The Joint Standing Committee on Treaties’ Report on the Statute of the International Criminal Court (ICC) has been tabled in Federal Parliament.
The Report, while fairly noting objections to the ICC, is dismissive of these objections. It prefers the view advanced by the Attorney General, Daryl Williams; the Foreign Minister, Alexander Downer; their respective Departments and assorted pro-internationalist non-government organisations that ratifying the Statute is in Australia’s best interest and poses no threat to our sovereignty or to our citizens.
The Report does not rebut the objections that ratifying the Statute would be unconstitutional; that it would require a significant surrender of judicial sovereignty to a foreign court; that it would place Australian soldiers, parliamentarians and public officials at risk of prosecution by a politically motivated Court and that the implementing legislation introduces ill-defined crimes into Federal criminal law.
These could encourage calls for prosecution of government officials and MPs by “victim” groups alleging “genocide by serious mental harm” or “persecution” by serious deprivation of rights recognised in international law.
Rather the Report simply adopts Daryl Williams’ ad hominem attacks on opponents of ratification as liars, mischief-makers, scaremongers and fools.
It also adopts the Attorney General’s and Foreign Minister’s touching but naive and reckless belief that the international community will always be well-disposed towards Australia and Australians and would never think of wrongfully prosecuting an Australian.
Haven’t they read the reports of the various United Nations human rights committees attacking Australia for its record on Aborigines, asylum seekers, women and homosexuals?
How do they know what constellation of forces will emerge to control appointments to the court in, say, 50 years time?
This particular inquiry by the Treaties Committee has had a long and chequered history.
In a joint media release from Attorney-General Williams, and Minister for Foreign Affairs, Alexander Downer, on October 25, 2000 it was announced that Australia would ratify the Statute and legislate before the end of that year to incorporate all the crimes listed in the Statute in domestic law.
Then Committee Chairman, Andrew Thomson, was not impressed with the timing or content of this media release as the Treaties Committee was just about to begin its inquiry into whether ratification of the ICC statute was in Australia’s national interest.
“I note a press release has been issued somewhat pre-empting these proceedings by the Attorney-General and the Minister for Foreign Affairs and Trade, stating quite clearly the Commonwealth’s intention to introduce legislation by the end of the year to ratify the Statute for the International Criminal Court. That would seem to pre-empt proceedings that are on foot today.
“It is not a practice the committee would encourage on behalf of the executive and I note that the Attorney says: ‘This is a major international human rights initiative for Australia.’ I think we had better say for the record that this committee is a major sovereignty initiative for Australia and those two things must always be balanced.
“In these contentious matters, made more contentious by these press releases, we are going to need all the advice we can get.”
The Treaties Committee received submissions and held public hearings around Australia from February to April 2001.There were indications that the Committee had serious reservations about ratification.
However, it was not until August 2001 that the Committee received exposure drafts of the two bills needed to implement Australia’s commitments under the ICC Statute.
The Committee circulated these for comments but noted that the Federal election was due and that no further progress on the inquiry was likely until the Committee was reconstituted in the new Parliament. It is worth noting that Committee Chair, Andrew Thomson, lost preselection for the Liberal Party prior to that election.
As it happened, the Treaties Committee was not reconstituted until March 2002 with WA Liberal MP, Julie Bishop, as the new Chair.
With no further notification to either the public or to those who had made earlier submissions the Committee proceeded to hold two days of public hearings on April 9 and 10 in Sydney and Canberra, hearing evidence only from three government departments (Attorney-General’s, Foreign Affairs and Defence) and three pro-ICC non-government organisations.
Despite urgent requests from leading opponents of the ICC, once they became aware of these hearings, the Committee declined to hear further evidence but did accept written submissions.
This means that the new Committee did not have the opportunity to hear any evidence against the Statute and that at no stage did the Treaties Committee receive oral evidence on the significant defects in the implementing legislation contained in the two draft bills.
On April 11, the day after the public hearings, a number of nations ratified the Statute of the International Criminal Court bringing the number of ratifiers to over 60, the number set for the establishment of the Court.
The Statute provides that the first meeting of States Parties to nominate judges and finalise other arrangements for the establishment of the Court is to take place on the first day of the third month after 60 nations have ratified the Statute. This meeting will be held on July 1, 2002.
The push is now on from advocates of the ICC to get the implementing legislation passed through Parliament in time for Australia to ratify the Statute before July 1.
This would mean forcing the legislation through both the House of Representatives and the Senate during the eight sitting days from June 17 to 27.
The question is whether resistance from those backbenchers who are opposed to the International Criminal Court, combined with reservations reportedly held by the Prime Minister, John Howard, will outweigh the arguments by Downer and Williams that to keep face as a good international citizen Australia must ratify the Statute.
In a letter dated May 6, 2002, from the United States Under Secretary of State for Arms Control and International Security to the UN Secretary General, Kofi Annan, it is stated that “the United States does not intend to become a party to the treaty. Accordingly the United States has no legal obligations arising from its signature on December 31, 2002. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”
This definitive rejection of the International Criminal Court by the United States may be enough to make the difference.
- Richard Egan