Calls for Federal Politicians to Be Brought Before the International Criminal Court
Monday 13 April 2015 @ 1.54 p.m. | Legal Research | Immigration
Prominent barrister Julian Burnside QC is looking to international lawyers to back his appeal for the International Criminal Court (ICC) to investigate Prime Minister Tony Abbott and Minister for Social Services Scott Morrison, as well as politicians responsible for the mistreatment of boat people in previous Liberal and Labor governments, for crimes against humanity.
What is the ICC?
The ICC is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely genocide, crimes against humanity and war crimes.
The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.
The ICC is based on the Rome Statute, adopted currently by 122 Nation States across the world. It entered into force on 1 July 2002 after ratification by 60 countries.
The ICC is composed of four organs. These are the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.
The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes.
What is the process for brining a claim in the ICC?
22 cases in 9 situations have been brought before the ICC. Pursuant to the Rome Statute, the Prosecutor can initiate an investigation on the basis of a referral from any State Party or from the United Nations Security Council. In addition, the Prosecutor can initiate investigations on the basis of information on crimes within the jurisdiction of the Court received from individuals or organisations (“communications”).
To date, four States Parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-States Parties. After a thorough analysis of available information, the Prosecutor has opened and is conducting investigations in all of the above-mentioned situations.
On 31 March 2010, the Prosecution was granted authorisation to open an investigation in the situation of Kenya. In addition, on 3 October 2011, the Prosecutor’s request for authorisation to open investigations into the situation in Côte d’Ivoire was also granted.
Current countries involved in preliminary examinations include Afghanistan, Colombia, Nigeria, Georgia, Guinea, Honduras, Iraq, Ukraine and Palestine.
What is the basis for Julian Burnside's Claim?
Mr Burnside said he was preparing a communication to the ICC and was hoping that lawyers with international reputations might be prepared to lead the charge.
“Geoffrey Robertson has a great deal more experience in international criminal matters than I do… Amal Clooney is in the same chambers as Geoffrey Robertson and does a lot of human rights work...My ideal outcome [is] that [they] would in effect champion a communiqué to the ICC."
Mr Burnside said the recent Forgotten Children report and the Moss Review, which highlight human rights abuses on Manus Island and Nauru, would form part of the evidentiary substrata of his communiqué but said he would not pretend to do the ICC’s investigation himself.
He said he did not expect that the ICC would have the resources to actually prosecute Australian politicians but was hopeful that an ICC investigation could be launched. This alone would help send the message that the government’s asylum seeker policies fly in the face of core Australian values and beliefs, according to Mr Burnside.
Lecturer in international law at University of Newcastle Amy Maguire wrote in The Conversation that if the ICC were to initiate a prosecution, the Australian government would reject the ICC’s jurisdiction and refuse to volunteer its officials for trial in The Hague. Signatory states are required to surrender persons called to The Hague. Thus, even if refuge could be found in Australia, politicians wanted by the ICC would find it very difficult to travel overseas without being arrested and extradited to The Netherlands to face trial.
Mr Burnside said he did not believe Australia, a party to the Rome Statute of the ICC since 2002, would simply ignore or sideline requests to extradite officials, although this has never been put to the test.
Mr Burnside also said Australian politicians could be found guilty under Australian law, since one of the conditions of joining the ICC is to integrate the provisions of the Statute of Rome into domestic legislation. However, prosecution under this section of the Commonwealth Criminal Code requires the blessing of the attorney-general.
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