Monday, May 12, 2008


Alternative to invasion - a court for our times

Cynthia Banham, smh

May 12, 2008

Australia almost never runs late in paying its dues to international institutions - it is not another United States, which regularly fails to pay its United Nations fees on time. However, in the final 12 months of the Howard government, it did forget to pay its annual contribution to the International Criminal Court. It wasn't deliberate - merely an administrative oversight - but it does say a lot about the ambivalence with which the previous government viewed the world's first permanent war crimes tribunal.

While the Department of Foreign Affairs and Trade handles Australia's day-to-day involvement with the court, the Attorney-General's Department handles the budget. The former foreign affairs minister Alexander Downer was a big supporter of the court, and fought hard against a divided Coalition for Australia to ratify it in 2002. However, Philip Ruddock, the former attorney-general, was not as keen, and it showed.

The Rudd Government is demonstrating greater interest in the court - and so it should. If the Prime Minister, Kevin Rudd, wants Australia to become an activist middle power, which embraces multilateralism and backs international institutions, it could do no better than throw its support behind a body established to end impunity for politically motivated crimes.

The Rudd Government sees a powerful International Criminal Court as a preferred alternative for dealing with evil politicians who commit atrocities against their own populations, rather than sending in invading armies Iraq-style to rid a people of their dictator.

The Government is understood to be looking at the possibility of having an Australian appointed to an administrative role in the court's registry (it sought advice from the bureaucracy about also having an Australian appointed to the Office of the Prosecutor, but was told that would be too difficult). More immediately, Australia will run for a position in the Bureau of the Assembly of States Parties, which meets monthly and has the day-to-day running of the court.

But there is much more Australia could do to help make the court a truly viable jurisdiction for dealing with individuals who engage in crimes against humanity, genocide and war crimes, as the Rome Statute, which sets out the court's parameters, purports to do.

The court has limited membership; only 106 countries have ratified the treaty establishing it. Of all the regional groupings, the Asian states - Australia's neighbourhood - have the least members. Japan is there, but there is no China, no Indonesia, Malaysia, Singapore or Papua New Guinea. Australia could play a bigger role, perhaps jointly with New Zealand, in trying to encourage more of its neighbours to join.

Nor is the US a member. Professor Tim McCormack, the director of the Asia Pacific Centre for Military Law, believes that after the US presidential election, Canberra should use its relationship with Washington to "push for a more benign attitude on the part of the US" towards the court. The Bush Administration has been extremely antagonistic towards the court because of fears its young soldiers would be targeted by politically motivated prosecutions. Those fears haven't been realised. The Bush Administration's most passionate opponents of the court, Donald Rumsfeld and John Bolton, have gone, and the three presidential nominees are more predisposed towards it. Although it is still unlikely the US under a new administration would become a member - getting the necessary legislation through the US Senate would be very difficult - a less antagonistic US might encourage other countries to join the court.

One of the court's major weaknesses is enforcing arrest warrants. Because it has no police force, states must agree to hand over their nationals indicted by the court. Often the only way to get states to do this is by applying international pressure. Sudan, for instance, is refusing to hand over two of its indicted nationals.

Fergus Hanson was a former Australian diplomat who worked on the court. Now writing for the Lowy Institute's blog, The Interpreter, he believes Australia "should be far more proactive in making public statements" to keep up pressure on recalcitrant states such as Sudan that refuse to co-operate with the court.

Finally there is an opportunity for Australia to play a major role in completing the court's unfinished business on the crime of aggression. It is listed as the fourth of the crimes covered by the court's jurisdiction, but was left undefined by the Rome Statute. Work on this is being done now ahead of the court's 2010 Review Conference.

What the court needs more than anything, however, say diplomats, is to get runs on the board and to conduct some hearings. This will come with time.

The world needs an International Criminal Court if it is to hold individuals to account for outrages against humanity of the kind we've witnessed in Rwanda, the Balkans and Nazi Germany. But not only that. It also needs a court to act as a deterrent for leaders contemplating barbarism. To quote Hanson again, with a more powerful court, the Robert Mugabes of the world might think twice "about launching all out assaults on their opponents, for fear that if things don't work out they might eventually find themselves in the dock".