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Wednesday, 25 September 2002
Page: 4883

Senator MASON (4:32 PM) —I want to touch on the law before I touch on the politics of the International Criminal Court issue. This arrangement, so decried by Senator Greig and others, is specifically provided for under the ICC statute. Article 98 recognises that states have arrangements regarding extradition and it respects such an arrangements by circumscribing the powers of the court in those circumstances. So Australia would not be doing anything unlawful under international law should it enter into an impunity arrangement with the United States. There is nothing illegal or unusual about it—it is catered for under the ICC statute.

As in Australia, there has been much debate in the United States about ratification of this treaty. Nearly every former US Secretary of Defense and Secretary of State opposed it. Senator Ludwig is right; I thought it was in Australia's national interest to ratify. The Americans disagreed. They are entitled to their own definition of their self-interest.

The United States has two principal concerns with the ICC. First—and this is very unusual—the ICC seeks to exercise jurisdiction over the nationals of non-parties to the convention, such as citizens of the United States. That is unusual because this treaty seeks to exercise jurisdiction over every citizen on earth, irrespective of whether the governments of those nations sign up to the treaty. That is very unusual; whether it is good or bad is a different question. Senator Ludwig may support it; I think it is in Australia's national interest. But the United States takes a different view of its self-interest, and it is entitled to—not only because it can take any view it wants of it, but for this reason: this is a very unusual treaty, seeking to exercise jurisdiction over all nationals in the world irrespective of whether their government signs up to the treaty or not. There is concern about that and it is fair concern.

The second thing that concerns the United States is the spectre of politically motivated prosecutions. They are concerned that this court will be used for political purposes, and I understand why. During the Cold War, the United States fortunately developed a habit of activism on a global scale; it spent much on the defence of liberty and democracy. Having won the Cold War—we actually won it, I inform the Labor Party—

Senator O'Brien —You won it, did you? Congratulations.

Senator MASON —No thanks to you lot. The United States wants to reinforce that victory. That means not only promoting good but also crushing evil and, if necessary, doing it by force. This activism brings with it the renewed capacity to make enemies and create animosity and fear. This is particularly so in the context of September 11, 2001. The United States has committed itself to destroying the monster of terrorism. Terrorism is an elusive, amorphous and shadowy enemy. There is no doubt that the United States pursuit of those terrorists could cause all sorts of difficulties with their relations with states, and it again opens the United States to politically motivated prosecutions when other states do not support the United States in their activities. That is a problem.

There is another point too, and I mentioned it in a speech I made earlier today. Latent among the political left and potentially even an issue on the right is the resurgence of anti-Americanism. It is back! In a recently published lecture, Professor Owen Harries spoke of the resurgence of anti-Americanism. He cited the recent observation of Rosemary Righter, chief editorial writer of the Times of London, that `America-bashing is in fashion as it has not been since Vietnam.' She is not talking of Asia and the Middle East, but of those European sophisticates in London, Paris and Berlin.

American nationals, specifically soldiers, are not above the law; they remain subject to American law. American law is among the most sophisticated of all legal systems. Its due process protections are probably the most stringent in the world. To argue that that is less than is given by the ICC is ridiculous. The Americans are concerned about politically motivated prosecutions. The truth of the matter is that there is a great concern that countries like the US, rather than the real gross human rights violators, will become the target of the ICC. There are enough governments, NGOs and activists around the world that are hostile to the US specifically, and to Western liberal democratic ideals more broadly, to ensure that the mechanisms of the court might be used as a perverse weapon against the world's only remaining superpower.

Some will say that this risk is overstated. The United States argues that it is not in their national interest to take that risk. It is not hard to understand why. The US currently maintains 200,000 soldiers and sailors outside its border and has base rights in more than 40 countries. The US armed forces have been the backbone of most major United Nations operations, both in wars such as Korea and Kuwait and in peacekeeping in areas such as Somalia, Bosnia and Kosovo. They provide the troops to keep the world at peace as well. Now the US is bearing the brunt of the war against terrorism. By virtue of its position and resources, the US is involved around the world and gets called to be involved around the world whenever anything of any importance happens. All this means that the US, more than any other country on Earth, is potentially exposed to actions under the ICC.

Senator Ludwig —You missed out the principle of complementarity.

Senator MASON —We in the West, we in Australia—and Senator Ludwig as well, no doubt—so often want the United States to be active in international affairs and global peacekeeping, but we want it on our terms. We want the US to be involved on our terms. I am afraid that we are not always going to get it that way—that is the bottom line.

Senator Ludwig —So you should stop trying.

The ACTING DEPUTY PRESIDENT (Senator Lightfoot)—Senator Ludwig, I wish you would stop trying.

Senator MASON —The conclusion of an article 98(2) agreement might just be the price Australia has to pay for continued United States involvement in the war against terrorism and global peacekeeping. If that is the price we have to pay, you might just have to pay it. (Time expired)