 For those of you who don't know me, my name's Hillary Charlesworth. I'm Director of the Centre for International Governance and Justice, which is one of the hosts of the lecture this evening. I'd like to start by acknowledging the traditional owners of the land on which we're meeting and pay my respects to their elders, past and present. I'm really delighted to have you here at this Human Rights Day lecture. I just want to acknowledge some of the other groups that have co-sponsored this lecture and kindly publicised it for us. The Freilich Foundation here at the ANU, Professor Penny Matthew is their director. The UN Association of Australia, the ACT branch, and thank Jonathan Curtis. The ACT Human Rights Commission, and I thank Dr Helen Watch as the ACT Human Rights Commissioner, and the Centre for International and Public Law, whose director is Professor Kim Rubenstein. So we're very grateful to them, and I'd like particularly also to thank the Research School for Asia and the Pacific that has funded our distinguished professor, Professor Alston's visit to us. Now the Human Rights Day, just to remind you of why we hold it on the 10th of December every year, it's to mark the adoption by the UN General Assembly in 1948 of the Universal Declaration of Human Rights. So we're up to the 64th anniversary of the Universal Declaration, and it was adopted with no negative votes by the General Assembly, but with eight abstentions. And it was while the President of the General Assembly for its adoption was an Australian, Dr Everett. So Australia has often felt that it has a special connection to the Universal Declaration. But I think as we're here tonight, in a sense we need to be aware that this is a somewhat bittersweet anniversary. It's a fine thing because we're celebrating this document that's endured, and so the test of time. But on the other hand, we are, we only have to pick up a newspaper or listen to the radio, watch television to be aware of all the massive issues of human rights abuses that continue 64 years later. Well, to talk to us on this human rights day, we're really thrilled to welcome back to the ANU a really distinguished Australian, and it's really hard to think of anybody, not just Australian, but in the world with a broader experience in the field of human rights than Philip Alston. Philip is currently the John Norton Pomeroy Professor of Law at NYU, and he co-chairs the NYU Centre for Human Rights and Global Justice there. But Philip has a very distinguished reputation as an academic, but he's also worked as an official inside the UN system, as a consultant to many UN bodies and as a distinguished expert in the United Nations human rights system. Philip, as you'll soon hear if you don't know him, is an Australian by birth. His first degrees came from the University of Melbourne, and he went on to get a JSD from Berkeley. And he's taught at a wide range of academic institutions, including the Fletcher School of Law and Diplomacy, Harvard Law School, currently NYU and the European University Institute in France, but I think he'll concede the most prestigious appointment he's held in his otherwise distinguished career. Was that at the ANU? When he was the inaugural director of the Centre for International and Public Law in the Faculty of Law. Philip worked, after he finished his JSD, Berkeley worked in the UN human rights system in Geneva. And then once he became an academic, he very quickly became a pivotal figure in developing many areas of human rights. He was the first convener of the Committee on Economic, Social and Cultural Rights and is widely regarded for his work in that field. He's been an expert on so many bodies, but let me just mention perhaps the most recent. From 2004 to 2010, he was the UN Special Rapporteur on Extradigital Summary or Arbitrary Executions and came out with a series of quite extraordinary, frank, fearless reports on those issues in a wide range of country situations. So we feel extremely lucky to have Philip here tonight to talk to us on unleashing the use of force. I should say after he has spoken, Philip is willing to take questions from the audience, so please you can start formulating those now. But I hope you'll now join with me in welcoming Philip Austin to speak to us. Thanks, Hillary. I'm reminded when Hillary says, as you'll hear, he's an Australian and always has been. I'm a gifted linguist as well to the point where not so many years ago, when I was teaching in Europe, we used to hold faculty meetings in French. And we had a break halfway through and my French colleague said to me, you know, Philip, it's amazing when you speak French, you have no accent. And I said to him, Jacques, you know that's not true, I have a terrible accent. And he said, no, no, no, I mean you have no French accent. The sad thing is that I can't even imitate other accents effectively. I'm stuck with my Australian one. OK, so I want to talk to you tonight about some issues that arose essentially in the UN context, at the same time as this famous universal declaration that Hillary has spoken about. Basically, immediately after World War II, UN Charter was adopted, had human rights in there, but it also had this norm prohibiting the use of force. In other words, states are not to invade if you like, not to intervene in the territory of other states. And at the very same time, you had the Nuremberg and Tokyo tribunals that charged a number of the leaders of those countries with the war crime of crimes against peace, what we now call aggression. So there was a determination to take that lesson out of World War II that intervention into the territory of other states is an action that should be prevented and should be punished. I want to talk to you tonight about what I see as the current state of play in that regard and just to express some of my own concerns. Hillary mentioned to you that most recently in the UN context, at least, I was the UN special rapporteur on extrajudicial executions. My wife always says to me, don't use that term extrajudicial executions, unless you're in a small classroom with international lawyers, because it's meaningless. And she would translate it as unlawful killings, which gives you a sense of how broad the focus of that mandate potentially is against any unlawful killings around the world. But I want to mention just two personal entry points, I guess, to the material that I want to deal with tonight. The first, shortly after I became special rapporteur in 2004, was an exchange that I initiated with the United States government, focusing on the killing of a number of people in Yemen at the end of 2002 by a drone strike, something that is now very familiar to us. I'm not going to talk about that problem at any great length, but this was an important issue. I took up with the United States the key legal question, and that is what was the basis, the legal basis on which you decided you could do this, to simply fire a missile into a car outside Sana'a in Yemen when there was no armed conflict going on in or with Yemen. That exchange with the United States led to a very little other than a very large paper trail with the United States saying that this was not a matter that should concern the UN Human Rights Council, that this was a matter relating to armed conflict and therefore not a human rights issue. That happened to contradict the position that they had taken in respect to virtually every other conflict in the world in relation to which I had, all my predecessors, had intervened and raised human rights-related issues and also applied the law of armed conflict, but the US resisted that. So I was grateful to the US because they sort of kept the issue on my agenda and it stayed there until the end of my mandate six years later. And has now, I'm delighted to say, been taken up by my successor and I hope will be a very live issue in the months ahead. The second event, which is relevant, was a visit that I paid to Afghanistan in May of 2008. I went to Kandahar City. I was informed of a killing, merely two people, pretty small in the overall scale of events in Afghanistan, which had occurred just a couple of months before I arrived. What was interesting about it was that these two gentlemen referred to by the unfortunate name of their occupations as the chicken butchers. The killing of these chicken butchers was very contentious. I met very soon after my arrival in Kabul with the Minister of Defence and the Minister of Defence said to me in a fairly strange sort of way, yes, like you, Mr Olston, I too am very concerned about killings being undertaken in the country by certain unidentified forces who do not appear to belong to any state grouping of which we are aware. And I said, you mean independent militia groups? And he said, no, I mean militia groups that are controlled by external actors. Let me just leave it at that. It turned out that these chicken butchers were in fact killed by, according to the information that I pieced together after speaking to various commanders of the International Security Assistance Force, ISAF, speaking to leaders of the American command there and the head of intelligence in Afghanistan and so on. I was able to piece together very clearly that these killings were undertaken by a CIA-led task force that operated, in fact, out of a villa that used to be occupied by Mullah Omar, the shadowy leader of Taliban Afghanistan. And this task force basically carried out the work of the CIA in eliminating individuals who were placed on one of the famous kill or capture lists. I then followed up when I was in the United States on an official visit, met with the Director General, the Inspector General rather of the CIA, who took voluminous notes of everything that I said. And then I said to him, will you be getting back to me at some point? And he said, oh, no, you don't understand, Mr. Olston. We don't get back to people, but we certainly collect information. Thank you very much. So I mentioned those two incidents, really anecdotal in a sense, because they came together to spark a much broader interest that I still maintain in the extent to which there are really major breakdowns in the rules governing the use of force in the world today. And that's what I really want to talk about. There could hardly be a more current topic, although I have to say that I'm going to focus primarily on one of what you will think to be the more obscure aspects of it. But I will first put it into the broader context. Essentially, the prohibition on the use of force is under great stress from three different directions today. The first is what we would call humanitarian intervention. What Gareth Evans would call R2P, responsibility to protect, which posits that there is, as a last resort, an obligation or a responsibility on members of the international community to intervene in the affairs of other states when it becomes clear that the relevant government is not able or not willing to protect its own citizens. These humanitarian interventions have long been talked about. It's generally agreed that the intervention by the West, by Nato and Kosovo in 1999, was such an intervention and set the discussion rolling really. It then found its way into the Security Council resolution on Libya, which invoked the responsibility to protect in effect. And so there is this fairly significant area that has been carved out. It remains contentious because the key element is still, does the Security Council need to approve the intervention? If the Security Council does, then there's no formal change from the pre-existing situation because the Security Council has always been able under Chapter 7 of the UN Charter to intervene militarily or otherwise. But if that is interpreted as not requiring the Security Council's approval, in other words, if the Council is paralysed or will face a veto from, say, China or Russia or the United States, there would be the ability to go around that and act in some other way. Now, I'm not going to talk about that tonight, although I would be happy to answer questions, but it's a very key issue. The second area that is even more relevant, in a sense, is what I'll call the response to states that are perceived to be dangerous or threatening in some way. There's a variety of terms that have been used historically. They tend to not last too long, but the gist of it is clear. Rogue states is one. We decide who is a rogue. It means we don't like what they're doing. Failed states seems to imply that it's something of an open page that we can step into. Or WMD states, weapons of mass destruction states, which, of course, was the justification for invading Iraq in 2003. I hope you are keeping a close eye on weapons of mass destruction states because Hillary Clinton and various others have been talking a lot in the last few days about Syria and chemical weapons. The concern about chemical weapons in Syria seems to be vastly more related to setting up a right to intervene than to any intelligence that anyone knows of, which suggests that whatever chemical weapons the Syrians might, in fact, have are likely to be used. The other WMD state, of course, is Iran. And we know that we are basically holding our breaths for the next few months, maximum, to see whether either Israel or the United States or both will intervene militarily in order to bomb the nuclear facilities in Iran. But it's the third category, as I said, the more obscure one that I'm more concerned with. And it goes back to the story about the chicken butchers and so on, but also the story about the drones. And that is the evolution of what we would call counterterrorism policies designed to attack what the lawyers called non-state actors. In other words, not aimed at governments themselves, but aimed at the classic non-state actor, if you like, al-Qaeda or some other terrorist group that is identified. And here you've got a number of states that are very much in the line of interest, so to speak. Pakistan, obviously a major recipient of U.S. intervention. Somalia, Yemen, all on the receiving end of U.S. missiles fired from drones. You've got Nigeria and Mali now being very actively discussed. In Nigeria, the Burko Haram Islamic, I suppose one could call them, fundamentalist group opposed to all Western education, setting off bombs, killing lots of innocents and trying to facilitate the tensions between the Islamic and Christian communities in Nigeria. And you've got the Muslim fundamentalists who have taken over the north of Mali and who apparently are in the sights of fairly robust counterterrorist planning, which will involve some sort of armed intervention. So what I want to talk about then is that third category of intervention against non-state actors. I'm going to talk primarily about United States policy, but I want to say in this context that neither the United Kingdom nor Australia has, to my knowledge, they may have, confidentially, differed with the United States on almost any significant aspect of its policy initiatives in these areas. And as I will make it clear, I wish that it were otherwise. I would like to see a rather more independent Australian stance. I would like to see one that scrutinizes much more carefully many of the claims that come out of the United States, but one doesn't see that at least in public. The United States, in terms of activities by counterterrorism organizations, and this goes way beyond anything I can talk about at any significant length here, essentially intervenes internationally these days via what I would characterize as three different mechanisms, although the U.S. would not accept that. The first mechanism is the Department of Defense. That's fairly standard. In other words, the U.S. Army, the Marines, whoever are sent into a country. There is a second force which has been referred to in the insider literature, at least, as a secret army within an army. Sounds very conspiratorial. It's not my style to talk in those terms. But if you want to look it up, you can. There is a massive Joint Special Operations Command, JSOC. JSOC is an army within an army. It essentially brings together the special operations operatives of all of the different arms of the U.S. forces and puts them under separate command. We had at my university in New York about a year ago one of the most senior U.S. officials in the whole counterterrorism area. I had a lengthy private conversation with him and said at some stage, from what I can read, JSOC, this Special Operations Command, is not officially acknowledged, but that cannot be correct, can it? And he said to me, that is correct. We do not acknowledge it. We do not talk about it. And I said, but there's testimony on the hill from the head of JSOC and asking for more billions of dollars, asking to increase their staff beyond, I think it was 50,000 at that stage. Now, many of those are just administrative staff and so on. We don't know how many of special operations forces, but a great many of them are. But indeed, until fairly recently, it was the case that JSOC was not publicly talked about. I haven't been back online. Maybe you can do this if you like. It might be safer for you. If you look up JSOC, JSOC, on your laptops, what you would have found nine months ago, that's probably the last time I tried it, you now get on. Of course, you'll get Wikipedia. We'll tell you all about it, but that's not what we're interested in. You'll get an official website there somewhere, but it will say, if you want to enter this website, you acknowledge that, I don't know, we can spy on you or something like that. You acknowledge that you accept that you are entering into a private U.S. domain and this will blah, blah. I didn't go any further as a non-citizen of the United States, but I'm told that if you do go further, you don't get very much information still about these operations. But what we do know is that there are special operations forces in dozens of countries around the world. Now, at one level, that's harmless. You know, there are no doubt special operations, United States special operations forces in this country without question. They are in dozens of other countries. But of course, in many of those other countries, it's not acknowledged that they are there. They will be listed in some other capacity and certainly their military functions and activities are not acknowledged. That's power for the course. If you're upset by that, well, fine. What I'm worried about is that having those troops in position when then combined with what I would predict to be the continuing extraordinary growth of the use of unmanned aerial vehicles, otherwise known as drones, which are capable of, and in increasing numbers of situations, actually carry out lethal operations. So you've got these special operations forces all lined up. You've got an increasing, a huge increasing investment in drones. The US Defense Department currently has over 6,000 drones. It plans to increase this number by at least 20% in the next decade with a budget of $37 billion. This seems to me to be a very conservative estimate, I would hasten to add. As the US becomes a little more wary of foreign engagements, the irony is that people are much more drawn to the use of drones because they don't have to send forces overseas. These drones can simply float over and they can be based from various countries where the US forces are not at any risk. In addition to the Defense Department and JSOC special operations forces, you've also got the CIA. And this is an element that I have spoken about and written about at considerable length. I see it as deeply distressing. The Central Intelligence Agency, like any intelligence agency, fulfills an important, a vital, crucial and legitimate role in gathering intelligence in order to protect the United States and its allies, so too to the Australian equivalents. But the question is, should those intelligence agencies, which by definition are subject to very limited oversight and in the United States are subject, in my view, and I'll be happy to defend this strongly, to no effective external oversight, including congressional committees, are we happy to see those intelligence agencies become operational, in other words, carrying out killings around the world? Well, that's happening in Pakistan as we know. All of the drone attacks launched in Pakistan, all of those killed, have been killed by the CIA, not by the US Defense Department. The CIA is also operating most of the action in places like Yemen and Somalia and elsewhere. So I'm not going to go on about that, happy to answer questions to talk about it, but what then concerns me, I'm afraid, I come back to the fact that I am, at the end of the day, just a simple international lawyer. And the question is, what role do international lawyers and, therefore, international law play in this area? And I'm going to focus on one particular example. I haven't circulated this for a reason that I'll explain in a moment, but I want to say that the, I think the thing that troubles me, we operate in a context that many American commentators and certainly the United States government would argue is legally unclear. Now, I don't believe that to be the case. I think there are relatively clear legal principles which are as applicable today as they were a decade ago or five decades ago. But we've got a number of leading spokespersons for the US administration who are constantly pushing the theme that the area is unclear, that we need to be developing new principles, new approaches. We've got working with them very closely, and this is an interesting American phenomenon, a very large number of academics in what we might think of as an academic military complex, if you like. The United, this is no great conspiracy. The United States is an interesting place because you have these revolving doors and there are very few of my peers, in other words, senior international lawyers in the US who would not aspire to an appointment with one or other administration, whether it's Republicans or Democrats. And the prospect is that if they are within a certain mainstream, they will indeed be a point, I'm sorry, I shouldn't speak ill of my colleagues. They will indeed be appointed as Assistant Secretary of Defense, Assistant Secretary in the US State Department, Assistant Secretary somewhere else, and this will transform their careers and bring them into a central, a central place in making official decisions, carrying out policy. And so they strive very hard to remain within a very careful mainstream. If you look at the literature that is coming out of the United States today, there is very little of it, which is critical in any significant way of the United States policies. For the most part, you find arguments that indeed, the law is extremely unclear. It is time to start developing new rules, or similarly, that circumstances have changed, that the counter-terrorism struggle that we've been engaged in since 9-11 has changed all of the rules, whether they talk about asymmetric warfare or whatever the buzzword might be, it's time to move on. We need new rules, the old ones don't apply. Attorney General Alberto Gonzalez famously said something like, well, Geneva Convention's there, passe, aren't they? They don't really help us anymore today. But that's sort of typical. So I want to mention, and I better be brief on this, a set of principles. I was invited to Washington to comment on a set of principles which had been drawn up by the immediate past legal advisor to the British Foreign Office. And these principles are called principles relevant to the scope of a state's right of self-defense against an imminent or actual armed attack by non-state actors. Now, I wouldn't and couldn't talk to you about these principles because the meeting was governed by Chatham House rules, no comments, et cetera. And the draft, which I attacked very strongly, has not been made public. But it seems to me that the fact that the entire draft is sitting on the UN website and readily available to anyone who wants to Google it, releases me from the oath that I took at that time, not to talk about these principles. The reason I want to talk about them is that I think they bring together a number of deeply troubling responses to what has been going on. You've had major speeches given by all of the key US actors, the legal advisor to the State Department, legal advisor to the Defense Department, legal counsel to the CIA, the president's counter-terrorism advisor. Many of these speeches, I don't want to, I can't take too much credit, but I can actually take some credit because the report that I put out in, first in 2009 and then a much more detailed report in 2010, focusing on the problem of targeted killings carried out by drones. Under certain circumstances, I have to add, I'm not opposed, believe it or not, to the use of drones in an appropriate combat situation, assuming that they comply by the normal rules. My concern is about their use outside of that area. There has never been an official US response to any of my reports, but there has been a very consistent and strong unofficial response. Journalists were consistently reporting to me that there was much discussion, that they had talked extensively with various key players, that the people in Langley, which is the CIA, thought that I must be a lunatic because what the hell did I think they were there to do, if not to kill people overseas who were enemies of the United States? And for me to have drawn attention to that was very bizarre and naive on my part. But the point is that there has been, over the last two years, a charm offensive and a lot of the commentators, as I said, who are pretty close to the military, are welcoming this. This is great, at last there is accountability. And then we get a news report about two weeks ago indicating that in the lead up to the election in the US, the Obama administration was starting to draw up guidelines for the use of targeted killing overseas because they were worried that a Romney administration might do something. God knows what, I can't imagine that the Romney administration could have been any more liberal in its use of this technique than the Obama administration has been, but apparently they thought they needed to regularize it in some way. Now, we haven't seen any sign of those rules as yet, but what we do have is this statement drawn up by the former British legal advisor. And it's fantastic. It is extremely permissive of strikes against so-called non-state actors. It takes a whole range of complex definitional issues. And on every single one of them pushes the limits so that the restrictions that would once have applied are dramatically eased. Now, I don't have the time to go through these in any detail, but I'll give you a couple of examples. One of the key questions is who might be targeted if one is using a drone or some other method to kill an individual. This draft says that such attacks may be directed against those actively planning, threatening or perpetrating armed attacks. It may also include those who are providing material support essential to the attacks. Now, the term material support, as some of you may or may not know, has become a very controversial one in the United States because following a major Supreme Court case, a human rights NGO which tries to defend in any way a group that is deemed to be a terrorist is considered to be providing material support for it. And so what you've got in this sort of language is a very substantial opening up of a wide range of individuals who may be targeted and going far from the pre-existing law as understood by most non-American commentators. You've got the question of imminence which is very important in this area. In other words, again, this is too complex and I'm going to run out of time in about five minutes so I will try to express it quickly. But the essential notion with this so-called right to self-defense is that if you are likely to be subject to an imminent attack, you have the right to defend yourself. In other words, the right to counter attack. Now, the United States has interpreted the right of self-defense a little differently. Its official legal position is reflected in this act that was adopted in the days after 9-11, the authorization to use military force, the AUMF. Which says, and the argument based on that then is that the United States is entitled to attack any target, basically anywhere in the world that is linked to al-Qaeda, the Taliban or its affiliates. And this is classified as the ongoing use of the right to self-defense. In other words, they are defending imminently against an attack that took place 11 years ago. So looking ahead, given the problematic nature of that justification, the question is when can you attack? When can you determine that a threat is imminent? These guidelines say the absence of specific evidence of where an attack will take place or of the precise nature of an attack. There's not preclude a conclusion that an armed attack is imminent for the purposes of launching, of the exercise of a right of self-defense. So in other words, you have an inkling. You hear on the telephone some statement that we need to attack these bastards. We need to do all we can, et cetera. So you don't know the nature of the attack, you don't know the timing, but you know that they are nasty piece of work. And under these guidelines, again, go for it. The next big issue is the question of the role of the state upon whose territory the terrorists, the non-state actors, find themselves. And here you've got the use of language which comes from very different contexts, but has been imported very neatly into this and is being pushed again by a range of U.S. State Department people. More importantly, academics who were once in the U.S. State Department and continue to write as though they still are. The requirement for consent, in other words, consent to undertake an attack in Canberra. The government, what's the government need to do if I tell you that in Yaralumla there is a group that is deeply anti-American, is planning an attack, and the Australian government gets its security forces on the job, and they say we're not convinced that this is accurate, we're not convinced that there's enough grounds for us to operate. So these principles say the requirement for consent does not operate in circumstances in which there is a reasonable and objective basis. Very nice language, reasonable and objective, but of course all of this is completely in the eye of the U.S. which is going to be effectively implementing this for concluding that the third state, in other words Australia, is colluding with the non-state actor or is otherwise unwilling to effectively restrain the armed activities of the non-state actor. Now this term colluding is not one that's known to international law. It is again a term that is brought in to open up a very wide range of potential types of response by the third party state. You also don't need to seek consent to attack where the seeking of such consent would be likely to materially undermine the effectiveness of the action in self-defense. In other words, you might be tipping off someone. So you are then permitted under these interpretations of international law to simply go ahead and fire. Next, you probably know the problem with Pakistan which is the question, have they consented to the use of their territory for these attacks? The Pakistanis will generally say no and have said that fairly strongly often. The United States says don't listen to them. When we talk to them, they wink at us and say, well, how do we know? So this says consent may be strategic or operational, generic or ad hoc, express or implied. I could go on but I won't. Let me then just say that come to the crunch in a sense. I think that these sort of rules laying the groundwork for an international order which is based on the complete undermining of the prohibition on the use of force. In other words, I think it would set up a body of rules which could be invoked by the United States and its allies to attack a very large number of countries in the name of counter-terrorism activities. The question is what should we do about it? I want to say first of all, and this will sound pro-former, maybe it is but I mean it, there's no question. Terrorism is a major threat. Terrorist threats are proliferating. We need to do all we can. But to turn it into a question of the use of force as the main means by which to respond to all these terrorist attacks is I think not only deeply undermining of the basis of world order but I think it's also entirely counterproductive. If you look at what most commentators and in fact many former American officials have made the same comment that by using drones one is indeed creating far greater animosity towards the United States than existed before they were used. You are in effect recruiting for the terrorist forces by having these strikes raining down upon them. My suggestion is that there is in fact a watershed moment that we're entering into right now. I think the post 9-11 era is basically coming to an end. American commentators are starting to realise that the immediate post 9-11 response is not viable in the years ahead. They are starting to talk about starting to look for a new basis on which they can conduct their arrangements. There was a speech given in Oxford last week by the legal counsel to the US Defense Department. It was very heartening to many observers. He said war must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man, if he is a privileged belligerent consistent with the laws of war, to kill another. War violates the natural order of things. In its 12th year, we must not accept the current armed conflict and all that it entails as the new normal. Peace must be regarded as the norm to which the human race continually strives. Now, I hate to say it, but I don't believe him. This is a gentleman who won two weeks after giving the speech and asked his resignation that he's going back to the private sector. And so what I see in this is a sign that, even though I've been fighting furiously to increase these powers and to authorise all these interventions for the last four years, I also want to go out on a more humane note and to say that we cannot go on forever like this. We need to get back to really trying to establish a time of peace rather than this continuing war against terror on a global basis. Problem is that in the Wall Street Journal on Friday, for example, a report, military counterterrorism officials are seeking more capability to pursue extremist groups in Africa and elsewhere that they believe threaten the US. The goal is to authorise US military operations in Mali, Nigeria, Libya, and possibly other countries where militants have loose or non-existent ties to al-Qaeda. Depending on the request, congressional authorisation could cover the use of armed drones and special operations teams across a region larger than Iraq and Afghanistan combined. So I want to finish quite simply by saying, first of all, in the United States, it's actually a time of change. The second Obama administration will see a new Secretary of Defense, Secretary of State, Director of the CIA, legal advisers in the State Department, in the Defense Department, all of the key players are changing. This is where, I think, Australia and Europe come in. The Europeans have said very little about the use of drones. The Europeans are divided. There are a number of states that are very unhappy with developments, but they are not actively speaking out. There are other states, particularly the United Kingdom, which appear to be very happy and are encouraging these developments. Australia, as far as I know, has not taken any significant stand on these issues and appears to be participating fairly widely in quite a lot of the activities. I am not calling for anything more than a sustained and open public debate about these issues. What's happening, the reason why you've got all the American academics that I described before writing endless articles, is the assumption that if enough articles are written and enough speeches are given, you can point to what international lawyers refer to as the evolution of a new norm. And these new norms, these new normals, evolve in the absence of contradiction by other states. So acquiescence, which may be simply because we're not very happy with the developments or whatever, is taken as a strong affirmation. And of course, full collaboration obviously is even more significant in terms of endorsing these norms. I think as we look around us, we see the number of states that are arming themselves with drones, dozens and dozens of states. They are systematically beginning to get the capacity to arm these drones. They will start to use them. They will invoke the precedence that the United States is now setting. If we in Australia look to the South China Sea, you may see some reasons for concern about the evolution of norms against the use of force. What the United States is prescribing for itself and its allies will be able to be invoked by China, by Russia, by Iran, by a range of other countries. And it's for us, I think, to stand up, to speak out, to say that the fight against terrorism is an extremely important one, but it is not best fought by sacrificing the norms of the prohibition against the use of force that we realized at the end of World War II was central to a future peaceful world order. So I'll leave it at that, thank you. Thank you very much, Phillip, for that call to arms. And we've now got some time for some questions. So if people could indicate that they want to ask a question, we will get you to speak into a microphone and if people could just identify themselves. Thank you. Thank you, Phillip. I'm very concerned about the U.S.'s cabinet attitude to international law and its freedom of violation of basic rules of international law. But I'm also concerned that perhaps there are situations where international law may need to be reached for a greater good. Now, like you, the use of terms in general is illegal, but there may be situations, very limited situations where it may be justified and I'm thinking of the assassination of the son of the United States. And both people argue that this brought a greater good because to capture him would have been very difficult and it had been possible. He would have been made a martyr and perhaps made all kinds of other political situations in terms of terrorism and that kind of thing. Another situation where a breach of international law would not be justified is a preemptive attack when a state is about to be attacked and it has good intelligence that it's about to be attacked by another state and then by another state. Perhaps it needs to breach international law and make the first strength. So I think there are situations where international law is not necessary. We're coming forward with international law, and a few issues. Well, thanks. Let me take the first issue of bin Laden. I won't flinch from controversy. We need to recall that at the end of World War II, Churchill wanted the Nazi leaders to be rounded up and shot. Roosevelt said, no, we need to try them. We went ahead. We had Nuremberg. We've built an entire edifice of international criminal law on that precedent. The Rome Statute is what we have today, probably the most promising development over the last 50 years. Bin Laden, in my view, could, by all of the accounts that I've read, have been captured. There's a very strong argument under, even under international humanitarian law, it's not an argument that is mainstream in the United States, but I believe it's a very strong argument, that in fact one is obligated under that body of law to capture someone if it can readily be done with no cost. And I believe that all these circumstances point to the fact that Bin Laden could have been captured and brought back. I agree with you entirely. It would have been a big opportunity for the propagandists, for those who want to exploit the whole issue, would have been very uncomfortable for the Americans to have to try him and so on. But I think the loser was the rule of law. I think we would have benefited enormously from saying the whole reason why we have total contempt for what Bin Laden did and what he stood for is that he showed no respect for any rules of decency. That's what we're fighting for. We're going to try him even though it's not the best outcome. I think in your second case, I totally agree. If a state can show that there is an imminent threat, it is imperative that it be entitled to exercise the right to self-defense. But I don't see that in a response to an act in September 2001 justifying a response today. So what I'm arguing is we need to get back to some realistic sense of what is imminent and that will include some degree of anticipation if there is strong evidence that an attack is forthcoming. Well, first of all, I think you've brought an excellent quote there. Can I say a bit of a pessimistic at the national side of man, I think we've been at war since the very beginning on and often, even though we do have this to try to stop that, the nations and groups probably always do that. And there's always even an individual out there, maybe people who are violent towards others in our community. And just to put this a bit before the courts, obviously you'd probably do the best you can to stop that and some security incentives in the last 60 years. And I appreciate that you mentioned some of them. But in relation to drones and so far, it seems that the states where they've been used, and to give you an example of Pakistan, and I can really imagine that Pakistan has been quite happy with the Americans as well, but a few people there publicly saying something different. Their intelligence service probably some of the bad guys and we've got all sorts of different groups there. With Somalia, that doesn't be a classic class state, and with the Yemen, the previous government and even the current new one is relatively happy with the United States and has military assistance from us, so they're probably loosely comfortable. I agree with you in terms of, you obviously need some rules because there are only a bit more than all the grounds that are used, and certainly by major powers such as the US and China and Russia. But at the end of the day, I just wanted to, in terms of what we've done so far, how can you say that that in itself is a hugely significant problem in terms of the people that they have fuel to be, people who invariably not see the destruction of the type of world we even have, no regard for the norms of supply and behavior, are often stuck in the context of primitive cross-century ideology. And so of course, that seems like no place to win, so in women who are reportedly breaking things like that, not particularly nice people. And my other point is, you mentioned the possible proliferation. There's nothing to really have yet that, say, the United States has come up with that group in Yolanda. On the basis of probably, if it wasn't for the Australian security people that do something, and even if they did, because Australians are a bit of a father, I'm very surprised to see the U.S. state of the intellectual action there. Now, if they did, I think they'd have serious repercussions around the world, but we should certainly have a set idea. And that reminds me, and I'll conclude on this, my final question, by the way, the destruction is, probably a follow-up on the gentleman over there, in July, I think, before the church or before the destruction of the French war in Iran, now the French haven't yet been warned of giving them a couple of ultimatums, which was placed under this, or placed a couple of ships hidden in the British war, worried about the further falling of the Nazi hands. It was in North Africa, so that wasn't immediately likely, but when you refuse to have a scuffle war with the ships that go inside of the British war, after 10 minutes, the British file on the fleet and killed about 1,000 or so French men. Now, the French were hardly, particularly Nazi, father-sister or anything like that, or terrorist or any of that. But, yeah, that was done, and that seemed to be accepted, practically as it was, and that seemed to be far more perhaps specific to sort of the shooting that they paid, that was a minimum threat, fully upon it wasn't, because the Nazis weren't the most likely to take out that vote for some time yet, the British did that, and that seems to me, in terms of your example, possibly fatherless in some of the things that you've mentioned, in terms of what would be the minimum threat. Sorry, I'd just like to comment on that then. Very short for that. No. I'll just address the last of the 15 questions. Well, lots of points very quickly, telegraphic. First of all, the whole point of the evolution of humanitarian law and human rights since World War II has precisely been to try to establish rules that protect civilians, that protect even those in the armed forces from gratuitous killing, and I think we've come a long way from those days. You say, you started off by saying people want to kill one another or hurt one another on a regular basis. It happens. Yes, there's the old bumper sticker that shit happens, but I think what we see today, and of course this is the other side of drones, is that the armed forces of countries like the United States are now acutely aware of what they can and cannot do. I think international humanitarian law has made huge inroads into their options, and that's precisely what makes drones so attractive, because they say they're surgical, they say they're very accurate, and they can just kill the approved targets. Just a couple of other things. Saying that Australia is safe, I'm sure you're right. I suspect Australia would be the last country on earth to be attacked by the United States. Well, maybe Canada would be there after we have gone. But of course, that's not the point. I think we're looking for a more peaceful world. We're looking after the rights of other countries, and they are infinitely more vulnerable under these rules. And finally, you say, and this is often heard in the United States, that the people who are being killed by these missiles are very nasty pieces of work. The trouble is that many civilians are killed, whatever the statistics that are given by the United States, they are misleading statistics, and I've documented that very effectively. The CIA gave me the figure of 20 for a long time. How many people have been killed? Oh, 20 people have been killed. And then after a few months, it was up to 30. It was not based on any, had no relation to any actual figure. It was just a public relations figure. And then John Brennan, the head of counterterrorism in the White House came out and said there has not been a single civilian casualty. He was laughed at by everyone. There are a lot of innocent people who are being killed. I have to say, however, that that's not even my primary concern. My primary concern, actually, is the precedent that we are setting, which will rebound very quickly, I think, against us. And I would prefer to see a rather more civilized world. Something I've seen in the past suggest that whatever happened with terrorism, and the war on terror is a side show that the real purpose of things like drones is eventually abused by police forces. The French have developed the drone that can shoot down drones and use in Afghanistan at the moment, give you packed into a backpack. There are also drones, essentially, active suicide drones that will go in and exploit themselves with a small grenade on the back. In your work, you've seen much evidence of this. The police force is being involved in developing drones. Do you think that technology is eventually going to be a matter of domestic policing and a matter of politics rather than international relations? Yes, of course, everything that you say is happening. In the United States, if you look at what DARPA, which is the DARPA, the Defence, I don't know what's it called, Procurement Agency or whatever, which funds all of the major scientific research for national security purposes, DARPA has been putting a fortune into the development of new drone type technologies, which is down now to insect-sized drones that can come in and carry out certain activities and so on. So it's certainly part of the future. For policing purposes, drones are already being used, certainly in different parts of the United States. This is going to take off big time soon once the Federal Aviation Authority agrees on rules for the domestic use of drones. You can build your own drone already today. There are competitions that you can read about for building your own drone. The components are readily available. You can purchase drones very cheaply, a few hundred dollars. So this is a very big development and obviously civil liberties people are going to have to debate very carefully about what the appropriate limits are to drones. It would make a lot of sense, according to the sort of arguments that are usually used for drones to be armed domestically and for the police in the Australian capital territory to not have to get too close to scenes where they felt they were at risk and to have drones hovering overhead ready to shoot. If that's the sort of future that we want, then I think we'll get it very quickly. I hope there'll be a lot more debate than there has been. I might get perhaps three questions and then get Philip to respond on this. Because there are a number of people, so I'll invite you first. Tony Blair from UNSW here in Canary Wharf. I wanted to ask about what you mentioned up with your concern about the guidelines such as which you talked about, flying the groundwork for international work, undermining the prohibition on the resort to force. I'm just wondering whether you think the way that the crime of aggression has been incorporated into one of the steps that the UNSW might actually bear results against attempts to push all this into a permissible direction. Another component that is given that the US wants to justify its long term use of force in this way on the not-on-even kind of precedent, should they not go back to the Security Council and they're thoroughed about their legal reasoning and what other interstates think? One question about this first international commentary. My impression of international commentary on the United States, which is where the increasing influence of the practice of aggressive rules is to control that as the set rule of the Mauritius of Policies. And I wonder whether you see the same way that the past international culture is trying to put a straight side to being too tolerant of the government's kind of discussion as an influence on child efficiencies. Absolutely, just those two questions. OK, well, I mean, I strongly agree with that point that the international community is being too tolerant. It is just assuming that the principles are being used in the best interests of protecting democracy and that we shouldn't interfere with what the United States wants to do. I think that's very dangerous. I think we always need to be most vigilant about what our friends are doing. We can be very critical about our enemies. That's easy and we do it anyway, but it's turning a blind eye to what our friends are doing. That is the most problematic thing. The other question, yeah, about the crime of aggression. It's... I don't know what to answer, to be honest, because being based in New York, we hosted at my law school over the summer a meeting of a great many diplomats from around the world who were talking about the chances of getting the amendment on aggression adopted by their own states, having been accepted by the Kampala Conference to amend the statute itself. And they were all quite optimistic, not all, but the key people were quite optimistic that they would start to get a goodly number of ratifications that they might even reach the threshold. And by 2017, when they have to have another review conference and another trigger, in fact, there will be enough states to bring that into force. The problem, of course, is that the United States will not, and I repeat, not be a party to that amendment, as, of course, it is not a party to the statute at all. And I suspect normally other key states. So what I would see probably is a very long historical program to try to gradually get a larger number of states to accept the amendment to the Rome Statute. But that will, in fact, not have much of... That will not be much of an impediment to the evolution of these other rules that I've been talking about, which would, of course, in any event be justified by their proponents as being fully consistent with the rules against aggression. This is self-defence that we are talking about. This is necessity. This is imminence. None of this is a naked act of aggression, and none of it would or should be caught by the ICC Statute is the position that they would argue with some passion. And I'm not here to challenge the fact that they believe what they're saying. They think they're making a safer world by doing this. It's just I disagree with that assessment very strongly. Then you asked whether the U.S. should go back to the Security Council. Well, the U.S. is well aware that it wouldn't get anywhere in the Security Council on this sort of issue. China, both China and Russia, were very acquiescent in 2001 for a whole range of reasons. The Chinese tiger hadn't really woken up at that stage, but it's very alert and active these days. And Russia was also in a much different position. So going back to the Council would not get the U.S. anything like the sort of outcome that it might hope for. But of course, the general one has to say that in any event that notion is entirely contrary to the assumptions that I think predominate in the U.S. these days anyway, even under the Obama administration, there is not any sense that they should seek multilateral endorsement for what they consider to be policies designed to protect their own fundamental national security, no matter how distant the necessary activities might be globally. That is not a matter for any multilateral institution to adjudicate would be the general view, I think. Matt, this is the last question. But just before Suzanne asks, can I just slip one in? You hinted during your presentation, Philip, that we could ask you about responsibility to protect and your views on that. As a university, we're deeply committed to this principle on principle because of our Chancellor. So I'd be very interested to hear your analysis of the responsibility to protect. Is it a legal principle? What are its prospects and has it overtaken the world? Suzanne. As soon as that norm developed, we touched a little bit on it in relation to the perception that U.S. academics have politically contributed to arguing about particular rules of international law. And I wonder if you've commented on whether you consider that there's been a shift in the role of international law in playing in the contribution to norm development given that now, well, previously, international law was judged by the ICJ, but it's now, I think, people are much more aware of international law, rules of international law, and the race seems to have the same international law. So to what extent does the perception or arguments or contribution of academics to norm development impact on states and their arguments about what rules are? Do we have, as academics and as government lawyers, bigger role to play other than what's listed in the ICJ statute as a secondary source for international law? OK, well, I'll take that and treat Hillary's question as a hostile one. I think the role of academics actually varies dramatically according to the field. I recently, this is a very self-serving comment, but I'm good at those too. I recently came across some academic of whom I had not ever heard writing about the great influence that I exercised when I chaired the UN Committee on Economic and Social Rights for eight years. And the argument was that this is an area that governments weren't very actively involved in. A role, I should say, that I owe to Pyrrha Wells, who's sitting there, who had the great misjudgment of character to suggest to the Australian government back in the mid-1980s that I might be nominated for that post. But in any event, this argument was that I, as an academic and one or two other people, had had a great impact on the way in which the law had evolved, et cetera, traced some article that I wrote and then general comments to the committee and then the blah, blah. I think there's some truth in that, that you get an obscure area where their governments are not really very engaged. Academics can fill a gap, particularly if they then play some more practical role. I think if you take the whole field of international criminal law, it's an area where academics are making a huge contribution. It's, one can't say that it's a blank sheet. But for the most part, national traditions and approaches don't translate especially well over into the international area. You've suddenly got these various tribunals, Yugoslavia, Rwanda, Cambodia, Sierra Leone, and now, of course, the international criminal court, all being confronted with questions that the judges have relatively few ideas about and academic ideas are being picked up at a great rate. In an area like the use of force, I think it's much less apparent. But that's why I focus particularly on the American academics, because I think if an Australian academic is writing in isolation on these issues, it may not have any great impact. But American officials are certainly very quick to pick up and point to recent literature, which supports comprehensively the sort of positions that they want to adopt. And so while the academics may not be dictating the direction, they are still quite relevant. So it remains an area, I think, international law, where academics have a significantly greater role, I think, than they do in many other areas. But maybe that's, as I said, a self-serving comment since I'm an international lawyer and like to think that I can have some impact. On Hillary's question, what was it? Do I like Gareth Evans or not? I have to say that I'm very ambivalent about the responsibility to protect. One of the great difficulties is that it is seen by most observers in a way that Gareth doesn't see it. In other words, most observers see only the third pillar, so-called, which is forceful intervention. Whereas Gareth and his colleagues have gone to great pains to build up the other two pillars that vast amounts need to be done in order to avoid conflict, in order to minimise, et cetera. Obviously, I'm all in favour with an emphasis on what can be done under those other two pillars, but it doesn't take away the vital final issue. And I think we're confronting it right now with Syria. And the question is what to do as things continue to deteriorate. At what point would we suggest that there should actually be some form of intervention? I don't think that as an international lawyer I can simply pass on the issue as much as I would like to. And I think we are back now to looking at some of the criteria that were much discussed after 1999 and Kosovo by the various commissions, high-level panels, and others. So if we take Syria, I think the international community has done a lot to document the abuses the Commissioner of Inquiry set up by the UN Human Rights Council has been, I think, unusually effective in bringing evidence out. There's a lot of other activities. I don't think we're in too much doubt that major war crimes, crimes against humanity, have been committed. It should be added, of course, unfortunately, by both sides, as is often the case. Human Rights Watch has gone to some lengths to show the problems on the part of the rebels. I think the next step then is having, I think there should be a greater effort to confront this in the Security Council. One of the problems that we have is the Security Council doesn't have debates, as you know. They simply go around to the back room and they come back saying, no, no, China, Russia. What, what, what, what, what with the arguments? What's going on? What's the position that they put? No, no, no, not going to happen. So they're not forced to come out. They're not forced to go through any formal arguments, et cetera, which is highly problematic. I'd like to see a forced debate in that context, get the Chinese and the Russians to engage more openly and fully. But I think at the end of the day, if you can get some sort of purported authorization by a body that is perceived to be legitimate, which I personally would not think of as NATO, for example, but the UN General Assembly, plus perhaps the Arab League, calling for an intervention, then you've got reasonably strong grounds and then you've got the key issue, which is that the intervention needs to be kept to a minimum that you can use things like no-fly zones and so on, but you can't actually descend so rapidly as we did in Libya into full-scale engagement in the conflict, which I think has caused a lot of the problems. We might be in a different position on Syria if the intervention in Libya had not been so patently abusive of the Security Council authorization. But yeah, so basically I think things in Syria have descended to such a point where it may make sense for there to be a very light intervention. I don't think a heavy intervention, I don't think one designed to bring about regime change or to quite occupy the country, will ever be any more successful than the great success story of Iraq or Afghanistan. The time has come for us to close the discussion and, Philip, I think on behalf of us all, I'd like to thank you so much for sharing your very frank insights on a whole range of issues that I think have largely gone under the radar. I think you've drawn to our attention the fact that there has been, certainly in the media, at least in Australia and in academic commentary generally here, a lack of willingness to engage with these use of, I guess, killings across borders and that's sort of something that has in the last decade been sort of just covered with an umbrella that this is necessary for sort of security. So thank you very much for raising those issues with us. I know there are a lot of government lawyers in the audience and people who can pressure governments. So I think what you've said is a very good message for Human Rights Day. So I'd like you to join me in thanking Philip Alston for his marvelous address.