The ADC Gandel Oration
Atrocity Crimes: Overcoming Global
Indifference
Delivered by Gareth Evans, President of the International Crisis Group
Tuesday 2 May 2006
The Humanitarian Imperative
‘Never again’ we said after the Holocaust. And after the Cambodian
genocide in the 1970s. And then again after the Rwanda genocide in 1994. And
then, just a year later, after the Srbrenica massacre in Bosnia. And now
we’re asking ourselves, in the face of more mass killing and dying in
Darfur, whether we really are capable, as an international community, of
stopping nation-states murdering their own people. How many more times will
we look back wondering, with varying degrees of incomprehension, horror,
anger and shame, how we could have let it all happen?
These are the words with which I began a public address in Sydney nearly two
years ago. To my shame – and what should be our collective global shame –
they are just as applicable now as they were in September 2004. All that has
happened in Darfur is that the death toll has risen from some 50,000 then to
200,000 or more now, and those displaced from 1 million to over 2 million:
5,000 or more are dying each month from war-related disease and malnutrition
as well as continuing outright violence, international peacekeeping efforts
have been manifestly inadequate, political settlement talks have been
floundering, humanitarian relief is faltering, and the overall situation is
again deteriorating.
It is not only in Darfur that crimes against humanity are being committed as
we speak, and where the international response to those crimes or their
aftermath has been manifestly inadequate. Elsewhere in Africa the crazed and
horrifying reign of Joseph Kony’s Lords Revolutionary Army – which has
already seen the abduction of some 25,000 children for use as fighters or
sex slaves – continues in Northern Uganda: Kony and his top lieutenants were
the first to be indicted by the new International Criminal Court, but the
warrants for their arrest have been unable to be executed.
In the Congo the transition out of 20 years of a civil war often barbarous
beyond belief remains extremely fragile: some 30,000 are still dying each
month from war-related disease and malnutrition and continuing pockets of
fighting, but the international peacekeepers needed to stabilize the
situation through the scheduled mid-year election remain in desperately
short supply.
Even in Europe justice for the perpetrators of crimes against humanity
remains conspicuously incomplete. Slobodan Milosevic was indeed brought to
trial, and no-one can be blamed for his death in custody before it was
complete. But Radovan Karadzic and Ratko Mladic, the architect and
implementer of ethnic cleansing in Bosnia which culminated in the
cold-blooded massacre of 8,000 men in Srbrenica in 1995, remain, incredibly,
still at large, sheltered and protected by the Serbian military, and with
more than a little support to this day still from the higher reaches of the
Belgrade government. It is ten years now since a NATO spokesman was reported
as saying off the record that “arresting Karadzic is not worth the blood of
one NATO soldier”. European forces have now replaced the NATO operation, but
nothing much else seems to have changed.
The Balkans experience should be a corrective like no other to any residual
complacency that might exist about crimes against humanity. They come back
to haunt us over and again, not only in deprived and struggling countries in
far distant corners of the globe, but in countries we think of as being at
the heart of Western culture and civilization, or heirs to its traditions.
And they are horrors not only of the distant past but the contemporary
present.
Of course no one in the world learned more painfully and horribly about
international indifference, or suffered more grievously from inhumane acts -
that then had no other name but murder, or deportation or torture - than the
Jews of Berlin and Vienna and Warsaw and Prague and all the other cities and
towns and villages throughout Europe who experienced the horror of the Nazi
Holocaust.
It is to that experience that we owe the recognition, as a matter of
international law, of the very concept of ‘crimes against humanity’.
Although the expression had been officially used once or twice earlier,
including by the governments of France, Great Britain and Russia in their
1915 declaration denouncing the massacre of Armenians in Turkey, it was not
until the allies drafted the Charter of the Nuremberg Tribunal in 1945 that
it assumed formal shape, with article 6 (c) describing a group of crimes
which, unlike the more familiar international law concept of “war crimes”,
could be committed by a government against its own people, and not
necessarily just during wartime.
Jewish organizations throughout the world have remained in the forefront
ever since of those deeply conscious of the significance of the concept of
crimes against humanity, and determined to fight indifference and
complacency about any manifestation of them. The B’nai B’rith
Anti-Defamation Commission here in Australia has been very much part of that
tradition, and I very much appreciate the opportunity you have given me, in
inviting me to deliver this 2006 Gandel Oration, to take stock of how far we
have come, and how far we have yet to go in preventing and responding to
these crimes.
My argument will be that we have made progress in this respect over the last
decade or so, maybe more than most people realize. Conceptually, the
principle of ‘the responsibility to protect’ has been embraced;
institutionally, the International Criminal Court and a number of other ad
hoc tribunals have been established; in practice, better early warning is in
place, many UN-led peace efforts have been successful, and the number of
both civil conflicts – the primary context in which crimes against humanity
occur - and of episodes of mass killing is dramatically down.
But we certainly still cannot be confident that world will respond quickly,
effectively and appropriately to new human rights catastrophes as they
arise. Overcoming global indifference means addressing four big recurring
problems: the problem of perception (getting the story out and its gravity
understood); the problem of responsibility (confronting traditional taboos
against international involvement in sovereign countries’ internal affairs);
the problem of capacity (having available the appropriate institutional
machinery and resources); and, as always, the problem of political will
(effectively mobilizing that capacity, in the face of competing priorities
and preoccupations). It is to each of these problems that I will now turn.
It should be acknowledged at the outset that competing priorities and
preoccupations – what will be seen by governments as more immediately
involving national interests – are right now at the core of the general
problem of indifference. As the Financial Times columnist Philip Stephens
put it recently, “Now, on both sides of the Atlantic, the impulse to engage
is giving way to an inclination to retreat”. While genocide, ethnic
cleansing and crimes against humanity generally – and all the problems of
humanitarian intervention to which they gave rise – were at the centre of
international policy debate throughout the 1990s, since 9/11 attention has
rather comprehensively shifted to a range of other, and in some respects
perhaps more glamorous, security problems: terrorism, Islamism, nuclear
proliferation, stability in the Middle East post-Iraq and post-Hamas, and,
related in turn to most of these, global energy security.
That said, it is simply not acceptable for governments to look away,
claiming more pressing engagements, when crimes against humanity are being
committed or are manifestly about to be committed. We know – most recently
from the global response to the tsunami disaster - that ordinary people
throughout the world are conscious of their common humanity, and
are deeply touched by human suffering wherever it occurs, irrespective
of race, colour and creed, at least whenever that suffering is brought home
to them graphically and immediately, in a way can understand and relate to.
The governments who represent them will always be more inclined to cynicism,
to realpolitik, to weighing and balancing, to discounting emotion. The
minuet danced by the US and UK and other members of the Security Council as
the horrific evidence from Rwanda mounted in 1994 was as stark an example of
this as history will ever record. But while caution must always have its
place in diplomacy, there is less a place for it when it comes to crimes
against humanity than anywhere else. The core of the notion, as Geoffrey
Robertson has put it in his brilliant book Crimes Against Humanity: The
Struggle for Global Justice, is that this is “a class of crime… which is
so peculiarly horrific that the very fact that educated, rational and
otherwise respected rulers of men were capable of conceiving and committing
it must diminish whatever value there is in being human.” And when
confronted with such crime there is a human imperative to act.
The Problem of Perception: Getting the Story Out and its Gravity
Understood
The first problem to confront in overcoming global indifference is to
ensure that policy makers know that there is a problem out there. Early
warning as such is not – or at least not now – the problem it has often been
said to be: governments and intergovernmental organizations devote
considerable attention these days to ensuring that they have some advance
sense of the pressures building up in potential crisis areas. A useful
recent addition to these institutional ranks is the UN Secretary-General’s
Special Adviser on the Prevention of Genocide. Non-governmental
organizations have also played a significant role here: not least, if you’ll
forgive me a moment’s chutzpah, my own International Crisis Group, which has
become quite influential with our constant flow of reporting from both
actual and potential trouble spots around the world, both in country
specific reports and briefings and through our monthly CrisisWatch
bulletin.
Even in Rwanda in 1994 it became abundantly clear in all the retrospective
enquiries that there was no shortage of relevant information available to
the key players. The problem here tends to be not so much what policy-makers
don’t know, or can’t know: it’s what they don’t want to know, or
don’t want to act upon. (Far be it from me to draw any parallel with recent
events in Australia…)
In many complex technical areas, like weapons proliferation, and on issues
related to intent, the lack of good intelligence, or the unavailability of
nationally-collected intelligence to intergovernmental organizations can be
a real problem for policy makers. But large scale crimes against humanity –
and by definition crimes against humanity are large scale - tend to be
rather harder to conceal.
More important than just getting the basic information out is establishing a
perception, in the minds of policy makers and those who influence them – and
in this context that includes the general public - of the seriousness
of what is occurring. In a world where every news bulletin describes trouble
somewhere, and the market in human misery is, unhappily, highly competitive,
the task for those who want to overcome indifference is not just to get out
the information that something bad is happening, but to establish a general
recognition that it’s so bad, and so wrong, that it cannot be ignored.
Good reporting by good journalists in influential newspapers can be highly
important in this respect – Nick Kristof’s heartrending stories in the
New York Times on Darfur and the plight of women in Pakistan spring to
mind. But television reporting is even more crucial in getting stark and
effective messages to very wide audiences. The unhappy truth of the matter
here, however, is that the ‘CNN effect’, for all its importance, is highly
erratic: media crews are not always where they could be or should be, travel
budgets are usually tight, and producers are hard to persuade on the merits
of stories. While the International Crisis Group has been highly successful
in persuading major US network programs like ABC Nightline to run stories on
the Darfur, Uganda and the Congo over the last two years, it hasn’t been
easy.
Perception and the ‘G’ word. Given the difficulty of generating
attention for conscience-shocking human rights violations that might
otherwise pass unnoticed in the rush of international events, and to try to
create a climate in which governments will feel an obligation to take strong
action, there has been an increasing tendency in recent years to label
situations as ‘genocide’, calling in aid the language of the 1948 Genocide
Convention which provides that ‘genocide is a crime under international law
which they undertake to prevent and punish’. The attractions of this course
seemed to be, if anything, enhanced by the strenuous efforts of the US and
others in 1994 not to label the events in Rwanda genocide, in the apparent
belief that to do would immediately create a duty to intervene
While highly understandable, this is an approach which is fraught with risk,
as the course of events in Darfur have shown all too clearly. The trouble
with the Genocide Convention is that its definitional language is very
precise, and susceptible as a result to endless legal argument. It requires
that certain defined acts be "committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group", which gives rise
to some real difficulties for prosecutors. An obvious threshold one, though
this has not been in issue in Darfur, is that the definition of victims is
in fact rather narrow: they must be members of an identifiable “national,
ethnical, racial or religious group”, not one defined by its politics, or
culture or educational or economic status. So not even Cambodia counts as a
genocide, since the overwhelming majority of the nearly two million people
who died under the Khmer Rouge’s murderous regime were of exactly the same
race, ethnicity, nationality and religion as their persecutors.
The biggest legal difficulty, and the show-stopper in Darfur, is that is
extremely hard in practice to establish, even on a prima facie basis, the
requisite element of intent to destroy, in whole or part, the targeted
group. This was exactly the problem which confronted the UN Commission of
Inquiry on Darfur when it reported in February 2005: while accusing the
Khartoum government of multiple abuses of international humanitarian law,
saying in so many words that “massive atrocities were perpetrated on a very
large scale and have so far gone unpunished”, it was unable to find
sufficient evidence that the killing and village-burning and raping that
that had occurred was actually genocidal in its intent. And the result of
course was to give a major propaganda victory to the Sudanese leadership,
whose behaviour on any view was, and remains, ugly, indefensible and
deserving of the strongest international response.
The final unhappy irony about calling Darfur a genocide, as the U.S.
Congress and Bush administration have now repeatedly done, is that this has
not translated in any way into an enhanced effort to ‘prevent and punish’
the crimes being committed. It is hard to judge which is morally worse: not
using the ‘g’ word because you don’t want to act (as with the Clinton
administration on Rwanda in 1994), or (as now) using the ‘g’ word but still
not acting.
My own view, which I know is shared by many who work in this field, is that
whatever the temptation to gain extra profile for a cause by using the ‘g’
word, in the great majority of cases we would be far better off resisting
that temptation and not using it at all. Over and again we find the lawyers’
issue of ‘genocide or not genocide’ becoming the issue, when the real issue
is the need to act to protect people when atrocity crimes of any kind are
being committed, or about to be committed, and to hold the perpetrators to
effective account. I don’t share the view of some that the term ‘genocide’
should be confined only to the Holocaust – there are some cases, like
Rwanda, where the scale of the crimes are so great, and the legal issues so
much beyond argument, that no possible harm, and maybe some good, can come
from applying the label. But overall the risks outrun the rewards.
I have long been attracted by the proposal of David Scheffer, former US
ambassador at large for war crimes issues in the Clinton administration,
that in order to avoid these unedifying and often (as in Darfur)
counterproductive semantic arguments, which constantly distract attention
from the need for effective action, we should all just use the generic
expression "atrocity crimes" and leave it to the prosecutors and judges in
the international courts, or courts exercising international jurisdiction,
to work out which one of the various well-established branches of
international humanitarian law has been breached in any particular case –
i.e. whether what is involved is a ‘war crime’(which basically means a
serious breach of the Geneva Conventions governing wartime behaviour in
relation to both enemy forces and civilians); a ‘crime of aggression’ (or
‘crime against peace’, something now basically covered by the UN Charter,
which expressly prohibits waging any war that is not either legitimate
self-defence or authorized by the Security Council); a ‘crime of genocide’
(as originally established by the Genocide Convention); or a ‘crime against
humanity’ (a more general class of atrocity crimes, originally established
by the Nuremberg Charter and now spelt out, along with the other categories
of crime, in the Rome Statute of the International Criminal Court).
It may be, on reflection, that rather than trying to introduce a new term –
‘atrocity crimes’ - into this already crowded and confusing field, a better
course would be to simply encourage general use of the familiar label
‘crimes against humanity’. That expression may not be broad enough to cover
(in the way a new label of ‘atrocity crimes’ would) war crimes and crimes of
aggression, but it is certainly broad enough to include everything else we
are concerned about - including genocide, which is best understood not as a
wholly separate category of crime but simply as a subset, or one specific
kind, of crime against humanity. The definition of ‘crimes against humanity’
in the Rome Statute includes, after all, murder, extermination, enslavement,
deportation, imprisonment, torture, rape and other grave sexual violence,
persecution, enforced disappearance, apartheid and ‘other inhumane acts of a
similar character’ – provided in each case that the acts in question are
“committed as part of a widespread or systematic attack directed against any
civilian population”. And that should be wide enough for anybody.
The Problem of Responsibility: Overcoming the Sovereignty Obstacle
Getting the story out and having its seriousness understood is only the
first step in overcoming indifference about crimes against humanity. The
second step is to overcome the traditional view of states that, to put it
bluntly, sovereignty is a license to kill. Undermining that view of the
world has been a long, slow process, but in recent years some very dramatic
progress has been made, and as an exercise both in intellectual history and
real-world policy making this is a story well worth telling.
In understanding how far we have come the best place to begin is the UN
Charter of 1945. The UN founders were overwhelmingly preoccupied with the
problem of states waging war against each other, and took unprecedented
steps to limit their freedom of action in that respect. But on the question
of what constraints might be imposed on how states dealt with their own
subjects, the Charter language was very traditional indeed, with Article
2(7) providing: “Nothing should authorise intervention in matters
essentially within the domestic jurisdiction of any State”.
One big agreed exception to the non-intervention principle was the Genocide
Convention of 1948. But it was almost as if, with the signing of this
convention, the task was seen as complete: nothing was ever done to
implement it. This state of mind was reinforced by the large increase in UN
membership during decolonisation era – states all newly proud of their
identity, conscious in many cases of their fragility, and who saw the
non-intervention norm as one of their few defences against threats and
pressures from more powerful international actors seeking to promote their
own economic and political interests.
With the arrival of the 1990s, and the end of the Cold War, the
quintessential problem became that of civil war and internal violence
perpetrated on a massive scale. With the break-up of various Cold War state
structures, most obviously in Yugoslavia, and the removal of some superpower
constraints, conscience-shocking situations repeatedly arose, but old habits
of non-intervention died very hard. Even when situations cried out for some
kind of response, and the international community did react through the UN,
it was too often erratically, incompletely or counter-productively, as in
Somalia in 1993, Rwanda in 1994 and Srebrenica, in 1995. Then came Kosovo in
1999, when the international community did in fact intervene as it probably
should have, but did so without the authority of the Security Council in the
face of a threatened veto by Russia.
All this generated very fierce debate about came to be called the issue of
“humanitarian intervention. On the one hand there were those who argued
strongly for the ‘the right to intervene’; on the other hand, claims were
equally vehemently made about the primacy and continued resonance of the
concept of national sovereignty The debate was intense and bitter, and the
90s finished with it utterly unresolved in the UN or anywhere else. Battle
lines were drawn and trenches were dug. This led Secretary-General Kofi
Annan to make his agitated plead to the General Assembly in 2000, which
brought the issue to a very public head, and which resonates to this day:
If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Sebrenica, to gross and systematic violations of human rights?
The task of meeting this challenge fell, in the event, to the Canadian
government-sponsored International Commission on Intervention and State
Sovereignty (ICISS), which I had the privilege of co-chairing with the
Algerian diplomat Mohamed Sahnoun, and which presented its report, entitled
The Responsibility to Protect, at the end of 2001. The Commission
made four main contributions to the international policy debate which, it
seems fair to say, have been resonating ever since.
The first, and perhaps ultimately the politically most useful, was to invent
a new way of talking about humanitarian intervention. We sought to turn the
whole weary debate about the ‘right to intervene’ on its head, and to
re-characterise it not as an argument about any ‘right’ at all, but rather
about a ‘responsibility’ – one to protect people at grave risk – with the
relevant perspective being not that of the prospective interveners but, more
appropriately, those needing support. The Commission’s hope - and so far,
broadly, our experience - was that with new language entrenched opponents
would find new ground on which to more constructively engage, just as proved
to be the case between developers and environmentalists after the Brundtland
Commission introduced the concept of ‘sustainable development’.
The second contribution of the Commission, perhaps most conceptually
significant, was to insist upon a new way of talking about sovereignty: we
argued that its essence should now be seen not as ‘control’, as in the
centuries old Westphalian tradition, but as ‘responsibility’. The starting
point is that any state has the primary responsibility to protect the
individuals within it. But that is not the finishing point: where the state
fails in that responsibility, through either incapacity or ill-will, a
secondary responsibility to protect falls on the wider international
community.
The third contribution of the Commission was to make it clear that the
‘responsibility to protect’ was about much more than intervention, and in
particular military intervention.
It extends to a whole continuum of obligations: the responsibility to
prevent these situations arising; the responsibility to react to
them when they did; and the responsibility to rebuild, particularly
after a military intervention – of which the most important is the
responsibility to prevent.
The remaining contribution of the Commission was to come up with guidelines
for when the most extreme form of coercive reaction, military action, would
be appropriate. The first criterion was obviously legality, and here
we saw our task as not to try and find alternatives to the clear legal
authority of the Security Council, but rather to make it work better, so
there was less chance of it being bypassed. In this respect the five
criteria of legitimacy we then spelt out were crucial, designed as
they were as a set of benchmarks which, while they might not guarantee
consensus in any particular case, would hopefully make its achievement much
more likely. These criteria were, in short, the seriousness of the harm
being threatened (which would need to involve large scale loss of life or
ethnic cleansing to prima facie justify military action); the motivation or
primary purpose of the proposed military action; whether there were
reasonably available peaceful alternatives; the proportionality of the
response; and the balance of consequences – whether more good than harm
would be done.
It is one thing to develop a concept like the responsibility to protect, but
quite another to get any policy maker to take any notice of it. Departmental
bookshelves are full of barely opened reports by blue ribbon commissions and
panels. The most interesting thing about the Responsibility to Protect
report is the way its central theme has continued to gain traction
internationally, even though it was almost suffocated at birth by being
published in December 2001, in the immediate aftermath of 9/11, and by the
massive international preoccupation with terrorism, rather than internal
human rights catastrophes, which then began.
The concept was first seriously embraced in the doctrine of the newly
emerging African Union, and over the next two to three years it won quite a
constituency among academic commentators and international lawyers,
important with international law being the rather odd beast that it is –
capable of evolving through practice and commentary as well as through
formal treaty instruments.
But the big step forward came with last year’s UN 60th Anniversary World
Summit, which followed a major preparatory effort involving the report of a
High Level Panel on new security threats (of which I also happened to be a
member) which fed in turn into a major report by the Secretary-General
himself. Both these reports emphatically embraced the responsibility to
protect concept, and the Summit Outcome Document, unanimously agreed by the
more than 150 heads of state and government present and meeting as the UN
General Assembly, unambiguously picked up their core recommendations. Its
language, culminating in these words, was quite clear-cut:
…we are prepared to take collective action, in a timely and decisive manner, through the Security Council… should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
That this endorsement happened was anything but inevitable. Not much else of
any significance was agreed by the Summit, despite all the preparatory
buildup and high expectations. A fierce rearguard action was fought almost
to the last by a small group of developing countries, joined by Russia, who
basically refused to concede any kind of limitation on the full and
untrammelled exercise of state sovereignty, however irresponsible that
exercise might be. What carried the day in the end was not so much
consistent support from the EU and U.S. – which after the invasion of Iraq
was not particularly helpful in meeting these familiar sovereignty concerns.
Rather it was persistent advocacy by sub-Saharan African countries, led by
South Africa; a clear - and historically quite significant - embrace of
limited-sovereignty principles by the key Latin American countries; and
above all some very effective last minute personal diplomacy with major
wavering-country leaders by Canadian Prime Minister Paul Martin,
demonstrating the clout that middle power countries can have when they try.
A further important conceptual development has occurred since last
September’s Summit: the Security Council is now on the verge, after months
of internal debate, of adopting a thematic resolution on the Protection of
Civilians in Armed Conflict which contains, in an operative paragraph, an
express reaffirmation of the World Summit conclusions relating to the
responsibility to protect. The significance of this is that a General
Assembly resolution may be helpful in identifying relevant principles, but
the Security Council is the institution that matters most when it comes to
executive action. The toehold has been carved.
On any view, the evolution in just five years of the ‘responsibility to
protect’ concept from a gleam in a commission’s eye to what now might be
described as a broadly accepted international norm is an extremely
encouraging story. But it’s still not the whole story. The recognition of
the responsibility to protect as a principle is one thing, its practical
implementation quite another. What remain to be overcome, above all else are
problems of capacity and will, and it’s to these that I now turn.
The Problem of Capacity: Having Workable Institutions and the Resources
to Support Them
The best of all ways of dealing with crimes against humanity is of
course to prevent them from happening in the first place. There are many
forms of ‘soft power’ which can advance that cause, all of which require
effective institutional delivery mechanisms and resources: development and
technical assistance strategies, for example, designed to improve the
quality of governance, to build more confident inter-ethnic and communal
relations, and reduce the potential for economic grievance becoming
explosive.
Without wishing to downplay the utility of these soft power strategies, when
it comes to crimes against humanity it is probably ‘hard power’ responses
that have the greatest impact: the availability of effective legal
institutions, creating the fear before the event, and the certainty after
the event, that crimes will be prosecuted and punished; and the availability
in extreme cases of military force to halt or avert large-scale catastrophe
occurring.
Courts. When it comes to reducing legal impunity, a remarkable amount
has been achieved in recent years. Domestic courts around the world
(including the one across the road from me in Brussels, most famously in its
conviction of the Rwandan nuns who set fire to a building full of Tutsis
sheltering in their convent) have become more ready to claim and exercise
‘universal jurisdiction’ in relation to crimes against humanity: the
international law principle here being that some offences are so serious
that any court anywhere is inherently empowered to try and punish them,
irrespective of their place of commission, or the citizenship of offender or
victims.
More specifically, and more practically given the complex and controversial
nature of the prosecutions involved, a series of ad hoc tribunals have now
been established, or are in the process of being established, to try
offenders: fully international courts in The Hague for crimes committed
during the Balkan wars, and in Arusha for those involved in the Rwanda
genocide; and hybrid international-national ones in Sierra Leone,
Timor-Leste, Bosnia, Burundi, Cambodia and Lebanon.
Most importantly of all, the International Criminal Court was finally
established by the Rome Statute in 1998, and is now operative in The Hague -
notwithstanding fierce, prolonged and indefensible opposition from the U.S
throughout its gestation and birth, to which I am glad to say that Australia
for once did not succumb. Although its jurisdiction only extends to crimes
committed after its statute came into force in 2002, and it will have to
learn fast how to circumvent the many personnel, procedural, budgetary and
other problems that have afflicted its ad hoc predecessors, the ICC remains
the great hope of all those of us who have been arguing for years for a
genuinely workable and effective system of global justice.
The biggest single problem still confronting all the international courts,
as I indicated at the outset of this talk, is the difficulty of apprehending
indictees like Kony, Karadzic and Mladic when there is no cooperation from
the countries in which they are sheltering, and sometimes even when there
is. There is presently no international sheriff’s or marshal’s office, or
police force, or standing military force available to do the job, and it may
never prove possible to create them, although the possibility certainly
needs to continue to be seriously explored; and sometimes the task of
apprehension it proves, as we have seen, to be beyond the combined resources
of even a NATO force.
Military Coercion. Beyond the international court system, the whole
international security system – starting with the Security Council - has a
major sharp-end role to play in deterring and responding to crimes against
humanity. The logic of the embrace by the international community of the
responsibility to protect principle is that if conscience-shocking
catastrophe cannot be averted any other way, there will be coercive
intervention. There are many judgements to be made in any given case about
whether such interventions should occur, and many criteria to be satisfied.
But what ought not to be in doubt is the physical capability of the world to
supply from its combined resources the necessary troops and logistic support
to make these interventions happen when they have to happen.
But unhappily that is all too often exactly what is in doubt. The problems
here are all very familiar ones. Those countries with apparently massive
capacity – in terms of both personnel numbers and equipment - are often
preoccupied with battles and deployments elsewhere, or have the wrong kind
of troop configurations and equipment to do the fast and flexible jobs most
often required. Throughout the developed world, and Europe in particular, in
country after country, the number of troops operationally deployable at any
given time is a tiny percentage of the men and women in uniform, although
this is gradually beginning to change. In the developing world, there may be
no apparent shortage of boots able to go on the ground – but there will be
issues of training, command, control and communications capability,
transportability and general logistic support. And for any proposed
multinational deployment there will be issues of planning, mission control,
and field command – who is responsible for what, and interoperability
The present situation in Darfur is a classic demonstration of the problem of
military implementation of the international responsibility to protect. For
a start, as with Indonesia and East Timor, we seem fated to depend on
Sudan’s consent to any external military presence. There are all sorts of
problems standing in the way of a full-frontal coercive intervention, not
only the huge resources that would be required and the difficulty in finding
them, but the way in which this will inevitably be misinterpreted – because
it could only happen with major support from the U.S. and EU - as another
chapter in the West’s war on Islam.
At present, under the current African Union Mission in Sudan (AMIS), which
is accepted by Khartoum, there are only some 7000 inadequately mandated and
insufficiently mobile and otherwise militarily capable personnel on the
ground. In principle agreement has been reached on the UN taking over the
operation towards the end of the year, but this is increasingly being talked
about, including within an increasingly nervous UN Secretariat, as being
contingent on a peace agreement being reached – and that is presently not in
sight.
In the International Crisis Group’s judgement, at least 12,000 fully
mandated troops – desirably many more, but this number at a minimum – are
needed on the ground, and supported from the air, right now to protect
villages against further attack or destruction, protect the displaced
against forced repatriation and intimidation, protect women from systematic
rape outside the camps, provide security for humanitarian operations, and
neutralise the government supported militias who continue to prey on
civilians. But the extra 5,000 troops that are needed to supplement the
present inadequate African Union force, are presently nowhere to be seen.
No individual African country has that number available, and none are being
volunteered by the European countries, or NATO countries, or other developed
countries like Australia which could, on the face of it, make a difference.
They are presently very comfortable sheltering behind the African Union’s
unwillingness to accept outsiders, particularly non-Islamic northerners,
into the fray, but the truth of the matter is that they are neither able nor
willing to provide the necessary resources. What they are best configured to
supply, and most comfortable negotiating, as Kofi Annan has been heard to
ruefully say, is some quick in-and-out heavy lift or other logistical
support, a handshake and a photo opportunity.
A great deal continues to be said about the weakness of the UN and other
international institutions, and a great deal of this is perfectly accurate.
But for all its shortcomings, and appearances to the contrary, the
international security system has delivered some remarkable results over the
last decade or so, as well documented in the recently published Human
Security Report, the report of the High Level Panel, presentations by
the head of the UN Department of Peacekeeping Operations and elsewhere.
We have seen a dramatic decline in the number of genocides and other mass
killings, by some 80 per cent between 1989 and 2001, notwithstanding Rwanda
and Bosnia; a parallel dramatic decline in the number of conflicts and
battle deaths (with the world at a hundred-year low in terms of those being
killed); and an equally dramatic increase in the number of civil wars
resolved by negotiation (with more in fact resolved this way in the last 15
years than in the previous two centuries, and with two old conflicts going
out of business for every new one starting up). And the best explanation for
all this is simply the huge increase in the level of international
preventive diplomacy, diplomatic peacemaking, peacekeeping and peacebuilding
operations, for the most part authorised by and mounted by the United
Nations, that has occurred since the end of the Cold War.
At the end of the day any commentary on the weakness of international
institutions should be, as often as not, a commentary on the lack of
commitment by their member governments to improving them. Buckpassing is a
familiar phenomenon in most walks of life but it reaches epidemic
proportions when it comes to the UN.
Australia, unhappily, has just been exposed as being as bad as anyone else
in the world in this respect: with the Prime Minister telling the AWB
inquiry last week that it was not Australia but the UN who should have
policed the Security Council resolution requiring governments to prevent
kickbacks of Oil-for-Food funds to Iraq – and not only that but our own
domestic legislation implementing that prohibition as well! When a country
defaults on its legal and moral obligations on the scale in issue here in
order to protect its wheat trade, it is difficult to criticize China for its
foot-dragging over sanctions against Sudan to protect its oil interests.
The Problem of Political Will: Taking Effective Action
This brings us squarely to the last of the problems which have to be
overcome if we are to effectively deal with crimes against humanity – the
endemic problem of mobilizing political will to act in the particular case.
All the other ingredients can be there – the knowledge of what’s happening
or about to happen, the acknowledgement of general responsibility, even the
capacity and resources to act. But still there can be, and often is, a
reluctance by governments – and the intergovernmental organizations in which
they sit - to jump the final hurdle.
My short point is that we shouldn’t despair about this. The problem of
finding the necessary political will to do anything hard, or expensive, or
politically sensitive, is just a given in public affairs, domestically or
internationally. The evident absence of such will should not be a matter for
lamentation, but mobilization. For every Indian Ocean tsunami that generates
a massively sympathetic international human response, and an outpouring of
material support, there is a Pakistani earthquake, just about as horrendous
in its human consequences, that does not. We have to live with these
vagaries in the human psyche, and our various body politics, and work on
ways of overcoming them. Political will is not hiding in a cupboard or under
a stone somewhere waiting to be discovered: it has to be painstakingly
built.
All politics is in a sense local, and the key to mobilizing international
support is to mobilize domestic support, or at least neutralize domestic
opposition. And I’ve always believed, inside and outside government, that
the key to mobilizing that support, through the media and from decision
makers themselves, is to have not just good organization and good lobbying
techniques and good contacts, but above all good arguments,
intelligently and energetically advanced: they may not be a sufficient
condition but are always a necessary one for taking difficult political
action.
Those arguments may be party interest arguments designed to
consolidate a government’s vocal domestic base (always an important element
in the Bush Administration’s interest in Sudan, such as it has been);
national interest arguments (much easier to make now in relation to
‘quarrels in far away countries between people of whom we know nothing’, in
Chamberlain’s terms, because of what we do know now about the capacity of
failed states, in this globalised world, to be a source of havoc for
others); financial arguments (in terms of a million dollars worth of
preventive action now saving a billion dollars worth of military
intervention later); or even moral arguments (given that however base
politicians’ real motives may be, they always like to be seen as acting from
higher ones) .
When it comes to mobilizing politically will internationally – in
intergovernmental organizations like the UN, EU, African Union and NATO -
additional players come into the picture: the UN Secretary General himself
(with his own capacity under Article 99 of the Charter to bring to the
attention of the Security Council any matter which in his opinion may
threaten international peace and security), international NGOs such as my
own and, as always, CNN’s cameras.
But while international political will is more than just the sum of its
national parts, my own judgement, for what it’s worth, is that the national
parts are still crucial. And that doesn’t just mean the Security Council
Permanent Five and the other really major players. It means the middle
powers, and indeed any government at all which is seen as consistently
principled and having a mind of its own, and that has ideas, and creativity
and the energy and stamina with which to pursue them. I mentioned earlier as
a model of its kind the particular role played recently by Canada, and
personally by its former Prime Minister Paul Martin, on the responsibility
to protect issue.
Australia has played such a role from time to time in the past - in
international conflict, human rights and humanitarian issues as well as many
others - and it remains my fervent wish that we play such a role again,
consistently, credibly and constructively, on the international stage. I’m
constantly proud, as I meet policy makers around the world, of the
reputation for competence, professionalism and commitment that individual
Australians abroad, working in difficult and sensitive areas, continue to
have.
We are a country that has a tremendous amount to give. And nowhere more so
than in ensuring that when the world says ‘never again’ next time, it really
means it.