Australia has a long and distinguished reputation on the bringing to justice of war criminals. Australia played a critical role in both the Nuremberg trials and trials of Japanese soldier charged with war crimes after World War II – the first of their kinds in history. At these trials, for the first time, it was not a revenge exercise by victors against vanquished, but a trial of people on objective evidence on charges that caused revulsion among people since civilisation began – genocide, mass murder and waging an aggressive war.
But until recently, war crimes tribunals have only been set up to deal with particular conflicts, most recently with respect to conflict in the former Yugoslavia. That step was a slightly greater step to universality in that it was set up under the United Nations to deal with criminals from both sides – whereas Nuremberg and the Japanese trials were set up by victors. Now, the international community is on the cusp of a new and welcome development – a permanent war crimes tribunal to deal even more universally with war crimes because it would be both international and have jurisdiction over crimes committed in any conflict anywhere.
This week the Joint Standing Committee on Treaties recommended that Australia ratify the treaty setting up the court.
The Government should act with as much speed as it can muster to do this, and to legislate for the necessary domestic law.
Australian nationals have been judges and defence and prosecution counsel at previous tribunals. Australia has considerable expertise and international standing in the area. We have a lot to contribute to the international community and it is in Australia’s interest to be an inaugural member of the International Criminal Court. Australia can contribute greatly in the establishing of the rules of evidence and the practice and procedure of the court and the nomination of judges and prosecutors to ensure the tribunal is a fair instrument of law.
There is a snag. The present Government has shown itself to be utterly subservient to the united States in virtually every aspect of its foreign policy. The US is against the treaty. It – along with China and Russia – will not ratify it.
Australia must take and independent stand here and join with countries such as Britain. Canada, New Zealand, the European countries and scores of others to establish this tribunal which will play such an important part in stating and enforcing fundamental principles of human decency.
The US, China and Russia are frightened about loss of sovereignty. It is a needless fear for any nation provided it establishes domestic law to deal with these crimes itself. Once a nation makes these crimes domestic offences, they can be prosecuted under domestic law in domestic courts and the international tribunal would not have jurisdiction. The international court would only hear cases if the domestic courts of the nation of the accused person were unwilling or unable to deal with the case.
In the case of countries like the US and Australia this should pose little difficulty. Australia already has war-crimes legislation. Some changes are needed to ensure that any war crime committed by anyone on Australian territory or committed by any Australian anywhere in the world are covered. After that, the international tribunal would not need to be invoked.
It might be helpful for Australia to move ahead, so that along with like-minded countries it can give a lead to the US and Russia to join the treaty. Getting China to join is probably too much to hope for at present.