May 18th 2002

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Articles from this issue:

COVER STORY: U.S. Farm Bill ends free trade illusion

EDITORIAL: Paid maternity leave: who benefits?

Languishing Labor fills its quota

East Timor becomes independent on May 20

Straws in the Wind: Le System / Apocrypha: Dave's lost column / Ides of March / Sin

LAW: US repudiates International Criminal Court

MEDIA: Jonestown

Refugee response (letter)

Middle East (letter)

Swift solution (letter)

Neighbourly aid (letter)

Quarantine: NZ suspends California grape imports

HEALTH: The politics of AIDS in South Africa

OPINION: Media diversity: should the market decide?

TRADE: Oxfam report shows rigged rules of world trade

ASIA: Taiwan comes in from the cold

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US repudiates International Criminal Court

by Peter Westmore

News Weekly, May 18, 2002

The Bush Administration in the United States has taken the unprecedented step of formally withdrawing the signature attached by the Clinton Administration to the Statute of the International Criminal Court.

The Treaty, negotiated in Rome in 1998, recently came into force when the 60th nations signed the International Criminal Court statute. It will commence operation from July 1, 2002.

The campaign to bring the ICC into operation comes from some UN agencies, with strong support from a network of non-government organisations, including the Women's Caucus for Gender Justice and Amnesty International.

A spokesman for the US Administration, Marc Grossman, said that the international criminal court "claims the authority to detain and try American citizens, even though our democratically elected representatives have not agreed to be bound by the treaty." That will threaten US sovereignty, he said.

Additionally, US Defence Secretary Donald Rumsfeld said the tribunal's planned July 1 start-up "means that our men and women in uniform - as well as current and former US officials - could be at risk of prosecution."

There is deep concern at the fact that ICC judges will come from countries which have ratified the statute. These include Argentina, Angola, Belize, Paraguay, Benin, Niger, Mali, Peru, Nigeria, Mongolia, Cambodia, Democratic Republic of Congo and a string of other Third World countries whose reputations for the protection of human rights and democracy are non-existent.

Within Australia, concerns have been expressed over the wide but vague powers of the court, the invasion of Australian sovereignty, and the likely use of the ICC for vexatious or mischievous litigation.

The ICC is empowered to hear claims of "genocide", "crimes against humanity" and "war crimes".

Within the Statute, the term "genocide" is defined very widely but imprecisely, and extends even to "causing serious bodily or mental harm" to members of a national, ethnic, racial or religious group as such, with intent to destroy that group in whole or in part.

If radical Aboriginal groups continued their claims of "genocide", they could complain to the ICC and seek its intervention.

"Crimes against humanity" are also defined very widely and imprecisely, and extend to various categories of "persecution" against any group on political, racial, national, ethnic, cultural, religious or gender grounds and to "other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health".

If illegal immigrants continued to claim that their treatment amounts to "crimes against humanity", they likewise could complain to the ICC.

Sectional groups espousing a wide variety of grievances could also complain to the ICC about alleged crimes against humanity.  (Feminist organisations have been amongst the strongest supporters of the ICC.) Likewise, types of social engineering could be thrust on Australia on "gender", "ethnic" and "political" grounds.

Under the ICC Statute, "war crimes" extend to various categories of acts "wilfully causing great suffering", "committing outrages upon personal dignity, in particular humiliating and degrading treatment", and to other similar conduct.

The Returned and Services League (RSL) has drawn attention to the fact that under the ICC Statute, Australian servicemen (both officers and troops including air force and navy personnel) would be at risk that although their conduct does not amount to "war crimes", they would nonetheless be accused by unfriendly foreign nationals of committing war crimes, and would be at risk of contrived or fabricated evidence.

The enabling legislation would also make "genocide", "crimes against humanity" and "war crimes" part of domestic Australian law (already proposed in the International Criminal Court (Consequential Amendments) Bill 2001).

Therefore, not only would Australia lose sovereignty in regard to nebulous concepts such as crimes against humanity, so that prosecutions could commence in the ICC, but also precisely the same "offences" could be prosecuted within Australia.

The ICC would be able to be used to punish or deter the Defence Force, despite the fact that no war crimes are being committed.

Defence Force members at all levels would not be able to act without apprehension that contrived complaints would be made against them that would be very difficult to disprove, especially in view of the very vague definition of "war crimes".

Other concerns have been expressed about the powers of the ICC to extradite Australian citizens, however baseless the allegations against an Australian citizen may be.

If Australia ratifies the Statute, it is generally conceded that it will be almost impossible to withdraw from the jurisdiction of the ICC.

  • Peter Westmore

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