Greg Barns and I lobbied hard for ratification of the International Criminal Court treaty. This article, published originally in the Australian Financial Review, was one we wrote in 2002.
Time for and International Criminal Court.
Twenty-five years ago this week Australia, together with the International Red Cross, took the lead in the development of the law on War Crimes. Yet today our nation has members of its government who wish to turn our back on past achievements and run a populist line of ‘national sovereignty’. This will ensure that we lose our status as a country committed to the continued development of laws against War Crimes.
On the 11th of June 1977, over a hundred States adopted two Protocols to the Geneva Conventions. Nations like Australia had pushed successfully for the Law of War to now cover internal conflicts, wars of National Liberation and to give further protection to innocent civilians caught in the cross fire of conflict.
It is breaches of these Protocols and other laws that have Milosevic and the perpetrators of the Rwandan Genocide facing justice in two ad hoc International Courts.
Australia had no difficulty signing up in 1977 as we recognised that the need to bring the world’s evil to justice was greater than evil’s need to appeal to ‘National Sovereignty’. But today we are letting the world’s evil off the hook.
We are being asked to ratify the Rome Statute that would create the first permanent International Criminal Court to try the world’s evil – and government backbenchers led by former minister Bronwyn Bishop are refusing.
So why are Bishop and her supporters refusing? They claim that the International Criminal Court, with the power to try Australian soldiers, is a threat to our ‘National Sovereignty’ and not in our ‘national interest’. They say that Australia’s courts would no longer be the final arbiters of Australian’s guilt.
Bishop is not alone in her view. Milosevic, Pinochet, the WWII Japanese Leaders, the Nazis and Pol Pot have all been on record at various times saying that international courts like this should not be supported. So have the Americans – not surprising given their record in places like Vietnam.
Funnily enough though, those taking the opposing view, that the court should go ahead, include the Australian Defence Force, the United Kingdom, Australia’s negotiating team at the ICC Conference, most of the Commonwealth, modern day Japan, modern day Germany and funnily enough, modern day Yugoslavia.
Admiral Chris Barrie, Chief of the Australian Defence Force, said that the creation of the ICC would be no threat to Australian forces, rather the Court’s existence would make Australian soldiers’ jobs easier and safer in peace-keeping operations.
British Foreign Secretary Robin Cook said that Britain has ratified the ICC treaty as “it is in Britain’s national interest to do so. A more stable, democratic world is safer to live, travel and trade in.”
Each of the above quotes negate arguments put by Bishop and highlight how odd it seems that Australia may side with Milosevic instead of the Australian Defence Force, with the Japanese WWII leaders instead of the Commonwealth or Pol Pot instead of our own negotiating team.
But rather than just make simple comparisons, let’s analyse Bishop’s argument. Does the treaty threaten or undermine our National Sovereignty, and more importantly, if it does, should it?
The answer to the first question is ‘yes to a degree’. If a permanent international court is established, and it has the power to try our soldiers if we do not try them, then our sovereignty is lessened. Bishop is partly right.
But, wait a second, let’s look at that a bit more closely.
The ICC will only try Australians that in the future may be accused of Genocide or horrendous crimes if, and only if, Australia refuses to try them in Australia. If an accused Australian soldiers is prosecuted in our system, then no sovereignty is lost.
No one can take our soldiers away if we have a go at them first.
This leads on to the second question. If an Australian soldier commits or is suspected of committing a horrendous offence and a future government refuses to prosecute them, should an international court step in?
We said that it should with the Germans. We said that it should with the Japanese. We said that it should with the Rwandans. We said that it should with the Serbs, Croats and Bosnians.
Must we refuse it now? And what of future Rwandas or Bosnias?
So to Bronwyn Bishop, and John Howard, we say ‘Yes’ you are right. A little sovereignty would be lost with the creation of the International Criminal Court, but only if future governments fail to act against atrocities that future Australian soldiers will hopefully never commit.
But sovereignty in that case not only ‘should’ be lost but ‘must’ be lost. If we don’t have the guts to prosecute our own people if they commit crime on an horrendous scale, then someone else must.
If we do not try our people for War Crimes, then someone should, just as we have been strong advocates of the prosecution of the Japanese, Germans, Rwandans, Bosnians, Croats and Serbs.