International Law and Global Policymaking: Life at the Coalface

Presentation by Professor the Hon Gareth Evans AC QC to University of Melbourne Law School 2012 Global Thinking Lecture Series, Melbourne, 6 August 2012

In talking about my own adventures in international law policymaking and practice, I must at the outset make what to this company will be a rather shocking confession. Despite the best efforts of Dr Hans Leyser more than 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 have engaged in over many of the decades since, I have to admit that my grasp of the basics of the discipline is still lamentably shallow: if you were to ask me, for example, what do I think about the current scope of ius cogens, and whether it’s reach is coterminous with obligations erga omnes, you will find me, I fear, rather quickly reduced to the vapours. Whatever I’ve learned about international law has come far less from studying than from doing.

What I can claim is that my modest understanding of its doctrinal underpinnings and detailed case law has not 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.

Part of my passion is straightforwardly based on national interest, given the relative modesty, in global terms, of Australia’s 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 for the sheer moral indecency of conducting international life either without principled standards, or with double standards - which remains unsuppressed despite years now of tramping diplomatic corridors and sitting around international conference tables. 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 that distate 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 more than twenty years of sustained effort just about abandoned, my own efforts have tended to focus on four inter-related but distinct areas –responding effectively to genocide and other crimes against humanity, reconciling the demands of peace and justice in conflict prevention and resolution, clarifying the rules and principles governing the use of military force, and achieving the elimination of weapons of mass destruction. Let me say something about each of them.

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 1960s, had watched with horror the genocidal reign of Pol Pot – in which young people I knew, and scores of thousands more like them, were murdered – and with real distress the ongoing civil war that followed it. I was determined in government to try to do something to bring that conflict to an end once and for all, 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 any of the Permanent Five members of the Security Council to ever acknowledge that anyone but 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 whole point of diplomacy is to find accommodation not with those who are your friends but with those who manifestly are not. (For those of you interested in the actual diplomatic strategy of this negotiation, I should perhaps add that what brought peace to Cambodia was an approach that did not yield concessions to the Khmer Rouge but rather isolated it: by proposing as we did that the UN play an unprecedentedly central role in the transitional administration of the country, we gave China a face-saving way of withdrawing its support for the Khmer Rouge, the continuation of which in the past had stymied all previous peace efforts.)

There is a larger question thrown up by the Cambodian case, which came to a boil in public debate during the 1990s as a result of a series of catastrophes in the Balkans and Africa –especially the horror of Rwanda in 1994 – and which continues to haunt us to this day with events in the Congo, Darfur, Sri Lanka, Libya and Syria. What on earth we can do as an international community to ensure that we never again have to look back, after yet another mass atrocity crime has been perpetrated behind sovereign state walls, asking ourselves – with a mixture of anger, incomprehension and shame – how we could possibly have let it happen again? How do we overcome the lingering legacy of that reading of Articles 2(4) and 2(7) of the UN Charter which says that, despite all the international human rights instruments that have been developed since the Second World War, these crimes are internal matters, no-one else’s business?

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 “the right of humanitarian intervention” has almost completely given way to a wholly new conceptualization: the “responsibility to protect”. The core idea, unanimously embraced by the UN General Assembly sitting as the 2005 World Summit, is that  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.

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, and have been very actively involved in the international debate about its meaning, scope and implementation ever since. A crucial piece of  good fortune was being appointed by Kofi Annan 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  keep the R2P idea alive. I was also 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 – though ultimately the credit for squeezing it through rests with the S-G himself, one or two activist leaders (notably the Canadian Prime Minister), some very dedicated diplomats working in the engine room (especially the Australian ambassador to the UN John Dauth),  and the sub-Saharan Africans who made it clear to their developing country friends that, when it came to mass atrocity crimes, they saw indifference as a greater sin than intervention.

I can testify from participation in quite a few of these panels and commissions and lobbying exercises as to what actually works best in practice: tenacity and a thick skin matter are at least as important as good arguments, and when it comes to persuasive arguments it helps a great deal if one can rest your case not just on high principles but on some national interest ground. As the Depression-era NSW Premier Jack Lang once famously mentored a young Paul Keating, “In any horse-race, son, always back the one called Self-Interest. He’ll be the only one trying.” Or as Secretary of State Jim Baker once rather memorably put it to me in another context I don’t think I now want to remember, using his Texan drawl to full effect: “Sometimes, Gareth, you just have to rise above principle.” The self-interest argument that I found had most impact in the present context was that states that cannot or will not stop internal atrocity crimes are just the kind of states that cannot or will not stop terrorism, weapons proliferation, drug and people trafficking, the spread of health pandemics and other global risks that many, many countries fear will affect them.

I won’t try to retell here the rather tumultuous story of the evolution of R2P since  2005 – what might be described as a rather tortured adolescence period for the first five years, with many attempts to derail the new norm and much anxious debate about its scope and limits; then the triumphant coming of age in early 2011 with the embrace and textbook application of the doctrine by the UN Security Council to stop massacres in Cote d’Ivoire and Libya; then the mid-life crisis we seem to be now witnessing in the Council’s complete paralysis in the face of an even worse situation in Syria, based on the argument by Russia, China and others that P3 countries had stretched their civil protection mandate beyond endurance in the way the NATO-led intervention in Libya was actually conducted.

My own view is that, just as any celebration about the triumph of the R2P principle would have been premature after the Libyan resolutions early last year, so too would be despair now about its future. What we do know, on the evidence of the major debates on R2P that have taken place in UN General Assembly in each of the last three years is that, even at the height of the concern last year about claimed over-reach of the Security Council’s mandate in Libya, the overwhelming majority of member states remain fully supportive of the new norm. Secretary-General Ban Ki-Moon was not exaggerating when he said last September, “Our debates are about how, not whether, to implement the Responsibility to Protect. No government questions the principle”.

Resolving the “how” question, especially in cases where early-stage prevention, if any, has manifestly failed, is never going to be easy. What has to be accepted, and treated as a challenge rather than cause for despair, is that there is always going to be tough debate about the really hard cases, where   violations that are occurring are so extreme that the question of coercive military force comes into play as something which, prima facie at least, might have to be seriously contemplated as the only way to halt or avert the harm that is occurring or feared. The higher the stakes, the higher the emotion and the more that realpolitik will come into play.

Justice, Reconciliation and Peace. One issue that has been at best only partially resolved in Cambodia 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 have been 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 and the perpetration of so many terrible atrocities in the past, and when I was head of the International Crisis Group spent hours discussing with the Chief Prosecutor and his team the multiple issues and dilemmas as to whether and when to prosecute. The dilemmas are not quite so acute after a conflict is concluded, when punishing at least the ringleaders can both satisfy the demands of justice and hopefully serve as an important deterrent to others elsewhere, with the only downside being the possibly negative impact on local reconciliation. But when a conflict is still ongoing, the dilemma of whether to opt for peace or justice – and the two sometimes are irreconcilable, however much my colleagues in the global human rights community like to assert otherwise – can be a very tricky one indeed. This troubled me immensely trying to formulate Crisis Group policy, especially in the cases of Uganda, with the Lord’s Resistance Army Leaders, and Sudan, with President Bashir’s role in Darfur, and it is one that has arisen again over the last year in the context of both Gaddafi in Libya and Assad in Syria.

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. In the case of the ICC I have long thought that 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 make any amnesty-type decision that the overall situation might justify, as it could under a broad reading of its deferral power under Article 16 of the Rome Treaty.

The Use of Force. The question of when it is right to fight – to use coercive military force against a misbehaving sovereign state – is one that has constantly preoccupied international policymakers, and has certainly troubled me over the last two decades, first as Foreign Minister responding to Iraq’s invasion of Kuwait in 1991, as President of the International Crisis Group wrestling with a multitude of in fact much harder conflict cases, as Co-Chair of the International Commission on Nuclear Non-Proliferation and Disarmament trying to think through the best way of dealing with would-be weapons proliferators, and as one of the architects of the responsibility to protect grappling with the need to keep open the option of military action for extreme cases like Rwanda but to know when it would be defensible and productive to use it, and certainly not to see military force as the only available response.

While I yield to no-one in my abiding aversion of the horror and misery and destructiveness of war, I have long argued that it is critical to recognise – hard as this may be for some to instinctively accept – that if there is one thing as bad as using military force when we should not, it is not using military force when we should. The trick is to know where and when to draw that line.

One of the main pieces of unfinished business both in relation to mass atrocity crime issues, and peace and security issues more generally, has been the unwillingness of the World Summit in 2005 or the Security Council since to accept the parallel recommendations of the Canadian ICISS commission in 2001, the High Level Panel in 2004,  and  Secretary-General Kofi Annan in 2005 that a set of criteria or 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.

The opportunity to do so – at least in the specific context of R2P – may have arisen, interestingly, in the aftermath of the controversy about the conduct of the NATO-led coalition in last year’s Security Council mandated intervention in Libya. It involves a proposal from Brazil, now being widely discussed in UN corridors (and which I have been invited by  the Brazilian Foreign Minister  to discuss with him in Rio later this month) that the R2P concept be supplemented by another, ‘Responsibility While Protecting” (RWP), one element of which would be processes to better monitor and review force-mandates during their implementation stage,  and the other would be to require detailed attention to specified criteria for the use of force to be given by the Security Council before any such mandate was agreed.

The relevant prudential criteria, or criteria of legitimacy, are those emerging from the reports I have mentioned, starting with my own ICISS Commission. 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. 

These are all  straightforward enough; 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; and are in fact applicable not just to the narrow context of extreme R2P -atrocity crime situations, but in fact any proposed  exercise of military power under Chapter 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.

I have never thought it 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 will know probably 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, as again I know better than to instruct you, 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.

The reasons for that unwillingess come from almost opposite directions, as I have 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. But in the case of many NAM 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. Hopefully that dynamic may now be changing, as I have indicated, at least in the specific context of R2P, as the major Western powers start coming to terms with the fact that unless they are prepared to accept some constraints they may never again be able to extract an un-vetoed majority vote from the Security Council on a use of force proposal.

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 few 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 remaining dimension of my continuing international law education on which I wanted to touch – and the one that has taught me whatever I know about the practical business of treaty-making – is the effort to eliminate weapons of mass destruction. This is a policy issue about which I have been passionate ever since having the harrowing experience of visiting Hiroshima and Nagasaki on my first ever overseas visit, as a young student, in the mid-1960s – and today being the 67th anniversary of  Hiroshima makes it particularly appropriate to talk about.

One of the real highlights of my ministerial career was the role that 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 ever since been able to agree on even starting to negotiate anything else! Along with doing a mass of very professional text-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 U.S. Secretary of State James Baker (whom I quoted earlier to slightly less exalted effect) 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 believe in this, are knowledgeable, and have a reputation for real independence of mind, so you won’t be seen as just carrying our water”. We didn’t mind doing just that, and I think the exercise remains a model of mature cooperation between our two countries.

An expression of independence of mind which was marginally less to the U.S. Government’s taste, but very much to mine, has been the  very serious commitment of successive Labor governments to doing whatever we could to achieve the abolition of nuclear weapons, the most indiscriminately inhumane of all the weapons of destruction ever invented, and a real threat, I strongly believe, to the continuation of life on this planet as we know it, matched in gravity only by the threat constituted by carbon emissions.

Our major endeavours first took the form of Australia joining the case before the International Court of Justice 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 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 appeared to emerge (and I use the word “appeared” advisedly)  over the last four years, driven  in the first instance by the extraordinarily influential public statement in 2007, advocating a world without nuclear weapons, of the hard-headed, super-realist Cold War warriors Henry Kissinger, George Shultz, William Perry and Sam Nunn, and the advent of  an Obama administration in the U.S. evidently responsive to that call.

Riding this wave, and making up for lost time, the Rudd government established in 2008 a successor to the Canberra Commission which had the pleasure of chairing with my former Japanese Foreign Minister colleague, Yoriko Kawaguchi, the International Commission on Nuclear Non-Proliferation and Disarmament. The 300-page report we produced in December 2009, was timed to feed into and influence the outcome of the 2010 NPT Review Conference, but also intended to be a blue-print for ongoing debate in the years following.

It has been generally acknowledged around the world to have been successful in both respects, although I have to unhappily acknowledge that over the last year or two – in particular with tensions mounting again between the U.S. and Russia, who between them hold 95 per cent of the world’s nuclear stockpile,  a lot of the air has gone out of the balloon  that was inflated  especially by with Barack Obama’s Prague speech in April 2009, making a compelling case for a nuclear weapons free world and indicating  U.S. willingness to play a leadership role in getting there.

To the extent that the ICNND Commission report has added value, it has been for four reasons: 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 trick in getting good results from expert panels and commissions like these – and I have served on more of them most – is for their chairs to remain determined to achieve consensus outcomes (on the principle that if this lot can’t agree, who else is going to)  but at the same time be fiercely resistant, for as long as decently possible, to lowest common denominator verbal sludge. The other trick, of course, is to get the right commissioners in the first place – expert, experienced, prominent, respected, and sufficiently diverse in starting outlook for their agreement on a final text to actually mean something: in this context at least, a choir known to be singing from the start from the same song-book will not produce as impressive a performance as one having to write its own.

Putting together these commissions can be, as I know, a long and frustrating business, but can produce certain moments of delight. As for example when, back in the mid-90s, I called former British Prime Minister James Callaghan asking him to participate in the Canberra Commission . “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 – in particular by expressing my hope, and expectation, that the international law students among you will come away from your studies with a far better grasp of the mysteries and challenges of the discipline than I was ever able to achieve, and will apply those skills to the never-ending task of making the world safer and saner.