The silence in Canberra over attacks on the ICC, the US attack on Venezuela and the war on Iran rings loudly. Australia has a unique chance to uphold it, writes Emily Crawford.
When a powerful state breaks the rules, the temptation is to declare international law dead.
Over the past 20 months, there has been plenty of evidence to feed that mood. The Trump administration alone has withdrawn from the WHO, the Paris Agreement, the UN Human Rights Council and UNESCO.
It has sanctioned the judges and prosecutors of the International Criminal Court. It has threatened to seize Greenland and take back the Panama Canal. It has struck Venezuela and seized its president, with no Security Council authorisation and no credible claim of self-defence.
UN Special Rapporteur Ben Saul has found that the US campaign of boat strikes, which has killed at least 223 people, amounts to “serial extrajudicial killings”. More than 100 international law experts have warned that strikes on civilian sites in Iran may constitute war crimes.
In addition, we are seeing widespread violations of the law in Myanmar, Sudan, and Gaza, among other sites of atrocities.
The cynics
Cynics say this proves international law is a fiction that binds only the weak. Its an appealing conclusion – after all, the UN Charter was founded on the promise of outlawing war.
But the UN is not the totality of the international legal system. And legal system that has its rules broken is no less a legal system for the breach. After all, we do not unilaterally declare that laws against theft are meaningless because theft occurs.
A prohibition on the use of force, on attacking civilians, on forcibly transferring populations, exists precisely because states are tempted to do these things.
What matters is how the world responds.
When a violation is named as a violation, documented by UN investigators, condemned by legal scholars and recorded for future accountability, the law is doing its work. Even the powerful tend to reach for legal language to justify what they do, because they know the rules carry weight.
Nobody feels the need to argue that a rule doesn’t apply to them unless the rule matters.
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The rules also matter most to those with the least power. Australia is the textbook example. As a middle power, we cannot secure our interests by force alone. We depend on freedom of navigation, on binding trade rules, on arms control agreements that restrain nuclear weapons, and on the expectation that borders cannot be redrawn by whoever is strongest.
Successive Australian governments have understood this, and Australia has long been a builder and beneficiary of the multilateral system.
Wrong way Australia
That is what makes the recent silence so striking. Canberra did not respond to the attacks on the ICC or the strikes in the Caribbean, and it backed the new war on Iran. If international law is the foundation of Australian security, treating its erosion as somebody else’s problem is a strange way to defend it.
Yet there is a real opening. Since announcing its bid for a seat on the UN Security Council, the government has been talking about international law constantly. The Prime Minister Anthony Albanese has said the international rule of law
“isn’t something that is regarded as, if you like, optional”.
The Foreign Minister Penny Wong says Australia wants “a safer world … governed by rules, not power and force alone”, and has promised a Council term focused on conflict prevention, the protection of civilians and “defending the rules that protect us all”.
Australia’s ambassador to the UN has set out why rules and norms matter to Australia’s prosperity and security, from trade to nuclear non-proliferation to the aviation and satellite systems that most of us rely on without thinking.
These are good words, and for anyone who cares about international law, hearing them from those in power is welcome.
But words in a campaign are cheap.
A Security Council bid is a promise to the world that Australia will defend the rules, and the test is whether that promise is matched at home.
Red Lines
That is where the Red Lines Package comes in. It was recently introduced into Parliament, and it is a chance to turn the government’s rhetoric into something concrete.
Yet Labor and the Coalition combined to prevent it from receiving scrutiny through a Senate inquiry. It is hard to reconcile a campaign that puts the rule of law in every speech with a refusal to let Parliament examine a proposal built on that principle.
If the commitment is genuine, an inquiry should be welcome, since the statements already made would be the strongest possible case for it.
The lesson is not that international law has failed. Law has always depended on people choosing to uphold it, insisting on it, and paying a price for doing so. It survives every time a state, a court, an expert or a citizen refuses to accept that might makes right.
The Security Council bid gives Australians a rare lever. We can take the government at its word and ask it to act on what it has said.
Professor Emily Crawford is one of the panelists to be discussing international law with the International Criminal Court’s Judge Hilary Charlesworth on 13 October at the NSW Teachers Federation Conference Centre in Surry Hills.
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Professor Emily Crawford is Deputy-Dean at the University of Sydney Law School, where she teaches and researches in international law, international humanitarian law and international criminal law.