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Howard Government Decides To Ratify International Criminal Court

The Prime Minister, John Howard, has officially announced the decision of the Federal Cabinet to support the establishment of the International Criminal Court.

The decision was made by the Cabinet at a meeting last night and approved at a meeting of the joint coalition parties this morning.

The decision represents a victory for the Minister for Foreign Affairs, Alexander Downer, and other moderates in the Liberal Party. Downer has promoted the court since 1996.

A campaign against support for the court has been waged by hardline right-wingers such as Bronwyn Bishop and Senator Ross Lightfoot. Supporters and opponents of the court have waged an intense campaign within the government in recent weeks, culminating in a joint party-room meeting on Tuesday at which around 70 backbenchers spoke in a debate.

  • Listen to Howard’s press conference on the ICC (23m – transcript below)

Text of statement released by the Prime Minister, John Howard, announcing the government’s intention to ratify the establishment of an International Criminal Court.

I announce today the intention of the Government to propose ratification of the 1998 Rome Statute providing for the establishment of an International Criminal Court. This decision has been reached after considerable consultation and discussion among Coalition ranks.

The Government believes that the International Criminal Court can make a valuable contribution to the future punishment of persons who commit acts of genocide, crimes against humanity and war crimes.

I am satisfied that with the stipulations to be incorporated in a declaration to be made at the time of ratification that the decision to ratify does not compromise Australia’s sovereignty.

It is proposed that the declaration reaffirms the primacy of Australian law and the Australian legal system and declares that no person can be arrested on a warrant issued by the Court or surrendered to the Court without the consent of the Commonwealth Attorney-General.

Additionally, the declaration will provide that it is Australia’s understanding that the offences of genocide, crimes against humanity and war crimes under the International Criminal Court Statute will be interpreted and applied in a way that accords with the way they are implemented in Australian law.

The matters dealt with in the Declaration will be incorporated in the Australian legislation implementing our obligations under the International Criminal Court Statute.

Importantly, the legislation will provide that no prosecution is to be commenced, or proceedings conducted, without the consent of and in the name of, the Attorney-General.

The Attorney-General’s powers to consent to arrest, surrender or prosecution will also be broadly drafted to allow as wide a discretion as possible, limiting the grounds for judicial review of the exercise of those powers.

The Australian legislation will also include a clause limiting judicial review of any decision of the Commonwealth Attorney-General to give or refuse consent to an arrest on a warrant issued by the Court, the surrender of a person to the Court; or conduct a prosecution under Australian law in relation to the offences contained in implementing legislation. This will limit judicial review of the exercise of the Attorney-General’s powers to proceedings by way of prerogative writs in the High Court under the Constitution.

In accordance with the Treaty Australia will have the right to withdraw from the Treaty on 12 months notice. While it is not the intention for such action to be taken without proper consideration it is important that the Australian people understand that the ability to withdraw is available.

It is proposed that the operation of the Treaty be monitored and the Government will report regularly to the Parliament.

A copy of the proposed declaration is attached.




Australia notes that a case will be inadmissible before the International Criminal Court (the Court) where it is being investigated or prosecuted by a State. Australia reaffirms the primacy of its criminal jurisdiction in relation to crimes within the jurisdiction of the Court. To enable Australia to exercise its jurisdiction effectively, and fully adhering to its obligations under the Statute of the Court, no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender. Australian law also provides that no person can be arrested pursuant to an arrest warrant issued by the Court without a certificate from the Attorney-General.

Australia further declares its understanding that the offences in Articles 6, 7 and 8 will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law.

Transcript of Prime Minister John Howard press conference on ratification of the ICC.

  • Listen to the Press Conference (starts at paragraph 4)

PRIME MINISTER: Well ladies and gentlemen, I’m here with my colleagues to announce that the Government has decided to proceed to ratification of the International Criminal Court statute. The decision has been reached after a very lengthy but beneficial and widespread consultation within the Government parties. The decision to proceed to ratification will be accompanied by a number of very important and firm stipulations. At the time of ratification Australia will deposit a declaration which states a number of things, and I’ll be releasing with my formal press statement a copy of this declaration. The declaration will reaffirm the primacy of Australian law and the Australian legal system in relation to prosecution of offences under the legislation giving effect to the statue. It will declare that no person can be arrested on a warrant issued by the court or surrendered to the court without the prior consent of the Attorney General of the Commonwealth. It will also declare Australia’s understanding that the offences of genocide, crimes against humanity and war crimes under the International Criminal Court statue will be interpreted in accordance with Australian law.

The matters in the declaration will be incorporated in the Australian legislation, implementing our obligations under the International Criminal Court statue. In other words, they will not be bare, pious declarations, they will in fact become part of Australian law and therefore they will govern all behaviour in relation to Australian residents or people within Australia or within the control of Australia, such as for example our defence forces serving overseas who will remain completely subject to Australian law.

There’s a further important stipulation that will be put in the enabling legislation, and that is that no prosecution within Australia can be launched without the prior consent of the Attorney General and indeed it must be launched in his or her name. And that means effectively that the capacity for frivolous or vexatious private prosecution or interest group prosecutions can be stymied by the Attorney General taking them over and filing a no bill or the like, according to his or her determination of course of the merits of such prosecution.

The legislation will provide that the Attorney General’s powers to consent in relation to arrest or surrender or prosecution will be very wide, there’ll be a privative clause that will effectively mean that the exercise of that discretion will not be reviewable by any court other than through the prerogative writ provisions referred to in Section 75 of the Constitution.

We believe that the International Criminal Court will make a valuable further addition to the efforts of the world to bring to justice people who perpetrate atrocious crimes and it’s in that spirit that Australia has decided to ratify. There have been concerns expressed about a loss of Australian sovereignty. I am satisfied and the Government is satisfied after very careful examination, and particular in the light of these stipulations, that there will be no compromising of Australian sovereignty. In the end any challenge I might point out to an exercise of the Attorney General’s discretion will be resolved by the ultimate expression I guess of Australian sovereignty judicially and that is the High Court of Australia, not by an international body.

So overall I think the outcome and the Government believes the outcome is a sensible, balanced one. As you know we are not starry-eyed respondents to an over-idealised view of international legal institutions. But we do believe valuable additional mechanisms can be provided to decent people around the world to tackle serious and grave abuses of human rights. And after a very lengthy process we are quite firm in our belief that this will provide an opportunity for Australia to be part of that process, it’s going to happen anyway and it’s important that Australia be part of the process to contribute her expertise in jurisprudence, but on terms and conditions that guarantee that Australians are tried according to Australian law. And I’m very satisfied that that will occur, as it should, and I’m very firmly of the belief, as my colleagues are, that this will make an important contribution to producing in a solid way a better and more decent world.

I do want to thank my two colleagues who are here today in particular, the Minister for Foreign Affairs and the Attorney General who’ve had principle carriage of this over a considerable period of time. And also, may I say, thank all of my party colleagues, we’ve had an extremely lengthy debate, of which I’m very proud. I think something, if I can reveal a party room secret, and I know nobody ever does that to any of you, but can I say that we had something like 70 people participate in the debate and it was very vigorous and it was very valuable and I believe that the outcome reflects, as best one can, the mood and the balance and the temper of the Party Room. We want to be part of additional efforts to catch war criminals but we don’t want it to occur in circumstances where Australian sovereignty or independence is compromised. We don’t believe that will happen, and it’s in that spirit that we’ve decided to ratify.

JOURNALIST: [Inaudible]

PRIME MINISTER: I would hope the legislation might be introduced next week.

JOURNALIST: [Inaudible]

PRIME MINISTER: Look, that’s ultimately a matter for them. Let me put it this way, that I was greatly encouraged, even warmed, by the response in the Party Room this morning. There are a number of my colleagues, as happens on a lot of things, that will retain reservations about the Government’s decision but having seen an exhaustive and very democratic process of consultation used will support the decision.

JOURNALIST: Did any of them actually reserve the right in the Party Room discussions to cross the floor?

PRIME MINISTER: From recollection, one.

JOURNALIST: Mr Howard, are you sure these stipulations are compatible with the statute itself and why weren’t these stipulations advanced before the Party Room debate got out of control?

PRIME MINISTER: Well, the Party Room debate never got out of control, Mr Walker. You might have hoped it would have, you might have liked to have seen some blood flowing out or some doors being slammed but it didn’t quite work out that way. I am advised that they are fully compatible, fully compatible, and it’s on that basis that we’re going down that path where all of the lawyers we’ve spoken to and consulted say they’re fully compatible. You say, why weren’t they advanced? Well, in the nature of things closer scrutiny often throws up concerns that people have.

JOURNALIST: Prime Minister, some international law experts have suggested that this kind of declaration might undermine the purpose of the Court, it would start a snowballing effect, is there any concern about that or has there been any….

PRIME MINISTER: No, I don’t have a concern about that. Look, if the situation is that a country with such a strong, open, transparent judicial system, such as Australia, can’t assert the primacy of that system in dealing with Australian citizens who are charged with offences then if people assert that, well, and in some way that is an unacceptable position for Australia to take, well, we don’t want to be part of a process that involves us not being able to do that. I mean, we are entering this on the conditions set out in this declaration and if in some way people regard those conditions as unacceptable, well, we would, by definition, not want to be part of the process. But can I say this, that we are completely satisfied. The Attorney-General is and the legal advice from the Commonwealth is that there is no incompatibility and I am not concerned about a snowballing effect, I am not concerned about that. But, in the end, what matters most is the primacy of the Australian system in dealing with claims and allegations against Australian citizens.

JOURNALIST: Prime Minister, how much does the absence or likely absence of as powerful a nation as the United States from the ICC reduce the effectiveness of it as a court?

PRIME MINISTER: I think it’s fair to say that the more countries in it the better but I understand the United States has reasons for not being in it. But we have reached our own decision, according to our assessment, of what is right for Australia. In the end we make decisions based on our assessment of what is in the best interests of Australia and we’ve judged that it’s in the best interests of Australia to join. I think it’s fair to say that in the whole of the debate on this there has been an exaggerated significance given to the extra value that the court is going to add. I also think there’s been an exaggeration of the fears that people have in relation to the court’s impact on Australian independence and sovreignty. I think it will improve the situation in relation to war criminals, I don’t think it’s going to change it overnight or dramatically alter it. I think it will improve it. And subject to the stipulations I’ve laid out I think it’s a sensible and right decision morally and otherwise, and diplomatically and in terms of international standing, for Australia to be part of it. Now, that’s a judgement I’ve come to after a lot of thought. I note that the Americans are not part of it but they’re not part of a number of things we are a part of, but then there are some things they are part of that we’re not. And you have to look at each of these things on individual merits. You can’t be hamstrung by a pre-determined approach. You can’t say we’re never going to be part of international treaties or we’re going to jump on board every time somebody stands up with a, you know, beautifully written bit of paper and says this is going to save the world and all mankind. You’ve just got to look at each thing on its individual merits.

JOURNALIST: You seem to be indicating that it was a bit misunderstood, you know, what the Court was going to do etc. Why do you think this happened and could it have been better explained publicly?

PRIME MINISTER: No, I don’t think…I mean, it’s quite a complicated issue, even for lawyers. Skirmishes with international law are rare and rarefied and I sort of had to drag out some old books written by Professor Julius Stone, one of the first Stones in my life, years and years ago. And you know, it is a very interesting subject. But I mean Daryl is an expert on it.

JOURNALIST: You’re becoming a great internationalist now.

PRIME MINISTER: No. Great defender of the Australian national interest Louise.

JOURNALIST: Prime Minister… could I ask the Foreign Minister a question?

PRIME MINISTER: You certainly can.

JOURNALIST: Mr Downer, was it a close run thing and are you relieved today?

MINISTER DOWNER: Well I think it is an important decision. That is my view. And one of the things we did when we first came to Government was set up a process where there could be proper consultation, not just for the Parliament, but the public, on treaties and conventions that Australia might enter into. And that does make it more difficult for a Government but it makes the process more transparent and likely to yield in the longer term greater public support. And we have had a transparent process. We have had the statute considered by the Joint Standing Committee on Treaties. It has been considered by the Foreign Affairs and Defence Committee as well. Now it has been considered at great length by our parliamentary parties and we have come up with a conclusion that they overwhelmingly support, and I think the public will overwhelmingly support. I think this process of consultation is harder for the executive, but it is better for the country.

JOURNALIST: … situation will in any way inhibit Australia’s ability to shape the Court, to influence the selection of the prosecutors, the judges?


MINISTER DOWNER: They’re elected by the state parties and as a state party, we will be able to participate in that process.

JOURNALIST: Could an Australian soldier accused of war crimes ever be tried at the Hague, or will they always be tried in Australia?

ATTORNEY-GENERAL: Under the stipulations and the statute and the Australian legislation, they will only ever be tried under Australian law in the Australian legal system.

PRIME MINISTER: Can I just say on the ADF point that after the Party Room meeting on Tuesday, I personally spoke to the leaders of the ADF and their legal advisers and they expressed very strong support for ratification.

JOURNALIST: Prime Minister, given that Australia’s support for this treaty is premised on the ability of the International Criminal Court to prosecute nationals of countries even where those countries don’t consent for them to be prosecuted, why shouldn’t Australia expose itself to the same rigours?

PRIME MINISTER: Well, because we have a very good legal system. I think we have the best legal system in the world…or let me put it this way, I don’t think there is a better legal system in the world. There may be some that are close to ours. I think there are a couple that have got an equally good legal system, but there is none better.

JOURNALIST: So only countries with poor legal systems should be subjected to the…

PRIME MINISTER: No you’re asking me, why shouldn’t Australia subject itself to it. I’m making the point, in accordance with the principle of complementarity which underlies the Court, in other words, the ICC only steps in where you have got an inadequate or an unwilling legal system. And we are adding this further safeguard to guard against any behaviour that we hope never emerges, but is reassuring to people who have legitimate concerns.

JOURNALIST: Simon Crean says to bring on a double dissolution election with the border protection. But is this design for migration zone legislation for a double dissolution election?

PRIME MINISTER: The utterances of a poor man’s Clint Eastwood.

Look, everybody ought to just calm down about a double dissolution. We’ve just had an election and it had a pretty good outcome. And I’m in no hurry to go back to the polls. I can assure you of that. And that has got nothing to do with what the outcome would be. I think the Australian people don’t want another Federal Election until about the due time. Now, that doesn’t mean that you don’t put legislation up. And if that legislation is rejected on a couple of occasions, it does, as you all know, provide constitutional options. But I just think we should, sort of, just lower the temperature about early elections. I don’t think anybody wants that. Look it is silly talk.

JOURNALIST: If the legislation is rejected Prime Minister, will you reintroduce it?

PRIME MINISTER: Yes, we’ll probably reintroduce it. Yes. But what happens after that, well we’ll just wait and see. But everybody just ought to, you know take the traditional Australian remedy in relation to all of that.

JOURNALIST: Do you have a mandate in the Senate for your Budget changes, particularly the DSP and the PBS?

PRIME MINISTER: I think any Government that is elected on a program of responsible economic management, which provides measures of that kind which can be regarded as normal budgetary measures, has a mandate to introduce them. Otherwise you would get to the absurd proposition that in an election campaign, you have to anticipate each and every individual measuring of your next Budget. I mean that would be palpably absurd.

JOURNALIST: So why rush this legislation through, given that…

PRIME MINISTER: Which legislation?

JOURNALIST: Sorry, the legislation today about the excision of the islands, given that there are no boats immediately in sight and we know of no boats…

PRIME MINISTER: They can suddenly appear. No seriously, I’m not saying that facetiously. They can.

JOURNALIST: It is a rush though, isn’t it? I mean you just announced yesterday you had legislation in today. That’s pretty quick for legislation.

PRIME MINISTER: We were advised by the people smuggling taskforce a couple of weeks ago of certain things, and a recommendation was made that we excise the islands. So we are acting in consequence of that. If the Opposition had not disallowed the regulation, then there wouldn’t be any legislation being brought in. The legislation is a reinforcement of the regulation.

JOURNALIST: [inaudible] that allegedly prompted this decision in the first place. The one that was supposed to be a Vietnamese flagged vessel. What is your understanding of where it is now, and whether it actually existed at all?

PRIME MINISTER: Well you often in these situations get a variety of reports over a period of time and those reports can vary. And that is understandable because they are based on information gathered from all sources. We don’t know exactly where it is at present and I’m not sure that we will know tomorrow or the next day, but then we could.

JOURNALIST: Do you know for sure that it exists?

PRIME MINISTER: Well I haven’t seen it myself and I have to, you know given the claims that are made about my assertions these days in relation to these things, I’m not going to say I’m certain it exists. But I can tell you, we have been given regular advice over a period of time that it did.

JOURNALIST: [inaudible] fewer arrivals and there haven’t been any for six months, have you given any consideration to easing off the naval surveillance in northern waters?


JOURNALIST: Mr Howard, did the advice you received on or before October 23 on where SIEV X sunk, come from the people smuggling taskforce?

PRIME MINISTER: I’d have to check my recollection of that Margot. But my understanding is that the remarks I made on the 23rd of October, which you’re clearly interested in were based on reports and also, you know, not only government reports but also media reports.

JOURNALIST: Do you now accept that the boat most likely sunk in international waters?

PRIME MINISTER: Well there remains conflicting evidence about that. But look I haven’t made a considered study of it in the last few days and I’m not going to go beyond that.

JOURNALIST: When was the decision taken for the Government to give such strong backing to the US policy of pre-emptive strikes.?

PRIME MINISTER: Well the principle that a country which believes it is likely to be attacked is entitled to take pre-emptive action is a self-evidently defensible and valid principle and I don’t think you need a government decision to say you agree with that. I mean let me make it very clear if I were presented with evidence that Australia was about to be attacked and I was told by our military people that by launching a pre-emptive hit we could prevent that attack occurring I would authorise that pre-emptive hit and expect the Opposition to support me in the process. So in a situation like this Robert was expressing a self-evidently valid proposition and particularly against the background of the events of the 11th of September. So we haven’t sort of gone through some deliberative process.

JOURNALIST: What assurances or evidence would you require from the United States if such an attack was imminent in order to offer practical support?

PRIME MINISTER: You’ve got it the wrong way around with respect Karen. What would happen is the United States would say we would like your assistance.

JOURNALIST: But presumably you would say….

PRIME MINISTER: Well look I’m not going to try and say in advance what evidence we would want. I would simply repeat what I said before that if we receive a request we will consider it at the time, on the merits, in the circumstances. I’m not going to…..

JOURNALIST: [inaudible]

PRIME MINISTER: Well I’m not going to. It is absurdly hypothetical of me to now lay down in advance what evidence I require when I don’t know what they’re going to ask us to do.

JOURNALIST: ….evidence, would you require them to supply you with intelligence or any evidence in order to….

PRIME MINISTER: Karen, I’m not going to add to the answer I’ve given on that.

JOURNALIST: Mr Howard, would Australia have the capability however given its existing and extensive military commitments to provide help even if it was thought desirable to….?

PRIME MINISTER: Obviously our capacity to provide the help would be one of the factors taken into account in responding to the request we received from the United States.

JOURNALIST: You said you hadn’t given much attention or much thought to the question of international versus Indonesian waters. Can I ask what you are doing to assure yourselves that Australian authorities did everything they could to rescue those people?

PRIME MINISTER: Well I am satisfied from what the Navy has said that every effort was made by them and I will put on record the fact that I think this attempt being made to besmirch the name of the Royal Australian Navy in relation to this incident is appalling and I think the way in which an attempt has been made to suggest that the Navy sort of stood by and allowed people to die is appalling.

JOURNALIST: [inaudible]

PRIME MINISTER: No, and I am perfectly satisfied that the Navy behaved honourably, decently, and expeditiously.

JOURNALIST: [inaudible] looking for the boat when they knew it was coming?

PRIME MINISTER: The Navy had, on my information, had no way of acting from the information it had to prevent the sinking or to provide assistance to those who drowned and I think the attempt made to dirty their name is just appalling.

JOURNALIST: Mr Howard, on the same issue, given that we did have in place the most extensive surveillance cordon we’ve ever had in position in that area are you surprised that we didn’t see this boat coming, didn’t know it had sunk, didn’t know where it was…..?

PRIME MINISTER: No I’m not surprised of that particularly given that all the information was that it sank in an area near the Sunda Strait and the Sunda Strait as I understand it passes between Java and Sumatra. And the information I had was that it was in the Indonesian search and rescue zone.

JOURNALIST: But the information that the People Smuggling Taskforce had that it was in international waters.

PRIME MINISTER: But the Indonesian search and rescue zone as I understand these things to operate does include international waters.

JOURNALIST: Is it the sort of thing……

PRIME MINISTER: Look what are people alleging? Are they alleging that the Navy just stood there and allowed people to drown? That is basically what this is coming to and I think this is appalling.

JOURNALIST: Was Senator Hill’s speech prompted by discussions you had in Washington last week?

PRIME MINISTER: No it wasn’t. It wasn’t. I read Senator Hill’s speech and I thought it was a good speech and I thought it stated very good principles.

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Malcolm Farnsworth
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