LAW: by Richard EganNews Weekly
Government approves ICC - with qualifications
, July 13, 2002
With just 32 minutes of debate on June 28, the last sitting day before the winter recess, the Senate passed the two bills designed to give domestic legal effect to Australia's ratification of the Statute of the International Criminal Court. This was hardly the Senate's finest hour as a house of review.
The lone recorded dissent came from One Nation Senator Len Harris, who cited concerns about the erosion of Australia's sovereignty, the unseemly haste with which the Senate was dealing with such serious legislation, the possible use of the Court for social engineering and the risk of politicised prosecution of Australian military personnel on peacekeeping operations.
Senator Harradine raised a number of concerns with the Government, including a concern that the denial of unlimited access to abortion could be considered persecution under the Statute. The Government's denial of this possibility was, on his insistence, placed on the record.Social engineering
However, there is nothing in the Government's denial that really rules out the possible use of the Court for such social engineering on the international level. A meeting of the Women's Caucus, an international pro-abortion feminist network, has been scheduled for July 1 - the date the Statute comes into effect - to "brainstorm ways of using the International Criminal Court to advance reproductive rights" (read unlimited access to abortion).
Senator Ludwig, for the Labor Party, did point out that in the amendments being made to the Criminal Code defining the new crime of "persecution" there was a substantive difference between the definition being incorporated into Australian law and the definition in the Statute. The former was much narrower, limiting "persecution" to mean the severe deprivation only of selected rights from certain articles in the International Covenant on Civil and Political Rights, while the Statute definition of "persecution" refers in an open-ended way to the severe deprivation of any fundamental human right recognised in international law.
This discrepancy opens up the possibility of Australia being found "unable or unwilling" to prosecute a person for an alleged crime against the Statute leading to the initiation of prosecution by the International Criminal Court.
However, despite this and other serious questions about the bills, the Labor Party co-operated with the Government to rush the bills through the Senate without serious examination.
The passage of the two bills came only after vigorous opposition within the Coalition joint party room (and within Cabinet) to ratification of the Statute was appeased by the Prime Minister. He required significant amendments to the legislation as originally proposed by Attorney General Daryl Williams and Foreign Minister Alexander Downer.
The original legislation absolutely required the Attorney General to comply with any request from the International Criminal Court for the arrest and surrender of any person wanted by the Court. The new bill was amended so that no person can be arrested or surrendered to the Court without a written certificate by the Attorney General stating that in his or her absolute discretion it is appropriate to do so.
A similar requirement was introduced to the bill which incorporated the offences covered by the Statute into Commonwealth criminal law. Prosecutions under these provisions may only be brought with the consent of and in the name of the Attorney General.
These provisions go some way towards mitigating the risks to Australia's interests pointed out by critics of ratification.
It should never be forgotten that our Attorney General and our Foreign Minister were both prepared to subordinate Australia entirely to the whims of the International Criminal Court from when they first announced their intention to ratify the Statute by Christmas 2000 until a few weeks ago, when opposition from their Coalition colleagues resulted in the Prime Minister bringing them to heel.
The success achieved by opponents of the Court is significant.
Nonetheless serious concerns about the implications of ratification remain. The United States is adamant that it will not expose its servicemen to any possibility of prosecution by the International Criminal Court whose jurisdiction it does not recognise. The Statute provides that citizens of non-ratifying nations can be prosecuted by the Court for alleged offences that take place in a nation that has either ratified the Statute or that consents to such a prosecution.
The United Nations Security Council is, at the time of writing, stalemated over a resolution to extend the peacekeeping operation in Bosnia because the United Nations is refusing to agree to US demands for a guarantee of immunity from prosecutions by the International Criminal Court for UN peace keepers, including US troops.
The US concerns also highlight the remaining risk to Australian personnel - political and military - who may be arrested and surrendered to the International Criminal Court if they are outside Australia and a prosecution has been initiated by the Court.
The domestic requirement that the Attorney General has an absolute discretion on whether to consent to arrest and surrender simply doesn't apply outside Australia.