LAW: by Dr Ian Spry QCNews Weekly
US rejects International Criminal Court
, March 24, 2001
President Bush has announced that the United States will not ratify the Statute for the proposed International Criminal Court. In this he represents a strong concern in the United States, that the Court would be subject to misinformation and political influences, and that it would be used to target the United States and its allies on political grounds.
The United States Congress is going further. Not only is it totally opposed to the Court, but a special Bill has been introduced in the Senate.
Bill 2726 argues that the proposed Court would inhibit the ability of the United States to use its military. Also, those prosecuted would be denied basic safeguards "including, amongst others, the right to trial by jury, the right not to be compelled to provide self-incriminating testimony, and the right to confront and cross-examine all witnesses for the prosecution". Further, the President and "other senior elected and appointed officials" of the government could be prosecuted.
The Bill will prohibit US officials from co-operating with the proposed Court. It will also prevent the United States from participating in peacekeeping operations where the Court might have jurisdiction, unless there is express and complete protection of United States forces by the UN Security Council.
The extent of justifiable American concerns is also seen from provisions in the Bill denying United States military assistance to countries that are parties to the Court (apart from specified allies).
The strength of the American response contrasts with the unfortunate Australian position, brought about by officials in the Department of Foreign Affairs and Trade and the Attorney-General's Department.
These officials have been responsible for Australia's advocacy of the Court and for providing misleading advice to Government ministers as to the Court's powers.
For example, public service advocates of the Court claim that the ICC would not need to interfere with Australian nationals, because Australian legal proceedings would be allowed to take place.
What they do not explain is that the Court could at any time take any matter away from Australian authorities and require Australian nationals to be extradited, if in the Court's opinion the Australian proceedings were not adequate.
In other words, the proposed Court would be the sole determinant as to whether Australian court proceedings were adequate. And if, for political reasons, a decision of an Australian court were unpopular, it would be easy for the proposed Court to find some reason, real or spurious, for claiming jurisdiction.
The military consequences of the Court would be that no Australian servicemen would operate abroad without the risk of being extradited for prosecution, even though they acted in good faith and pursuant to orders.
The political consequences of the Court would extend to putting Australian parliamentarians and Australian officials at risk in regard to such matters as claims of "genocide" or "crimes against humanity".
Already certain United Nations committees are giving surprising credence to claims of Australian mistreatment or "genocide" against Aboriginals, and the prospect of hostile prosecutors in an International Criminal Court is alarming.
The preparedness of the Coalition Government to accept the views of internationalist public servants, against the interests of Australia, is mirrored in other areas.
For example, recently it has been made easier for Australians to be extradited abroad for trial in foreign countries without the previous safeguard that a prima facie case must be established.
Fortunately, the Chairman of the Joint Standing Committee on Treaties, Mr Andrew Thomson, has shown himself to be mindful of the grave disadvantages that are involved in the indiscriminate entry by Australia into international treaties that reduce its sovereignty.
The Joint Committee is currently conducting an Inquiry into the International Criminal Court Statute. Those who are concerned by this matter - and all Australians should be in this position - should send submissions to the Committee at Parliament House, Canberra, ACT.