Is peace possible through an international rule of law? Speech at the Sydney Centre for international law, faculty of law, the University of Sydney.

• Author: McCleland, Robert

Introduction

The international landscape today is very different from that of two decades ago. The Cold War has ended, removing many serious threats to international peace and security. However, the international order that has replaced it has presented many new challenges.

The most serious challenge is an upsurge in human rights abuses and casualties among civilians. While only one in ten casualties from conflict was a civilian at the start of the 20th century, nine in ten casualties were civilians by its end. The trend continued with the breakdown of the two Cold War power blocs which has seen renewed nationalist movements competing for recognition. Long-suppressed ethnic and religious rivalries have also re-surfaced.

Throughout the last two decades, the world has been horrified by events in the former Yugoslavia, Rwanda, Kosovo, Darfur and elsewhere. The international community has been frustrated at the inadequacy and delay in effective international intervention.

One of the most fundamental questions to arise from these events is how the new international order should deal with oppressive and violent conduct inflicted on a population by their country's rulers. In this context, much criticism has been levelled at the inability of the international system, in particular the international legal system, to effectively contribute to the prevention and resolution of humanitarian crises and imminent conflicts. Some frustrated critics argue that institutions like the United Nations have made themselves irrelevant. As a result it has been argued that ad-hoc coalitions acting unilaterally are the only practical method of meaningful intervention.

These criticisms ignore encouraging developments. In reality, the incredible speeds with which international dynamics have changed presents an enormous challenge but also an important opportunity. The international legal system has been renewing and reforming itself to better deal with the post-Cold War pressure points.

I would like to speak briefly about the changes that the legal system has already undergone in respect to humanitarian intervention. I will endeavour to provide at least a cursory evaluation of successes and limitations. I would then like to identify the numerous challenges that are yet to be met, with some suggestions for a way forward.

I will conclude that Australia can and should play a vital role in the still embryonic international criminal legal system. I will argue that constructive engagement with the international community to develop this important jurisdiction has the potential to save countless lives and contribute to global peace and security.

1. Multilateral Humanitarian Intervention

Increased threats to civilians, a breakdown in established international order and growing public pressure for action to avert humanitarian crises have precipitated a change in the fundamental bedrock of international law.

Historically, there has naturally been great resistance to any multilateral intervention by States against a fellow State particularly when it is based on internal events within that state that do not directly affect those nations seeking to intervene. This principle was based on the concept of sovereignty that has existed since the Treaty of Westphalia in the 1640s; namely that States are the sole sovereign of their own territory and that other States do not have a right to intervene. The principle formed the basis of the United Nations Charter ('the Charter') after World War II, which was mainly concerned with preventing conflict between States rather than inside them.

Article 2.1 of the Charter establishes that the Organisation is based on the principle of the sovereign equality of all Member States. (1) Article 2.4 provides that Member States shall refrain from the threat or use of force against the territorial integrity or political independence of another country. Article 2.7 makes it even clearer that nothing in the Charter authorises the UN to intervene in matters which are essentially within domestic jurisdiction of a State. The exception is where the intervention is under Chapter VII of the Charter.

The principle of non-intervention has also been strongly defended, particularly by countries that experienced the full force of the European 'civilising mission' during the colonial era and now prize their hard-fought independence. Most of the genocides and other humanitarian disasters in the post Cold-War era have been committed internally during civil war or the complete collapse of a government. An uncomfortable tension exists between the foundational principle of State sovereignty and the need to establish international humanitarian intervention as a recurring normative feature of international affairs.

Nonetheless, progress is being made to overcome some of these obstacles. Firstly, the Security Council clarified a...