What's
it about?
At 8 p.m. on July 1st, a new international law (a mouthful - The Statute of the
International Criminal Court) came into being. Those accused of genocide, war crimes
or so-called 'crimes against humanity' may find themselves before the judicial body
created by the Statute, the International Criminal Court (ICC).
Okay, you say, just another sop to left liberal intellectuals, the same bookish
academics who have seen the United Nations degraded to a forum for wingers. And for
heavens sake, does anyone believe a court of law is going to deter a rampaging tyrant from
a single act of barbarism? Of course not, so what is the point of yet another tier in any
country's judicial system.
What's the point?
There are any number of learned jurisprudential theories to explain the need for the
criminal justice system. Most often mentioned is the deterrence that accompanies a penalty
- as they say, 'do the crime and do the time'. As well, sometimes society looks for the
high road, and prosecutions are launched because justice must be seen to be done. For
example, the Nuremberg Trials following the defeat of Nazism provided a forum for the
punishment of high ranking members of the Third Reich, though no one believed the trials
would bring the SS and the Third Reich to their just punishment.
Tragically there is no shortage of potential culprits for the Court. And since history
does in fact tend to repeat itself, if the last century is any indication there will be
plenty of candidates for prosecution (the Holocaust is only one of the last century's many
genocidal conflicts - Rawanda, Cambodia, Uganda, the Chinese Cultural Revolution are but a
few examples).
Why not?
It might be reasonable to assume that the establishment of the ICC is a no-brainer.
After all, why would anyone take issue with a trial of a genocidal murderer? For instance,
most of us believe that Slobodan Milosevic is properly on trial for his actions in the
Balkans. And can nearly seventy signatory nations to the Treaty be wrong? Well, yes,
because the devil in the law is forever in the detail. Some commentators have pointed to a
vagueness in the statutory language that appears to allow not only the prosecution of
genocidal crimes, but also persecution on cultural, religious, gender or other grounds.
Other international humanitarian bodies have not fared too well, most notoriously the
various United Nations committees that have promoted partisan causes at the expense of
Western democracies. And sovereign countries are leery at turning over criminal
jurisdictions to foreign courts, especially when it is possible to indict a
citizen, however unlikely the prospect may be. In that case Australians might be denied
the protection of their own laws. It is disturbing that the suggestion remains that the
Court may be able to override an investigation undertaken on the grounds that it was not
genuinely pursued.
Former Federal Minister Bronwyn Bishop summed up the case against the ICC:
"Supposing we had a situation where on of our servicemen serving on deployment was
alleged to have committed a crime against humanity (that was) investigated by Australia
and there was no case to answer…it would be open to the ICC to determine that this
rendered Australia unwilling or unable to properly prosecute and therefore Australia would
cease to have jurisdiction." She is supported in her view by the world's most
influential nation, the U.S., which has refused to join the Court.
The case for the ICC
Australia played a large role in the establishment of the ICC. Partly its genesis was a
backlash against the United Nation's failure to prosecute the perpetrators of Cambodian
war crimes. To refuse to join the Court at this later stage would clearly represent an
international public relations disaster for Australia, and exclude it from the
negotiations on procedures and the appointment of Judges.
So what is the response of proponents to the types of charges raised by the likes of
Bishop? Supporters claim that the definitions of genocide and war crimes are far too
specific to allow political frolics that would include the activities of Australian
peace-keeping soldiers. And it would be inconceivable that an Australian investigation
could be considered enough of a sham to initiate the jurisdiction of the ICC.
As to the failure of the U.S. to ratify the ICC, Cherie Booth (wife of British PM Tony
Blair) said, "…it would be a lost opportunity if a State with a long-standing
commitment to human rights does not take a lead in shaping the work of the world's first
international criminal court."
The verdict
The objections of sensible opponents, especially the Government of the United States,
should not be dismissed as errant nonsense. Sovereign countries are right to want to
protect their physical and judicial boundaries. Many people believe that this should be
the first responsibility of Government. Also, as has been shown far too often in the
United Nations, there is little as disturbing as an internationalised body that takes to
grandstanding against Western democracies who put their values where they belong, at the
ballot boxes. The ICC should be looked at with suspicion for this reason alone. United
Nations committees that point accusing fingers at the West, and debacles such as last
year's conference on racism in Durban, have soured many of us against the cause of
internationalism.
Nevertheless there is reason to believe that the ICC is an overdue call to arms against
genocidal leaders and their ilk, and though flawed, it has little potential downside and a
positive symbolism. If any Australian citizen is implicated in a war crime, we must assume
that our own judiciary will deal with the issue as part of our rule of law. In that case
we have little to fear, and our early involvement affords us opportunities to shape the
Court's first steps. At bottom line symbolism has its place, especially in a world where
the next genocide is only another headline away.
By Geoffrey Winn
Creative Director
www.law4u.com.au