LAW: by Richard WilkinsNews Weekly
International Criminal Court: the dangers
, August 11, 2001
Richard Wilkins, Professor of Law at Brigham Young University in the United States, was recently in Australia to warn of the threat to domestic legal and political systems posed by the International Criminal Court.
In July 1998, the nations of the world signed a Rome Statute for the International Criminal Court (ICC). The Statute transfers a vast amount of decision-making authority from previously sovereign nations to an international court that will be remote from - and unable to be controlled by - the peoples of the earth.
The Statute does so by creating a court with absolutely unprecedented jurisdictional reach. For the first time in history, we have a Statute that purports to bind the entire earth, once a mere 60 nations have ratified it.
It violates every single principle of international law established since the Treaty of Westphalia in 1648.
The court, moreover, is empowered to enforce laws that are very vaguely worded, and that therefore capable of expansion to reach conduct well beyond what might be called "crimes of most serious concern". I also pointed out that the Statute created a mechanism which was subject to quite ready political control.
In response to such concerns, the Honourable Daryl Williams, the Attorney-General from Australia, has sought to reassure us.
First, he states that we needn't worry, because the Statute is only complementary to Australian justice. That is, it will never override Australian justice.
Second, he says it reaches only the most serious crimes of international concern.
Third, he believes there's no need to worry about sovereignty, because the Australian Constitution will never be overridden.
Fourth, he says it's false and absurd to suggest that this court will change Australian social policy.
Finally, he says that the claim that somehow the Statute will be used for political aims (or subject to political mechanisms or machinations) is simply without any foundation at all. Well, I'd like to respond to those assertions one at a time.
To begin with the notion of complementarity. It is absolutely true, as your Attorney-General points out, that the Court is designed to be complementary to national jurisdictions. That is stated in Article 1 of the Statute.
But while this notion may sound
reassuring, and is invoked by Court supporters to calm fears that the ICC will unduly intrude upon domestic policy-making, complementarity in actual fact operates not
to shield domestic law from international intrusion, but to ensure that domestic law conforms
in all respects to international law: as set out in the ICC Statute, in Article 17 (1a).
"The International Criminal Court will take jurisdiction any time a nation is unwilling or unable to act."
Accordingly, once the ICC is ratified, Australia's domestic human rights law must precisely mirror the human rights law established under the ICC and the judicial decisions of the ICC, or the domestic legal system will be supplanted.
Complementarity, in short, is not a shield: but, rather, a sword, to require Australia to implement emerging international norms.
Second, your Attorney-General states that we needn't worry because the Statute deals only with crimes of the most serious concern to the international community. However, the language of the ICC Statute is sweeping. Although it purports to reach only the crimes of most serious concern, the potential reach in Articles 6, 7 and 8 of the Statute is limited largely by the imaginations of international lawyers, and by the restraint (or lack of it) of the judges who will be charged with interpreting that language.
The crime of genocide, for example, does not include just killing members of a group, but also "causing serious bodily or mental harm to members of the group".
As such, the ICC's machinery could be conceivably called into play to prosecute the racially and religiously charged rhetoric often employed by both sides of the ongoing dispute regarding a Palestinian homeland in the Middle East. While I'm not suggesting that such rhetoric is rational, or to be encouraged, I am not certain - and I believe it is far from clear - that Middle Eastern name-calling contests qualify as "a crime of most serious concern to the international community".
Of much greater concern are the potentially far-reaching "crimes against humanity" set out in Article 7. The Statute condemns, as "crimes against humanity", such crimes as murder, extermination, enslavement, forcible transfer of population, torture, sexual slavery, and persecution.
Now these words sound
terrible. But the ICC Statute gives little or no guidance as to what these words actually mean. For example, the crime of enslavement is defined as "the exercise of any or all power attaching to the right of ownership over a person".
Invoking this language, the Women's Caucus for Gender Justice regularly holds conferences in New York, in which it argues that the ICC might be used perhaps to abolish the very institution of marriage.
Moreover, in crimes against humanity, persecution is defined as: "the intentional and severe deprivation of a fundamental right".
What does that mean? There's no fixed catalogue of fundamental rights. Welfare benefits; the right of men to marry men; the right to an old age pension; the right to housing; the right to food; the right to clothing; the right not to go to school; the right to walk around naked in public - these might all be claimed as fundamental rights, depending upon the personal predilections of the person doing the claiming.
Another crime against humanity is given as "inhumane acts" that cause "serious injury to body or to mental or physical health". Again, what in the world does that mean? No lawyer could tell you. I can't tell you. I can tell you one thing, the United States' Supreme Court would declare such a crime as unconstitutionally void for vagueness, because no-one knows in advance what causes "serious injury to body or to mental or physical health" of another person.
As a result, since it would be unconstitutional in the United States, I think it's rather hard to argue that the Statute reaches only "crimes of most serious concern to the international community".
Now, returning to my list: your Attorney-General says we needn't worry about intrusion into Australian sovereignty, and the Statute will have no impact upon Australia's Constitution. I believe that this is quite wrong.
My cursory and largely untutored review of the Australian Constitution suggests that at least three provisions of your Constitution would, under the Statute, require amendment. These include the privileges and immunities of the Senate and the House of Representatives, established by the Constitution's Article 49; Article 71's command that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court"; and Article 80's guarantee of trial by jury.
Under the International Criminal Court, and as explained in the Manual, no criminal defendant can ever make a claim of official immunity.
That means, should a member of your Parliament cast a vote on an issue related to Aboriginal rights, and should an Aboriginal decide that this vote has caused him severe emotional distress, that Aboriginal can take a claim of genocide to the International Criminal Court. And your Member of Parliament will not be able to raise in his defence the immunity created by Article 49 of the Constitution, to prevent the lawsuit from preceding. He will be taken to The Hague and tried.
Nor will there be trial be jury under the ICC. Article 80 of your Constitution says that you have to have trial by jury here in Australia for serious crimes. The ICC says no. No trial by jury. And since the ICC, not the Australian High Court, will have the final say regarding whether certain crimes set out in the Statute have been committed - because under the guise of complementarity, the ICC will be the final arbiter of that - it's necessary to amend your Article 71, to provide that the Australian High Court has the next-to-last say on issues related to human rights.
Now, I believe that this requires amendments of the Australian Constitution.
But supporters of the International Criminal Court greatly fear this fact; they greatly fear open and public debate of constitutional amendments. As a result, the Manual on pages 55 and 56 tells us precisely how to amend constitutions to avoid all difficulties:
"If a State needs to amend its constitution, it may be possible to accomplish this with a simple sentence that addresses a number of different issues at the same time."
The implicit amendment of a constitution by a single sentence - which obscures for the public exactly what has been done to the Constitution - flies in the face of the very notion of a written constitution.
We have written constitutions, because they set out values that cannot and should not be changed without knowing precisely what the changes are, and without having a constitutional (meaning a supra-majority) consensus that these changes should be made.
The very fact that the ICC's supporters suggest all nations of the world should engage in such revisions of their respective constitutions, suggests that the ratification of the Rome Statute must be approached with exceptional gravity and care. I think amending a constitution by subterfuge hardly constitutes doing that.
The fourth claim of your Attorney-General is that the ICC will not be used for social engineering. Well, let me just give you a couple of examples that are specific to the Australian experience.
The crime of genocide under the ICC (as I've already explained) includes not only killing members of a group, but also causing them "serious mental harm". As such, the ICC's machinery could be called into play to prosecute Members of Parliament - even Prime Ministers - who, again, would not be able to claim immunity if they caused "serious mental harm" to indigenous groups.
This claim has already been made in Australian courts, in the case of Nulyarimma v. Thompson
. There was a claim that Australia's Parliament should have done more for the Aboriginal people, and the Aboriginal claimants argued that they had suffered extreme mental distress, and as a result had been subjected to genocide at the hands of the Prime Minister and the Federal Parliament.
The Australian High Court had no trouble throwing the case out. I can guarantee you, it would have trouble throwing the case out once you had ratified the ICC Statute, because it's very likely that a group of judges in The Hague would conclude that your Aboriginal people have indeed been subjected to extreme emotional distress.
Let me give you one concrete example that happened just last month. I came from the UN meeting on HIV/AIDS in New York. During that meeting, the UN High Commissioner for Human Rights issued a document which had been written several years earlier, but had been hidden from view. On the second-last night of the session, there was a sentence inserted into the UN Declaration on HIV/AIDS, saying that by the year 2005, all nations would implement the guidelines in Paragraph 8. Let me tell you what Mary Robinson, the former Irish President, said these guidelines are based upon.
According to her, the norms enunciated in these guidelines are "consistent with fundamental human rights and fundamental freedoms". Note the similar language to the ICC.
Although the guidelines acknowledge that the norms they set out may be controversial, they nevertheless insist that the norms are "based on existing and fundamental human rights standards" (page 24, Paragraph 36).
And according to Mary Robinson again, they do nothing more than "encourage law and law reform which will bring national HIV-related laws into conformity with international and regional human rights standards".
She concludes by noting that her numerous recommendations are "consistent with traditional and customary international law". Again, the rulings on crimes against humanity are designed to ensure that customary human rights are recognised, and that fundamental human rights are not denied.
What are the fundamental rights that Mary Robinson says all nations must recognise?
One, they include the repeal of all laws condemning homosexual sodomy.
Two, the legalisation of same-sex marriages.
Three, mandatory and graphic sexual training for children. She has three paragraphs on the last of these.
She says the training has to include instruction, beginning when the child's at the age of 10, on how to engage in sexual intercourse with members of the same sex. Since this will of necessity be graphic, she says, "such materials should be exempted from pornography and obscenity laws".
Four, she says that all laws regulating prostitution must be eliminated. Prostitution, in short, must be legalised.
Five, she says that the age of consent for all sexual activities should be lowered to 14.
Finally, and most troublingly, she says: "There must be creation of penalties for anyone who vilifies individuals engaged in same-sex relationships." In short, it's not enough simply to normalise, in one fell swoop, all of international law related to homosexuality. We have to provide penalties.
What are the penalties she's talking about? Might it be the International Criminal Court? Turn to the guidelines on page 14, which emphasise the need for "the sensitisation of judicial branches of governments, both nationally and internationally." She suggests we need to "provide judicial education and the development of judicial materials".
Your Attorney-General states that it's absurd and outrageous to claim that the International Criminal Court will be used for political ends. Let me just give you, again, a little information from the Statute itself.
The ICC gives the prosecutor broad political power to bring prosecutions. Under the Statute, prosecutions are not initiated by States" Parties. They are, on the contrary, initiated by the prosecutor. And they may be initiated by anonymous complaints made by NGOs and others.
Furthermore, Article 44 allows the prosecutor to accept "any ... offer" of "gratis personnel offered by States' Parties, intergovernmental organisations or non-governmental organisations". Gratis personnel are personnel paid for by third parties, yet they are performing the work of the court.
One can expect - and my experience tells me that it will undoubtedly be true - that most of these "gratis personnel" will be supplied by well-funded international NGOs who are hostile to religion and traditional values. An independent prosecutor who is free from any executive control is fearsome enough.
An independent prosecutor whose office is staffed by individuals with ideological axes to grind is positively frightening.
Let me conclude by asking what is at stake. Your Attorney-General concludes with a kind of stirring paean to justice and to compassion. He says:
"Our sense of justice, our sense of humanity, our compassion for our fellow man, demand that we give the ICC our full support."
In a sense, I agree. We have to have compassion for our fellow man. There is no doubt that there are serious atrocities in the world, which demand a solution. And I believe it's possible to construct an International Criminal Court that not only complies with the existing dictates of international law, but also would not unduly trammel the existing sovereignty of states. The International Law Commission produced such a draft about 10 years ago. But what is at stake is the very notion of sovereignty and self-determination.