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The International Criminal Court: our commitment to future generations



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FOREIGN AFFAIRS AND TRADE

The International Criminal Court: Our Commitment to Future Generations

Speech by the Hon Alexander Downer, MP, Minister for Foreign Affairs, to the Diplomatic Conference on the Establishment of an International Criminal Court

Rome, 15 June 1998

An Historic Opportunity

As we approach a new millennium, we leave behind a century in which human endeavour has produced achievements as grand as space flight and the eradication of major diseases, and as basic as a revolution in the very ways in which we move and communicate.

These achievements have enriched the lives of billions.

Yet we also leave behind a century which has seen the commission of acts of almost unimaginable inhumanity, often on a scale that defies description.

This century will be forever stained by the brutality that has seen millions perish in Nazi Germany, in Cambodia and in Rwanda. These though, are but only examples. Tragically, they do not complete the list which will give historians cause to reflect upon the schizophrenia of the twentieth century.

Against this background our meeting here in Rome provides us with an historic opportunity to confront the darkest side of our human experience, and to take a concrete step to defeat it.

We have an opportunity to establish, through the creation of an International Criminal Court, a practical, permanent framework to deal with the most serious crimes of concern to the international community.

We are embarked upon a great task and there will be negotiation and debate, but there must be resolution.

We must not allow our differences to stand in the way of our responsibilities. Above all else we must not forget the very real human concerns which created the motivation for our coming together.

Only four days ago, before coming to this Conference, I had the powerful experience of visiting the Holocaust Museum at Yad Vashem. The most moving of all testaments was the simple children's memorial which commemorated the death of one and a half million children.

In four more days, when I leave this Conference, I go to a meeting which seeks to help Cambodia further restore civil society as it rebuilds from its own unspeakable horrors. Horrors, which however had no Nuremberg to bring justice.

The recent death of Pol Pot thus stands as a stark reminder of the need for an International Court to try the most inhumane of crimes. It seems impossible that the crimes he and his regime committed could have gone unpunished.

Why did we, the international community, not act to see justice done? The simple answer, is that at the time, the international community had neither the will nor importantly the mechanism to carry out such a task.

By establishing a permanent mechanism to try such crimes we help create a dynamic which carries with it its own momentum for ongoing investigation and accountability.

That process of investigation and accountability has now begun.

The United Nations Security Council has established ad hoc tribunals to investigate and prosecute the horrendous crimes committed in Rwanda and the former Yugoslavia only this decade.

The countries of the United Nations have also produced a draft Statute for an International Criminal Court which is before this Conference.

Our task is to take this text and turn it into a court room made of bricks and mortar that will give our children a weapon with which to fight the malevolent tendencies that have stained this century.

Key Issues in the Negotiations

If we are to achieve this task fundamental issues must be resolved.

http://www.dfat.gov.au/pmb/speeches/fa_sp/icc_150698.html 22/07/1998

The International Criminal Court: Our Commit... Page 2 of 2

First, we must strike a balance between the Court's jurisdiction and the jurisdiction of national criminal justice systems.

Australia strongly supports the view that national jurisdiction should take precedence over the jurisdiction of the Court where that national jurisdiction is able and willing to deal effectively with alleged crimes. Primary responsibility for investigation and prosecution should remain with the State.

However, the Court must also be able to determine whether a national jurisdiction can deal effectively with alleged crimes by way of investigation and prosecution. Sham investigations or proceedings at the national level cannot remain unchallenged.

Second, we must agree on mechanisms which will trigger the Courts's jurisdiction. Australia has long supported initiation of the Court's jurisdiction through complaint by a State which is a party to the Court's Statute or by the Security Council under its powers concerning the maintenance of international peace and security.

As part of Australia's flexible approach to these negotiations, we are also now prepared to support a power for the Prosecutor to directly initiate investigations. However, it is Australia's view that the right of the Prosecutor to act must have appropriate safeguards to avoid politically motivated complaints.

Third, we must achieve a workable relationship between the Court and the Security Council, which recognises the Council's primacy in matters relating to international peace and security.

Finally, agreement must be reached on the specific crimes which should fall within the Court's jurisdiction.

Clearly, the Court's Statute must, we believe, encompass genocide, crimes against humanity and war crimes. However, while there is broad agreement on the definition of "genocide" we have still to resolve the definitions of "crimes against humanity" and "war crimes".

We believe that crimes of ethnic cleansing and systematic rape and torture are of such gravity that they must be included in the ambit of the Court's jurisdiction.

Conclusion - Our Commitment to Future Generations

The fact that we now choose to create an International Criminal Court is a recognition that these and other crimes are so vile that they affront our common experience of humanity.

Sadly, they are not crimes which belong to a former age.

The forces unleashed in both Europe and Africa this last decade of the twentieth century mean that crimes against humanity are problems which belong to our generation.

These problems are our responsibility.

Our task is to make assaults on our common humanity the common business of mankind.

So, let us discuss. Let us negotiate. But let us not be diverted from the single, central task of establishing a Court which honours our ancestors and protects our descendants.

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http://www.dfat.gov.au/pmb/speeches/fa_sp/icc_150698.html 22/07/1998