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Winter 2002 cover

National Observer Home > No. 53 - Winter 2002 > Legal Notes

Mr. Daryl Williams: An Inadequate Attorney-General

LEGAL NOTES

The recent decision by Mr. Howard’s government to ratify the International Criminal Court statute makes it all the more desirable that misleading statements by Mr. Daryl Williams, the Attorney-General, concerning that Court be corrected.

The I.C.C. will, on ratification, acquire jurisdiction over Australians. The relevant offences (“genocide”, “crimes against humanity” and “war crimes”) are given wide and vague meanings in the I.C.C. statute. Mr. Williams claimed that these definitions are identical to that in a 1948 Convention. But this, of course, is entirely beside the point. The fact is that these vague definitions in the I.C.C. statute will put Australians at risk of compulsory extradition and punishment by a foreign court with judges of unknown tendencies.

Mr. Williams has also alleged that if Australia is investigating or prosecuting a crime under our own law, “the I.C.C. is conclusively prevented from pursuing it”. This claim is false and misleading. Under the I.C.C. statute the I.C.C. is able to determine, if for example it disagrees with the results of an investigation, that Australia has not acted “genuinely”. That I.C.C. decision might be quite unsound, but the I.C.C. can nonetheless choose to proceed with prosecutions and require the extradition of Australians to The Hague for trial.

Australians extradited might, especially, be members of the Defence Force. It is already common for evidence of “atrocities” to be falsified, and falsified evidence can often be difficult to rebut.

An additional difficulty that Mr. Williams attempts to sweep to one side is that claims of “genocide” or “crimes against humanity” may continue to be made by radical Aboriginal groups or illegal immigrants. Although these claims might be regarded by Australian investigating authorities as having little weight, it is quite conceivable that the I.C.C. will countenance them and maintain that Australia has not acted genuinely, and accordingly require the extradition and trial of Australians.

Mr. John Stone has recently commented, correctly, that the complementarity “safeguard” that is relied upon by Mr. Williams “is totally fraudulent”. Mr. Stone added that “our Attorney-General and our Minister for Foreign Affairs are preparing to hand to our enemies a highly potent legal weapon with which to attack us — and in particular to attack our Defence Force personnel”.

Mr. John Howard, in announcing the inappropriate decision to ratify, stated that there would be a Declaration by Australia asserting that the Court would not have jurisdiction over Australian defence force members serving overseas and that Australians will not be able to be surrendered to the Court without the consent of the Commonwealth Attorney-General. However this Declaration is of doubtful validity, since it is over-ridden by Articles 17 and 120 of the I.C.C. statute. There is reason to believe that Mr. Williams did not explain this adequately to his other Cabinet members.

It is now necessary for Mr. John Howard to consider the replacement of Mr. Daryl Williams by another Attorney-General who is more capable and is more interested in protecting the rights of individual Australians. Perhaps Mr. Williams might instead become a judge in the International Criminal Court, perhaps to be joined by colleagues from Sierra Leone, Niger and the Democratic Republic of the Congo.

 


National Observer No. 53 - Winter 2002