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Wednesday, 25 September 2002
Page: 4876


Senator FERGUSON (3:50 PM) —It seems that in recent times the Democrats—and, on some occasions, the Labor Party—want to discuss or debate issues which have not yet been decided. You use phrases such as `the government's apparent willingness'. I am not quite sure where you get your information from, Senator Greig, but there are a few facts that I think ought to be put on the table in relation to the International Criminal Court and a lot of other matters.

The United States of America is the largest and most powerful country in the world. Not only that; thankfully, it has a democratically elected government. All the horrific crimes you talk about and all the things that you would seek to criticise have mostly been done by or caused by leaders of governments which are not democracies and in many cases are complete dictatorships. So the people at large—or those who would, in a democracy, get a chance to vote—have no opportunity to vote out of office those dictators and the perpetrators of crimes.

You say that serious offenders have not been brought to justice throughout history. In fact, many serious offenders have been brought to justice—for instance, at the Nuremberg war trials. Many serious offenders and the perpetrators of horrendous war crimes were brought to justice at the war trials in Nuremberg. And right now we have the situation where one of the most recent perpetrators of horrific crimes—Milosevic— is being tried in The Hague. So I do not think that it is true that people have rarely been brought to justice. It is true that there are some that have got away, and nearly every case involved crimes that had been perpetrated by a dictator.

When you are talking about the United States, you need to remember that it is the most powerful nation in the world, whether you like it or not. It is the most powerful, both economically and in relation to its armed forces. Because it is such a powerful nation, it is vital that the United States, which currently makes such a central contribution to global peacekeeping, continue to play an active and productive role. The United States has expressed its longstanding concerns about the International Criminal Court. To those like Senator Greig and others who would say we blindly follow the United States in the decision making, I say that we as a government in fact decided to support the introduction of the International Criminal Court. The United States did not. We do not follow blindly what the United States does.

We have a mind of our own but we do acknowledge that the United States has had longstanding concerns about the ICC. Those concerns include the legitimacy of the ICC exercising jurisdiction over nationals of non-parties and the potential for politically motivated prosecutions. You must know yourself, Senator Greig, that there is potential for politically motivated prosecutions. History would suggest that that is a possibility, as well as all of the other things that you said history has done. Australia is sympathetic towards the United States' concerns to protect its own citizens—particularly its peacekeepers, who number more than the peacekeepers of all the other countries in the world—from politically motivated prosecutions. It is in Australia's interests to ensure that the United States continues to make that central contribution to global peacekeeping.

There is no evidence to suggest that, in the absence of the International Criminal Court, the United States itself is not going to bring any perpetrators of violence or crimes to justice. I will only cite one instance: that of Lieutenant William Calley in the Vietnam War, who was prosecuted, tried and convicted by the United States for a war crime. I do not think there is any need to cite any more examples. The United States has been very careful about making sure that its troops involved in peacekeeping or wartime operations are not breaking the law or committing crimes against humanity.

It has come to pass that the United States has approached Australia to discuss a bilateral arrangement which would potentially operate pursuant to article 98(2) of the statute and meet the concerns which the US has expressed. The United States, naturally enough, has made a lot of approaches to a number of other countries around the world in which it has diplomatic missions. Despite its concerns, we regard it as a positive move that the United States is seeking an accommodation with the ICC through the article 98(2) agreements. It is in Australia's interests to ensure that the United States continues to make this central contribution to global peacekeeping and to international security. There is no other country the world strong enough to make the contribution to international security that the United States does.

If you look through history—while it may not have been perfect in every action that it has taken over the past 50 years—without the United States since the Second World War, we would not see the degree of peace that we currently see in the world today. You only need to look at Europe and the mess it would have been in from the end of the Second World War to the present day. Had it not been for the strength of the United States in maintaining peace and bringing those countries together, there is no way that we would have the peace in Europe that we have today. Neighbouring countries can now go to bed at night without wondering whether or not they are going to be attacked the next day by a neighbour or by a nearby country. There is peace in Europe. The United States has displayed a considerable part in making sure that that peace in Europe is what it is today.

It is only natural that, while Australia recognises that the United States has concerns about the ICC, we believe that the protections in place through our domestic legislation will ensure that Australia's peacekeepers will be dealt with in the Australian domestic system. We are quite sure that, because we signed on to the International Criminal Court, Australian peacekeepers will always be protected by domestic legislation. But the United States does not necessarily share our views in that regard.

The US are world peacekeepers and find themselves spread around so many different countries, usually mopping up the mess that has been caused by some tyrant who has committed horrendous crimes within their own national borders. The United Nations in most cases has been powerless to intervene because national sovereignty has always been considered to be the dominant force in all of these arrangements. Too often, American peacekeepers, along with others, are called in to clean up the mess after the horrific event has happened. We do not want that to happen. In an inquiry of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which reported only at the end of last year, we tried to look at ways and means through which the United Nations could perform a useful function and intervene before the tragedy occurs—not go in to mop up the mess and keep the peace after the tragedy has occurred.

I do not necessarily agree with it, but I can understand the United States' position in being the most powerful country in the world economically and the most powerful country the world as far as its armed forces and security are concerned. Because of the very fact that it finds itself in so many countries around the world—often in hostile environments in many of the peacekeeping areas that it is working in—I can understand its concern that, when it comes to politically motivated prosecutions, it wants some protection. I do not believe that, as Australians, we need it—we never have. Our armed forces do not believe it and that is why they encouraged us to become signatories of the International Criminal Court. I for one am very pleased that we did.

You selectively quoted some members of my party who were opposed to us joining the ICC. We have a very healthy party. We have very healthy debates on these issues and we have a variety of views within our own party. But, at the end of the day, the right decision was made by the government and the right decision was made by our party. Please do not selectively quote some members who simply have a different view. We may never know but, even in the Democrats, there may be some people with differing views—it seems to have come to the surface somewhat in recent times. The sign of a healthy decision is when you have had that healthy debate within the party and made the right decision at the end. The right decision of the Australian government was to be a part of the International Criminal Court. But we do acknowledge the concerns that the United States have. As the US is the most powerful nation on earth, we must seek to accommodate them.


The ACTING DEPUTY PRESIDENT (Senator Lightfoot)—I call the Leader of the Opposition in the Senate, Senator the Hon. John Faulkner.