Australian Minister for Foreign Affairs, Alexander Downer
Canberra, 28 June 2000
Upholding the "Sword of Justice": International Law and the Maintenance of International Peace and Security
Speech by the Hon Alexander Downer, MP, Minister for Foreign Affairs,at the Joint Meeting of the Australian and New Zealand Society of International Law and the American Society of International Law, Canberra, 28 June 2000.
I am very pleased to be here today at this historic joint meeting of the American Society of International Law with the Australian and New Zealand Society of International Law.
This meeting is a genuine example of the remarkable range of people-to-people links that give real depth and substance to the bilateral relationships that Australia enjoys with both the United States of America and New Zealand. I congratulate you on your achievement in organising this joint meeting of the two Societies, and extend a warm welcome to those who have travelled across the Pacific, and the Tasman, to join us here in Australia.
I have drawn the title of my speech from a quotation of the author Daniel Defoe, taken from "The True-Born Englishman". We may not all be Englishmen or women here, but - with the possible exception of anyone from the civil law state of Louisiana - we do come from jurisdictions that have inherited the common law from England, so it seems appropriate. I quote it in full:
When kings the sword of justice first lay down,
They are no kings, though they possess the crown.
Titles are shadows, crowns are empty things,
The good of subjects is the end of kings.
International law plays an indispensable role in creating the conditions for peace and security in our world, in upholding "the sword of justice". In the year 2000, one might have hoped that the world would be in better shape than it is. But we know that humanitarian crises are still happening with depressing frequency, and that we must continue to look towards developing effective international responses to them. The twentieth century is forever blemished by the brutalities of Nazi Germany, the "killing fields" of Cambodia, and the terrors inflicted in Rwanda. Nowadays, the communications revolution, and especially the pervasive coverage of television, brings these outrages directly to our attention in all their distressing horror.
No decent human being is indifferent to the pain and suffering of others, and public opinion, especially in liberal democracies like our own, creates pressures to take action that no sensitive and sensible politician can ignore. I commend the commitment and efforts of international lawyers to work through the often difficult legal issues that are involved in the maintenance of international peace and security, and wish today to offer the perspective of a practising politician - and non-lawyer - on some of them.
The changing nature of post-cold war conflict
Since the end of the cold war, the world has faced remarkable challenges of adjustment to new political and strategic realities. The nature of conflict has changed, so that the number of intra-state conflicts of ethnic and civil origin has increased dramatically. Australia has always strongly supported the crucial role that the United Nations plays in the maintenance of international peace and security. The Australian Government is firmly of the view that our involvement in UN deliberations on such issues, and in peacekeeping and humanitarian operations, contributes to our own security through enhancing the security of the world at large. With this in mind, we have encouraged the UN to work through the ways it addresses new types of conflict such as intra-state warfare.
I wish to examine today two very different examples where Australia has recently played a significant role in the maintenance of international peace and security. The first is in the international response to last year's crisis in East Timor, and the second is in the establishment of an International Criminal Court.
These two particular issues have both been foreign policy priorities for this Government. Australia's role in contributing to the development of an effective international response to the East Timor crisis is well known. Equally, as many of you may be aware, Australia has been actively engaged in international efforts towards the establishment of the International Criminal Court, including through our leadership of the Like Minded Group. More to the point, however, I have chosen to focus my remarks on these examples because they illustrate two important means which the international community in the 21st century can deploy to tackle humanitarian crises involving serious breaches of human rights arising out of intra-state and ethnic conflicts. Both have international legal dimensions, of which many of you will be aware.
As a practising politician, it is not possible to talk about these issues without also bearing in mind the perennial issue of sovereignty - and the reluctance of states to cede authority to international institutions or to put the international interest in the maintenance of peace and security above narrower interests. History is replete with examples of the paramountcy of state sovereignty and consequent failure to resolve conflict or prevent abuse. Sovereignty remains as key an issue today, but the two examples on which I will focus are encouraging signs that the international community is prepared to work together to deal with these kinds of demands which challenge conventional international machinery.
The international response to the East Timor crisis
It is fair to say that the response to last year's crisis in East Timor was an unusually effective example of international crisis management. In my view it was, in many respects, a unique case. The standard model of intervention in internal disputes - action authorised by the Security Council under Chapter VII of the Charter of the United Nations - may be imperfect, but is sufficient, at least for the foreseeable future. Australia's experience of the process leading to the involvement of the United Nations in crisis resolution in East Timor offers important insights that may prove useful in other circumstances.
There were five key elements in the process. The first was that this international action was organised under the auspices of the United Nations. The second was that Indonesia's agreement to the insertion of a multinational force in East Timor was secured. The third was that a strong and broad coalition of countries, committed to taking swift and effective action to address the humanitarian crisis, was put together. The fourth was that, most importantly, a decisive Chapter VII mandate for the multinational force was secured from the Security Council. And the fifth and final key element was the existence of a clear exit strategy for the multinational force.
I wish to say something about each of these elements in turn.
Action under the UN Charter
On the first key element, the involvement of the United Nations had a number of advantages. It placed the action firmly inside the ambit of the Charter and international law. It also placed the deployment of the multinational force within the historical context of the Tripartite Agreement between Indonesia, Portugal and the United Nations on the future of East Timor. It helped focus international support for action, and ruled out any suggestion that the opinions of any member of the international community were being bypassed or ignored. And it may well have helped to ease participation by some countries in the multinational force.
Indonesia's agreement to a multinational force
On the second key element, it is always highly desirable that international military intervention takes place with the consent of the host government. In East Timor, it was, in my view, the critical precondition for effective action to resolve the crisis. No one, and certainly not Australia, intended that there should be a war with Indonesia on this issue, through having a multinational force enter East Timor in defiance of Indonesia's wishes. In our view, such an act would have compounded the humanitarian tragedy many times over.
In these circumstances, no international support was evident at all for an intervention on the Kosovo model. It was our judgement that, without an invitation from the Indonesian government for the deployment of an international peacekeeping force, it was unlikely that the approval of all members of the Security Council would have been obtained for the proposed arrangements.
It was, of course, not an easy task to persuade the Indonesian Government to accept an international force into East Timor for the purpose of restoring law and order. There was a great deal of discussion and negotiation. The fortuitous timing of the annual APEC summit meeting in Auckland early last September assisted this process considerably. Leaders from throughout the region, including Indonesia, were able to discuss the issues directly. On the margins of the summit, a Foreign Ministers' meeting on Timor was arranged, which British Foreign Secretary Robin Cook also attended on behalf of the EU. Four out of the five permanent members of the Security Council - the US, UK, China and Russia - were represented at the discussions. There was also very important support at this time from the Secretary General of the United Nations, Kofi Annan, who, although he was not present in Auckland, was directly engaged, particularly in his personal interventions with President Habibie.
Building a strong international coalition
On the third key element, a strong and broad coalition of countries committed to taking swift and effective action to address the humanitarian crisis was put together. Australia, the United States, New Zealand, Japan, Britain and the other countries of the European Union, all played prominent roles in winning Indonesia's agreement to a multinational force, and in the negotiations within the United Nations on the deployment of that force. The pledge by our Prime Minister, John Howard, that substantial Australian assistance would be forthcoming in support of any international action helped to give a practical edge to proposals to end the crisis and moved forward a possible solution.
Many of Indonesia's ASEAN neighbours played a very constructive role in the discussions. And when the time came to give practical assistance, East Asian countries again stepped forward. Thailand and the Philippines, in particular, committed large numbers of personnel both to INTERFET and UNTAET. Singapore, Malaysia, China, the Republic of Korea and Japan also made commitments to the UN efforts. All these contributions helped to bolster support for the resolution of the East Timor crisis, and dispelled any notion that countries of the region somehow did not support these efforts, or that the United Nations was trying to impose an "outside" solution on the region.
Securing a decisive mandate
The fourth key element was extremely important. Securing a decisive Chapter VII mandate for the multinational force from the Security Council provided the essential precondition for undertaking an effective multinational operation in an environment where serious violence was rife. It did, nevertheless, complicate the quick achievement of a resolution on East Timor. However, continuing media reports on the high level of violence within East Timor reinforced the arguments in favour of such a mandate.
The Security Council's own mission to Indonesia, which visited that country during the second week of September, was able to inform the Council, and member governments, of the need for strong and effective measures to restore order. Many Security Council members, mindful of the UN's experience in places like Somalia and Srebrenica, wanted a resolution that would give the multinational force decisive power - unequivocal power - not only to defend themselves, but also to restore law and order in the territory. And this certainly accorded with the interests of Australia, as a potential provider of armed personnel. Australia is proud of the role it played with other countries, including the United States and New Zealand, in achieving a resolution which enabled the international force swiftly and decisively to restore peace and security after its arrival in East Timor.
A clear exit strategy
The final key element was the clear statement of an exit strategy for the multinational force. In considering participation in the proposed force, the Australian Government was determined that the action should have a clearly defined end-point. One day the force would have to depart, and at that time social and political stability would need to be in place.
So far the strategy has worked well. INTERFET completed its mission successfully and handed over responsibility for security in East Timor to the official UN peacekeeping organisation under UNTAET. We are continuing our efforts in UNTAET towards the day when the organisation can withdraw, and hand over responsibility for security to the East Timorese themselves.
Drawing some lessons
Many would argue that the East Timor action represents a triumph for traditional diplomacy, in that it was not an example of humanitarian intervention against the wishes of a state that was itself unwilling or unable to act. It also shows that the existing UN system - "imperfect, yet resilient" as the Secretary-General has described it - can be made to work.
Yet, by what we achieved in East Timor, the boundaries of international crisis resolution have indeed widened. They have been extended by Indonesia's acceptance of a multinational force, and by the effectiveness of that force under its Chapter VII mandate. Both of these factors are precedents that may ease the way for international efforts to resolve other crises in the future, and that can only bode well for international peace and security.
The success of the East Timor response does not of course mean that such action is or should be the only means of dealing with such situations. In this increasingly complex world, the international community needs to have at its disposal a series of "arrows in its quiver" for responding to humanitarian crises. Conflict prevention and the strengthening of democratic values and institutions within states are fundamental means of ensuring the promotion and protection of human rights, and a significant element of my Government's development assistance program is directed to these objectives, both in Australia's immediate region and beyond.
Over the past decade another heartening trend has been the development of new international legal mechanisms and institutions for punishing those who commit serious abuses of human rights. I am thinking particularly of the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. While at the outset there was scepticism in relation to the establishment of the International Tribunals, they have been effective.
Establishment of the International Criminal Court
It is, of course, only to be expected that, in virtually every humanitarian crisis situation, the question of responsibility for any crimes committed will be raised and must be addressed. For so long as the international community relies upon national courts to prosecute and punish those who commit atrocities, the potential for such people to escape justice in compliant or indifferent jurisdictions remains unacceptably high. The establishment of the ad hoc Tribunals was a further indication that the international community was ready to establish the long-debated permanent international criminal tribunal. The historic vote in Rome in July 1998 has brought this goal within reach. This is the key step towards ensuring that mass abuses of human rights, wherever they occur in the world, do not go unpunished.
Australia's promotion of the International Criminal Court reflects the Government's strong commitment to practical and constructive outcomes in the field of human rights. These include building the institutions that will help ensure that human rights, civil society and the rule of law are promoted and protected around the world.
Australia has been active in encouraging the signature and ratification of the Statute of the International Criminal Court. Primarily, this has been through our chairing of the "Like-Minded Group", the group of sixty-seven States committed to the establishment of the International Criminal Court, which was formed during the negotiation of the Statute and continues to caucus during the Preparatory Commission phase of the Court's implementation.
Jurisdiction of the Court and Third States
I am, of course, aware that not all States are as comfortable with the idea of the International Criminal Court as Australia, with some holding the view that the Court will improperly encroach upon the sovereignty of States that are not Parties to the Statute.
In our view, this is incorrect.
It is possible that the Court will hear a case against a person against the wishes of a State that is not a Party to the Statute. It is equally possible that the Court will hear a case against the wishes of a State Party to the Statute. In neither case, however, is the Court's exercise of jurisdiction in conflict with the norms of international law.
The Court derives its general jurisdiction from the States Parties to the Statute, as well as jurisdiction over specific cases by other States through a declaration lodged with the Registrar, or by the Security Council acting under Chapter VII of the Charter of the UN. The Court only inherits the territorial jurisdiction of States and their jurisdiction over their own nationals abroad. Neither of these bases of jurisdiction is controversial under international law.
Furthermore, the exercise of this jurisdiction is strictly limited to the Statute crimes of genocide, crimes against humanity and war crimes - and the crime of aggression, once States Parties have adopted a provision defining the crime and setting out the conditions under which the Court's jurisdiction may be exercised.
Most of the Statute crimes actually attract universal jurisdiction, through the Geneva Conventions and their First Additional Protocol, the Genocide Convention and the Convention against Torture. A person of any nationality who commits any of these crimes anywhere is liable to prosecution and punishment in every country anyway.
The authority for the Security Council to grant the court jurisdiction over these Statute crimes when committed anywhere or by anyone does not derive from the Statute either, but rather from the Charter of the UN. The Charter authorises the Security Council under Chapter VII to intervene in matters that are essentially within the domestic jurisdiction of any State - irrespective of whether the State is a Member of the UN. Furthermore, the Security Council's referral of a matter to the Court, like all decisions of the Security Council, would be binding upon all Members of the UN, whether or not they are Parties to the Statute.
Politics and the ICC
There has also been a lot of talk about the possibility of the Court being used by States or NGOs to launch politically malicious prosecutions. In our view, this is simply not credible.
It is inconceivable that any politically motivated referral to the Court from a State Party without sufficient merit based on evidence would satisfy the scrutiny of the Prosecutor. Similarly, politically motivated referrals to the Prosecutor from any other source would have to satisfy both the Prosecutor and the Pre-Trial Chamber of their independent merit before they could proceed further.
It is also inconceivable that any politically motivated referral to the Court could emanate from the Security Council. Such a referral would need the affirmative vote of at least nine Members of the Security Council, including the concurrence of all five Permanent Members.
Undoubtedly, some States and organisations will attempt to use the Court to promote particular political agendas, but unless they are able to demonstrate the commission of a Statute crime of sufficient gravity to attract the Court's jurisdiction, such attempts are likely to rebound upon themselves. It is also likely that States will criticise the operation of the Court as being politically motivated if the Court is investigating or prosecuting nationals or crimes connected with those States, as has been the case with the International Criminal Tribunal for the Former Yugoslavia. As the ICTY's experience demonstrates, neither scenario is likely to impact upon the viability or legitimacy of the Court.
The Court does, however, have a quite deliberate political function. It places a powerful incentive upon those States that ratify its Statute - as well as many that do not - to ensure that they would be able to try the Statute crimes in their own jurisdiction should the need arise, in order to take advantage of the principle of complementarity.
A case is not admissible before the Court if it is being or has been investigated or prosecuted by any State - Party to the Statute or otherwise. But this only applies if the investigation or prosecution is genuine, and not a shield against justice. The Court decides itself whether this investigation or prosecution is genuine, thus providing an impartial adjudication of a State's bona fides in investigating or prosecuting particular allegations of Statute crimes which fall within the jurisdiction of the Court, or are the subject of a Security Council resolution. It will therefore be a powerful incentive for States to fulfil and enforce their existing humanitarian obligations under international law.
International support for the Court is impressive and continues to grow. One hundred and twenty States voted for its adoption and since then, ninety-seven States have signed the Statute and twelve have ratified (as of 22 June 2000). The rate at which States ratify the Statute is increasing, and we can be confident that the Statute is likely to enter into force within five years.
The very fact that we are so close to establishing an International Criminal Court is itself an indication of how far the international community has come in responding to the universally-held wish to see perpetrators of the worst crimes of international concern brought to justice. Symptoms of this abound, from the pursuit by Spanish courts of Augusto Pinochet, to the very encouraging efforts of Cambodia to establish an internationally credible tribunal to prosecute the crimes of the Khmer Rouge. The International Criminal Court brings home what should have been obvious from the beginning - that the actions of rogue states are the consequence of the actions of individuals, and by holding individuals accountable, new norms of state behaviour must of necessity follow.
I have referred today to two examples where I believe Australia has made, or is making, a difference regarding the maintenance of international peace and security through the mechanisms provided by international law. Responding directly to humanitarian crises through the structures of the United Nations, and punishing the perpetrators of the most serious crimes of international concern are two important elements of creating a more peaceful and secure world. These two examples today demonstrate that international law can provide answers to real problems in international relations.
It may often seem that the progress we are making is incremental and rather tentative in the face of the many difficulties that we have to deal with in finding solutions to problems that will actually work in practice. But I believe that those of us who work in the field of international relations - whether as lawyers or in other roles - should not lose hope. In the broad historical sweep of humanity's experience, the last century has seen very considerable progress in the role played by international law in helping to provide solutions to international problems.
This joint meeting is testimony to that progress. It is clear that, in the century that lies ahead, the growth of international law will continue. All of us, as civilised human beings, can take heart from this assurance that "the sword of justice" will continue to be upheld.