Senator MASON (7:01 PM) —I rise tonight to speak on an issue of great importance for international and domestic law—the International Criminal Court. The ICC is designed to replace existing ad hoc international tribunals such as those operating in Rwanda and the former Yugoslavia with a permanent court with worldwide jurisdiction to hear charges of war crimes, crimes against humanity and genocide. The 1998 international treaty that set up the court has so far been ratified by 29 countries. However, 31 more countries are needed for the court to begin operating. Australia is currently one of the countries considering the ratification of the treaty. I want to speak briefly tonight on this issue both as a member of the Joint Standing Committee on Treaties and as a lawyer with a longstanding interest in human rights and international law.

Let me begin by saying that I support and endorse in principle the concept of an international court that would bring to justice the perpetrators of serious crimes such as genocide. The Nuremberg and Tokyo trials, as well as the more recent efforts to prosecute war criminals in the Balkans and in Rwanda, were all steps in the right direction. All of us who lived through the 20th century cannot remain unmoved by the pleas for justice by millions of victims of tyrants and dictators. However, a lot still remains to be done to overcome the widespread perception that international justice can be very selective and sporadic. As I speak tonight, not one person responsible for crimes against humanity in the former Soviet Union, the People's Republic of China and their many communist satellites has yet been held accountable for murdering, starving or working to death in excess of a hundred million people. If justice delayed is justice denied, selective justice can be just as corrosive of people's respect for the international human rights system. My major concern about the International Criminal Court is that, like so many instances in the past, all its best intentions and designs will lose out to politics; that, in practice, it will more likely become a thorn in the side of democracies rather than dictatorships.

It is said by the proponents of the court that we need not worry about its impact on our domestic legal system. The Law Council of Australia, for instance, argues:

But this is precisely the problem. When one considers how broad and vague the definitions of `genocide' and `crimes against humanity' are under the treaty, one can easily foresee a situation where Australian courts will refuse to try actions that the court itself and the international human rights community consider to amount to breaches of international law. To argue that various non-governmental bodies and pressure groups will not try to use the machinery of the court to advance their own political agendas is to ignore the 50 years of history of such attempts.

It is similarly concerning to consider that, should Australian citizens ever be tried by the International Criminal Court, some members sitting in judgment might be appointed by governments which are anything but paragons of international virtue. This troubling celebration of judicial diversity, or the belief that all states are equal and that their political and judicial systems are of equal value, underlines and animates the push not just for the International Criminal Court but also for most other international treaties. In fact, despite the recent successful march of democracy and the rule of law and human rights around the world, many governments continue to have only a scant regard for the broadly accepted norms of political behaviour. Unfortunately, history shows that those least fit to sit in judgment are so often the first ones to point the accusing finger.

The International Criminal Court can only assume jurisdiction when a nation is unwilling or unable to prosecute an international crime—in other words, the court is only able to assume jurisdiction when a nation's justice system is judged to be unjust or inadequate. Imagine the response of the People's Republic of China to such a claim. Imagine China allowing others to judge her officials and her citizens. Imagine China accepting the international verdict. Under some circumstances it is possible that liberal democracies such as the United Kingdom or the United States might be successfully pressured into submitting its citizens to the court's jurisdiction, but China—never. In fact, this is the great failing of the ideas that animate the court and the international human rights system generally. It is exactly the more open, democratic and accountable governments that become the easiest targets for the self-styled human rights advocates. When the human rights establishment refuses to see the log in the other state's eye and it sees only a splinter in their own, everyone loses out—the victims whose oppressors remain unpunished, and the system itself, which loses popular legitimacy.

While this is not the intention of the court's creators—I accept that—various dictatorships, joined by Western left-wing ideologues and non-government organisations will almost certainly try to use the court to pursue the United States government for its alleged crimes against humanity. There is no guessing that America's allies—such as Israel or, indeed, Australia—might also become its targets.

Only a few weeks ago, the United States was voted off the United Nations Human Rights Commission, losing its membership for the first time since 1947. At the same time, Sudan and Libya were elected to regional subgroups on the commission. Other members include such paragons of international virtue and staunch defenders of human rights as China, Algeria, Syria, Vietnam, Iran and Cuba. This is the sort of action that does nothing to dispel concerns about the future operation of the International Criminal Court. Not surprisingly, the Bush administration is now unlikely to participate in the work of the court.

It gives me no pleasure to speak here tonight about what I and many others see as problems connected with the International Criminal Court. It gives me no pleasure, because I deeply sympathise with all those around the world who work tirelessly to bring justice to millions of victims of oppressive governments. I share the enthusiasm of those who want to make the world a better and safer place to live. Good intentions are not enough, and noble ideas do not always translate into good outcomes. For the sake of victims of oppression and genocide, it is important that we continue to strive for justice. But for all of us it is equally important that we get it right. Maybe the International Criminal Court is the only way forward for the victims of genocide and war crimes. I accept that. But for some, the fashionable celebration of judicial diversity will come at the price of justice. It seems such a pity that, in the long march towards a meaningful international human rights system, the International Criminal Court might not do enough to substitute politics for justice.

While I am at it, the failure of the Left between 1949 and 1976, to say nothing about the 60 million people whom Mao Zedong killed, is the greatest indictment of that side of politics that is ever possible. For them to even mention at all anything about human rights is pathetic, loathsome and, ultimately, hypocritical. They said nothing between 1949 and 1976 about the tens of millions of people who were killed in the People's Republic of China. Why didn't they? Ask them! They said nothing because it was not trendy—it was not fashionable. It was somehow a celebration of what?—political diversity. In the view of the Labor Party, communism was fine; it was just different—it was still legitimate. That is what they thought. They were wrong, and that is why they got the 20th century wrong.

The PRESIDENT —I call Senator Hutchins.

Honourable senators interjecting—

The PRESIDENT —Order! Senator Mason, you have had your opportunity. Senator Forshaw, you do not have the call.

Senator Chris Evans —What about the Cold War? That is worth putting in the Hansard.

The PRESIDENT —You are out of your place, Senator Evans, and out of order.