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Wednesday, 25 September 2002
Page: 4878


Senator FAULKNER (Leader of the Opposition in the Senate) (4:00 PM) —Thank you for that most generous call, Mr Acting Deputy President; I do appreciate it. Can I say at the outset of my speech that the opposition will be supporting the urgency motion that is before the Senate. Put simply, the opposition supports the International Criminal Court. We have also made it very clear that we oppose anything that will weaken its effectiveness. We believe that the so-called impunity or article 98 agreements will undoubtedly weaken its effectiveness. So we view with deep concern the Australian government's apparent willingness to sign such an agreement with the United States of America.

Our support for the International Criminal Court is well known. It is an important part of the multilateral system based on the United Nations—a system to which we in the Labor Party are deeply committed; a system which Labor over the years has worked hard to develop and strengthen; in fact, a system which owes its existence in some part to a former leader of our party, Doc Evatt.


Senator Ferguson —Come on! You're delving a bit deep.


Senator FAULKNER —I am sure my colleagues would agree that a history lesson is obviously in order.


Senator Mackay —I think it is required.


Senator FAULKNER —In 1946—


Senator Ferguson —I was three at the time.


Senator FAULKNER —Well, now is your chance to learn something, Senator Ferguson, and I hope you do. In 1946 Evatt described the United Nations, which he had laboured to help create, as—and let me quote him:

... the best presently available instrument, both for avoiding the supreme and ultimate catastrophe of a third world war, waged with all-destroying weapons, and also for establishing an international order which can and should assure to mankind security against poverty, unemployment, ignorance, famine and disease.


Senator Ferguson —Sounds like a bit of Evatt's pie in the sky.


Senator FAULKNER —Let me go on:

The United Nations ... existed to help realise the twin objectives of freedom from fear of aggression, and freedom from want. We shall continue steadfastly and courageously to play our part in this organisation, on which must rest most of the hopes of men of goodwill throughout the world.

It is true that Australia chaired the first-ever session of the United Nations Security Council; and, of course, it is true that, through Evatt himself, Australia was the third President of the United Nations General Assembly. Australia, largely through Evatt, was also the prime mover in the creation of the United Nations Economic and Social Council.

At this time in our history, with the world confronting—and this has been a matter of considerable debate over the past week in the Australian parliament—the possibility of another armed conflict, it is pertinent to recall Evatt's words to this self-same parliament 53 years ago, reflecting on the multilateral system. He said:

It is not difficult to find some flaws in the Charter itself. Neither would it be difficult to prove that the machinery of the United Nations is not being used as effectively as it might. The important thing, however, is that a Charter does now exist, and that a world organization has been set up under which the habit of international conciliation and consultation can and must be developed. It is the duty of all of us to encourage the habit of reference to the United Nations ...

As I have said, the International Criminal Court is a vital part of this multilateral system. It is designed to create a permanent international court focused explicitly on three heinous crimes: genocide, crimes against humanity and war crimes. The reason for this is that these three sets of crimes have been responsible for more civilian and military deaths since the conclusion of the Second World War than any other military factor. One estimate is that there have been 170 million casualties arising from more than 250 conflicts over that period around the world. I note that until recently the issue of support for the ICC has been a bipartisan one. Foreign Minister Downer, at the very beginning of his ministry in 1996, said:

I believe an International Criminal Court would be an important step forward for the international community in dealing with the most serious crimes of international concern such as genocide, war crimes and crimes against humanity.

That is why I want to make this one of the Government's prime multilateral and human rights objectives ...

Those are Mr Downer's words—the same Mr Downer who also indicated that Australia would introduce legislation ratifying the ICC by the end of the year 2000. In September 2000, the Deputy Prime Minister praised Australia for `demonstrating leadership in the negotiations that concluded the statute of the ICC'. But, of course, the government's enthusiastic support quickly became at best lukewarm earlier this year when the rabid Right of the coalition parties and the uglies in the joint party room, well led by Senator Minchin—who joins us in the chamber today—started beating the old anti-UN drum. Deep divisions opened up within the government's ranks over the issue of ratification of the ICC statute.

Mr Howard began to pay more attention to the increasing hostility of the United States to the ICC proposal and less attention to Australia's national interest. That national interest has always resided in a strong and effective multilateral system. Mr Howard even sought a specific briefing from the office of the US national security adviser on this issue, one that lies exclusively within Australian sovereignty and has no direct relevance to the ANZUS alliance. Ultimately, the government decided very reluctantly to ratify the Rome statute, and of course we welcome that decision. But now it appears the government is preparing to sign an agreement with the United States that would potentially completely undermine the effectiveness of the court. This agreement is what is known as an impunity agreement or an article 98 agreement.

Article 98 of the Rome statute permits ICC member states, such as Australia, to negotiate bilateral agreements with nonmember states, such as the United States of America. We understand the United States is seeking to negotiate with ICC parties a bilateral agreement which would prevent US nationals accused of genocide, crimes against humanity or war crimes from being surrendered to the ICC. These impunity agreements do not require the USA or the other state concerned to investigate and, if there is sufficient admissible evidence, to prosecute the US national accused by the ICC of such crimes.

The opposition shares the deep concern expressed by many that these agreements violate the obligations of states parties, under article 86 of the Rome statute, to arrest and surrender persons accused of such crimes to the ICC, and they will effectively neuter the court. The object and purpose of the Rome statute is to end impunity for the worst possible crimes in the world in accordance with the principle of complementarity, which places the primary responsibility of investigating and prosecuting these crimes on states, but ensures that the International Criminal Court will be able to exercise jurisdiction when states fail to fulfil these responsibilities. A fundamental principle underlying the Rome statute is that no-one is above the law and no-one is immune from prosecution from genocide, crimes against humanity or war crimes. Accordingly, the opposition views with very deep concern a proposal from the US to the Australian government to negotiate an agreement under article 98 of the Rome statute on the ICC, which would effectively make all US personnel immune from prosecution by the ICC.

The United States has apparently made this request of many countries around the world, with a number having acceded, including, as I understand it, Romania, Israel, East Timor, Colombia and Tajikistan. I note that Senator Ellison, in answering a question without notice on 27 August, stated:

The Government is aware that the US has approached a number of countries to propose that they conclude bilateral agreements, consistent with Article 98(2) of the Statute of the International Criminal Court (ICC), to ensure neither country would surrender or transfer the other's nationals to the ICC without consent.

It continues:

Australia has been approached by the US to conclude an Article 98(2) Agreement. The Government is carefully considering the US proposal.

On 28 August, Foreign Minister Downer, on the PM program on the ABC, said that the government was sympathetic to what the Americans say. He added:

It is consistent with the statute of the International Criminal Court.

In the opposition's view, these impunity agreements raise the fundamental question of the overall integrity of the International Criminal Court. The ultimate effect of the US proposal, if acceded to, could be a series of bilateral agreements right around the world, seeking to exempt not just US personnel from the ICC but also the personnel of the other contracting government. Furthermore, if the United States seeks to withdraw more fundamentally from the ICC system, given that the US has already withdrawn its signature from the Rome statute, there is a grave danger that this would erode the impetus for the remaining states that are yet to ratify the ICC treaty to proceed with ratification.

Labor's view is that, if we are to have an international criminal court, it must be truly international and it must be truly effective. These impunity agreements will ensure it is neither international nor effective. Accordingly, I say to the Senate that we concur with the terms of the motion before the chamber. We agree that this is a matter of urgency and we will be voting in support of the motion.