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The ICC debunked

By Tracie Aylmer

Over the past year, people have come to me asking about the International Criminal Court (ICC). While I have recently tried to take a break, events at the ICC haven’t allowed for me to truly get away from it all, so I figured I should explain aspects of the ICC so that many within Australia can understand what has been going on, as well as to debunk the myths that tend to fly around.

Everyone has their own passions. For me, the ICC has become my passion. The concept of a last resort permanent international criminal court, for which the most heinous crimes can be tried in order to gain justice for victims, fascinates me. While several within Australia assume to know and understand the ICC, the different facets coming from many different areas and authorities makes it difficult to consider the ICC as a criminal court similar to Australian domestic law. It isn’t. In fact, nothing can be further from the truth.

I have had to explain over and over that there already is an ICC Prosecutor. Her name is Madame Fatou Bensouda. She decides which team is going to work on which situation (of which there are more than a handful).

The Court has determined that anyone from a situation country is not to work on it. This includes judges as well as the prosecution teams. Otherwise, there would be enough bias to throw each case out of the Court.

Another myth flying around is whether the ICC can physically arrest perpetrators. That is not what the ICC is all about. In fact, the ICC only investigates and issues arrest warrants. They then ask the state and/or Interpol to help them out with the physical arrest. Sometimes, the perpetrator shows up at the ICC, accepting the arrest warrant, but other than that, dependence does rely on the state and Interpol to arrest.

As Australia is a ‘western’ country, of course this situation has been fraught from the start. For some previous situations, governments sent the ICC a two page letter asking them to investigate the situation within that particular country.

I knew that it was going to take much more than just a two page letter. I knew there needed to be evidence to back up what was going on. This is why I wrote a 45 page submission, and included 73 attachments, then sent the whole lot in May 2014. I have heard that others had requested for the ICC to act by sending an email, and the ICC responded with detail on what would be required for an investigation to be opened – evidence, jurisdiction and public interest. I knew I would have to tick all boxes from the start, in order for the ICC to even consider a situation within Australia, as this is what I studied in my law degree previously.

After I sent the submission, I did not stop sending information to the ICC. I kept going, keeping them updated with what the government was doing. I kept begging for them to consider Australia as a situation, over and over again. Whenever I received evidence, it was all sent to them.

Unfortunately, they didn’t believe that Australia had jurisdiction in September 2014, so they put all of the information into archive, until the time arrived that the government stepped far too over the line. That line was crossed on 28 January 2015, when the High Court decided that 157 Tamil asylum seekers could stay on a boat for 30 days and then sent to Nauru, even though they were on their way to New Zealand. Two days later, the ICC sent me the letter explaining they were going to analyse the case.

It was back in July 2015 that I finally read the three year plan that the Prosecutor writes, to explain to the Assembly of State Parties facets of her budget, the situations and what she plans to do. In this plan, I read that she expects all cases to be trial ready before opening a situation. International public interest is a big thing. She will not consider a case unless international uproar has reached its peak. Jurisdiction will always be a hassle. Cooperation is a must.

Recent events at the ICC have been peculiar at most. While one man from the situation of the Central African Republic has been found guilty of atrocities, two men from Kenya have been set free, until another day. Then there’s Georgia.

Bemba is an ex-government leader who kept committing atrocities within the Central African Republic. Not only was there enough evidence and public interest to commit him, but there has been more than enough cooperation from the government to ensure that investigators could go to the country and see for themselves what happened. It was a good thing to see justice for the victims.

Kenya’s situation is much more complex. NGOs pushed for this situation to take effect. The elections back in 2009 were a rort. People were murdered. Other people were forced to vote for a government they didn’t want, due to torture and corruption. While this government didn’t gain power in 2009, they eventually did in 2013. Ruto was therefore committed for trial at the ICC, even though he was Deputy President of Kenya. Kenyatta – Kenya’s President – was also committed for trial, but as the Kenyan government refused to cooperate, the Prosecutor was forced to drop the case.

During the ICC trial of Ruto, Kenya did everything in its power to cause problems with the legitimacy of the ICC. There eventually wasn’t enough evidence to keep going. Corruption destroyed the case. Two ICC witnesses were murdered.

It is understood within the ICC that this led to lack of a reason to keep the case against Ruto going. The Kenyan situation is telling. The ICC should have found Ruto guilty because of the corruption.

This case is not over. Many within the international community are now determined to find justice for the victims, using all other means at their disposal. It doesn’t matter to them that the leaders of Kenya have used all means necessary to try to stop the case, and to try to find the ICC illegitimate. Justice will be found, to the detriment of the leaders of Kenya.

I have for a while considered Kenya as a precedent to the Australian situation, as the Prosecutor decided proprio motu to start the Kenyan case. The same is occurring for Australia. The Prosecutor is determining the case, not the government nor the UN Security Council (any of these methods can be used to start a case at the ICC).

The final recent situation I want to talk about is that of Georgia. The government referred the situation to the ICC. While the atrocities were being committed in 2009, the Prosecutor started analysing the situation. The situation then went into preinvestigation for a while. Recently, this was stepped up to become a situation. While it took 6 years for this situation to be investigated, it is happening.

Australia’s situation has similarities with both Kenya and Georgia. The situation for Australia is being analysed, and has been for a while. It has become known that – if any international public authority should act against Australia – then nothing will get in the way of justice. The Australian Solicitor General has indicated this in February 2016. There will be cooperation from Australian authorities, as well as the ability to arrest the perpetrators that have arrest warrants issued to them. The Australian Federal Police and Interpol will both be on notice, and will act, once the arrest warrants have been issued.

Now, mine is not the only submission that has received positive correspondence positive correspondence from the ICC, although it is the first. I am not sure how many submissions have brought Australia’s situation to the eyes of the Prosecutor. What I do know is that I am the one that the Prosecutor decided to send the letter detailing that analysis has started. When I spoke to others, none of them had received this vital letter. Others have – recently – received indication that they will be advised after analysis has been determined, which is different to receiving a commencement letter of analysis.

I am thrilled that the ICC Prosecutor has singled me out as the person to receive the letter of analysis. After I received the letter, I sent the revised version of the Immigration Department manuals and guidelines to the ICC. No matter what happens, and what this government says, the ICC will be able to negate all the lies as they have the information that ties the relevant politicians with the atrocities being committed.

Over the past year, many of us have been pushing for an international public authority to help out Australia’s arrogance. All of our human rights are at risk, so it is a slight relief that something is being done. For me, the ICC’s efficiency needs to come to the forefront. She has more than enough information to start preinvestigation by now. She knows that she needs to become much more efficient. Australia’s situation will be the indicator on how efficient she becomes.

See also: Complaint against John Howard to the International Criminal Court

 

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16 comments

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  1. DisablednDesperate

    I cannot begin to tell you how much I appreciate your hard work and thank you for answering the questions I had in my head. You have given me hope to cling to during this dark time.

  2. Miriam English

    Tracie Aylmer, thank you for this information and source of hope. We need something to put the brakes on the abuse of power and international laws by this government.

  3. philgorman2014

    Tracie you have ignited a spark at the end of a very long tunnel and now there is a little light shining there. The main problem in the new, ugly corpocracy that was once the Commonwealth of Australia is that the bastards keep building more tunnel, with a few twists and turns thrown in to obscure that light.

  4. kerri

    Tracie thanks for your hard work. I frequently wish the International courts would catch up with Howard, the AWB scandal and Brandis’s treatment of Bernard Collaery! It is good to know someone with the knowledge you have will not let atrocities die a slow death from lack of interest.

  5. prlma

    The headline is wrong and misleading: it’s the ICC myths that are being debunked. The ICC is being explained, not exposed as being wrong. Sigh …
    The actual article is great though.

  6. Patrick Musson

    You do realize that Julia Gillard was the Prime Minister who ordered the setting up of Manus and Nauru, so in a sense, she is just as guilty of offences before the fact.

  7. Kaye Lee

    According to the Conversation…

    “the ICC is unlikely to initiate a prosecution against Abbott and his cabinet. Should it do so, the Australian government would surely reject the ICC’s claim of jurisdiction and refuse to volunteer its officials for trial in The Hague. In that case, the ICC would have no enforcement capacity and a conviction could not result in the punishment of the individuals involved.”

    Since its establishment, the ICC has initiated only two investigations propio motu (on the prosecutor’s initiative). The first of the ICC’s two convictions to date was against Thomas Lubanga Dyilo. The Congolese warlord was convicted of enlisting and conscripting child soldiers to engage in armed conflict.

    The second of the ICC’s convictions was also against a Congolese militant. Germain Katanga was found guilty of being an accessory to war crimes in relation to a massacre of 200 Hema civilians.

    Since its establishment, the ICC has opened 21 cases from nine locations. All those investigated to date have been nationals of African states and implicated in armed conflict.. A prosecution against members of the Australian government would be unprecedented.”

    https://theconversation.com/will-the-international-criminal-court-prosecute-australia-for-crimes-against-humanity-33363

    From my understanding, for them to proceed without the co-operation of the government is basically impossible unless there is mass murder going on.

  8. Michael Taylor

    Kaye Lee, the African ‘connection’ is covered in Tracie’s post tomorrow.

  9. Michael Taylor

    PS – that Conversation article is now a bit out of date. A lot has happened since then as far as the complaint against the Abbott Govt goes. Will it succeed? We don’t know. Will Tracie give up? Never.

  10. Michael Taylor

    Having spent a lot of years working with lawyers and drafting legislation, I have arrived at one conclusion: ask ten lawyers the same question, and you’re likely to get ten different answers.

  11. Wally

    Michael Taylor

    And 10 fees to pay despite achieving nothing.

  12. Kaye Lee

    Yes the article was from 2014 in response to Andrew Wilkie’s referral. We can only hope but I am not sure what they can do.

    As Tracie said, “She will not consider a case unless international uproar has reached its peak. Jurisdiction will always be a hassle. Cooperation is a must.”

    The Office of the Prosecutor has opened ten official investigations and is also conducting an additional seven preliminary examinations. Thus far, 39 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, and Ivorian president Laurent Gbagbo.

    Most of them are for war and genocide and aggression against another country. Our case would have to be crimes against humanity. Article 7 defines crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. The article lists 16 such as individual crimes:
    Murder
    Exterminatio n
    Enslavement
    Deportation or forcible transfer of population
    Imprisonment or other severe deprivation of physical liberty
    Torture
    Rape
    Sexual slavery
    Enforced prostitution
    Forced pregnancy
    Enforced sterilization
    Sexual violence
    Persecution
    Enforced disappearance of persons
    Apartheid
    Other inhumane acts

  13. Danielle Wright

    Why not start a get up petition so people can sign and send their thoughts to the ICC. Let the people speak?

  14. Matters Not

    Having spent a lot of years working with lawyers and drafting legislation, I have arrived at one conclusion: ask ten lawyers the same question, and you’re likely to get ten different answers.

    True. Very true. But understand our (Australian) legal system isn’t based on the pursuit of ‘truth’. It’s a contest between various ‘viewpoints’. The ‘truth’ (a construct) whether it be ‘good’ or ‘bad’, ‘right’ or ‘wrong’ is by the way.

    Having responsibility for the behaviour of any number of ‘lawyers’, ‘barristers’ and the like over many years and also the interaction with countless numbers from Crown Law and DPP, I soon learnt that the best way to proceed was to ‘describe a problem’ and at the same time outline what the desirable ‘solution’ was. It then became their task to provide advice that would deliver same.

    In short my request was. Legal types (of various rankings), I ‘need’ this ‘advice. Please provide same. And with plausible justifications for arguing same. And ASAP.

    For those who argued otherwise my advice was along the lines of: If you are interested in ‘truth’ then become either a ‘mathematician’ or a ‘logician’ but if you are what you (currently are) then do as requested.

  15. margcal

    I fear the chances of success are slim at best. But Tracie’s dogged determination is inspirational and hopefully will open more eyes if nothing else.

  16. Miriam English

    I hope the Australian government is held to account by the ICC. The best outcome would be prison terms for some offenders, but I agree that such an eventuality is unlikely. Our government will almost certainly stymie attempts at justice, however this is still worth doing. At the moment these over-privileged idiots are running around doing whatever grips them in the moment, not caring who they hurt. This may actually give them pause.

    Certainly they will be unhappy at word getting out that they are being investigated by the International Criminal Court (ICC) in an election year… and right after the Panama Papers, when it is common knowledge that our prime minister has heaven knows how much money stashed in the Caymans. I’ve published on facebook that they are being investigated by the ICC, with a link back to this article. The more people do that, the more uncomfortable this government will feel and the less likely that Labor will simply do more of the same when they come to power.

    Tracie, I am extremely grateful for your work. Please don’t take it wrongly when I say that the effect of your article could be amplified manyfold if the language was improved. Is there any chance of someone at AIMN editing this article to improve its English? I’d happily volunteer. Her work is far too important to let grammar reduce its impact. I will put my hand up to help with any future articles in this series too.

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