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Thursday, 20 June 2002
Page: 4119


Mr RUDD (10:16 AM) —The International Criminal Court lies primarily within the Foreign Affairs portfolio and is a matter for which the Minister for Foreign Affairs, Mr Downer, has had principal carriage these last several years. In fact, it was Minister Downer who made a very clear statement in 1996 that the development, signing and ratification of an international criminal court would be a principal human rights objective of the Howard government. It has been a somewhat tortuous process since then. Based on today's media reports in the Australian newspaper and in other media outlets, it seems that at last the government's agony has been drawn to a conclusion. It is to be hoped that the government will now proceed to ratify the Rome statute, which establishes the International Criminal Court.

I am saddened that neither the foreign minister nor a representative of the foreign minister appears to be here in the Main Committee to respond to these matters just at the moment. I am sure his advisers are watching on the television monitor, and I send them a hearty cheerio as we proceed through this debate. But the key question, of course, is where Australia's long-term interests lie with the International Criminal Court and how the interests of the international community are best served by it.

The reasons for an international criminal court have been long established and are clear. First and foremost, what the world needs and what the world has needed since Nuremberg is a permanent, properly resourced, international criminal court capable of sending a clear message to any would-be perpetrator of crimes of genocide, war crimes and crimes against humanity that they will be apprehended and that this will not be an episodic exercise in which perhaps the international community, depending on the circumstances at the time, may establish an ad hoc tribunal with the intention of doing something about a particular set of war crimes in a particular environment; there is a permanent body which will not cherry pick and which will not be dependent on the prevailing international politics of the time. So the world at large will know that you will be got, you will be apprehended, you will be brought before a tribunal and justice will be meted out to you by the international community on behalf of our common humanity.

The world has been demanding for this to occur at least since Nuremberg. A commission was established by the United Nations, I believe in 1948, with a view to establishing an international criminal court. Fifty years of the ebb and flow of international diplomatic negotiations finally culminated in the agreement to the Rome Statute, which was signed by this country and more than 100 others in 1998. Not only does an international criminal court provide a long-term deterrent, a long-term capacity to deal with crimes of this magnitude across the international community; it is also, importantly, designed to create a deterrent against future such crimes occurring. It is not just the existence of a permanent body in The Hague that will do that; it is the fact that the statute requires the incorporation of the entire body of the statute into the national law of those parties that ratify the statute so that the crimes of genocide, crimes against humanity and war crimes are incorporated into the national statutory regimes of every participatory state, thereby establishing a second level of deterrence. So it is not just the existence of this body of law of an international character but that this body of law is incorporated and driven into the domestic statutes of all participating states; again, establishing a second line of deterrence.

If that fails and if in the future we have another Pol Pot, if we have another person of the type of Milosevic—given the nature of the accusations which have been made against him—if we have other perpetrators of crimes of such horrendous proportions and magnitude against our common humanity, then justice of a retributive and restorative nature will be meted out to them. Permanence is an important feature of this. We have had ad hoc tribunals, such as the one dealing with the former Yugoslavia and also with Rwanda. But we have had no such tribunal which has dealt with war crimes and crimes against humanity committed in Cambodia and in other parts of the world. This provides a powerful, fundamental argument as to why such a body is long overdue in the troubled history of humankind.

Those who oppose the International Criminal Court have raised a range of arguments. The principal argument among them is that it results in a limitation of Australian legal sovereignty. (Extension of time granted) The sovereignty argument is advanced along these lines: if we establish an international body of this nature then, as a matter of logical fact, our legal sovereignty is diminished. There are two principal arguments against that. Firstly, the doctrine of complementarity is alive throughout the statute itself. What it says is that there is a complementary regime between the International Criminal Court in The Hague and the national regimes which will be established to complement it. If a person has a case brought against them in terms of the crimes which fall within the scope of the statute, then under those circumstances in the first instance it is the expectation requirement of participatory states to take those individuals through the domestic legal and judicial processes of that participatory state. It is only under the circumstances where those processes are not applied at any level that mechanisms exist within the statute for such a person to be brought before the international court in The Hague.

The doctrine of legal complementarity is a robust one. It is one which has been worked on in great detail with Australia's negotiators in Rome and with negotiators of other participating states as well. So the notion that, if an Australian here is accused of a crime against humanity there, automatically on the third day they will be hauled before the international court in The Hague, as a matter of some sort of automatic consequence, is a factual nonsense and those people who advance that proposition need to carefully read the provisions painstakingly drafted within the statute itself.

I said there were two arguments against the sovereignty approach. The second is this. It is a matter of axiomatic logic that, on each occasion this nation signs any form of international undertaking, as a result of that our sovereignty changes. It has ever been thus. The body of statutory law to which this country has become an adherent since the last war and prior to the last war causes us to enter into a form of shared sovereignty with the rest of the international community on each occasion. It is an axiom. If you have a treaty with another multilateral body, it follows as a consequence that your sovereignty, in small part or larger part, is shared with that international body. When it comes to the other treaties of a non-UN nature, shall we say, such as the ANZUS Treaty, perforce of the existence of the ANZUS Treaty our sovereignty is again shared under the terms of that treaty. We have a shared concept of security with our treaty partners in the United States. So a doctrine of international law, as a definitional concept, means that sovereignty is a shared phenomenon when specific treaty obligations are undertaken. There is nothing novel in that. If there were an objection to it by those who argue the sovereignty argument against the International Criminal Court because Australian sovereignty must be maintained at every level, as a matter of logic that is an argument against withdrawing from all of our international treaty obligations of both a UN nature and a non-UN nature. I have never heard that argument advanced by those who have sought to attack the International Criminal Court.

As I said before, it is heartening news that at last the Prime Minister, Mr Howard, has decided to save the foreign minister's bacon on this question. There has been intense dispute and disagreement within the coalition party room on this question. It has been amply reported in the media; there is no particular need to repeat it here at great length. What we have had, though, is a foreign minister who has been found wanting because of the extraordinary statements he has made to the international community and to the parliament of Australia about the automaticity of Australia's ratification of this instrument—that is, the Rome statute—without having first sewn together his own party room on it. The first and unqualified statements which the minister issued on the ratification of the International Criminal Court statute were made to the Australian parliament in the year 2000 on two occasions. These were not qualified statements; they were unqualified statements.

What we have sought to do as an opposition in the period since then is hold this minister to his word. It was his solemn word to the parliament of the Commonwealth of Australia. His solemn word prior to that was given to the international community when he addressed the United Nations General Assembly, when he said not only that Australia would proceed towards the establishment of an International Criminal Court—which I think by that stage had already been established per force of the actual agreement itself—but that ratification would ensue as well.

These definitive statements to the parliament, to the international community and to the parliament of the international community—namely, the United Nations General Assembly itself—were clear-cut, unambiguous undertakings. What we have had since then is an 18-month long, drawn out process. (Extension of time granted). Ithas gone on and on and on, as the government at various levels has sought to bring on board this large phalanx of malcontents within its own ranks on this question.

This has been a failure of ministerial responsibility. You cannot make a solemn undertaking to the world, a solemn undertaking to the UN General Assembly or a solemn undertaking to the national parliament without having brought your own party room along with you. The Prime Minister's role in all of this raises the question as to what happened in 1998 when this statute was signed in the first place. I will address my question to the foreign minister's advisers. Was the Prime Minister himself consulted in 1998 when the foreign minister, Mr Downer, issued the authorising instructions in order to sign the statute in 1998 or was this some independent foreign policy frolic by the foreign minister himself?

My knowledge of the Department of Foreign Affairs and Trade processes—and I have worked in that department myself in the past—is that you do not proceed to sign any international instrument until ad minima it has been cleared by the Canberra based bureaucracy and ad maxima on questions of substantial international treaty law it has been cleared at the political level as well. It beggars belief and I would ask for the minister or the parliamentary secretary who will respond in this debate to provide some clarification to the House on this very question. When the thing was signed in 1998, did the Prime Minister give it the tick? In his absence did the head of the Department of the Prime Minister and Cabinet give it the tick? Or did both give it the tick?

If it was given the tick and approval by the Prime Minister and those representing him within the bureaucracy at the time, it follows as a matter of consistency that that is why the Prime Minister has gone from a position of belief to a position of agnosticism back to a position, it seems this morning, of grudging belief. That seems to be what has occurred. If the foreign minister engaged in a frolic of his own in 1998 then that needs to be a matter of substantive record and I would appreciate clarification from the parliamentary secretary at the table on that very specific point. But, if in order to save the foreign minister's bacon the Prime Minister has finally agreed that we can now proceed with ratification, that is a good thing for Australia's national interest. It is a good thing for the international interest as well.

The function which we as an opposition have performed throughout this has been to ensure that the foreign minister honoured his word to the international community and to the parliament of Australia. That is why we have raised question after question in this parliament for the last several weeks. That is why we have sought to put the foreign minister on the spot. That is why we have sought to put the Prime Minister on the spot. That is why we have sought to put the Deputy Prime Minister on the spot. The Deputy Prime Minister, not just the Prime Minister, has issued statements himself in the past, lauding Australia's leadership in the development of the International Criminal Court statute—the Rome agreement of 1998. He said so in this parliament's millennium debate in the year 2000 about our broader obligations to the international community and Australia's commitment to multilateralism. We have the trifecta: a PM on the record in the same debate in the year 2000 lauding Australia's leadership on the ICC, the Deputy Prime Minister saying the same thing and the foreign minister making more statements than paper could be supplied by the entire national forest estate of the ACT about why Australia should proceed to ratification and signature.

Our job in this process has been a responsible one. Plainly those opposite have not liked the questions I and others have asked in the parliament in the course of the last several weeks, but the function we have performed—and I address this again to the minister, because he never seems to want to be in the chamber any time we seek to debate him—is to make the minister honour his commitments, to create sufficient political embarrassment for the minister in the House of Representatives in the Parliament of Australia to make the minister realise that there is no middle course out of it and, more importantly, to make the Prime Minister conclude that there are only two options in this: support your minister—that is, support the foreign minister in his early statements to the parliament and the international community that ratification would proceed; or, in the absence of that, utterly denigrate the standing of your foreign minister and leave him in an invidious position where the only alternative, in terms of one of honour, would be for him to resign as minister. That is the function we have performed. Those opposite have squirmed, they have not liked it, but we have actually acted as a responsible opposition in holding this government to account for its firm public, parliamentary and international undertakings on this important question of Australia's obligations under international law and our commitment to better global governance as a consequence. What we do not know is where it all goes to from here in terms of whether or not the government will issue some interpretive statement or interpretive declaration at the point at which government's ratification legislation is advanced. (Extension of time granted)

The question, of course, arises as to what sort of interpretive statement is inserted at the point at which the government's ratification legislation is advanced. This is a matter of continuing concern. Broadly in international law, there seem to be three types of declarations which can be made at the point at which ratification legislation is passed through a parliament and statements by the responsible ministers made. First, there are declarations which are broadly described as `procedural'; that is, those which describe the vehicles and bodies which are nominated for cooperation within the statute in question—in this case, the ICC—and how in fact those bodies for cooperation and/or implementation are going to be used in the execution of the specific provisions contained within the statute. Second, there are what would be described as `political declarations'; that is, the use of what I would describe as general political rhetoric to make a rhetorical point in order to provide comfort and solace to offended domestic constituencies while not in any fundamental sense affecting the legal content of the statute itself. In other words, a bit of political window-dressing to make those who have been rolled in the coalition party room process on this question feel a bit happier about it in the morning, but not in any substantive sense altering the real content of the statute itself in terms of the provisions of the ratification legislation. The third type of declaration can broadly be described as `interpretive'. An interpretive declaration can be of a type which has some substantive qualification of the provisions outlined in the statute itself. The key question here is whether any such substantive interpretive declaration varies as a matter of substance from a specific undertaking contained within the body of the statute itself. This is where we have to pay particular attention to what the foreign minister will come up with in order to provide himself, not with a face-saving device for the international community—that will lie in the actual act of ratification itself—but a face-saving device politically for those in his party room who have argued long and hard that he should not proceed with ratification.

The only provision for a substantive reservation from the provisions of the International Criminal Court statute are those outlined in article 124 of the statute, which says:

... a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8—

that is, war crimes—

when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time.

That is a specific reservation articulated in article 124. Of those states which have proceeded to ratification, only one so far, I am advised, has actually exercised its options under article 124. The problems with states embarking upon article 124 are, firstly, that it does send out a message to the rest of the international community that for a seven-year period, as that is the maximum period of time stipulated, I am advised, for the period under which a reservation under 124 can operate, war crimes are off the agenda. If Australia was to do that, it would be sending a message to the international community that somehow we were establishing some moral hierarchy between war crimes, crimes against humanity and genocide and that war crimes were somehow regarded as a more problematic or lesser category from which Australia could remove itself from its obligations. I think that would be a very poor message indeed. Secondly and more troublingly, it would send a message out to the rest of the international community that this is an acceptable course of action. Of course, there is the overall problem that, if you were to do that, it conveys a subliminal message that this government believes that Australia has something to hide on this question.

We take our solace on this question from the Australian Defence Force, not only because of its 100-year long proud professional history in that it has discharged its professional functions in the absence of any charge against it of crimes against humanity, war crimes or genocide but also because of the substantive comment made by the Chief of the Australian Defence Force, where he says the ADF has nothing to fear from the statute in its entirety, not subject to this particular article of reservation being invoked.

Apart from 124, the other important article to draw attention to is 120, which says quite unequivocally that no reservations may be made to this statute. It actually completes the symmetry of the logic contained within the convention itself. If you are not doing 124, there is no other way you can go if you choose to have or are seeking to have a substantive reservation from the operational content of the statute itself. (Extension of time granted.) If the foreign minister is saying that the reservation which he has in mind or which the Prime Minister has in mind is something other than procedural, as I outlined earlier in my remarks, or other than political, as I outlined earlier in my remarks—that is, a face-saving device—and is in fact substantially interpretive and at substantive variation from an operational obligation contained within the statute itself, if it is of that nature, this would be a matter of grave concern and we would need to examine with complete detail what precisely the minister was advancing.

If you start to cherry pick as far as this statute is concerned, there are large roll-on implications for the rest of the international community. If a country with Australia's historical standing on questions of international law were suddenly to wave in the air a substantive reservation which gutted in a substantive respect our obligations under the statute, what is the ripple-on effect in terms of those states which we are most concerned about around the world in terms of their obligations under this International Criminal Court statute? We have an obligation to the international community to own this statute as it stands, not to cherry pick parts of it from which we would seek to separate ourselves.

If a substantive reservation were entered, the statute provides areas where impermissible reservations under international law may have objections lodged against them. In fact, a state might invoke article 119(2) of the statute, which requires negotiations, followed by reference to the assembly of states parties and ultimately, it is possible, to the International Court of Justice. One would hope that things never get that far as far as the Commonwealth of Australia is concerned.

We wait with interest to see the definitive statement from the foreign minister, given that we have had a certain lack of definition from this foreign minister on this question for some time. We wait most particularly for the detailed text of the reservation statement, the interpretive statement, from the government. We wonder what its content will be—procedural, political window-dressing or something else. That must be subject to detailed scrutiny. I would be most grateful if the parliamentary secretary representing the minister in this debate were able to provide us some information as to the content of the government's proposed interpretive statement. We would be enormously grateful for that. I am sure the parliament and the country would be grateful to know where precisely the government intends to come out on this.

If it is not a substantive reservation, if it is purely political window-dressing, and if we have got through this tortuous process to the end point—whereby the minister has been humiliated into accepting a position whereby the Prime Minister has had to save him and as a consequence save the International Criminal Court statute—then my view on all of that at the end of the day is that all is well that ends well, because Australia's body of international law and our commitment to international humanitarian law will be enhanced as a consequence.

It is a profound pity that we have been through this ugly and sordid exercise on the way through, because the undertakings given originally to both the parliament and the international community should have been honoured and should have been cleared internally within the government's party room in the first instance. We have seen many ugly debates emerge as a consequence of this. The government has sought to somehow justify this in terms of the proper operation of the treaty process. The treaties committee has looked at this for 18 months. It has been a substantive, long-term investigatory exercise. If there were to be issues cleared within the coalition party room, surely that was the final and most appropriate opportunity for that to occur. Instead it has come down to five minutes to midnight.

It is my hope that we get to a stage where we can proceed with substantive legislation to ratify the statute in order to meet the 1 July deadline. I hope that will be the case. I would appreciate clarification from the parliamentary secretary in this debate as to whether that will be the case and whether we will have ratification legislation introduced into this House so that it may be possible for it to be advanced through the Senate in time for ratification to occur. That is an important matter. As a precondition to that we need to have an opportunity to examine the content of the interpretive statement—that is a conditioned precedent.

Thank you, Deputy Speaker Price, for the opportunity to address this important matter. We hope that this will be resolved finally in the interests of the Australian community and the international community. We look forward to dealing with the government on the substance of this exercise as soon as possible. We await—and I address my final remarks to the minister's advisers watching on the monitor—an early copy of the interpretive statement so that we can make a considered judgment on it. (Time expired)