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Wednesday, 25 September 2002
Page: 4882

Senator LUDWIG (Manager of Opposition Business in the Senate) (4:22 PM) —I listened closely to Senator Johnston's speech, although I do not give him the status of an international jurist in interpreting article 98. I think that, quite rightly, the jury is still out on that. Clearly, though, it is of grave concern to the Labor Party that the Australian government appears so willing to accede to the request by the United States for an article 98 agreement on the International Criminal Court. For the first time, the world has a permanent institution capable of bringing to justice persons who have committed genocide, war crimes and crimes against humanity. The International Criminal Court was established to achieve justice for the victims of these appalling crimes, to end the impunity hitherto enjoyed by many perpetrators of such crimes, to promote peace by breaking the cycle of violence and retribution that accompanies such crimes and to deter the commission of genocide, war crimes and crimes against humanity in the future. It is a principle at the foundations of the International Criminal Court that the court exists to act when national criminal justice institutions are unwilling or unable to do so. That is why the Labor Party supports this urgency motion by Senator Greig.

After the United Nations first recognised the need to establish an international criminal court in 1948, it took some 50 years of diplomatic effort to achieve agreement on the Rome statute establishing the court. From the start, Australia was at the forefront of these efforts. It took another four years for the Liberal and National parties to settle their internal division over the court before the Australian government finally ratified the statute in July 2002. It is no exaggeration to say that, if the United States is successful in persuading countries such as Australia to sign article 98 agreements, much of the 54 years of hard work will gradually be undone. So far it would appear that only a handful of countries have signed the agreement. They range from Romania, East Timor, the Marshall Islands, Pakistan, the Dominican Republic and Honduras to Afghanistan. If Australia were to do likewise, it would inevitably provide convenient cover for many other countries to follow.

The effectiveness of the International Criminal Court can only be eroded by a growing network of bilateral agreements removing citizens—not only those of the United States but potentially those of many other countries—from the reach of this court. It is revealing that, despite the government's willingness to enter an article 98 agreement, neither the Attorney-General nor the Minister for Foreign Affairs have bothered to make a public case for such an agreement. They argue, as Senator Johnston poorly attempted to do, that article 98 permits such agreements. Article 98 might, on one reading, permit them but it certainly does not require them. I should also note that there is controversy among legal experts about whether it even permits the kind of agreement that the United States has apparently sought.

The foreign minister points to the fact that the United States have threatened to withdraw from peacekeeping. They say such a withdrawal is not in Australia's interest. Nor is it in Australia's interest—particularly our long-term interest—to accede to that. Germany, Switzerland and Canada have not done so; we should not do so either. If what I have just outlined, with Senator Johnston's comments, is the sum total of the Australian government's case for entering an article 98 agreement then it is wholly unconvincing. In fairness, I should acknowledge that the Attorney-General did say on the Sunday program on 8 September:

... 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 ...

The words `international obligations' cross the Howard government's lips so rarely these days that it is reassuring to hear that they still figure in at least the Attorney-General's thinking. But, in seeking to make an agreement that is consistent with our international obligations, I fear that he has set himself an impossible task.

By ratifying the International Criminal Court, the Australian government recognised a number of things. It recognised that genocide, war crimes and crimes against humanity threaten the peace, security and wellbeing of the world. Unpunished crimes have almost invariably led to the continuation of wider conflict and violence. The government signalled its determination to put an end to impunity for the perpetrators of these crimes and to contribute to their prevention. The government recognised that the effective prosecution of these crimes must be ensured not only by national measures but, where these measures are unavailable, by international cooperation. It affirmed that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes but also resolved that there could be no lasting respect for international justice without the establishment of a truly international criminal court with complementary jurisdiction over the most serious crimes of concern to the international community as a whole.

Having argued for the International Criminal Court and made these solemn declarations, it is difficult for the government then to suggest that Australia has no obligation to promote cooperation with the court by the community of nations as a whole. Yet, by cooperating with the United States' campaign for a wholesale exclusion from the International Criminal Court by the use of the article 98 bilateral agreement, the Australian government would be suggesting just that. Who knows how many countries—and perhaps Senator Mason can suggest who else—would use a similar mechanism to shield war crimes from justice using the precedent such an inclusion would set?

Labor has been supportive of the establishment of the International Criminal Court and has been solidly behind the ratification of the Rome statute by this government. Labor supported the enactment of the necessary legislation to give effect to the Rome statute, which established the International Criminal Court. Labor cooperated with the government to secure the timely ratification of the statute. The government's legislation also incorporated a number of amendments, which were considered by the Joint Standing Committee on Treaties. I am sure Senator Mason will also comment on the treaties committee's good work in ensuring that the International Criminal Court proposal was given proper scrutiny and was one that was deserving of ratification by this government.

But it was important that during the passage of these bills in July the government— which had, prior to July, allowed the ratification by July—did three things. Firstly, it incorporated some technical amendments and a declaration. The declaration stands with article 98 as one of two backflips by this government where they sign, ratify and then baulk. It is disheartening to see this government, in the international community's eyes, take a backward step in relation to the International Criminal Court by considering the article 98 bilateral agreement. That is why we support the urgency motion. I am sure Senator Mason, when he gets to his feet, will similarly agree that we should not take backward steps in relation to the International Criminal Court.

Senator Mason —Just wait, Joe.

Senator LUDWIG —It is an important court, and Senator Mason knows that. Senator Mason participated in the treaties committee and agreed with the underlying basis that the court had to have international jurisdiction and it had to ensure that it had a community of nations— (Time expired)