Archive Article: International Criminal Court. 19 April 02
December 30, 2008

Some events occur which get little publicity at the time and it is only in the long sweep of history that people can see that in fact a major event has taken place. Such an event has taken place in the last few days – and Australia missed out on it.

Back in July 1998, at the end of one of the most violent centuries in human history, the international community agreed on a treaty for the creation of the International Criminal Court. There is already the International Court of Justice that deals with disputes between governments. But there is no international court to bring to justice individuals responsible for war crimes.

Similarly, there were several war crimes trials after World War II. Indeed the person who got taught me international law and got me interested in the international humanitarian law of armed conflict – Colonel Gerald Draper – was a British prosecutor at some of the trials in the late 1940s. But these international trials were not continued to deal with all the other crimes associated with the later conflicts.

Similarly there were some national trials of war criminals arising out of some conflicts. The most well known in the US was the trial relating to the My Lai massacre in Vietnam in 1968. A few years later, I interviewed some of the survivors of that massacre and there were very sceptical of how the Americans had handled those crimes.

Meanwhile, a number of us in non-governmental organizations over the years have argued that here should be some form of permanent international criminal court. We received little support from governments. Even those governments that had some sympathy for the idea were, sceptical that there could ever be political agreement for one.

Our campaign was boosted by the tragedies in former Yugoslavia and Rwanda in the 1990s. There was an international revulsion at what had happened and there was a demand for those responsible to be put on trial. The United Nations created ad hoc tribunals for these conflicts. They will be wound up when their tasks are completed.

What was still lacking was a permanent international criminal court. This came about at an international conference in Rome in July 1998. The conference’s outcomes was an indication of just how quickly international political opinion can change once there is a groundswell in public opinion in favour of something. We saw the same process in the outlawing of land mines.

In order for the 1998 Rome Treaty to come into effect 60 governments have to ratify it. On April 11 the 60th ratification took place – indeed there was a small stampede of government vying for the honour to be among those first 60.

The Rome Treaty will come into effect on July 1. It will not be retrospective and so it will not handle past war crimes. But looking to the future, it will help end the impunity with which individuals violate the laws of war, remedy the deficiencies of ad hoc tribunals, and provide the legal forum when national criminal justice institutions are unwilling or unable to act.

Who have not yet ratified the treaty? The roll of dishonour includes Russia, China, the United States – and Australia. Australia’s failure to meet the deadline is due to internal Liberal/ National Party politics. One of the people who were an obstacle failed to be pre-selected by his own Liberal branch and that so problem has been solved. The Foreign Minister, Alexander Downer, has said that the Government will now ratify the treaty as quickly as possible. Better late than never.

Broadcast On Friday 19th April 2002 On Radio 2GB’s “Brian Wilshire Programme” At 9pm And On 21st April 2002 On “Sunday Night Live” At 10.30pm