6 August 2007, Canberra
International Criminal Court Regional Advocacy Seminar
Introduction
Good afternoon Excellencies, distinguished guests, Ladies and Gentlemen. I'd also like to extend a warm welcome to the Prosecutor of the ICC, Mr Luis Moreno-Ocampo and express my thanks to all the speakers who have participated in this very important regional seminar.
I'd also like to thank members of the audience who are here representing countries that could become party to the Rome Statute of the International Criminal Court. I hope you leave this seminar with a clearer sense of what you can bring to the ICC and of what the ICC can do for your interests.
Let me say how much I appreciate the chance to speak about the International Criminal Court because I see its establishment as a major landmark for the international community and for international justice.
More than two-thirds of the world's nations have signed or ratified the Court's Rome Statute, highlighting the weight of the Court in the international criminal justice system. And Japan has just deposited its instrument of accession to the Rome Statute, which will make it the 105th state party.
All need to participate
You all know the old saying, it's been said that it is only necessary for a good man to do nothing for evil to triumph.
The same idea applies to international law: we all need to participate to ensure that the most heinous crimes do not enjoy impunity and that the victims of the gravest international crimes are able to see justice.
This region is no stranger to the most egregious abuses of human rights and international humanitarian law.
It is hard to believe that, only 30 years ago, the Khmer Rouge regime was ruling Cambodia. During its short but brutal reign between 1975 and 1979, over a million people were killed. Justice for the Cambodian people has been a long time coming.
But the Khmer Rouge trial process has now commenced, and Australia has long been a supporter of those trials, including by chairing the Group of Likemindeds in New York and contributing almost $4 million.
But this kind of initiative is, as you know, ad hoc and takes place well after the events in question.
We need a better way of ensuring that the most serious of international crimes do not go unpunished. And the International Criminal Court represents this new international system of justice.
Indeed, the kinds of criminal offences that are included in the Rome Statute are not new and there is nothing controversial about them. The international community has long condemned atrocities like genocide, crimes against humanity and war crimes. These atrocities are an affront to us all. And it's important to note that the Geneva Conventions, on war crimes, are the first ever international treaties to obtain universality, with Nauru's accession in 2005.
But what's been missing has been a mechanism to ensure those who commit atrocities do not enjoy impunity-in cases where the country in question is unwilling or unable to investigate or prosecute those crimes.
That's why the International Criminal Court is so important. As the world's first permanent international criminal court, the creation of the ICC represents a landmark in international relations.
There are many similarities between it and the ad hoc international criminal tribunals such as the Yugoslav and Rwandan tribunals with which you would be familiar, but these are ad hoc bodies only, created after the atrocities have been committed.
The Rome Statute reflects a remarkable international consensus about the need for a permanent international body vested with jurisdiction over the most serious international crimes.
Overcoming doubts
Now, I think it's natural for all of us to be sceptical when we see proposals for new policies or ideas of this magnitude. And I recognise that it is for each country to make a sovereign decision on whether to become party to the Rome Statute.
Speaking frankly, in Australia, we had vigorous debates at the highest levels of Government about whether or not we should ratify the Rome Statute. There were particular concerns about the implications for Australia's armed forces. There were concerns that ratifying the Statute would somehow indicate a lack of confidence in Australia's domestic legal system. And there were concerns about whether the structure of the International Criminal Court would ensure its independence and freedom from political interference.
Each of these concerns was tested and, in the end, we decided that these concerns were overstated and that it was essential that Australia become party to the Rome Statute.
But we had to work strategically to persuade the doubters and shift some thinking. It helped to put doubts to rest that leading Australians like the then Chief of the Defence Forces, General Peter Cosgrove, were strong supporter of the International Criminal Court.
It also helped that Australia played a leading role in the difficult negotiations which led to the conclusion of the Rome Statute.
We had chaired the group of like-minded countries during the 1998 Diplomatic Conference of Plenipotentiaries for the Establishment of the Court.
This gave us insights into the plans and purposes and the concepts that form the basis of the Rome Statute. In particular, the principle of so-called "complementarily" that preserves state sovereignty.
There's no doubt this principle eased Australian concerns and it assured me that the Court can't operate in some sort of arbitrary manner.
Put another way, it means that the ICC is like a court of last resort. That the Court must defer to domestic legal systems, in whatever form they may be, as long as the relevant country is willing and able to investigate and, where necessary, prosecute such crimes in a fair manner.
It means that nations have the primary responsibility to exercise their national criminal jurisdiction over those alleged to have committed international crimes.
Membership brings benefits
Becoming a party to the Rome Statute offers some very real benefits for countries, especially in our region, the Asia-Pacific.
First, countries that get involved now will get a seat at the table to shape international law and the future activities of the Court.
The Asia-Pacific currently has the lowest level of representation on the Court in the world and I firmly believe that our region has a responsibility to bring our unique perspective on law and justice issues to the Court, and that the Court would indeed benefit from these perspectives. Under the terms of the Rome Statute each State Party is entitled to be represented at the Assembly of States Parties meetings which are held every year.
The second reason to get involved with the ICC now is that the world is clearly moving ahead to entrench a system of international criminal justice aimed at bringing to account those responsible for international crimes.
I think the international community is aware of the need to both prevent international crimes, and the potential effects on peace and security. And Australia believes that the Court does not need to run prosecutions just to be effective. Even if the Court only conducts a handful of trials, the mere existence of the Court signals to international thugs that their days of acting with impunity are over.
The third, another key insight is that membership will boost a country's international profile.
Countries that get involved and become a party to the Rome Statute gain the right to nominate a candidate for election as a Judge of the Court or for other administrative and management positions. To have one of your nationals elected in an international court with the prestige of the ICC is an enormous accomplishment and it reflects well on your legal system and international reputation.
It is important to note that the first ICC bench included Justice Neroni Slade from Samoa, the first-ever judge from a Pacific Islands country to serve on an international tribunal. His contribution was a highly valued one. There will be an election of six new judges of the Court in 2009, which could include a judge from our region.
Australia is very interested in ensuring that our region is adequately represented on international bodies, including through high-profile judicial and administrative appointments. I believe Asia-Pacific perspectives can offer a lot to this area of law; Pacific countries in particular have been very active in shaping developments in international law in areas like the law of the sea, fisheries and nuclear-free zones.
Our region has a lot to contribute to the ICC and it would be a shame if countries in our region ended up being among a small number left outside the system.
The final reason-and perhaps the most important reason-why I would urge countries to get involved is that by becoming party to the Rome Statute, you signal to the world that you respect the rule of law and human rights.
The rule of law brings stability; that's why it's an important focus of our development aid program. It builds a norm against violence, including violence for political means. And the ICC provides an external guarantor that serious crimes will be punished, including those committed in the context of any extra-constitutional changes of government.
By making rebel groups and others aware that no crime within the Court's jurisdiction will escape action, the Court can act as deterrence to violence, instability and serious abuses of human rights. And this offers enormous potential for enhancing peace and stability and the rule of law.
Similarly, signing up to the Rome Statute would be a very practical step towards a regional approach to recognising the importance of human rights and international law. This would convey a clear message that your country does not tolerate atrocities; a very important signal to the rest of the international community.
Conclusion
Let me finish by recognising that some countries in our region are interested in ratifying the Rome Statute but face real resource constraints.
Every country faces difficult choices as they engage with the international community. But I believe the International Criminal Court is now too important to ignore. It is not a distant body - it can have a direct effect on peace and stability and the rule of law. By joining now you get a seat at the table in shaping international law. You raise your international profile. And you would send a strong signal of your support for the rule of law and human rights.
As you know, the Court has made excellent progress despite its infancy-it turned five years old in July. I mentioned that Japan recently deposited its instrument of accession and membership is growing. Formal investigations are underway in four countries. And it has issued eight arrest warrants.
So when you return home after this seminar, I hope you can point out the very clear benefits of membership of the International Criminal Court to your respective governments. And I look forward to hearing your views about how Australia can further assist you to meet your aims.
Thank you again for attending this seminar.