Undermining our best chance

Australia's dying multilaterilism
Kevin Rudd

Introduction

My thesis here is simple: first, during the last five years the Howard government has done much to undermine the preceding fifty years of Australian bi-partisan commitment to the United Nations' multilateral system; second, the reason why this has occurred is not because of some rational deconstruction of the merits and demerits of multilateralism per se, but because an attack on multilateralism - accompanied by a rhetorical defence of 'Australian sovereignty' - has served the partisan political impulses of the Liberal Party in its single minded obsession with domestic electoral gain. And thirdly, I argue that this is not in Australia's long term national interest for the unremarkable reason that Australia, as a middle power, is a net beneficiary of the multilateral system under the aegis of the United Nations, which - despite deficiencies - is infinitely superior to all other attempts at an international order in the history of humankind. For those reasons, we should defend and improve it, not undermine and destroy it.

The historical commitment to multilateralism

Anyone interested in comprehending the dimensions of the revolution in multilateralism, which occurred after the defeat of the Axis Powers, should read Foreign Minister Doc Evatt's statement to the Australian House of Representatives on 13 March 1946. As Evatt surveys the international scene, following his return from a meeting of the Executive of the Preparatory Commission of the United Nations in London, you cannot but be awestruck by the scope of the project in which he was engaged. Evatt is almost matter of fact, as he reminds the House that it had only just recently approved a Bill for an Act to approve the Charter of the United Nations; and that in a short few months since then, three of the six principal organs of the United Nations - the General Assembly, the Security Council and the Economic and Social Council - had come into being, while the fourth, the International Court of Justice, was just about to.

Evatt was not blind to the deficiencies of the new order that he, in such large measure, had helped shape. The tone of his parliamentary address is anything but Utopian. It has all the flavour of a gritty Australian realism. But it is a realism coloured by that other great Australian virtue, fairness: a view that, by virtue of common human endeavour, we might just be able to shape something better than the organised barbarism we had tasted not just once in the century, but twice. Half a century later, it is worth reflecting on what the Doc had to say:

I do not wish to quarrel over words, but I think it is quite erroneous to describe the United Nations organisation merely as an 'experiment'. On the contrary, it is the best presently available instrument, both for avoiding the supreme and ultimate catastrophe of a third world war, waged with all-destroying weapons, and also for establishing an international order, which should and can ensure to mankind security against poverty, unemployment, ignorance, famine and disease. The United Nations ... exists to help realise the twin objectives of freedom from fear of aggression and freedom from want. Australia shall continue steadfastly and courageously to play our part in this organisation, on which must rest most of the hopes of men of goodwill throughout the world.

Those were heady days. Evatt casts a long shadow which few, if any, of his successors have eclipsed. Australia chaired the first ever session of the United Nations Security Council. Australia, through Evatt himself, was the third President of the United Nations General Assembly. Australia, largely through Evatt, was the prime mover in the creation of the Economic and Social Council. And the list goes on. Evatt grasped this single and central fact: for small powers, the multilateral system offered the only chance. For middle powers, it offered the best chance.

Evatt had experienced first hand Australia's marginalisation at the hands of Churchill, both in the conduct of the war and in the construction of the peace. Evatt's experience was little different from that of Hughes a generation before. Evatt crafted a tradition of Australian engagement - comprehensive engagement - in the construction and operation of the new multilateral order. It was not just a Labor tradition, although Evatt, beyond dispute, was its prime mover. It became, very soon, a bi-partisan tradition; an Australian tradition. Where Evatt led, Spender and Casey soon followed. Whereas Evatt constructed the Economic and Social Council, his conservative successors constructed its regional embodiment, the pre-cursor of ESCAP, the Economic Commission for Asia and the Pacific and the East (ECAFE). With ebbs and flows along the way, an unapologetic and uncompromising commitment to multilateralism became part and parcel of the Australian foreign policy firmament. At least until recently.

The unravelling of Australian multilateralism

It is difficult to point out exactly when it all began. But at some stage over the last five years, it is beyond doubt, the unravelling of our multilateral commitments began in earnest. In the world view of Alexander Downer, UN multilateralism has become the province of fairies at the bottom of the garden; or, to borrow Alex's favourite term from the Young Liberals Boys Own Annual, the self-indulgence of bourgeois intellectual Leftists. Real men, according to Alex, do bilateral; not multilateral. Real men do bilateral security. Bilateral security is hard. Multilateral security is soft; be it disarmament, peacekeeping or the UN Security Council. Real men do bilateral free trade agreements. Multilateral arrangements, through APEC or the WTO, are now seen as second rate. And real men, it seems, don't do the ICC (International Criminal Court), although this one created a real problem for our Foreign Minister's political machismo. But more of that later.

This retreat from multilateralism is now manifested across the field. It is not just in human rights, where we have seen the government's failure to ratify a range of UN protocols, in addition to the government's undisguised hostility to UN Special Rapporteurs. Nor is it just in the field of the environment and the government's refusal to ratify the Kyoto Protocol to the UN Framework Convention on Climate Change. We also see it at work with the International Court of Justice, when in March this year Australia made a declaration excluding the setting of maritime boundaries from compulsory dispute resolution.

Australian contempt for multilateralism was also manifest at this year's UN Conference on Financing for Development in Monterrey. This conference was attended by fifty Heads of State, including Presidents Bush and Chirac and Prime Minister Chretein. Beyond these, there were more than 200 ministers present. Australia was represented by a junior parliamentary secretary. In foreign policy, like domestic policy, symbols sometimes count, and this one certainly did. At Monterrey, the Bush administration proposed a 50 per cent increase in core US development assistance over the next three budget years. The EU announced that it would set a new target of 0.39 per cent of GNI by 2006. The New Zealand Minister for International Development committed his government to increase ODA from 0.24 per cent to 0.7 per cent over time "as revenue and resources allowed". Australia said nothing.

Actions, however, speak louder than words: Australia's overseas aid reached a high of nearly 0.5 per cent of GDP during the last Labor government. It now stands at 0.25 per cent of GNI. And with absolutely zero commitment to increase it.

Disengagement from the UN is one thing. Going on the offensive against the UN is quite something else. This is what the Howard government did in the year 2000, when it launched its "Review of the UN Treaty Body System" in direct response to critical comments by the UN Committee for Elimination for Racial Discrimination in Geneva (CERO). Alexander Downer seems to believe that he and his government are somehow Robinson Crusoe when it comes to periodically having to deal with critical reports from Special Rapporteurs. Mr Downer neglects to mention that in March 1998 the UN Special Rapporteur probed the German government's commitment to religious tolerance. He neglects to mention that in April 2000 a Special Rapporteur probed the British government's role in the 1989 murder of a Belfast solicitor through its security forces in Northern Ireland. Nor have we been told of the July 2001 UNHRC Report critical of the Netherlands government for its controversial new law on euthanasia; nor the April 2002 Preliminary Report by the UN Rapporteur alleging that Italian judges and prosecutors had "reasonable cause" to fear for their independence, which had been threatened by politicians under the government of Prime Minister Silvio Berlusconi. But surprisingly, none of these governments have deemed it necessary to declare open season on the United Nations.

What Alexander Downer does not tell the Australian people is how much Australia benefits from the United Nations. Alexander Downer has not told the Australian people that, were it not for United Nations, Australia's diplomacy with Indonesia in 1998-99 over East Timor's independence would have come to nought. INTERFET could never have been deployed in the absence of the United Nations Security Council mandate. But in the government's orgy of self congratulation over East Timor's independence, barely a word was spoken about the role of the UN Secretary General or, for that matter, the role of the interim UN Administration. The same applies for East Timor's long-term economic recovery, reconstruction and development. Were it not for the systematic engagement of the range of UN agencies, the financial burden on Australia for the economic reconstruction of East Timor would be beyond our national capacity to cope.

The same can be said for refugees. Mr Downer does not tell the Australian community that, were it not for the UNHCR and the IOM, there would still be more than 2000 East Timorese on the West Timorese side of the border. It was only through the engagement of these agencies, the resources which they were able to commit (on behalf of the international community), not to mention the lives they lost in the process, that these refugees were able to come home. Had this not occurred, a quarter of East Timor's population would still be missing. Yet this is the agency which the Australian government was happy to malign barely twelve months later, when the UNHCR had some critical things to say about the handling of the Tampa.

Disparaging the United Nations has become a matter of general sport for this government. It is seen as a good lark. It is also seen as good politics. Because the unwritten script in all of this is that, in Australian domestic politics, the UN has become the perfect counterfoil for the purposes of the government asserting its nationalist credentials. I sometimes wonder whether this government fully appreciates how fragile the political consensus is that underpins the fabric of the UN system. It is not an overstatement to say that when a country like Australia, which has had a fifty year history of active support for UN multilateralism, turns around and then attacks the very system it has helped create, it has an effect. In the eyes of the multilateral community, Australia, once a contributor state, is now seen as a problem state. Whereas in Australia it is simply seen as part of a broader domestic political frolic, in which our Foreign Minister is unhappily complicit, the problem is that the ramifications of this domestic political strategy extend well beyond our shores.

There is a remarkable symmetry between the contempt this government has demonstrated towards our international institutions, and that which it has already demonstrated over a long period of time to our domestic institutions. The UN is fair political game; just as the independence of the public service, the armed forces and the ABC are now seen as fair political game as well. In this respect, these conservatives are not conservatives at all. They are the antithesis of Edmund Burke. Rather than defending their institutions, they set about denigrating and ultimately destroying them. As a nation, we are the poorer for it.

For this government, foreign policy has become little more than the continuation of domestic politics by other means. We have already seen this at work with the Howard government's initial embrace of Hansonism. We have seen it at work with the government's incremental disengagement from Asia, and the 'rebalancing' of our international relationships away from Asia towards Northern America and Western Europe. And we see the same strategy of domestic political advantage at work in the government's handling of the UN.

Of course, in all of this, Alexander Downer should have known better. As the Foreign Minister of the Commonwealth of Australia, he has particular responsibilities. His job is to keep the barbarians at the gate, particularly when our long term national interests are in danger of being fundamentally compromised by the short term, partisan impulses of some of his domestic colleagues. However, rather than acting as a voice of systematic restraint, Alexander, while not generally a ringleader, has certainly at least been a cheerleader, prepared to go along for the ride. Australian diplomatic history will record Alexander Downer as being one of our longest serving Foreign Ministers. I fear it will also record him as one of our weakest.

It continues to this day. Only weeks ago in the House of Representatives, Mr Downer unleashed on the United Nations again; this time in the context of the recent visit by the United Nations Working Group on Arbitrary Detention. In answer to a Dorothy Dixer, Mr Downer said:

We do not run off to the United Nations asking how Australia should be run. One of the great contrasts between the Australian Labor Party and this government is that we make our own policy. The Labor Party has no policies and goes to Geneva and asks the United Nation's officials what its policy should be. It is, if I may say so, a stark contrast.

A stark contrast indeed: the UN as yet another instrument of wedge politics. But an even starker contrast emerges when we compare Downer's commentary on the United Nations with that of Evatt's half a century before. It is almost squalid by comparison.

The International Criminal Court

The debate over Australia's ratification of the Rome Statute establishing the International Criminal Court is the most recent example of the government's, at best, ambivalent embrace of the multilateral system. As Tim McCormack in Res Publica states:

The concept of a permanent international criminal court is not a new one. As early as 1874 the Swiss Lawyer, Gustave Moynier, one of the co-founders of the International Committee of the Red Cross, argued that respect for the then newly emergent International Law of War would only come with effective enforcement mechanisms. Moynier drafted a statute for his proposed international tribunal and international communities discussed the concept on numerous occasions since.

Urgency was delivered to these deliberations by the "war to end all wars" and then, barely a generation later, another war, with admittedly fewer military casualties but civilian casualties that reached beyond imagination. As the Chairman of the Drafting Committee of the Rome Statute has noted:

Since then [i.e. WW II], some 250 international and regional armed conflicts have occurred. These conflicts, along with human rights violations perpetrated by tyrannical regimes, have produced an estimated 170 million casualties as well as incalculable losses.

So when the Rome Statute was finally agreed in 1998, more than a century after Moynier's initial proposal, its time had well and truly come. Or at least that was the view of most states in 1998. Since then, the United States has withdrawn its support. And Australia's ratification process collapsed into complete disarray.

What is puzzling for most observers of this process is how the government could have come so far on the ICC without bothering to clear its internal lines first. As far back as 1996, Foreign Minister Downer was proclaiming to the Nation that the establishment of an International Criminal Court would be a central priority of Australian foreign policy. Mr Downer made the same undertaking to the United Nations General Assembly. On at least two occasions, he repeated this undertaking to the Australian Parliament. In the year 2000, replete with the optimism of the new millennium, Mr Downer solemnly promised that legislation to ratify the ICC would be passed by the Australian Parliament by the end of that year. But it doesn't stop there. Mr Downer dined out on the international diplomatic circuit, championing Australia's leadership of like-minded countries in their negotiation of the statute. Beyond this, it was confirmed in Senate Estimates Committee only weeks ago that Australia also applied pressure to other states to get them to sign and or ratify the Statute as well.

But as we now know, it came radically unstuck. What is inconceivable is how the government could have let this issue run for more than five years before realising there was a problem. Not only is the credibility of Foreign Minister Downer in tatters. More importantly, the credibility of Australian foreign policy lies in tatters. It is inconceivable that you can run around the world preaching the message of the ICC; converting the unconverted; basking then in the afterglow of the diplomatic achievement that the final negotiation of the Rome Statute represented; and then turn around one day and simply say you got it all wrong. International relations are not like that. Foreign policy is not like that.

Such a fundamental policy U-turn might be explicable if there had been a change in government. That has at least been the case in the United States, where the Bush administration has taken a different view on the ICC to the Clinton administration. It might even be explicable if there had been a change in ministers. But in Australia's case there had been no change in government. There had been no change in minister. We have the same prime minister and foreign minister today as we did in the beginning of this exercise. The stakes, as we all know, were very high. If Australia did not ratify this Statute, we would not be a state party in time for the first Conference of the Parties to be held in September. It is this Conference that deals with nominations to the Bench, nominations for the crucial office of Prosecutor, as well as deliberations on the rules and procedures of the Court.

The central characteristics of the ICC, its powers and its personnel are already on the record. There is ample literature on it and I will not repeat it here. The arguments in support of an ICC are clear-cut. First, the existence of a properly resourced, permanent court will act as a partial deterrent against individuals contemplating future acts of genocide, crimes against humanity or war crimes. At present, such individuals are able, by and large, to hide behind state sovereignty. For this, the Cambodian genocide is eloquent testimony. Secondly, the indirect effect of the Court is that it will require state parties to apply the principles of the Statute of the ICC to their national courts, which may, in turn, have an even greater deterrent effect of any future perpetrators of this class of crimes than the direct application of the international jurisdiction in The Hague. Thirdly, in the event of future crimes of this class being committed, the ICC constitutes the vehicle for the delivery of retributive and restorative justice. As Chairman Bassiouni of the Drafting Committee of the Rome Statute has observed:

Sympathy for victims of international crimes, no matter how sincere or widespread, is meaningless. Indignation by itself is never enough. Retributive and restorative justice is what makes sympathy meaningful and indignation credible.

Arguments against the International Criminal Court focus on a loss of 'sovereignty', the independence and professionalism of the Courts; and the potential 'vulnerability' of Australian and, or, allied service personnel engaged in peacekeeping, peace enforcing or other coalition operations. The sovereignty argument is bogus. The essence of any multilateral system is shared sovereignty. Even in the absence of a multilateral system, sovereignty is never absolute. It is shaped by the relative power of the state concerned: the less powerful the state, the less capable that state is in the assertion of its sovereignty. It is a matter of imperical fact that our sovereignty is qualified by every international treaty obligation we undertake, including many non-UN treaties (such as the ANZUS treaty). Just pretending that our sovereignty now is somehow virginal and complete is a monumental act of intellectual self-delusion. On the impartiality and professionalism of the Court itself, a range of safeguards have been built in. These relate to the transparency of the selection procedures for both the bench and the Office of the Prosecutor, the procedures outlined in the Statute through which a matter may be referred to the ICC, and the nature of the pre-trial hearings foreshadowed in the Statute to screen out any frivolous matters brought to the attention of the Court by a particular state party. While none of these procedures are fool-proof, they are more elaborate than a number of protections built into a number of national legal jurisdictions.

A third and related argument against the ICC arises from concerns about the vulnerability of Australian or allied service personnel serving abroad. The first safeguard in this respect is the long history of professionalism of the Australian Defence Force itself. After having had more than a million men and women in uniform in eleven different theatres of war, I am unaware of any occasion on which Australian service personnel have been accused of genocide, crimes against humanity or war crimes. Second, the Statute has entrenched the doctrine of 'complementarity', whereby any Australian or allied service person, who in the future committed a crime in this category, would be tried in an Australian national court. Third, this option of employing a 'complimentary' national jurisdiction is not available to parties who have not ratified the Statute. What that means, in effect, is that service personnel from a non-party state who commit crimes in this category would not have the option of being tried in their home jurisdiction. They would be immediately extradited and tried by the ICC in The Hague. As a matter of logic, therefore, this creates a significant incentive for states to be party to the Statute rather than remaining outside it.

These arguments for and against ratification statute have been around for a long time. There is nothing new in any of them. There is a significant literature on each of them. While certain reservations about the Statute may well be sincerely held, in most cases it appears to have more to do with appeasing the fundamental political prejudices of the rabid Right. This is particularly the case in the National Party, where the League of Rights and the Citizens Electoral Councils appear to have become particularly active in the party's electorates on this issue. Conspiracy theories, once again, appear to abound. The Federal Cabinet and the Federal Joint Party Room became fundamentally divided on this question. The Prime Minister and Deputy Prime Minister appeared to be opposed; the Foreign Minister and the former Justice Minister, Amanda Vanstone appeared to be in support, as did the Attorney General, Mr Williams. An interesting question in terms of the unfolding leadership politics of the Liberal Party is where Peter Costello stood on the ICC? If he supports the moderate Liberal perspective, then he would have supported ratification. That, however, would have potentially placed him at odds with the Prime Minister.

From my perspective, at this stage it was inconceivable that the Prime Minister could leave his Foreign Minister hang out to dry on this. I believe the Prime Minister engaged in what is known in politics of 'double messaging': that is, using language to give every impression to his most conservative Australian constituency that he is taking their reservations about the ICC seriously, before eventually relenting and supporting Downer's position on ratification. Not supporting Downer on such a matter of high policy would have almost inevitably resulted in Downer's resignation. His position would have become untenable.

It has been suggested by some in the media, who may well have been backgrounded by some in the government, that a possible compromise for the Prime Minister and the Foreign Minister was to embark on a specific Australian 'reservation'. This would mean invoking the so-called 'transitional clause' of Article 124 of the Rome Statute which provides:

Notwithstanding Article 12, paragraphs 1 and 2, a State on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute, for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 [i.e. war crimes] when a crime is alleged to have been committed by an international or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article should be reviewed at the Review Conference conveyed in accordance with Article 123, paragraph 1.

Of the sixty-seven states that have ratified the ICC statute, only one appears to have entered such a reservation. There are, in addition, conflicting views as to the precise legal significance of any state party to the ICC Statute entering such a reservation. The practical effect of such a reservation (beyond its legal significance) may also be limited. If such a reservation was capable of preventing, for example, a French soldier from being prosecuted by the ICC in The Hague, the same French solider could, however, be prosecuted under the domestic jurisdiction of individual parties to the ICC. In other words, applying the French reservation at the point of ratification would not provide anything approaching complete immunity from any breach of the international and domestic apparatus of the ICC. More fundamentally, it would have been, as a matter of principle, invidious for Australia to be seen to be ratifying the provisions of the ICC as they relate to genocide and crimes against humanity, but not war crimes. It would be as if Australia was constructing some sort of moral hierarchy between these categories of crimes, and seeking to exempt itself from consideration under the relevant provisions of the Statute on war crimes. If the government was so minded to embark on this course of action - what might be termed the Alexander Downer redemption clause - Labor, for reasons already outlined, would have opposed it.

The problems which the government faced on the entire question of ICC ratification were problems of politics, not policy. To allay any doubt, Labor's position in relation to the ratification of the Statute is that we would offer the government bipartisan support for its expeditious and complete ratification by means of legislation through the parliament.

Conclusion

Labor's commitment to multilateralism is robust and consistent with bipartisan Australian foreign policy practice for much of the last fifty years. The government, by contrast, has regarded the system of UN multilateralism as a useful domestic political opportunity. And one of the emerging casualties on this score could well have been the International Criminal Court, on which the Howard government sought to manufacture some form of unsustainable compromise. Labor does not have a starry-eyed view of our multilateral system. Labor recognises that the existing multilateral system will be in need of continuing improvements in the future. In that sense, our views are not dissimilar to those of Doc Evatt, as articulated in his statement to the Australian Parliament fifty-five years ago:

It is not difficult to find some flaws in the Charter itself. Neither will it be difficult to prove that the machinery of the United Nations is not being used as effectively as it might. The important thing, however, is that the Charter does now exist and that a world organisation has been set up under which the habit of international conciliation, consultation, can and must be developed. It is the duty of all of us to encourage the habit of reference to the United Nations ... Australia has consistently maintained the view that the United Nations Organisation should be given the fullest possible support by each member.

It would be useful if the Coalition reflected on Evatt's observations of half a century ago.


Kevin Rudd is the Australian Labor Party's Shadow Minister for Foreign Affairs, and a contributor to the Evatt Foundation's new book, Globalisation: Australian Impacts. This paper is based on an address that was originally delivered to the Australian New Zealand Society of International Law, University House, Canberra, on 14 June 2002. On 20 June the Howard government announced its intention to support ratification of the 1998 Rome Statute providing for the establishment of an International Criminal Court. The Australian Senate passed the implementing legislation on 28 June 2002. The Australian government inserted a declaration into the implementing legislation reaffirming the primacy of Australian law and the Australian legal system in relation to crimes within the jurisdiction of the Court. This should have no significant bearing on the court's operation, as the Rome Statute is premised upon the understanding that the member countries have the primary responsibility to investigate and try all those who are responsible for crimes in their jurisdiction. The declaration also states that the Attorney-General must issue a certificate before a person can be surrendered to the International Criminal Court. The Rome Statute does not authorise a national political official to unilaterally refuse to surrender a person.


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