LAW: International Criminal Court: the dangers

by Richard Wilkins
via altnews.com.au
http://altnews.com.au/drop/node/838
Printed in Issue:11 Aug 2001
Richard Wilkins, Professor of Law at Brigham Young University in the United
States, was recently in Australia to warn of the threat to domestic legal and
political systems posed by the International Criminal Court.

In July 1998, the nations of the world signed a Rome Statute for the International
Criminal Court (ICC). 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.

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.

In response to such concerns, the Honourable Daryl Williams, the Attorney-General

from Australia, has sought to reassure us.

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, he says it reaches only the most serious crimes of international concern.

Third, he believes 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, he says that the claim that somehow the Statute will be used for
political aims (or subject to political mechanisms or machinations) is simply
without any foundation at all. Well, I'd like to respond to those assertions one
at a time.

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,
calm fears that the ICC will unduly intrude
complementarity in actual fact operates not
international intrusion, but to ensure that
to international law: as set out in the ICC
and is invoked by Court supporters to
upon domestic policy-making,
to shield domestic law from
domestic law conforms in all respects
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.

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.

Moreover, in 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.

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 simple sentence that addresses a number of different issues at the same
time."

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 such revisions 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
v. 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.

The Australian High Court had no trouble throwing the case out. I can guarantee
you, it would have trouble throwing the case out once you had ratified the ICC
Statute, because it's very likely that a group of judges in The Hague would
conclude that your Aboriginal people have indeed been subjected to extreme
emotional distress.

Let me give you one concrete example that happened just last month. 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".

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.

The ICC gives the prosecutor broad 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.