War years, was, more than any of the human rights provisions, Article 2(7) of the UN Charter: "Nothing should authorise intervention in matters essentially within the domestic jurisdiction of any State". The state of mind that even massive atrocity crimes like those of the Cambodian killing fields in the mid-70s were just not the rest of the world’s business was dominant throughout the UN’s first half-century of existence: Vietnam’s invasion, which stopped the Khmer Rouge in its tracks, was universally attacked, not applauded. And Tanzania had to justify its overthrow of Uganda’s Idi Amin by invoking ‘self–defence’, not any larger human rights justification.

It was not until the 1990s that anything resembling a serious international debate really took about these issues, in the context of successive tragedies unfolding in Sub-Saharan Africa and the Balkans. But it was an essentially one-dimensional debate, about the rights and wrongs of “humanitarian intervention”, i.e. the use of coercive military force, for human protection purposes, against the will of the government of the country in question. And essentially for that reason there was a conspicuous lack of international consensus. Those in the global North tended to rally behind the rallying cry of the “right to intervene”; but in the global South the prevailing mood was defence of state sovereignty at almost any price – hardly surprising given that so many of them were newly born, very proud of their hard-won sovereignty, very conscious of their fragility, and all too conscious of the way in which they had been on the receiving end in the past of not very benign interventions from the imperial and colonial powers, and not very keen to acknowledge their right to do so again, whatever the circumstances.

In this environment, with the only seriously debated policy options being “Send in the Marines” or do nothing on the other, it is not surprising that in the cases where effective international action was desperately needed there was no agreement at all, resulting either in no interventions at all occurring (as in Rwanda), or when they did their UN mandates being either half-baked (as in Bosnia) or non-existent (as 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. The divisive discourse of the 1990s about “humanitarian intervention” has almost completely given way to a wholly new conceptualization. Although most of the international law texts which address this issue at all still seem to be preoccupied with the earlier formulation, the issue – since the 2005 World Summit, in effect the UN General Assembly sitting at head of state and government level, unanimously adopted the new approach – is no longer about anyone’s “right to intervene” but rather everyone’s “responsibility to protect”.

And what that means is clear: while the primary responsibility for protecting its citizens from man-made catastrophe certainly remains with each sovereign state itself, and while there is a secondary responsibility for other states to assist them to so act, in the event of a state failing to discharge that responsibility, as a result of either incapacity or ill-will, then the responsibility shifts to the wider international community, which is obliged to act, as persuasively or as coercively as ultimately proves necessary, to halt or avert the harm in question.

What we have seen over the last six years is the emergence, with astonishing speed, of a new international norm of really quite fundamental ethical importance, that may ultimately become accepted as a new rule of customary international law – though I certainly would not claim that state practice brings it near that point yet. The best evidence that some really fundamental mindset change is at work is I think to compare and contrast the swift and effective international response to the awful ethnic violence which broke out in Kenya at the beginning of 2008, to the dismissive turning away which characterised the unfolding genocide in Rwanda fourteen years earlier.

In terms of my own involvement in all of this, I was present at the creation of the responsibility to protect concept 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 the 2005 World Summit, and was able in that role to ensure that the merits of the were fully understood and embraced. I was reasonably actively involved – although others played much more important roles – in the political and diplomatic lobbying which led to that concept being adopted as one of the unanimous resolutions of that Summit. And I have remained active since fighting off various rearguard actions – so far unsuccessful – to subsequently undermine that consensus in the General Assembly and elsewhere.

I am deeply conscious that the job of consolidating and ensuring the effective implementation of the new norm is very far from complete. There are conceptual challenges – in particular to ensure agreement on definitional questions, as to what are specifically “responsibility to protect” situations, and what may be better characterised as more familiar conflict or human rights violation cases. There are institutional challenges – to ensure that there are early warning and response focal points established within all the key governments and intergovernmental organizations; to have in place civilian capability for diplomatic mediation, civilian policing and other critical administrative support and, at least in a standby capacity, rapid response military capability, to ensure available support in the most extreme cases which can’t otherwise be addressed. And there is the political need to be able, working with major governments and global NGOs, to quickly mobilize and sustain support for effective response when ugly situations arise. All that means lots more work for me – and hopefully for some of you – in the years ahead, but I think we can be reasonably pleased with what has been achieved so far.

If saving vulnerable groups from mass atrocity crimes has been a long, tough haul, with a long distance still to go, saving whole populations from destruction by the most indiscriminately inhumane weapons ever invented is a tougher and much longer-haul effort still – certainly the most difficult and intractable policy issue with which I have ever been involved. But tackle it the world must, because the risks associated with the retention and proliferation of nuclear weapons – in defiance of the only global legal framework we have now in place to control them, the Nuclear Non-Proliferation Treaty – are simply too indescribably immense to ignore.

In short, twenty years after the end of the Cold War there are some 23,000 nuclear weapons still in existence, with a combined destructive capability equivalent to 150,000 Hiroshimas; over 7000 of them are actively deployed and some 2000 still on alarmingly high minutes-to-launch alert. With all that we now know about how close the very sophisticated US-Soviet command and control systems came, on multiple occasions, through machine or human error, to delivering catastrophe; with all that we know about how much less sophisticated some of the newer-weapon-states’ systems now are; and with all that we know now about the extraordinary potential for delivering misinformation or worse through cyber attack; with all that we know now about the potential threat posed by non-state terrorist actors getting their hands on nuclear weapons or material; and with all that we know about the various weaknesses that continue to exist in systems for storing and securing such weapons and material – it is sheer dumb luck, not a matter of good political and military leadership or inherently reliable systems management, that the world has not so far sustained in the 65 years since Nagasaki a major nuclear weapons catastrophe.

Add to that the risks associated with new states – and not just North Korea and Iran – joining the ranks of the nuclear-armed proliferators, and of the likely dramatic increase in the number of civil nuclear power stations in the next twenty years or more being accompanied by more new states acquiring national uranium enrichment and plutonium reprocessing facilities (‘bomb starter kits’, as these have been called without undue exaggeration), and it is evident that there is simply no scope for complacency about the nuclear future. Maintaining the status quo is simply not an option.

One of the first ways in which I became involved in addressing these issues at a high policy level took a very legal form, when in the mid-90s Australia joined the case before the International Court of Justice that had been initiated by the UN General Assembly, arguing for the illegality of nuclear weapons. The Court’s advisory opinion in 1996 went some of the way down that path but not as far as we would have liked, and – not unusually for such opinions –did not do as much to change the world’s behaviour as we would have liked. That remains the only occasion on which I ever appeared before the ICJ, and I have to say 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 other really major nuclear initiative of the Hawke/Keating Governments was our sponsorship of 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, making for the first time at this level a compelling case for a nuclear weapons free world, in terms that have been widely quoted ever since: “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.”

Unfortunately the Canberra Commission’s reported only after we left office in 1996. Its recommendations were not taken up with any enthusiasm by the incoming Howard Government, and for all their force, the world moved into a period of sleep-walking on nuclear non-proliferation and disarmament from which it has only just emerged over the last two years, driven above all by the advent of the Obama administration in the U.S. Riding this wave, and making up for lost time, the Rudd government established in 2008 a successor to the Canberra Commission which I have had the pleasure of chairing with my former Japanese Foreign Minister colleague, Yoriko Kawaguchi, the International Commission on Nuclear Non-Proliferation and Disarmament.

The value-added of the 300-page report we produced in December last year, in time to feed in specifically to the recently concluded – and mercifully reasonably successful – 2010 NPT Review Conference, has been generally acknowledged around the world to be four-fold: its timeliness; the stature and global representativeness of its commissioners; its comprehensiveness, addressing the full range of disarmament, non-proliferation and peaceful uses issues and all the interconnections between them; and, above all, its hard-headed realism – never losing sight of the ultimate goal of absolute abolition, not just reduction, of nuclear weapons, and mapping a clear and detailed path, with a number of specified timelines, for getting there, but at the same time fully recognising all the constraints and obstacles that will have to be overcome on the path to global zero.

The Commission had its final meeting in Vienna last week, to review where the world now stands on these issues after the NPT Review Conference, and the many challenges that lie immediately ahead, not least ensuring that new rounds of serious deep reduction treaty talks get started soon between the U.S. and Russia (who between them hold 95 per cent of the world’s present nuclear weapons stockpile), that the Comprehensive Test Ban Treaty finally comes into force, and that after more than a decade of inactivity the Geneva Conference on Disarmament gets started immediately on negotiating a new treaty banning completely any future production of fissile material for weapons purposes.

The Commission has recommended that, as its particular legacy for the future, there be now established a new independent non-government Global Centre for Nuclear Non-Proliferation and Disarmament, possibly based here in Australia, but with a genuinely international character and outreach and possible elements located in Geneva and Vienna, with whose national governments, as well as our own, I talked last week about financial support. The primary role of the Centre would be to produce, under the guidance of a distinguished international board, a comprehensive and punchily-written annual report card on the world’s progress, or lack of it, on all relevant issues. And an important further role for it would be to initiate and coordinate worldwide research and development of an all-embracing Nuclear Weapons Convention, as an intellectual foundation for eventual multilateral disarmament negotiations, and for which there is strong support from civil society and a number of governments.

Although it will be clear enough from the adventures I have been describing that my international preoccupations over the last two decades have been primarily general policy-focused rather than specifically legal, I think it is important to emphasise for present purposes that the foundations for both the atrocity crimes and nuclear efforts, and a number of the treaty-based remedies which I have been pursuing, have always been essentially legal in character: my total commitment to a rule-based international order, not least when it comes to human protection issues, and my comprehensive distaste for the sheer moral indecency of conducting international life either without principled standards, or with double standards. That distaste, I have to say, remains unsuppressed despite years now of tramping diplomatic corridors and sitting around international conference tables, not to mention all the rigorous insensitivity training I received in twenty-one years of Australian party and parliamentary politics.

I know that a great many of you here, and the law students you represent around the country, share exactly those values, and have a deep interest in using your law degrees as a foundation not just for life in ordinary micro-focused case by case, client by client, legal practice, as rewarding as that can be, but on doing something broader, at a more macro-policy level, be it domestically or internationally. I would strongly encourage those of you who think this way to do just that.

I have recently become aware that the Sydney University Law Society is about to publish within the next few months a “Social Justice Careers Guide” which shows how students can use their law degrees to get a toehold in any one of a number of non-traditional but hugely rewarding professional career areas, including in advocacy organisations, think-tanks and research institutes, academic institutions, law reform commissions and international organizations ranging from the UN to major global NGOs. I don’t know whether similar initiatives to this exist or are planned elsewhere around the country, but if not I would urge you to follow the Sydney lead, which seems to me immensely useful and worthwhile

Just a final word to add to the too many I have already uttered. You don't have to get to be attorney general or foreign minister or head of a major international NGO to make a difference in a great many of these areas. Passionate and caring individuals in all walks of life, who choose to direct even just part of their energies to working for public goods, can make an impact in innumerable ways. And to take on these roles is a wonderful way not only of helping others, but of giving substance and satisfaction to your own professional and personal lives.

Devoting your professional life to this kind of social justice and public policy effort has innumerable frustrations and disappointments, and reverses and dips and u-turns, as I can testify better than most: you practically never achieve as much as you'd like to. But it's fantastic when something, just occasionally, goes more or less right, and you feel that you really have made a difference. You're never going to make much money doing this kind of thing, but you'll be immensely well rewarded in all sorts of other ways. When you look back in many years time on your brilliant careers I think you'll agree that of all the rich lists it's possible to be on, the one that counts is the personal satisfaction rich list.

Good luck to all of you in pursuing those careers, and thank you for the opportunity to talk to you.