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22 9 09 Mary Rbinson LAW International Criminal Court the Dangers

22 9 09 Mary Rbinson LAW International Criminal Court the Dangers

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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.
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.

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12/23/2012

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LAW: International Criminal Court: the dangersby Richard Wilkinsvia altnews.com.auhttp://altnews.com.au/drop/node/838Printed in Issue:11 Aug 2001Richard Wilkins, Professor of Law at Brigham Young University in the UnitedStates, was recently in Australia to warn of the threat to domestic legal andpolitical systems posed by the International Criminal Court.In July 1998, the nations of the world signed a Rome Statute for the InternationalCriminal Court (ICC). The Statute transfers a vast amount of decision-makingauthority from previously sovereign nations to an international court that will beremote from - and unable to be controlled by - the peoples of the earth.The Statute does so by creating a court with absolutely unprecedentedjurisdictional reach. For the first time in history, we have a Statute thatpurports to bind the entire earth, once a mere 60 nations have ratified it.It violates every single principle of international law established since theTreaty 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 becalled "crimes of most serious concern". I also pointed out that the Statutecreated a mechanism which was subject to quite ready political control.In response to such concerns, the Honourable Daryl Williams, the Attorney-Generalfrom Australia, has sought to reassure us.First, he states that we needn't worry, because the Statute is only complementaryto 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 theAustralian Constitution will never be overridden.Fourth, he says it's false and absurd to suggest that this court will changeAustralian social policy.Finally, he says that the claim that somehow the Statute will be used forpolitical aims (or subject to political mechanisms or machinations) is simplywithout any foundation at all. Well, I'd like to respond to those assertions oneat a time.To begin with the notion of complementarity. It is absolutely true, as yourAttorney-General points out, that the Court is designed to be complementary tonational jurisdictions. That is stated in Article 1 of the Statute.But while this notion may sound reassuring, and is invoked by Court supporters tocalm fears that the ICC will unduly intrude upon domestic policy-making,complementarity in actual fact operates not to shield domestic law frominternational intrusion, but to ensure that domestic law conforms in all respectsto international law: as set out in the ICC Statute, in Article 17 (1a)."The International Criminal Court will take jurisdiction any time a nation isunwilling or unable to act."
 
Accordingly, once the ICC is ratified, Australia's domestic human rights law mustprecisely mirror the human rights law established under the ICC and the judicialdecisions of the ICC, or the domestic legal system will be supplanted.Complementarity, in short, is not a shield: but, rather, a sword, to requireAustralia to implement emerging international norms.Second, your Attorney-General states that we needn't worry because the Statutedeals only with crimes of the most serious concern to the international community.However, the language of the ICC Statute is sweeping. Although it purports toreach 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 internationallawyers, and by the restraint (or lack of it) of the judges who will be chargedwith interpreting that language.The crime of genocide, for example, does not include just killing members of agroup, 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 prosecutethe racially and religiously charged rhetoric often employed by both sides of theongoing dispute regarding a Palestinian homeland in the Middle East. While I'm notsuggesting 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 contestsqualify 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", suchcrimes 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 asto what these words actually mean. For example, the crime of enslavement isdefined as "the exercise of any or all power attaching to the right of ownershipover a person".Invoking this language, the Women's Caucus for Gender Justice regularly holdsconferences in New York, in which it argues that the ICC might be used perhaps toabolish the very institution of marriage.Moreover, in crimes against humanity, persecution is defined as: "the intentionaland severe deprivation of a fundamental right".What does that mean? There's no fixed catalogue of fundamental rights. Welfarebenefits; the right of men to marry men; the right to an old age pension; theright to housing; the right to food; the right to clothing; the right not to go toschool; the right to walk around naked in public - these might all be claimed asfundamental rights, depending upon the personal predilections of the person doingthe claiming.Another crime against humanity is given as "inhumane acts" that cause "seriousinjury to body or to mental or physical health". Again, what in the world doesthat 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 unconstitutionallyvoid for vagueness, because no-one knows in advance what causes "serious injury tobody or to mental or physical health" of another person.As a result, since it would be unconstitutional in the United States, I think it'srather 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 aboutintrusion into Australian sovereignty, and the Statute will have no impact uponAustralia's Constitution. I believe that this is quite wrong.My cursory and largely untutored review of the Australian Constitution suggeststhat at least three provisions of your Constitution would, under the Statute,require amendment. These include the privileges and immunities of the Senate andthe House of Representatives, established by the Constitution's Article 49;Article 71's command that "the judicial power of the Commonwealth shall be vestedin a Federal Supreme Court"; and Article 80's guarantee of trial by jury.Under the International Criminal Court, and as explained in the Manual, nocriminal defendant can ever make a claim of official immunity.That means, should a member of your Parliament cast a vote on an issue related toAboriginal rights, and should an Aboriginal decide that this vote has caused himsevere emotional distress, that Aboriginal can take a claim of genocide to theInternational Criminal Court. And your Member of Parliament will not be able toraise in his defence the immunity created by Article 49 of the Constitution, toprevent 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 Constitutionsays that you have to have trial by jury here in Australia for serious crimes. TheICC 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 Statutehave been committed - because under the guise of complementarity, the ICC will bethe final arbiter of that - it's necessary to amend your Article 71, to providethat the Australian High Court has the next-to-last say on issues related to humanrights.Now, I believe that this requires amendments of the Australian Constitution.But supporters of the International Criminal Court greatly fear this fact; theygreatly fear open and public debate of constitutional amendments. As a result, theManual on pages 55 and 56 tells us precisely how to amend constitutions to avoidall difficulties:"If a State needs to amend its constitution, it may be possible to accomplish thiswith a simple sentence that addresses a number of different issues at the sametime."The implicit amendment of a constitution by a single sentence - which obscures forthe public exactly what has been done to the Constitution - flies in the face ofthe very notion of a written constitution.We have written constitutions, because they set out values that cannot and shouldnot be changed without knowing precisely what the changes are, and without havinga constitutional (meaning a supra-majority) consensus that these changes should bemade.The very fact that the ICC's supporters suggest all nations of the world shouldengage in such revisions of their respective constitutions, suggests that theratification of the Rome Statute must be approached with exceptional gravity andcare. 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

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