COMMENT: by Richard EganNews Weekly
How Ruddock could face charges before the ICC
, June 29, 2002
If Australia ratifies the Statute for the International Criminal Court, as it is being urged to do by Foreign Minister Alexander Downer, and enacts the two enabling bills prepared by Attorney General Daryl Williams, then immigration Minister Phillip Ruddock could well face extradition, trial and imprisonment by the International Criminal Court.
The suggestion by Justice Louis Joinet of the United Nations Working Group on Arbitrary detention, that the policy of mandatory detention of asylum seekers administered by Phillip Ruddock is breaching international human rights law, may be an embarrassment to Australia internationally but it is no real threat to our right to manage our own affairs.Prosecution
However, if Australia were to ratify the Statute for the International Criminal Court, the prosecutor of the ICC may charge Phillip Ruddock with a crime against humanity under Article 7.1(e) of the Statute, which penalises those responsible for "imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law".
Under William's legislation, this crime would also be part of Commonwealth criminal law. However, Section 49 of the Australian Constitution would prevent the criminal prosecution in an Australian court of a Minister of the Crown administering an Act of the Commonwealth Parliament.
In the light of this constitutional obstacle the International Criminal Court could find that Australia was "unable or unwilling" to prosecute Mr Ruddock and issue an order for his arrest and extradition.
Under Mr Williams' International Criminal Court Bill 2001, every law enforcement official and magistrate in Australia, including Mr Williams himself as Attorney General, would be legally bound to give effect to such a request from the ICC.
If the Commonwealth Government reneged on our responsibilities to the ICC by refusing to comply with the extradition request, then Mr Ruddock would, for his own safety, have to remain in Australia.
If he travelled to any other nation that had ratified the ICC Statute he could be arrested and extradited to face trial before the ICC.Powers
It is extraordinary that Mr Downer, Mr Williams and others are so critical of the adverse findings of a UN Committee that has no teeth, and yet are prepared to bind Australia and Australians, including Ministers of the Crown, as well as our defence force personnel, to the jurisdiction of the International Criminal Court, which will have the power to impose terms of imprisonment up to life imprisonment.
Neither Mr Downer nor Mr Williams have explained why they are so confident that the ICC, whose judges will be elected by the same range of nations as those who elect the UN Human Rights Committee, is likely to be any more favourably disposed to Australia than that Committee has been in recent years.