November 18th 2000

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Articles from this issue:

QUARANTINE: Apples decision set to rile city electorates

EDITORIAL: IVF unlimited - time to call a halt

CANBERRA OBSERVED: Vote rigging - the ripples widen

NATIONAL AFFAIRS: Don’t bank on the banks


LAW: International Criminal Court - Parliament by-passed


Straws in the Wind

INTERVIEW: Democracy needs a "virtuous" society - George Weigel

ECONOMICS: Globalisation - what it is, what it isn’t

ASIA: Taiwan enters uncertain waters

COMMENT: Australia before multiculturalism

Reading the trends

AD 2000 and the sky isn’t falling

Books promotion page

International Criminal Court - Parliament by-passed

by Richard Egan

News Weekly, November 18, 2000
T he Joint Standing Committee on Treaties has commenced its consideration of whether it is in Australia’s national interest to ratify the 1998 Statute for the International Criminal Court.

Already a conflict is developing between the backbenchers on the Committee - both Coalition and ALP - on one side and, on the other, the bureaucrats from the Attorney-General’s Department and the Department of Foreign Affairs and their "masters" as Committee Chairman, Andrew Thomson, referred to the Attorney-General, Daryl Williams, and Minister for Foreign Affairs, Alexander Downer.

The International Criminal Court has been put forward by its proponents as simply a logical and useful extension of the kinds of specific international tribunals previously established to prosecute war crimes and crimes against humanity in relation to the recent conflicts in Rwanda and Yugoslavia.

The "National Interest Analysis" provided to the Committee by Foreign Affairs bureaucrats waxes lyrical about the contribution the International Criminal Court will make to securing "international peace and security" and highlights the key role Australia has played as chair of the "Like-Minded Group" of States, which has pushed for the establishment of the Court over objections from the United States and others.

The Court will have so-called "complementary" jurisdiction with national judicial systems over "the most serious crimes of concern to the international community as a whole" including genocide, crimes against humanity and war crimes.

In a joint media release from Attorney-General, Daryl Williams and Minister for Foreign Affairs, Alexander Downer, on October 25, it was announced that Australia will ratify the Statute and legislate this year to incorporate all the crimes listed in the Statute as crimes in domestic law.

Committee Chairman, Andrew Thomson, was not impressed with the timing or content of this media release:

“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 Committee members asked several probing questions of the bureaucrats on the first day of hearing on ratification of the Statute, held on October 30. Gary Hardgrave (Liberal, Moreton, Qld) wanted to know whether ratification of the statute was compatible with Chapter III of the Constitution, which provides that the High Court is the final court of appeal in Australia. Under the Statute the International Criminal Court would have power to determine any cases, including those relating to crimes committed by Australians in Australia, which it judges Australian courts are "unable or unwilling" to prosecute. Mr Rowe from the Department of Foreign Affairs and Trade, neatly ducked the question.

Another major problem with the Statute is the broad and loose definitions of the "most serious crimes of international concern". These definitional problems will apply to cases heard by the International Criminal Court as well as to cases which may arise before Australian courts if the crimes in the statute are enacted into Australian domestic law.


Genocide is defined by Article 6 of the Statute in terms identical to those of the Convention on the Prevention and Punishment of the Crime of Genocide, which was ratified by Australia in 1949. However, this Convention has not been enacted into domestic Australian law and, as the Federal Court found in the September 1999 case of Nulyarimma v Thompson, no offence of genocide is known in Australian law.

The two sets of claimants in Nulyarimma v Thompson alleged respectively that certain parliamentarians were engaging in genocide through supporting certain changes to the Native Title Act and that certain Ministers were engaged in genocide through refusing to seek World Heritage listing for particular land of interest to an Aboriginal group. They relied on the Convention definition of genocide now incorporated in the Statute including the phrases "causing serious bodily or mental harm to members of the group".

It is impossible to predict what the International Criminal Court or the High Court would make of these or similar claims if they were brought under the Statute’s crime of "genocide".

Crimes Against Humanity?

Article 7 paragraph 1 (h) includes as a "crime against humanity" "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... or other grounds that are universally recognised as impermissible under international law."

"Persecution" is defined in paragraph 2 (g) of Article 7 as "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity".

Given the burgeoning number and variety of so-called "fundamental rights contrary to international law", there is no obvious limit to the reach of this definition, and therefore to the International Criminal Court’s jurisdictional reach.

Importing this definition into Australian law would create an open-ended channel by which developments in international human rights law would automatically be incorporated into Australian criminal law.

Certainly, this definition would allow any of those cases currently able to be determined by the United Nations Human Rights Committee - under the First Optional Protocol to the International Covenant on Civil and Political Rights - to be heard by the International Criminal Court or the High Court.

The difference will be that the Human Rights Committee can only make determinations that amount to a recommendation to an offending State Party to remedy the violation of the Covenant. The International Criminal Court or the High Court would have the power to convict and imprison those individuals accused of persecution.

To use the two successful Australian cases as examples, this could have resulted, if the Statute was then in place, in the arrest and imprisonment of Tasmanian legislators or members of the Tasmanian Executive Government for their "persecution" of Nick Toonen by preserving the Tasmanian laws on sodomy, held by the UN Human Right Committee to be a denial of Toonen’s "fundamental right [in] international law" to privacy, including a right to sodomy.

Likewise, the Minister for Immigration and immigration and detention centre officials, who co-operated in the arbitrary prolonged detention of a Cambodian asylum seeker, would also have been at risk of conviction and imprisonment by the International Criminal Court or the High Court.

The determination of some powerful and influential non-government organisations to use the International Criminal Court to give more teeth to the kind of social engineering presently carried out somewhat ineffectively by the UN treaty committees (recently subject to sustained and well-warranted criticism by the Howard Government) is well known.

Their attempt to use the terms "forced pregnancy" and "gender" to give the Court jurisdiction over a range of matters, including national laws on abortion and homosexuality, was only defeated by a concerted effort by the Holy See and other concerned powers.

While these two specific terms were consequently narrowly circumscribed in the Statute, there are several other key terms which remain loosely defined and open to abuse.

The independent power of the Prosecutor of the International Criminal Court to initiate investigations, subject only to the agreement of the Pre-Trial Chamber, is a matter of serious concern.

Several nations, including the United States, argued that the Statute should provide for investigations to be initiated by the Prosecutor only on referral from a nation state or from an appropriate United Nations body. However, this proposal was defeated.

Far from ensuring objectivity and independence this power of the Prosecutor is potentially dangerous and subject to corruption.

This concern is exacerbated by the provisions of Article 44 (4) which allow the Prosecutor to accept gratis personnel from States and non-governmental organisations to assist the work of the Court.

Through this means, powerful and well-funded NGOs may come to exercise a disproportionate and unwarranted influence on the deliberations of the Prosecutor.

Australia has recently put the United Nations treaty committee system on notice that we are no longer going to tolerate arbitrary interference with Australia’s sovereignty and unjustified criticism of Australia’s human rights performance.

However, the ratification of the 1998 Statute for the International Criminal Court would represent a much more serious assault on Australia’s sovereignty and license an alien body to interfere directly and powerfully in Australia’s domestic affairs to the extent of being able to arrest, try and imprison Australian citizens for alleged crimes committed on Australian soil.

Such a surrender of sovereignty may be unconstitutional. It is certainly unwarranted, unjustified, undemocratic and un-Australian.

The Joint Standing Committee on Treaties has extended the time for public submissions on the Statute from October 27 to December 1.

It will be instructive to observe the unfolding of the debate between the people of Australia and their representatives on the Committee, and the bureaucrats and their ministerial "masters" who seem more committed to winning favour with their counterparts overseas than satisfying the Australian people that they are vigorously defending Australia’s sovereignty and national interests.

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