Problems with the International Criminal Court

The Australian Family, November 2001, p. 24

Richard Wilkins

In July 1998, the nations of the world signed a Rome Statute for the ICC. Now if one reads the preamble and the first section, one can get a very kind of gauzy idea of niceness, of a court designed to do good things. Listen to some of the language:

'That all people are united by common bonds, mindful that during this century millions of children, women and men have been victims of unimaginable atrocities, recognising that great crimes threaten the peace, security and wellbeing of the world, and affirming that the most serious crimes of concern to the international community as a whole must not go unpunished.'

We turn to Article 1:

'An International Criminal Court is hereby established. It shall be a permanent institution, and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, and shall be complementary to national criminal jurisdictions.'

Now if one goes on to read the rest of the Statute, one finds that it condemns the crime of genocide; provides a list of crimes against humanity, and war crimes. Reading this language, as I stated a minute ago, one could get a rather gauzy conception of 'Boy, this is a good thing! We are trying to outlaw all badness, and ensure that all good things will happen. We are trying to eliminate all war, all inhumanity, and to eliminate it by establishing a group of judges at The Hague, for an end to human suffering.' And indeed, if you've heard much at all about the ICC, that's exactly the kind of story that you heard, because that's what can be said in a 60-second sound-bite about the court.

However, a few months ago, I came to Australia to give a rather different view of the ICC. I delivered a paper entitled 'Doing the Right Thing: The ICC and Social Engineering.' In that paper, I argued that the Statute transfers a vast amount of decision-making authority from previously sovereign nations to an international court that will be remote from and unable to be controlled by the peoples of the earth. I pointed out that the Statute does so by creating a court with absolutely unprecedented jurisdictional reach. For the first time in history, we have a Statute that purports to bind the entire earth, once a mere 60 nations have ratified it. It violates every single principle of international law established since the Treaty of Westphalia in 1648.

The court, moreover, is empowered to enforce laws that are very vaguely worded, and that therefore capable of expansion to reach conduct well beyond what might be called 'crimes of most serious concern.' I also pointed out that the Statute created a mechanism which was subject to quite ready political control.

Well, in response, the Honourable Daryl Williams, the Attorney-General from Australia, issued several statements. He said:

'In essence, the Court will bring the perpetrators of the most serious international crimes to justice. These are the facts. There is nothing in the facts that should give us any cause for concern.' Again: 'The most scurrilous myth doing the rounds is that the ICC will undermine Australia's sovereignty The ICC will never override the Australian judicial system.' Finally, in a paragraph designed, I think, to answer quite directly my arguments: 'It has also been suggested that the ICC will somehow be used as an instrument of social engineering. Conspiracy theorists argue that the Court will try cases based on national policies.such as abortion, marriage, and homosexuality. These claims are totally false and absurd. As I have said, the ICC will deal only with serious international crimes. It will not be concerned with domestic social policy. To suggest otherwise is to engage in deliberate scaremongering.'

Well, I'm here tonight, I guess, to continue my 'deliberate scaremongering': because I'm quite certain that your Attorney-General has not read the language of this Statute. If you read the language of it, you simply cannot make most of the assertions that I have read from the Attorney-General's letter; at least, you can't make them with a completely straight face.

Now let me address the assertions of the Attorney-General in five separate categories.

First, he states that we needn't worry, because the Statute is only complementary to Australian justice. That is, it will never override Australian justice. Second, of course, he says it reaches only the most serious crimes of international concern. Third, as he stated in the letter, there's no need to worry about sovereignty, because the Australian Constitution will never be overridden. Fourth, he says it's false and absurd to suggest that this court will change Australian social policy. Finally, at the conclusion of this letter which I didn't read to you he says that th

We turn to Article 1:

Well, in response, the Honourable Daryl Williams, the Attorney-General from Australia, issued several statements. He said:

Now let me address the assertions of the Attorney-General in five separate categories.

To begin with the notion of complementarity. It is absolutely true, as your Attorney-General points out, that the Court is designed to be complementary to national jurisdictions. That is stated in Article 1 of the Statute. But while this notion may sound reassuring, and is invoked by Court supporters (including your Attorney-General) to calm fears that the ICC will unduly intrude upon domestic policy-making, complementarity in actual fact operates not to shield domestic law from international intrusion, but to ensure that domestic law conforms in all respects to international law: as set out in the ICC Statute, in Article 17 (1a).

'The International Criminal Court will take jurisdiction any time a nation is "unwilling or unable to act".'

Accordingly, once the ICC is ratified, Australia's domestic human rights law must precisely mirror the human rights law established under the ICC and the judicial decisions of the ICC, or the domestic legal system will be supplanted. Complementarity, in short, is not a shield: but, rather, a sword, to require Australia to implement emerging international norms.

Now this is explained most clearly in the International Criminal Court Manual for the Ratification and Implementation of the Rome Statute. This is a manual which was drafted by leading law professors, for all nations of the world, telling them how to ratify and implement this Statute. It was published in Montréal in May of 2000. According to this manual: 'The ICC is no ordinary international regulatory, or institutional, body.' Amen to that. Indeed, in order to comply with the dictates of complementarity, the manual states bluntly:

'Modifications must be made to all states' codes of criminal law and human rights legislation.'

Why is that true? If the Statute is merely complementary, why does the Manual say that every single state must modify its laws? Well, because, as the Manual also states:

'Should there be a conflict between the ICC legislation and existing state legislation, international law established under the ICC and decisions of the ICC take precedence.'

Accordingly, the section on complementarity ends with the reassuring notion that:

'It would be prudent for states to incorporate all acts defined as crimes into their own national laws.'

In other words, do what the Statute says, or you will be unwilling or unable to act. And we, the ICC, will act for you.

Therefore, I don't think that complementarity is, as your Attorney-General states, much if any of a safeguard.

Second, your Attorney-General states that we needn't worry because the Statute deals only with crimes of the most serious concern to the international community. However, the language of the ICC Statute is sweeping. Although it purports to reach only the crimes of most serious concern, the potential reach in Articles 6, 7 and 8 of the Statute is limited largely by the imaginations of international lawyers, and by the restraint (or lack of it) of the judges who will be charged with interpreting that language.

The crime of genocide, for example, does not include just killing members of a group, but also 'causing serious bodily or mental harm to members of the group.' As such, the ICC's machinery could be conceivably called into play to prosecute the racially and religiously charged rhetoric often employed by both sides of the ongoing dispute regarding a Palestinian homeland in the Middle East. While I'm not suggesting that such rhetoric is rational, or to be encouraged, I am not certain and I believe it is far from clear that Middle Eastern name-calling contests qualify as 'a crime of most serious concern to the international community'.

Of much greater concern are the potentially far-reaching 'crimes against humanity' set out in Article 7. The Statute condemns, as 'crimes against humanity', such crimes as murder, extermination, enslavement, forcible transfer of population, torture, sexual slavery, and persecution. Now these words sound terrible. But the ICC Statute gives little or no guidance as to what these words actually mean. For example, the crime of enslavement is defined as 'the exercise of any or all power attaching to the right of ownership over a person'. Invoking this language, the Women's Caucus for Gender Justice regularly holds conferences in New York, in which it argues that the ICC might be used perhaps to abolish the very institution of marriage.

Does this sound far-fetched to you? You might think it sounds far-fetched. I certainly hope it's far-fetched. But consider the rhetoric of some of the activists at the forefront of today's gender wars.

One prominent legal theorist, Dianne Post, who's also a member of the Women's Caucus for Gender Justice, says a woman has a choice of 'marrying or . . . aligning herself with a pimp . . . In both cases she typically becomes emotionally, financially, physically, and sexually dependent on and subordinate to a man.' Another legal scholar, in a recent edition of The Women's Rights Reporter, published by Rutgers University, boldly calls for the abolition of marriage. According to her, marriage originated as a way for a man to have one woman at his beck and call. For a woman, 'at first it was a relief to be responsible to only one man. But feminist rhetoric that the only difference between a prostitute and a wife is that the wife has sold herself to one man has a basis in history.'

In the remainder of this article (by a woman who's also been a prominent speaker at these workshops in New York about the use of the ICC), she compares traditional marriage to enslavement, sexual slavery, and unjustifiable persecution of women on other economic and other grounds. Therefore, I ask you a simple question: does the Statute reach only the 'crimes of most serious concern' to the international community? Well, I wonder.

Let me just read to you a couple more quotes. In the crimes against humanity, persecution is defined as: 'the intentional and severe deprivation of a fundamental right'. What does that mean? There's no fixed catalogue of fundamental rights. Welfare benefits; the right of men to marry men; the right to an old age pension; the right to housing; the right to food; the right to clothing; the right not to go to school; the right to walk around naked in public these might all be claimed as fundamental rights, depending upon the personal predilections of the person doing the claiming.

Another crime against humanity is given as 'inhumane acts' that cause 'serious injury to body or to mental or physical health'. Again, what in the world does that mean? No lawyer could tell you. I can't tell you. I can tell you one thing, the United States' Supreme Court would declare such a crime as unconstitutionally void for vagueness, because no-one knows in advance what causes 'serious injury to body or to mental or physical health' of another person. As a result, since it would be unconstitutional in the United States, I think it's rather hard to argue that the Statute reaches only 'crimes of most serious concern to the international community'.

Now, returning to my list: your Attorney-General says we needn't worry about intrusion into Australian sovereignty, and the Statute will have no impact upon Australia's Constitution. I believe that this is quite wrong. There is much more to worry about than vaguely defined albeit ostensibly serious crimes. It may well be necessary to amend the Australian Constitution.

Again, as the Manual states: 'Some provisions of the Statute conflict with constitutional requirements in some states.' Accordingly, the Manual provides a mechanism for modifying and amending constitutions. I'll point out that modification in just a minute, because I think you'll find it (as I do) rather shocking.

My cursory and largely untutored review of the Australian Constitution suggests that at least three provisions of your Constitution would, under the Statute, require amendment. These include the privileges and immunities of the Senate and the House of Representatives, established by the Constitution's Article 49; Article 71's command that 'the judicial power of the Commonwealth shall be vested in a Federal Supreme Court'; and Article 80's guarantee of trial by jury.

Under the International Criminal Court, and as explained in the Manual, no criminal defendant can ever make a claim of official immunity. That means, should a member of your Parliament cast a vote on an issue related to Aboriginal rights, and should an Aboriginal decide that this vote has caused him severe emotional distress, that Aboriginal can take a claim of genocide to the International Criminal Court. And your Member of Parliament will not be able to raise in his defence the immunity created by Article 49 of the Constitution, to prevent the lawsuit from preceding. He will be taken to The Hague and tried.

Nor will there be trial be jury under the ICC. Article 80 of your Constitution says that you have to have trial by jury here in Australia for serious crimes. The ICC says no. No trial by jury. And since the ICC, not the Australian High Court, will have the final say regarding whether certain crimes set out in the Statute have been committed because under the guise of complementarity, the ICC will be the final arbiter of that it's necessary to amend your Article 71, to provide that the Australian High Court has the next-to-last say on issues related to human rights.

Now, I believe that this requires amendments of the Australian Constitution. But supporters of the International Criminal Court greatly fear this fact; they greatly fear open and public debate of constitutional amendments. As a result, the Manual on pages 55 and 56 tells us precisely how to amend constitutions to avoid all difficulties:

'If a State needs to amend its constitution, it may be possible to accomplish this with a single amendment that addresses a number of different issues at the same time.'

For example, the Constitutional Council of France identified three areas of conflict between the Rome Statute and the French Constitution. The French Government decided to adopt the following constitutional provision, which addressed all three areas of conflict:

'The Republic may recognise the jurisdiction of the International Criminal Court, as provided by the treaty signed on 18 July 1998.'

Now here is the surprising sentence, from law professors all over the world, who should, I submit, know much better:

'The advantage of this type of constitutional reform is that it implicitly amends the constitutional provisions and questions without opening any extensive public debate on the merits of the provisions themselves.'

Now, your Attorney-General suggests that I'm a scaremonger. I believe supporters of the ICC are simply scared, because they cannot endure full, open, fair and careful debate of the merits of their Statute, since to do so would doom it.

The implicit amendment of a constitution by a single sentence which obscures for the public exactly what has been done to the Constitution flies in the face of the very notion of a written constitution. We have written constitutions, because they set out values that cannot and should not be changed without knowing precisely what the changes are, and without having a constitutional (meaning a supra-majority) consensus that these changes should be made. The very fact that the ICC's supporters suggest all nations of the world should engage in quick-and-dirty revision of their respective constitutions, suggests that the ratification of the Rome Statute must be approached with exceptional gravity and care. I think amending a constitution by subterfuge hardly constitutes doing that.

The fourth claim of your Attorney-General is that the ICC will not be used for social engineering. Well, let me just give you a couple of examples that are specific to the Australian experience.

The crime of genocide under the ICC (as I've already explained) includes not only killing members of a group, but also causing them 'serious mental harm'. As such, the ICC's machinery could be called into play to prosecute Members of Parliament even Prime Ministers who, again, would not be able to claim immunity if they caused 'serious mental harm' to indigenous groups. This claim has already been made in Australian courts, in the case of Nulyarimma versus Thompson. There was a claim that Australia's Parliament should have done more for the Aboriginal people, and the Aboriginal claimants argued that they had suffered extreme mental distress, and as a result had been subjected to genocide at the hands of the Prime Minister and the Federal Parliament, which had not granted them the kind of treatment that they felt they were entitled to.

As a result of that case, Senator Andrew Greig introduced the Anti-Genocide Bill into the Australian Senate. His speech during the Second Reading of the Bill demonstrates how broadly the concept of genocide can be read; and, in fact, he read the notion of genocide identically to the ICC. According to Senator Greig, the Bill provides protection beyond arbitrary and systematic persecution and murder. The crime extends beyond killing. The Bill, according to the Senator, provides protection for a broad range of government actions to defend those who are 'targeted on the grounds of religion, ethnicity, political affiliation, sexual orientation, gender, or disability.' In fact, Senator Greig concluded his remarks by dedicating his Bill to, among others, 'Aboriginal and Torres Strait Islanders, to people with disabilities, to the gay and lesbian communities, and to many others who suffered genocide.'

Now the Anti-Genocide Bill was not adopted, and the Australian High Court in the case of Nulyarimma versus Thompson decided that the Australian Parliament was not guilty of genocide by making Aboriginal people suffer grave mental distress. I assure you, if Australia ratifies the ICC, the Nulyarimma case will not be the final word on Aboriginal rights in Australia. Another case will be brought; it will be brought on the grounds of genocide; and whatever your High Court says, the case will go to the ICC for final determination. I could go on and on.

Genocide is not the only ICC crime that could pose serious intrusion into Australia's domestic policy. The list of human rights currently within Parliament's control under Article 51 of your Constitution is long indeed. It includes such things as pension, medical benefits, and schooling. Which of these items constitute 'fundamental rights'? And how many claimants for social welfare benefits are going to argue that they haven't been given sufficient welfare payments to meet their fundamental needs, or to comply with their 'fundamental rights'? This, again, is much more than a theoretical possibility.

Just last year, a committee of the United Nations decreed that Australia had not done enough in the way of providing social justice benefits for the poor. Your Prime Minister had, I think, the good sense to say 'Get lost, Human Rights Committee, we're doing just fine, leave us alone.' But while you might be able to say 'Get lost, Human Rights Committee, we're doing just fine, leave us alone', I doubt that you're going to be able to say that to the Court. Because guess what happens to John Howard? He finds himself in The Hague.

Therefore, is it true that the International Criminal Court will not be used for social engineering? Is it false and absurd to claim that the Statute can be used to intrude upon a broad range of social issues in Australia? I don't think it's false and absurd to make that claim; I think it's reckless if your Attorney-General suggests the contrary. Again, when you have language that gives judges the broad, unfettered power to decide that a crime against humanity has been permitted any time a fundamental right undefined has been denied, any time a government or an individual inflicts sever emotional distress, I think you have created an open invitation to social engineering by judges.

Let me give you one concrete example that happened just last week. I came from the UN meeting on HIV/AIDS in New York. During that meeting, the UN High Commissioner for Human Rights issued a document which had been written several years earlier, but had been hidden from view. On the second-last night of the session, there was a sentence inserted into the UN Declaration on HIV/AIDS, saying that by the year 2005, all nations would implement the guidelines in Paragraph 8. Let me tell you what Mary Robinson, the former Irish President, said these guidelines are based upon.

According to her, the norms enunciated in these guidelines are 'consistent with fundamental human rights and fundamental freedoms'. Note the similar language to the ICC. Although the guidelines acknowledge that the norms they set out may be controversial, they nevertheless insist that the norms are 'based on existing and fundamental human rights standards' (page 24, Paragraph 36). And according to Mary Robinson again, they do nothing more than 'encourage law and law reform which will bring national HIV-related laws into conformity with international and regional human rights standards'. She concludes by noting that her numerous recommendations are 'consistent with traditional and customary international law'. Again, the rulings on crimes against humanity are designed to ensure that customary human rights are recognised, and that fundamental human rights are not denied.

What are the fundamental rights that Mary Robinson says all nations must recognise?

One, they include the repeal of all laws condemning homosexual sodomy.

Two, the legalisation of same-sex marriages.

Three, mandatory and graphic sexual training for children. She has three paragraphs on the last of these. She says the training has to include instruction, beginning when the child's at the age of 10, on how to engage in sexual intercourse with members of the same sex. Since this will of necessity be graphic, she says, 'such materials should be exempted from pornography and obscenity laws'.

Four, she says that all laws regulating prostitution must be eliminated. Prostitution, in short, must be legalised.

Five, she says that the age of consent for all sexual activities should be lowered to 14.

Finally, and most troublingly, she says: 'there must be creation of penalties for anyone who vilifies individuals engaged in same-sex relationships.' In short, it's not enough simply to normalise, in one fell swoop, all of international law related to homosexuality. We have to provide penalties. What are the penalties she's talking about? Might it be the International Criminal Court? Turn to the guidelines on page 14, which emphasise the need for 'the sensitisation of judicial branches of governments, both nationally and internationally.' She suggests we need to 'provide judicial education and the development of judicial materials'.

The guidelines further insist that states and intergovernmental organisations must establish HIV focal points with all agencies, 'including the judiciary'. Success, the guidelines note, can only be obtained by implementing the guidelines 'through all executive, legislative and judicial branches'. And then, to be sure that the judges and other branches do their duty, the guidelines propose that litigants be allowed to 'bring cases under pseudonyms and representative complaints, and be provided with free legal assistance.'

That's precisely the mechanism by which American society has been transformed over the last five years. Is it a coincidence that the High Commissioner for Human Rights uses language consistent with the wording of Articles 6 and 7 of the International Criminal Court, and then urges sensitivity of justices (and use of the judicial branch) to ensure that homosexuals obtain all these rights? I don't think it's a coincidence at all.

Your Attorney-General states that it's absurd and outrageous to claim that the International Criminal Court will be used for political ends. Let me just give you, again, a little information from the Statute itself.

One of the most important characteristics of any sound judicial structure is judicial impartiality. The Rome Statute, however, mandates that the judges selected must be pre-qualified on certain issues. 'States' Parties shall . . . take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.'

That may sound innocuous enough; but you have to understand what the terms 'violence against women or children' means in the UN context. It means 'Be sure that your judges understand the need for abortion, and the need to recognise that there aren't just two genders, there are five, six or seven.' One can only wonder how judges with legal expertise such as this will interpret the vague language of the Statute.

Finally, the ICC gives the prosecutor broad and uncabined political power to bring prosecutions. Under the Statute, prosecutions are not initiated by States' Parties. They are, on the contrary, initiated by the prosecutor. And they may be initiated by anonymous complaints made by NGOs and others. Furthermore, Article 44 allows the prosecutor to accept 'any . . . offer' of 'gratis personnel offered by States' Parties, intergovernmental organisations or non-governmental organisations'. Gratis personnel are personnel paid for by third parties, yet they are performing the work of the court. One can expect and my experience tells me that it will undoubtedly be true that most of these 'gratis personnel' will be supplied by well-funded international NGOs who are hostile to religion and traditional values. An independent prosecutor who is free from any executive control is fearsome enough. An independent prosecutor whose office is staffed by individuals with ideological axes to grind is positively frightening.

Let me conclude by asking what is at stake. Your Attorney-General concludes with a kind of stirring paean to justice and to compassion. He says:

'Our sense of justice, our sense of humanity, our compassion for our fellow man, demand that we give the ICC our full support.'

In a sense, I agree. We have to have compassion for our fellow man. There is no doubt that there are serious atrocities in the world, which demand a solution. And I believe it's possible to construct an International Criminal Court that not only complies with the existing dictates of international law, but also would not unduly trammel the existing sovereignty of states. The International Law Commission produced such a draft about 10 years ago. But what is at stake is the very notion of sovereignty and self-determination. That, my friends, is terribly important.

In a recent edition of a very wonderful magazine called National Observer, Sir Harry Gibbs the former Chief Justice of Australia wrote an article called 'The Erosion of National Sovereignty'. In this article, he points out how various UN commissions are imposing their will on Australia, and thereby eroding Australian sovereignty. He is not talking about a criminal court. He's talking about something with much less power, the proposed court that I've discussed. Yet what does he say?

'Some commentators say that the increasing interdependence of the nations of the world, and the need for Australia to relate to other nations, have made it necessary for us to transfer some of our sovereignty to the United Nations. It is true that we cannot live in isolation. It does not follow that we should allow remote committees to decide what rights the inhabitants of Australia should have. The decisions they have so far made do not convince us that they have more wisdom than our own processes can provide.'

I would concur with your honourable former Chief Justice. And he concludes with an even stronger statement:

'We already have laws that have created new rights at the expense of rights that we took for granted. We should not allow a revolution that affects us to be under the control of others. There is no good reason to allow rules that govern the rights of individuals and shape the nature of society to be interpreted by foreign bodies which have plainly shown an intention to give effect to their own modish notions.'

I can guarantee you that the International Criminal Court will indeed by a body designed 'to give effect to [the] modish notions' of some of the most severe and outlandish segments of modern society.

I conclude with a kind of little story that I used as a premise for my earlier paper, which, as I've noted, was called 'Doing the Right Thing: The ICC and Social Engineering'. It comes from something my great-grandmother taught me. I can't remember what I had done wrong though I've been trying to remember for years but I'd done something that upset my great-grandmother. I think it had been something to do with the alfalfa field outside the house; I can't remember the details. But my response to my great-grandmother was 'But I was only trying to help!' Her answer to me was something that I'll never forget, even though I don't remember what I was doing. She said: 'Richard, it is not enough to do the right thing. You must do the right thing the right way.'

I fear that the supporters of the ICC are only trying to help. They're only trying to do something in the world's alfalfa field that will make it much nicer for all of us. But it is not enough simply to desire to help. We must do the right thing the right way. It is my firm conviction that the International Criminal Court Statute, as currently drafted, does not do the right thing the right way.