Rome Statute of the International Criminal Court

Dr Helen Durham of the Australian Red Cross calls for Australian ratification of the Rome Statute to establish an International Criminal Court.

Progress is being made towards the establishment of an International Criminal Court (ICC). The Australian Government has announced plans to introduce legislation to ratify the ICC. The Joint Standing Committee on Treaties, a federal parliamentary body, has been taking written and oral submissions relating to this proposed international legal institution.

The proposed ICC is a major step forward for international humanitarian law, and brings the world closer to ending impunity for those accused of committing atrocities. The ICC will be established after 60 states have ratified the Rome Statute for the International Criminal Court, which was agreed upon in July 1998. So far 29 states have ratified it.

The Court will be located in The Hague, in the Netherlands, with links to the United Nations. It will have the power to try individuals who are believed to have committed genocide, crimes against humanity and war crimes. The crime of aggression will also be included in the ICC statute after further work has been done to create a clear legal definition of this crime.

Whilst the Court cannot ensure an end to the horrors that are committed throughout the world, it must be seen as a giant step in the right direction towards peace and international justice. As Mr Yves Sandoz, Head of the International Committee of the Red Cross delegation stated only hours after the ICC Statute was approved: ‘The Statute that has just been adopted offers States an extraordinary opportunity, at the dawn of the 21st century, to unite in defending fundamental values and to give true meaning to the concept of ‘international community’ - I hope they will take it.’

The topic under consideration is extremely important to the Australian Red Cross (ARC), which has the responsibility for educating the public on international humanitarian law (often called the laws of war) and in the last few years has held over 100 seminars, talks, training sessions and conferences on topics including the International Criminal Court. Well over 40,000 people from all walks of life have attended these events and specifically expressed interest in the creation of a new institution to try those accused of atrocities.

In a submission to the Joint Standing Committee on Treaties, the ARC stated that educators in the area of international humanitarian law find it impossible to talk about the laws of war without questions being raised on methods of enforcing this area of law. Once the concept and the Statute of the ICC is explained in a clear and concise manner, the response from the public is very positive. In particular, the fact that the ICC will not detract from Australia’s capacity to try its own people, but rather will add an extra, and in most instances optional, layer to the process, is of great interest to the public. The recent overwhelming pride felt by Australia in relation to the actions taken in restoring security and peace in East Timor, and the concern expressed by many members of the public at the possibility of the presence of alleged war criminals in Australia, demonstrate that the Australian public has a strong commitment to international justice.

The ARC believes that the ICC is not only viable but an essential step towards international justice. The United Nations has considered the idea of establishing a permanent international criminal court at various times since the end of the Second World War. The creation of the Statute of the ICC was the culmination of years of effort and indicates the resolve of the international community to ensure that those who commit grave crimes do not go unpunished.

The Australian Government played a role at all levels of the negotiations to create the Statute. The ARC was represented in the International Committee of the Red Cross delegation at the Rome Conference and, as a National Society within the Red Cross and Red Crescent Movement, has noted that Australians are interested to engage in international legal issues and are especially concerned about matters of justice. International lawyers within the ARC have been discussing the issue of ratification with other National Societies, such as British Red Cross, and sharing positive views and opinions on the best way to create suitable domestic legislation to ratify the Rome Statute.

The ICC will not impact upon national sovereignty as Australia will have fully formed domestic legislation to allow the prosecution of Australian suspects within this country. As a nation with a commitment to human rights and the dignity of all people, it is in Australia’s interest to ratify the ICC.

‘The establishment of the International Criminal Court is a gift of hope to future generations, and a giant step forwards in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible’ - Kofi Annan.

What can the court do?

Its various divisions can

• investigate and prosecute relevant crime
  
• try those who have been charged
  
• hear appeals
  
• pass sentences.

Who will appoint the judges?

• The parties to the statue (states) will elect judges from those who would be eligible for the judiciary in their own countries and having appropriate experience in criminal law.

Who can be tried?

• citizens of ratifying countries or countries giving consent for a particular crime or situation
  
• people who have committed crimes in these countries.

What crimes are included?

• genocide
  
• crimes against humanity
  
• war crimes
  
• the crime of aggression (still to be defined)

These include:

• the taking of hostages
  
• torture
  
• enslavement
  
• deportation or forcible transfer of population
  
• the enforced disappearance of persons
  
• imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
  
• rape
  
• sexual slavery
  
• enforced prostitution
  
• forced pregnancy
  
• enforced sterilization
  
• persecution against any identifiable political, racial, national, ethnic, cultural, religious group or gender
  
• and all serious breaches of the Geneva Convention.

What sentences can be handed down?

• imprisonment for up to 30 years
  
• life imprisonment in extreme cases
  
• in addition to imprisonment, the Court may order:
  
• a fine
  
• forfeiture of proceeds, property and assets derived from the crime.

Can past crimes be tried?

• No, only crimes committed after the establishment of the court, or after the relevant country’s ratification of the Statute, whichever is the later.