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Wednesday, 25 September 2002
Page: 4874

Senator GREIG (3:43 PM) —I move:

That, in the opinion of the Senate, the following is a matter of urgency:

The worldwide campaign by the United States of America to persuade states to enter into impunity agreements which seek to prevent US nationals accused of genocide, crimes against humanity or war crimes from being surrendered to the International Criminal Court and the apparent willingness of the Australian Government to enter into such an agreement.

I move this urgency motion today to draw to the attention of the Senate and to the Australian people the apparent willingness of the Australian government to enter into an impunity agreement to prevent United States nationals—that is, citizens accused of genocide, crimes against humanity or war crimes—from being surrendered to the International Criminal Court, the ICC. We believe this is an outrageous proposal that undermines the very ideal of the ICC, which is to bring to an end impunity for those who commit these atrocities. It is a step backward in the struggle for global justice. The 20th century has seen some of the most horrific atrocities in human history. There is a growing recognition that the international community cannot ignore these crimes where they occur and that where the perpetrators of genocide, war crimes and crimes against humanity can escape punishment humanity itself is diminished.

The purpose of the International Criminal Court, over which we have had lengthy debate, is to ensure that future gross violations of international law, such as crimes against humanity and genocide, do not go unpunished. The ICC will provide a politically neutral forum in which such violations can be tried when normal legal avenues have been exhausted. History teaches us that individuals responsible for serious crimes against humanity are, sadly, rarely brought to justice. We have a unique opportunity to change that from this point forward.

After considerable internal turmoil within the government, it finally ratified the Rome Statute of the International Criminal Court earlier this year. The Minister for Foreign Affairs and the Attorney-General had initially been strong advocates of ratification. However, the government faced some revolt over the issue. At the time, Mr Andrew Thompson, the then Chair of the Joint Standing Committee on Treaties, said of the Rome statute:

Politely speaking, this thing is toxic waste and it ought to be dealt with as such ... This is a road to hell paved with good intentions.

After finally overcoming hostility to the ICC within its own ranks, the government now appears set to undermine the ICC at the request of the US government. The US has been promoting section 98 agreements, which would give US nationals who have committed genocide, war crimes or crimes against humanity immunity from prosecution before the ICC. This absolutely undermines the ICC, the fundamental principle of which is that no-one should be immune from prosecution for these deplorable acts. The US has been threatening a number of countries with the withholding of military aid if they do not sign these agreements. Laws recently passed by the US Congress will actually allow the US military to invade the Netherlands to free any US service personnel brought before the International Criminal Court at The Hague.

The Australian government has expressed agreement in principle with the idea of making and entering into an article 98 agreement with the US. In response to a question without notice from me last month, the government confirmed that it had received a request from the US to conclude such an agreement. The Attorney-General recently said on the Sunday program:

What the United States has requested Australia to do is to enter into an agreement, of a sort, that it actually contemplated by article 98(2) of the statute. That's presently under consideration. In principle, the Australian government has no objection, but we are still working out the details with the United States to ensure that any agreement we make with them is consistent with our international obligations and consistent with our extradition policies and regime.

The statement that the government has no objection in principle to such an arrangement is extraordinary. The principle is completely wrong. It is about placing one country above international law and human rights standards. It undermines the rule of law and will threaten the credibility and effectiveness of the ICC. Furthermore, the idea that these article 98 agreements were somehow anticipated and approved by the Rome statute has been strongly rebutted. Amnesty International have released a considered paper on this issue, and it states:

... any claim that the US impunity agreements were consistent with Article 98 (2) of the Rome Statute would not meet the requirements of an interpretation in good faith. Such an interpretation would be completely at odds with what the states at Rome intended and, thus, contrary to the overriding principle of treaty interpretation under international law.

It further pointed out:

... the drafting history confirms that Article 98 (2) was not intended to include agreements such as the US impunity agreements. Indeed, any interpretation that Article 98 (2) did cover such agreements would lead to the manifestly absurd and unreasonable result that a non-state party could subvert the fundamental principle in the Rome Statute that anyone, regardless of nationality, committing genocide, crimes against humanity or war crimes on the territory of a state party is subject to the jurisdiction of the International Criminal Court when states are unable or unwilling genuinely to investigate and, if there is sufficient admissible evidence, to prosecute.

In conclusion, this proposal to conclude an impunity agreement with the United States is outrageous. It is inconsistent with our international obligations. It will undermine the International Criminal Court and the struggle for global justice. I urge the government to reject the article 98 agreement proposed by the US. It is wrong as a matter of law and as a matter of principle. We participated in a constructive way at an international level in the development of the ICC. We should continue to be a good international citizen and not go back in our good work at the request of the United States. Australians have made it very clear in recent days that there is increasing anxiety about Australia acting quickly and with haste on requests from the United States, and I fear that this is another such situation.