This has been a week to honour the memory of good men.
Last week, we mourned the loss of Sergio Vieira de Mello.
And this week, we honour the memory of Ron Castan.
I do not know whether these men had ever met. But what I do know is what they have in common.
Both were believers in the dignity of all humanity.
Both believed that this dignity required protection by a body of human rights law, both national and international.
And both believed that if these laws were to have effect, institutions both national and international, must be created and nurtured with that explicit charge.
Unfortunately there are too few good men. People who are prepared to imagine a better world. And people who are then prepared to roll up their sleeves and do something about it.
Apostles of hope. Rather than purveyors of fear.
For these are the two grand narratives of the meagre centuries that make up Australia's settled history. A narrative of hope. And a narrative of fear.
And we see the resonances of these competing narratives in the public discourse of our nation today.
If there is one constant in all of this, it is that the politics of hope is always harder than the politics of fear. Or put in the reverse, the politics of fear are always easier to manage and manipulate than those who seek to appeal to the better angels in our human nature.
Ron Castan knew something of what it was like to wrestle with both the good and the bad angels that compete for space in the composition of the Australian soul.
He brought to this country the richness of his peoples' tradition: their brilliance, their energy, their determination. All shaped in some way by the unspeakable barbarism of the death camps of Europe.
It is impossible for any moral human being to remain unaffected by those camps.
Just as it is impossible for any moral human being to remain indifferent to inhumanity and injustice wherever it may occur.
And herein lay the morality of Ron Castan who was a Jewish Australian and became, in Justice Kirby's elegant phrase "the advocate general of Aboriginal people".
It was Ron Castan who said at an Indigenous-Jewish Forum at this university in 1998, "As a young man, I remained naively unaware of the existence of the Aboriginal people of this land of the policies and practices that had been in place since first settlement and that were still in place in the 1940s, 50s and 60s. Nevertheless, it troubles my conscience now that it took me until 1971 to really commence to see that the determination not to stand by and see the Jewish people downtrodden and persecuted, was meaningless if I was standing by and seeing another oppressed people downtrodden and persecuted within my own country".
It was John Wesley who said: "The world is my parish". And while some may disagree theologically, there is much of Wesley in Castan. Because the world was Castan's parish as well.
For in Castan's world view, if human rights were not universal, there were no human rights at all. Whether it was indigenous Australia, East Timor or Tibet, Ron Castan painted on a wide canvass because the enterprise to which he was committed did not recognise the delineations of geography or nationality.
And whether we agreed with him in every detail or not, the world, including our particular place within it, is better for him having lived and worked among us.
And it is good that his spirit and his work continues through the Centre that proudly bears his name.
The international order at the cross roads
The engine room of international human rights for more than half a century has been the United Nations.
Tonight, however, I do not just wish to talk about the future of the United Nations as a vehicle for the further advancement of international human rights.
Tonight I want to talk about the future of the United Nations itself.
I want to talk about whether the United Nations has a future.
Or whether the Iraq war, and the manner in which it has been prosecuted, spells the end of the United Nations.
These are the great questions of our time because the current international order is at a crisis point or at least at a turning point.
When the history of this century is finally written, it may well be that those who follow us look back at 2003 in the same way as we look back at 1945, at 1919 and even 1815.
1815 heralded the Concert of Europe whose great power balances, it is argued, preserved Europe from pan-continental war from the Congress of Vienna to the assassination at Sarajevo.
1919 saw a different order altogether, one based on international law, collective security and disarmament, a triumph of Wilsonian ideals over the blood and mud of the war to end all wars.
And then in 1945, the creation of the current international order based on a compromise between the military power of the permanent five and the multilateralism of the decision-making system of the UN Security Council.
The UN Charter and the UNO are notoriously imperfect. They are, however, better than anything that has preceded them. And certainly better than nothing at all.
Churchill's great aphorism applies: just as democracy is the worst system of government in the world, except for all the others; so it is with the UN, the worst system of international government in the world, except for all the others.
The UN Charter is based on a system of state sovereignty anchored in Chapter Two and explicitly outlaws the invasion of one state by another reflecting the political resolve of those attending the San Francisco Conference in 1945 to deal with the serial invasions of the previous decade.
The Charter does provide the basis for armed intervention in other states. It does so explicitly in three areas:
a) The first is Article 42 under which the Security Council may resolve to authorise collective military action against a member state or states who, in the collective view of the Council, have threatened international peace and security.
b) The second is Article 51, the right to self-defence, recognising the reality that if a member state is attacked, time will not permit the convening of the Council to consider the authorisation of such action although the Council must be immediately notified so that collective action can then be considered.
c) The third is more contentious. It is the emerging doctrine of international humanitarian intervention. It rests on the authority of Article 24 of the Charter which empowers the Security Council with the primary responsibility of preserving peace and security. It also rests on a doctrine of sovereignty that holds that states are responsible for the protection of their domestic populations. That means protection from large-scale killings, mass murder and genocide. Under this emerging doctrine of international humanitarian intervention, member states may intervene militarily under strict criteria to prevent or ameliorate carnage at that time. I emphasise "at that time" because international humanitarian intervention cannot simply be applied retrospectively, thereby masking a range of other reasons that may in reality have caused that state to go to war reasons that may be more strategic, ideological or political, than in fact, humanitarian. This fact is of fundamental importance in our analysis of the reasons why the Howard Government went to war in Iraq.
The UN Charter is not a perfect document. It is, however, a document that is the product of much American, British and Australian drafting. In fact, Australia's paw prints are all over the UN Charter and the early operation of the UNO. Foreign Minister Evatt had a significant hand in drafting the Charter. The entire chapter dealing with the UN's economic and social organisations was written in Evatt's own hand. An Australian was the first President of the Security Council. An Australian was the third President of the General Assembly. There is not much of the UN system that does not bear the handiwork of Australians. So when the Foreign Minister today blithely declares Evatt as "mad", as he often does, he derides a national legacy, not a partisan legacy, and in so doing diminishes himself. It is the mark of a small man standing in the long shadows of those who have gone before, of whom Evatt, Whitlam and Evans are foremost in the firmament.
So if the UN system does provide the capacity for armed intervention, why was it not applied in the case of Iraq?
The Howard Government argued that Article 42 did apply and that Security Council authorisation could be derived from a careful analysis of 16 separate Security Council resolutions from 1991 on dealing with unaccounted for Iraqi WMD. Barely a single public international lawyer concurs with this view.
First, the scope of these earlier resolutions dealt with inter alia the Iraqi invasion of Kuwait and the terms of the ceasefire, including evidence of the destruction of Iraqi WMD.
However, on any interpretation, if war was to somehow be re-activated by Iraqi non-compliance with the ceasefire resolution, then the war to be re-activated was a war to remove Iraq from Kuwait, not a war for regime change in Baghdad. The scope of the original authorising Security Council resolution of the first Gulf War did not provide coverage for the military conquest of Baghdad. This was one of the reasons US allies at the time, including Australia, refused to sanction US proposals to advance beyond southern Iraq to Baghdad because a fresh and more expansive Security Council resolution covering the elimination of the regime was necessary. Such a resolution was never adopted.
Fast forward to 2002/03, the same circumstances presented themselves. Which is why so much effort went into a so-called "second resolution" in New York over the 2003 northern winter. The previous resolution (1441) of November 2002 did not authorise war against Iraq. It did give Saddam Hussein one last chance, which was why we had a protracted debate about how much time Hans Blix would need to produce a definitive report on his conclusions or outstanding questions on unaccounted on Iraqi WMD. That final report was not completed. The rest is now history.
But for the Howard Government to turn around and argue seriously that their authority for going to war in 2003 lay in a careful retrospective reconstruction of the scope and content of Security Council resolution 687 of 1991, and its successor resolutions, relies more on the logic of medieval scholasticism than on any serious reading of international law. Which is why when the Howard Government was finally forced to table its legal opinion, the best it could do was produce a public servant from the legal branch of Mr Downer's own department.
Furthermore, the revival and the reinterpretation of old resolutions simply doesn't pass the test of common logic. For the UN to authorise a war, the Security Council must decide expressly, explicitly and afresh that that is the case. In the case of Iraq the simple truth is that it did not.
The second ground of self-defence under Article 51 does not apply either. Plainly Iraq had not attacked Australia or its allies. So what of the imminent potential for an attack? Here enters the debate about Iraq's links with al Qaeda and S11 and Iraq's possession of "stockpiles" of completed, ready-for-use chemical and biological weapons, its "reconstitution" of its nuclear program, and its predisposition to supply these to al Qaeda or other terrorists.
Labor said throughout the lead-up to the war that if a clear, identifiable link could be established between Iraq, Osama bin Laden and S11, we would have been prepared to support military action under Article 51 - as we had done so barely a year before in supporting Australian military operations against the Taliban and al Qaeda in Afghanistan. The relevant Security Council resolution on Afghanistan post September11 explicitly drew on Article 51 in authorising military action by member states. Furthermore, we had direct alliance obligations at stake because the metropolitan territory of our American ally had been attacked. But when it came to Iraq, no linkage could be established between Saddam Hussein and September 11.
So what of the WMD threat - either directly via the government of Iraq, or indirectly via terrorists other than al Qaeda? Again, the evidence trail was bare. No intelligence briefing the Opposition ever received indicated that Iraq had given, or was likely to give, WMD to terrorists. And furthermore, no intelligence briefing we ever received provided evidence that Iraqi WMD presented a real and present danger to the security of this country or that of our allies. And this leaves entirely to one side the difficulties the coalition forces through the Iraqi Survey Group are now having in locating the said stockpiles of ready-to-use chemical and biological weapons in the four months since the war. Just as it leaves to one side the fact that Iraq did not use said stockpiles of ready-to-use chemical and biological weapons during the war either. So the only conclusion we could draw was that Article 51 power of self-defence did not provide a sure footing for going to war either.
So we are left with the third and last ground for advancing an argument under the UN Charter that justifies armed intervention: namely international humanitarian intervention. Here again, we encounter fallow ground.
Saddam Hussein's regime was a monstrous regime beyond description. It was responsible for the mass murder of its own citizenry. It was an ideal candidate for the application of international humanitarian intervention in the late 1980s when it used chemical weapons on the Kurds. Just as it was in the early 90s when it turned on the Shi'ites in the south who were so foolhardy as to rise up against Saddam after the first Gulf War when they had been led to believe that the allies would intervene on their behalf. These two actions (one, a decade and a half ago, the other, a decade ago) would have provided ample justification for international humanitarian intervention at that time.
But nothing happened. Not from the US (compromised strategically in the 1980s because of their support for Iraq in its decade-long war with Iran whom America opposed). Not from the UK. And not from Australia either from the then Labor Government, or the then Liberal Opposition.
Remember the essential condition of international humanitarian intervention is that the intervention must occur now - to either prevent or ameliorate large-scale killings, mass murder or crimes against humanity. And it should be done through the Security Council. But there is little point trotting out the argument 10-15 years late as Prime Minister Howard has done on Iraq. This is simply a post facto attempt at a humanitarian justification for the war, once both public opinion and the international legal fraternity concluded that the other grounds advanced by the government for going to war.
The cynicism of this argument is further advanced by the fact that in the Howard Government's legal advice tabled in the Parliament on the eve of the war, international humanitarian intervention is not advanced as a basis for going to war were not persuasive.
Regrettably, what is a serious emerging doctrine of international law resting on Article 24 of the Charter, a doctrine that has gained urgency from the conspicuous failures of the international community (UN and non-UN) to deal with the humanitarian crises in Somalia, Bosnia, Rwanda and Kosovo over the last decade, a doctrine which now demands formal evaluation and possibly codification by the UN and its member states but a doctrine that for the Howard Government became an instrument of political spin rather than an articulation of serious foreign policy.
So when the Government speaks of liberating oppressed peoples today, let's separate politics from policy and ask the real question: that if international humanitarian intervention was in fact the legal rationale for the Iraq war, why it is not now also the case for Zimbabwe, Burma and North Korea? And in Zimbabwe, which witnessed mass murder in Matabeleland in the 1980s in Mugabe's own ethnic cleansing, and where Australia is still Chair of the Commonwealth Zimbabwe Troika, Australia's comprehensive inertia is comprehensively perplexing.
Future of the UN
The truth is that neither the UN Charter nor the UN Security Council nor Security Council resolutions provided the basis for action in Iraq.
And the parallel truth is that the Iraq intervention represented the application instead of pre-emptive action through the agency of coalitions of the willing.
For those who doubt this, it is important to recall the remarks of Presidential Spokesman Ari Fleischer at the time when negotiations on a second Security Council resolution in New York broke down. Ari Fleisher said that it was true that one international organisation had not supported the intervention in Iraq and that international organisation was called the UN; but that another international organisation had supported the intervention in Iraq, and that organisation was called the Coalition of the Willing.
For those who doubt that these new orthodoxies are shared comprehensively by the Howard Government beyond Iraq, a careful perusal of statements by the Prime Minister, the Foreign Minister and the Defence Minister reveal that a doctrine of pre-emption based on rolling coalitions of the willing is now supported in Canberra. Defence Minister Hill in particular argued extensively in support of pre-emption prior to the Iraq war. And Prime Minister Howard has perhaps gone one step further arguing that Australia itself may embrace a doctrine of regional pre-emption in South East Asia as part of the war against terrorism.
Replacement of the UN?
So if UN-based collective security is dead and its replacement is pre-emption-based coalitions of the willing, the central question to ask for us all is what will be the characteristics of the new international order that is to be constructed.
It is ironic that as social democrats of the centre left, we are now required to ask the ultimate conservative question of those who have now become the new radical parties of the centre-right: and this is, if the conclusion has been reached that the old order, the old rules (the Charter) and the old institutions (the UN) are broken; then please define for the international community the new order, the new rules and the new institutions to replace it.
In rendering this definition, Howard, Downer and Hill have a responsibility to articulate formally the Government's position on the following:
a) When (and under what circumstances) will pre-emption apply?
b) Will it be against all states harbouring terrorists? Or just some? And what is the difference of principle between the two;
c) Will pre-emption be applied against all WMD states beyond the P5; or beyond the P5 plus India; or beyond the P5 plus India and Pakistan; or beyond the P5 plus India and Pakistan and Israel; or only against WMD threshold states; or only against WMD threshold states who we don't particularly like?
d) Will pre-emption apply to states that engage in large-scale killings, mass murder, crimes against humanity and/or policies that have the effect of starving their local populations? Or will pre-emption only apply against some such states? Or cutting to the chase, just precisely which oppressed peoples around the world are we now in the business of liberating?
e) Will Australia fight in future coalitions of the willing' on a pre-emptive basis; will this be the future price of alliance; where will we draw the line; or will Mr Howard define each in terms of the oft-quoted "national interest" which, as we all know, is a term which has no definition. Will we be in Iran? Iran has WMD. It's called a rogue state. And it does have links with terrorists.
Or is the truth likely to be more complex than any of these? Could it be that there will be no explicitly articulated replacement international order so that we end up instead with either no order, no principles and no rules.
Or alternatively, a cocktail, or better, a smorgasbord made up of two parts pre-emptive coalitions of the willing, one part multilateral security under the UN because this seems to be Alexander Downer's "policy" as it currently stands.
If anyone thinks this is all too cute and academic, ponder right now the operational dilemma, both in Baghdad and New York, as these two orders collide and seek to co-exist. The Coalition Transitional Authority seeking to maintain maximum control on the one hand; and the UN seeking greater control on the other, if it is to lend its legitimacy to member states providing contributions to security, economic and humanitarian assistance.
This clash of the two orders is therefore real and there appear to be no rules, no principles readily available to resolve it.
On this question, I do not see a plethora of initiatives or even a passing comment from the Howard Government on how this might be done. John Howard's political strategy is to simply hope that it all just goes away and that everybody will now just focus on the Solomons instead.
But John Howard cannot escape from the unassailable reality that his Government is one of the three Occupying Powers in Iraq under the terms of the Fourth Geneva Convention (1949). This was recognised, grudgingly, by John Howard following the cessation of formal hostilities in April and only after a week of continuing pressure from the Opposition and the press. In practical terms, what this means is that means Australia today is conjointly responsible for ensuring the security, health, food, shelter and clothing for 20 million Iraqis. That's what Occupying Powers do. Put simply, if you invade a country, you get to run it afterwards until an Iraqi government takes over. And that is a long way off.
Mr Howard's response is to pretend it's somebody else's problem particularly when you look at the meagre humanitarian contribution his Government has made to the UNOCHA appeal on Iraq US$44 million out of a total flash appeal for US$2.3 billion.
But pretending Iraq is now somebody else's problem is just a domestic political strategy. It does not deal with the substantive problems on the ground in Iraq. And if these are not dealt with effectively, there is a grave risk of Iraq becoming another Vietnam.
Our view is that whatever people's views before the war might have been, the fate of 20 million Iraqis now depends on the Occupying Powers and the UN cooperating in a fundamental way to ensure that Iraq does have a future.
Reforming the UN
So is there an alternative to simply replacing the post-1945 order as neo-conservatives both here and abroad would recommend? I believe there is. I believe it is better to reform the UN rather than replace it.
There should be three major dimensions to the UN reform process:
a) We need to reform the composition of the UN Security Council and potentially its voting arrangements as well;
b) Second, we need to review the application of Article 51 on self-defence to deal with the realities of the new, post-1945 military technologies as with the reality of terrorism.
c) Third, and most critically, we need to review Article 24 and the emerging doctrine of international humanitarian intervention.
Much good work has been done on the latter by the International Commission on Intervention and State Sovereignty in its 2001 report. This should form the basis of detailed evaluation in Canberra, London, Washington and New York -by governments and by the UN.
The 2001 ICISS report represents the most comprehensive treatment of the subject to date and identifies clearly the policy choices which the international community will need to resolve. It recommends six threshold principles or tests to justify armed intervention on humanitarian grounds (as can be seen in the attachment). These must now be examined in great detail.
So does the UN have a future?
Yes it does.
In fact, there are two possible futures for the UN.
One future (which we do not support) is where the security policy responsibilities of the UN are eroded; its engagement in global economic management is marginalised; and where the UN is left to do humanitarian good-works alone.
Under this scheme, the US would do global security, the G8 (in conjunction with the Bretton Woods institutions) would continue to do global economy; and the UN would become a glorified International Council of the Red Cross.
In fact in time the UN would become little more than another NGO.
And for those concerned about international human rights, the consequences would be profound. Because as the UN itself withered on the vine, so too would the authority, legitimacy and efficacy of the body of international humanitarian law that currently hangs off both the UN and its Charter.
There is an alternative future for the UN.
And that is a future for a reformed United Nations that remains vital to all humanity, not just some.
And equally a UN that remains vitally engaged with all the concerns of humanity - security, economic and humanitarian - not just some.