Archive Article: International Criminal Court. 14th March 03.
December 27, 2008

The 18 judges of the world’s first permanent war crimes court at The Hague were sworn in on March 11. This is another important step in the protection of human rights and the maintenance of international peace and security.

The International Criminal Court will be a court of last resort – intervening only when national authorities cannot or will not prosecute. Therefore, it will not be as extensive as the trials held after World War II at Nuremberg, Cologne and Tokyo. Consequently, it seems hard to imagine that any Australian would ever be brought before it because alleged Australian war criminals would be tried within Australia.

On the other hand, New Zealand would have found this Court very helpful in the late 1980s. In 1985 French secret service agents blew up the Greenpeace “Rainbow Warrior” ship in Auckland Harbour and a killed someone. Two of the agents were put on trial. The French Government retaliated against New Zealand’s exports to the European Union. Indeed, there were fears that the French would try to invade the country to free the two criminals. If the International Criminal Court had existed then, the two French terrorists could have been taken to The Hague in The Netherlands and then dealt with.

The International Criminal Court is different from the International Court of Justice (also in The Hague) because that only handles disputes between countries; it cannot prosecute individuals. The new Court is also different from the international criminal tribunals for the former Yugoslavia and Rwanda because those two tribunals can only deal with those two sets of territories and eventually they will be wound up.

The International Criminal Court has no retrospective jurisdiction. In other words, its treaty – the 1998 Rome Treaty – came into effect on July 1 2002 and so it can only deal with war crimes committed after that date.

Another limitation is that 139 countries signed the Rome Treaty but several have not yet ratified it. Australia is one of the countries to have ratified it and so was represented at this week’s swearing in ceremony.

Among the countries that have not ratified it are: Russia, China, Iraq and the United States.

Even if the US Government was not represented at the swearing in ceremony, some American citizens were present. One of them is a friend of mine: Ben Ferencz. Ben, a Harvard lawyer, waded ashore on D Day in June 1944 and went on to be a prosecutor at the Nuremberg International War Crimes Trials in the late 1940s.

Ben and his wife Gertrude have maintained their interest in creating a permanent court for trying war criminals. Ben was doing some media interviews from The Hague this week because he wanted people to know that the US Government’s decision to boycott the International Criminal Court is not a view shared by all Americans. He predicts that a later US Government will ratify the Rome Treaty.

The new Court still needs to appoint a prosecutor. (An Australian name has been mentioned in this context). It will therefore take a while for the Court to be fully operational. But at least a start has been made.

I have been speaking about the need for such a permanent war crimes court for many years. Indeed, I got interested in this subject because Colonel Gerald Draper, who taught me international law, had been a prosecutor at the Cologne segment of the War Crimes Trials. The late Colonel would be very happy to see the Court open for business.

Broadcast Friday 14th March 2003 on Radio 2GB’s “Brian Wilshire Programme” at 9pm.