LAW: by Richard EganNews Weekly
International Criminal Court leads to legal uncertainty
, December 1, 2001
In late August, Federal Attorney-General Daryl Williams gave the Joint Treaties Committee exposure drafts of two bills designed to implement the Statute of the International Criminal Court (ICC) in Australian domestic law.
The Treaties Committee, which has been inquiring into whether it is in Australia’s national interest to ratify the ICC Statute since October last year, circulated the exposure drafts and indicated that it expected its inquiry to continue after the Federal election.
The exposure drafts confirm the position taken by critics of ratification: that this will lead to a loss of Australian sovereignty and to uncertainty in law.
The first bill, the International Criminal Court Bill 2001, is designed to ensure Australia’s absolute compliance with all requests of the ICC. The bill binds the Crown, both Federally and at State level, and makes it compulsory for the Attorney-General, magistrates and law enforcement officers to comply with requests from the ICC for the arrest and surrender of persons.
The bill specifies that surrender of persons to the ICC are not to be subject to the usual legal protections applying to requests for extradition to other nations.
It states very limited and specific exceptions to the obligation to surrender. It makes it clear that the ICC makes the final determination as to whether a charge is admissible before that court.
Furthermore, it explicitly makes unlawful any attempt by the Attorney-General to refuse compliance with an ICC request on the ground that a person has already been found innocent on the same charge by an Australian court.It could not be clearer that, far from being given genuine "complementarity" with the Australian judicial system, the ICC is treated as a superior court which can issue binding directives to the Attorney-General of this once sovereign nation.
The second bill seeks to amend the Criminal Code Act 1995 to import into Australian domestic law all the offences contained in the ICC Statute.
Among these, as many critics have noted, are two offences so vaguely defined that they could give rise to quite frivolous charges.
The first of these is "genocide by causing serious mental harm". An attempt to have Minister for the Environment Robert Hill charged with genocide - for failing to seek World Heritage listing for Lake Eyre, thereby allegedly inflicting serious mental harm on the local Aboriginal people - was dismissed by the Federal Court of Australia, on the grounds that the offence of genocide was not known in Australian law.
Yet if this bill is passed, then such a charge could well be taken seriously by the courts.
The second vague offence is that of persecution by severely depriving, contrary to international law, one or more persons of fundamental rights where the persons so deprived are targeted on grounds that are universally recognised as impermissible under international law.
This offence, to be included in the Federal Criminal Code, creates an open-ended means of importing developments in international law into Australian criminal law without any parliamentary debate.
It will be a significant test of the third Howard Government to see whether the internationalist bureaucrats in Foreign Affairs dictate government policy on this question, or whether the Prime Minister will listen to the adverse criticism of ratification likely to be made by the majority on the Treaties Committee.