Transcript: Peter Underwood Peace & Justice Lecture
‘No Peace Without Justice or No Justice Without Peace: Which Comes First?’
Monday 4 May 2015
Presented by Professor Tim McCormack
Speaker
It is a great honour for me to be here with you in The Farrall
Centre at Friends’ to deliver this inaugural Peter Underwood
Peace and Justice Lecture. Like so many other Tasmanians, I
held Peter in the highest esteem as a jurist, as Governor of this
State, as a man of the people and as a person committed to
peace and justice. For me, it is a very special honour to present
this lecture at Friends’ to the senior students, to members of the
Underwood Family, to other distinguished guests and
McCormack family members.
I was reflecting on my association with Friends’ over the
decades. In the 1970s, my brother Jim, who is with us today,
was a resident tutor in the boarding school here, and even
before I moved from our hometown of Burnie to Hobart to
study at the University of Tasmania I visited Jim in the
boarding house. That was the first time I ever really understood
anything about The Friends’ School.
More recently, although for you students it will still seem like
the dim dark past, for the last 25 years I have had two different
bases for my relationship with the School. The first of them is
through my family’s friendship with Miriam Berkery and her
family. Miriam, as you know, is the Head of Art here at
Friends’. She first started here in 1991, the same year that I
started as an academic at the University of Melbourne, and
throughout that entire period as we visited Hobart and stayed
with her family, we have learnt a lot about The Friends’
School.
It was about the same time in the early 1990s that I had a
student from Melbourne Law School, a then young Jeremy
Farrall, come to speak to me in my office about his passion for
studying international law and human rights, and he and I
became good friends. He provided research assistance for me
and I followed his career with interest. Through my friendship
with him, I also became friends with his family, especially with
Lindsay and Stephanie. They hosted our family for lunch in
the residence here. We borrowed their shack on Bruny
Island. They probably don’t even remember that, but it was
very generous of them to allow us to use it and Lindsay and
Stephanie have stayed in contact with me – particularly through
Jeremy and my ongoing friendship with him. I am delighted to
deliver this lecture in The Farrall Centre which bears their
names and honours their contribution to the school.
In terms of the subject matter of the lecture – peace and justice,
I understand absolutely that the values of the school are so
consistent with the values that Peter Underwood espoused and
that have been made the focus of this special lecture series to
honour his memory.
So let me just say a few things about my relationship with Peter
Underwood. He was at the bar here in Tasmania when I first
moved from Burnie to Hobart to study law. He was appointed
Justice of the Supreme Court after I’d left to move to
Melbourne to undertake my graduate study. But while he was
Chief Justice of the Supreme Court from 2004 to 2008, I taught
his and Mrs Underwood’s son William here in Tasmania in the
summer school that I taught at the University of Tasmania, and
then subsequently at Melbourne Law School when Will came
over to do his Master’s degree with us.
I acted as Will’s referee when he applied to the Department of
Foreign Affairs and Trade. While he was working in Tasmania
as the Australian Red Cross International Humanitarian Law
Officer for the State, he and I had lots to do with each other as I
delivered public lectures for him and for the Red Cross. Then
through my friendship with Will, I met both Peter and Frances
at Government House at various receptions at University of
Tasmania Law School events and also when Peter as Governor
would come down on a regular basis to the Law School in
Sandy Bay to help out with training in advocacy and moot
court preparation.
I admired Peter’s approach to the governorship very much and
was particularly impressed not only with his commitment to
justice as a lawyer, as a judge and as Governor with different
contributions he made to the justice system in Tasmania, but
also to his commitment to peace. Much has been said, not only
by Luke and Annie in their introduction today, but also in the
press, about Peter’s 2013 and 2014 Anzac Day speeches at the
Hobart Cenotaph. Peter served in Vietnam as a conscript in the
Navy and he witnessed some of the horrors of war personally.
Consequently, he came to the Cenotaph with the authority that
comes from personal experience - not speaking theoretically
about the subject of war. Peter challenged our tendency to
mythologise Gallipoli and to downplay the horrors not only of
that campaign, but also of the campaign particularly on the
Western Front that claimed so many lives on both sides of the
conflict.
He also questioned the extraordinary public expenditure
planned for this year’s centenary anniversary of the Gallipoli
landing rather than diverting some of those resources to efforts
preventing conflict. He wondered aloud whether we glorify an
unrealistic notion of the Aussie digger at the expense of
reflecting on why our politicians seem so ready to send our
nation’s armed forces off to war, and then so many service
members return with post traumatic stress and other mental
illnesses. It is right and proper that the memory of Peter
Underwood be honoured by a public lecture focusing on peace
and justice and I am thrilled to be invited to inaugurate that
lecture series.
The title that I gave to my presentation today is this – No peace
without justice or no justice without peace: which comes first?
and the answer to that question really depends upon our
understanding of these two key concepts – peace and justice.
So let me start with the first of them – peace. If you were to
search for a definition of the term, you would find one option
as ‘an absence of conflict’. Conflict can be terminated in a
number of different ways – a negotiated ceasefire agreement, a
peace treaty between warring sides, a comprehensive defeat by
one side of the other or sometimes even a unilateral retreat by
one party to the conflict. There are a number of different ways
that war or conflict can end and then we say we have a situation
of ‘peace’.
Now that definition is technically accurate, but it’s also very
narrow and we understand, I am sure, that peace is a much
broader concept than merely the absence of conflict. Would
anybody really try to say that Nepal today is a peaceful
place? There is no armed conflict going on. There certainly
has been in the past, but it has been resolved by peace
agreement between the sides and what currently wracks Nepal
is the aftermath of a devastating earthquake, a desperate lack of
humanitarian aid with tremors and after-shock quakes
continuing multiple times a day.
There is tremendous fear in that country and huge challenges to
deliver humanitarian assistance desperately needed just for
survival out to inaccessible and remote parts of the country. I
heard on the radio this morning that planes were unable to land
because of the disruption that’s been caused to the air strip in
Kathmandu. There is no armed conflict in Nepal and yet it is a
desperately unpeaceful place.
I remember vividly another example of the absence of
conflict. The Israeli-Egyptian conflict was finally resolved
after multiple decades in 1978 with the negotiation of a peace
treaty signed by President Anwar Sadat of Egypt and by Prime
Minister Menachem Begin of Israel. I remember having the
privilege at the end of 1981 of travelling on a study mission to
Egypt and Israel as a recent graduate from the Law School in
Hobart and we had various conversations in both Egypt and
Israel about the state of the bilateral relations between the two
countries. On a number of occasions on both sides we heard the
expression that this was only a ‘cold peace’.
The war was over, the enmity between the two nations had
ceased, but they were not the closest of friends. The best that
could be said was that the conflict had ended, but that it was
hardly a warm friendship. There had been an exchange of
diplomatic relations. There had been a resumption of trade, but
there was still a lot of work to do to establish trust and goodwill
between those two countries.
As we think about peace in a broader context, there are many
disruptions to peace apart from war and the outbreak of
hostilities: natural disasters, economic hardship, poverty,
serious illness, the death of a loved one. Think about the things
that disrupt our own peaceful experience of life. This leads us
inevitably to a second, much broader, meaning of the term
‘peace’.
We understand peace to be a state of mind, a lack of anxiety, a
state of contentment, quietness, stillness, an acceptance of who
we are, the circumstances in which we are free to be ourselves,
the freedom to live our lives as we choose, to love our families,
to practise our faith or our own value systems.
Yesterday, I went for a walk up Mount Wellington with my
son, Jacob. We started off on the Lower Sawmill Track to join
up to the Lenah Valley Track and he said at one particular
point, “It is so peaceful”. It was a very still afternoon
yesterday, no wind - even on the summit. There was perhaps a
zephyr up there – in contrast to the howling gale that so often
tears across the top of the mountain and against which you
really have to push the door of your car just to open it to get
out. Yesterday was a very peaceful afternoon.
On the mountain yesterday Jacob was talking about a
combination of circumstances: the beauty in the vegetation, the
fact that there was no-one else apart from Jacob and I on the
track for most of the walk, the deliciously fresh air and
enjoying a break from congested inner-city Melbourne. It was
a peaceful place. We often associate peace with place –
sometimes with a particular view – of mountains, the beach, a
river, the botanical gardens - somewhere where we are content
to be in the moment and understand that there is nowhere we
would rather be. And we can think about this broader meaning
of peace on multiple levels: as individuals; as families; as
streets or neighbourhoods; as communities; as an entire
nation.
Let me move to talk about justice and then I want to come back
to discuss the relationship between these two concepts of peace
and of justice.
We can say exactly the same about justice as we have odne
about peace. On one level, when we use the term ‘justice’, we
can mean the guilt or innocence of an individual accused. A
trial process happens and, if the accused is convicted, then
there is the awarding of a sentence. If the accused is acquitted,
then of course they are entitled to their freedom. How many
times does the media report, ‘justice was done’ or ‘justice
wasn’t done’ today at the end of a high public-profile criminal
trial?
There will often be interviews with the victim or with the
victim’s family if there is a deceased member, or with the
accused’s lawyer who will have their own view on whether
what has just happened constituted justice or didn’t constitute
justice. We think of ‘justice’ in this narrow sense of
accountability and punishment of wrongdoing. Sometimes we
talk slightly more broadly about the ‘justice system’ rather than
the process of a particular individual criminal trial. The justice
system includes the Parliament which has responsibility for
determining what is acceptable conduct and what is not through
the passage of legislation. We include the police force and law
enforcement powers. We include the Prosecution who
determines who will be charged and with what offences and we
include the Courts and the Judiciary who have the
responsibility to administer our justice system and to enforce
the law. The justice system also includes Corrections and the
prison system to incarcerate those who receive a custodial
sentence.
But just as with peace and a narrow and broad understanding of
that concept, it is also true that there is a much broader view of
justice than the one that I have already described. There are
multiple levels of justice just as they are for peace and we
always need to be clear about what we mean by justice – justice
for whom? Are we talking about justice for the individual
perpetrator, are we talking about justice for the individual
victim or the victim’s family? Or are we talking about justice
for the local community, for the State, for the nation, or even
for the international community on the global level?
There is also a much broader meaning of justice about treating
people fairly and equitably as they deserve to be treated - about
a non-discriminatory approach to how we treat other people
and for taking a stand against examples of injustice. Sometimes
we speak about transformative or restorative justice rather than
a simple punitive or retributive approach. We also speak about
social justice, about inequitable distribution of resources, about
disparities and the importance of social and humanitarian
assistance to alleviate some of the consequences of those
disparities.
There are significant issues of injustice in relation to our
Indigenous brothers and sisters in Australia for example. If we
compare them to the rest of the country in terms of basic
indices like life expectancy, infant mortality, literacy, rates per
capita of incarceration, there are huge disparities, huge
injustices in standards of living that apply to our Indigenous
peoples.
And in Nepal right now there are also serious examples of
injustice in relation to the distribution of aid. There are
allegations and suggestions of corruption, of obstruction, of
inequitable distribution of aid, of aid only going to certain
castes in preference to others or to particular tribal groups, so
even in that context we can think about justice in a much
broader way.
But what of the relationship between peace and justice? Here,
of course, for reasons of time I have to be selective and to
choose some particular levels of the relationship between these
two concepts. My preference, because of my own personal
experience, is to focus on peace and justice at the global level
and then to come back at the end of this lecture to talk about
what this might mean for you, senior students here at the
Friends’ School.
Thinking about peace in the narrow sense of the term, the
absence of conflict, it is hard to contemplate dealing with
justice issues at a global level while the bullets or the shells are
still flying. So it is true in one sense that peace, the cessation of
hostilities, is a precondition to be able to move on and deal with
justice issues arising out of a conflict situation.
Some people would go further though and say not only is peace
a precondition, but it is always the highest priority: that peace
trumps justice, that accountability should never obstruct
negotiation of a peaceful settlement or a resolution to a conflict.
A simplistic view like that one is complicated, because often
when the international community is attempting to work
towards the peaceful resolution of a conflict, the very
individuals that are essential to sign the peace agreement to
terminate hostilities are the same people, from a justice
perspective, we would want to hold accountable for atrocities
they have allegedly perpetrated.
One fitting example to illustrate this phenomenon are the
Dayton Accords of 1995 which concluded the very complex
and terrible conflicts in the Balkans: in Croatia, in Bosnia and
Herzegovina and in Serbia. The reality then was that Slobodan
Milosevic, as the President of Serbia, and Radovan Karadzic as
the President of the self-declared Bosnian Serb Republic in
Bosnia Herzegovina, were two of those accused of a whole raft
of atrocities particularly against Bosnia and Herzegovinan
Muslims.
Yet both Milosevic and Karadzic were fundamental to any
negotiation to a peaceful settlement of a conflict that had raged
in that part of the world since 1991. The conflict had
culminated in July 1995 with the Srebrenica Massacre: the
worst single atrocity perpetrated in Europe since World War II.
Between 7000 and 8000 Bosnian Muslim men between the age
of 16 and 55 were separated out from the women, the old
people and the children of the town of Sebrenica and
systematically assassinated and buried in mass graves. The
allegations were that Milosevic and Karadzic were personally
responsible for the Srebrenica massacre which had been carried
out by Bosnian Serb forces.
When Radovan Karadzic was finally discovered more than 10
years later, having taken on a new persona as a practitioner of
alternative medicine, grown a long beard, changed his physical
appearance and his name, he was handed over for trial in The
Hague. He claimed in the preliminary hearings to his trial
proceedings that Richard Holbrooke, the US Ambassador for
the negotiation of the Dayton Accords, had promised him that
if he respected the Dayton Accords and help terminate the
conflict in Bosnia and Herzegovina, all Karadzic had to do then
was go off into hiding and leave public office and he would
never be held accountable. Karadzic claimed that Holbrooke
promised him immunity from prosecution by the international
community if Karadzic held up his side of the deal.
If Karadzic was telling the truth, Richard Holbrooke promised
something he was not authorised to promise. The International
Criminal Tribunal for the Former Yugoslavia in The Hague
ignored the allegation made by Radovan Karadzic, but the
interesting thing about is that Karadzic did exactly what he
claimed Holbrooke told him to do. He respected the Dayton
Accords, he went into hiding, he changed his name and his
physical appearance and still he was subsequently arrested and
subjected to a lengthy international trial (which only concluded
early 2015. We are currently awaiting the delivery of judgment
in the case). There are complex and challenging issues about
how we consider the relationship between peace and justice
after decades of conflict.
I also remember, by way of another illustration, howls of
protest including from UN headquarters in New York when the
then Prosecutor of the International Criminal Court in The
Hague, Luis Moreno Ocampo from Argentina, issued an arrest
warrant against the incumbent President of Sudan, Omar alBashir, for his alleged International Criminal Court crimes in
the Darfur region in the west of Sudan.
President Bashir had exercised Sudanese sovereignty and
chosen not to become a State Party to the Rome Statute for the
International Criminal Court. Now the Prosecutor of the Court
was purporting to claim that he had the authority to seek the
Court’s approval to issue an arrest warrant against the
President. The basis of the howls of protest in New York had
nothing to do with allegations in respect of what had gone on in
the Darfur region in the west of Sudan. There was unanimity of
agreement that egregious atrocities had been perpetrated in that
region. Howwever, the UN was, at that moment, trying to
negotiate a peace settlement for the conflicts still raging in the
south of Sudan and many at UN headquarters in New York
wondered allowed: how dare this upstart Prosecutor issue an
arrest warrant against the very person we need to sign the peace
agreement to make sure that we achieve peace between the
Sudanese Government and the rebels in the south?
It is sometimes a challenge to try to find the right balance
between competing priorities of peace and justice. Mr
Ocampo’s attitude to all of that was that:
‘my responsibility is to act on the evidence I have before me,
and if the UN Security Council believes that by issuing an
arrest warrant against the incumbent President I am upsetting
international peace and security or efforts at trying to secure
international peace, it is for the Security Council to step in and
preclude me from acting.’
Mr Ocampo did take some satisfaction from the fact that the
Security Council never chose to step in and preclude the
Prosecutor from acting. The power for the Security Council to
do so is reflected in Article 16 of the Rome Statute for the
International Criminal Court but the Council did not exercise
its Article 16 powers.
I concede here that there is some tension in the narrower
version of peace as the absence of conflict, and justice, in terms
of holding accountable those who have allegedly perpetrated
atrocities. People disagree about which of these is most
important. But if we move beyond these narrow understandings
of the terms to a broader understanding of peace and justice
then we start to see a more comprehensive and holistic view of
the relationship between these two concepts. Here it becomes
increasingly obvious that there is less tension between them
and that, in fact, they are complementary to each other.
The international community has learnt from the experience of
what I would call the ‘International Criminal Justice Project’.
Over the last 22 years, since the International Criminal
Tribunal for the Former Yugoslavia was established by the UN
Security Council, there has been a proliferation of international
criminal courts and tribunals: for Rwanda, Timor Leste, Sierra
Leone, Cambodia, Lebanon and, finally, the world’s first
permanent International Criminal Court. Those courts and
tribunals have observed a recurring theme. Communities that
have experienced atrocities, against whom egregious wrongs
have been perpetrated, desperately need acknowledgement of
the wrongs and accountability for those who have perpetrated
the crimes to be able to move on to live the sorts of peaceful
lives people everywhere want the freedom to live. The broader
understanding of what peace means is encapsulated here. The
passage of time does not seem to dull or diminish the pleas for
justice.
This year we have commemorated the centenary anniversary of
the Gallipoli landing, but 2015 is the centenary of some other
major events. This year is also the centenary of the first use on
a massive scale of chemical warfare. Phosgene and mustard gas
resulted in 1.3 million casualties on the Western Front during
World War I. 300,000 of those casualties were fatal and an
additional 1,000,000 exposed to either gas returned home from
the conflict with damage to their lungs and to their oesophagus.
Many of the wounded died prematurely as a consequence of
their ingestion of gas. This was a shocking example of the
introduction of a weapon of mass destruction by both sides of
that terrible war.
This year is also the centenary anniversary of the Armenian
Massacres at the hands of the Ottoman Empire. The
Armenians were a minority group in the Ottoman Empire who
were forced from their ancestral mountain homes to other parts
of the Empire. More than 1,500,000 Armenians were killed or
died from the forced marches., To this day, the Armenian
people lament the failure of the international community to
acknowledge that what they experienced as a victim group
constituted the crime genocide, or at least genocide as it was
subsequently defined in 1948 in the UN Genocide
Convention. Turkey refuses to accept that events during World
War I constituted genocide even though the Armenians were
targeted on the basis of their ethnicity a basis for the
perpetration of genocide as we now understand that crime.
The Australian Government’s official position is to refuse to
recognise Armenian suffering as genocide. Despite fighting
against Turkey in World War I, we actually have very good
bilateral relations with them now. There are many more Turks
in Australia than they are Armenians and the Turks care for
Anzac Cove and for our war graves in Gallipoli. No Australian
Government of either political persuasion wants to prejudice
the importance and significance of the bilateral relationship
with Turkey. So we refuse to formally recognise that what
happened to the Armenians constituted genocide. Even after
100 years with no chance of criminal accountability for any of
those individuals involved in the perpetration of these
particular atrocities, the Armenians are still aggrieved not only
by Australia’s failure to recognise this atrocity, but also by the
failure of many other governments who also happen to have
good bilateral relations with Turkey.
The passage of time without justice does not dull the pain of
the wrongs that have been perpetrated.
The Australian Government’s apology in 2007 to Indigenous
Australia for the stolen generations - for those Aboriginal
children who were abducted from their families and placed into
white foster care and into white homes in the hope that they
would assimilate into white society – was a long time coming.
And finally, when the official apology came from within the
Commonwealth Parliament, so many of our Indigenous
brothers and sisters were finally able to say, ‘This is a
breakthrough moment because we have been longing for
acknowledgment of the wrong done to us’.
There has been some fascinating empirical research undertaken
in the Balkans.This research confirms that those communities
in Serbia, in Bosnia and Herzegovina, in the Bosnia Serb
Republic, in Serbia itself and also in Kosovo, which witnessed
accountability through criminal trials for alleged perpetrators of
atrocity have been significantly better placed to move on with
their lives, to rebuild their communities and to face the future
with greater confidence without the cloud of unresolved
heartache as a consequence of atrocities perpetrated in the past.
Those communities which have not experienced trials for
atrocities perpetrated against them are, by comparison,
struggling to move on and to rebuild their lives.
In my work in The Hague, the International Criminal Court has
been created to challenge immunity for atrocity and to hold at
least some individuals accountable for genocide, for crimes
against humanity and for war crimes. I am thrilled today to
have Bridget Dunne in the audience. Bridget was the Tim
Hawkins Memorial Scholar from Tasmania who served as one
of my research assistants in The Hague for 12 months (she
finished at the Court in late 2013) and she did a fantastic job
over there.
Tasmanians have made a great contribution to the work of the
Court and Bridget is a wonderful example of that. The Court
goal of ending impunity for atrocity is an important and
laudable goal and I am honored to play a small part in
contributing to the achievement of it. But the reality remains
that there are some major limitations to what an institution like
The International Criminal Court can achieve.
First of all, for every trial that the court undertakes, there are
hundreds, perhaps thousands, of other individuals who deserve
to be tried for their alleged involvement in genocide, crimes
against humanity or war crimes.
Secondly, the whole process at The International Criminal
Court is a punitive process to hold individuals accountable for
their involvement in atrocities. In addition to a relatively small
number of trials for any particular conflict at the International
Criminal Court, there is still a place for a truth and
reconciliation commission process at the national level, where
wrongs are acknowledged and individuals who have
participated in the perpetration of those wrongs are given an
opportunity to concede or to acknowledge that they were
involved and responsible for atrocities.
Thirdly, another limitation of the International Criminal court is
that it’s reactive. The Court only becomes operative after the
event when the atrocity has actually occurred. If, as an
international community, we were really serious about
preventing atrocity we would allocate way more resources both financial and human - to preventing the outbreak of
conflict in the first place. Here I think Peter Underwood’s
comments in those Anzac Day speeches are absolutely spot
on. Here I think the values of The Friends’ School and the
Quaker movement are entirely appropriate and should be
applauded.
So much more effort in preventing conflict in the first place
would be much more significant than trying to deal with the
aftermath of it when it’s all over and too late to stop the
perpetration of massive suffering and devastation. I am very
grateful on this subject for my involvement in the board of
World Vision because the organisation both in Australia and
globally is trying to work to help communities lift themselves
out of poverty, and perhaps to help prevent conflict occurring.
That is a proactive approach to justice to prevent the need for a
necessarily narrow, reactive and punitive approach to justice.
It might be easy for senior students of the school to think, well
this is only all relevant at the global level and unless you
happen to be the Tim Hawkins Memorial Scholar from the
University of Tasmania going off to work with the Special
Advisor on International Humanitarian Law to the Prosecutor
of the International Criminal Court, what prospect is there for
me to be engaged in these great concepts of peace and justice?
It is too easy to just dismiss today’s topic in that way. There
are some real implications for all of us at the personal level or
at the, in your case, the school community level. What does it
mean for you to be a person of peace and justice in this school
community? You have a huge advantage over students at other
schools because of the ethos of this school. Your School motto
says a great deal – Not made for self alone. The motto itself
encapsulates another central value from the Quaker movement
– the belief in that of God in all of us. This is a great place to
start in thinking about what it means to be a person of peace
and justice.
You are fortunate to be part of a school community that is
already committed to peace and justice in an other-focused
approach to a spirit of tolerance and acceptance and respect for
the individual. Start with those values and practise them. Do
not engage in ostracism or bullying or teasing or in the
judgment of others. Or if you see any of those examples of
injustice take a stand against them and I am sure the School
will only support you in it.
Peter Underwood spoke of the importance of a resolute
commitment to peace. He demonstrated that resolute
commitment himself and one way we can honour his memory
is to emulate him and choose to pursue those same goals. We
can commit ourselves to embody them in the way that we relate
to others. You may even have opportunities to be involved in or
to initiate collective activities to work for peace and justice for
those that lack what you and I so readily enjoy.
Thanks very much for listening so well. I know that you had
no choice - you Year 10, 11 and 12 students - about being here
today, but I am grateful to you for such riveted
attention. Thank you and I hope we have some time for
questions and answers because I am keen to hear from
you. Thank you. Anyone brave enough to kick this off?
Unknown Speaker:
There are lots of thoughts today that international justice is
biased very heavily against the third world. Is this a major
concern and how can it be addressed in the near future?
Speaker:
It is a great question and thanks for being able to project your
voice well enough for me to hear. Perhaps it’s The Farrall
Centre’s outstanding acoustics. It is a great question and it’s
true that the criticism has been relentless. It’s growing I think,
particularly against the International Criminal Court, as the
court continues with its work, because so far in the eight
country situations that the court is investigating or conducting
trials in relation to, all of them are from Africa. So it is quite
easy to make the allegation that the court is somehow rather
biased against Africa and maybe that it’s just too easy for the
court to deal only with African conflicts.
The current prosecutor, Fatou Bensouda, from the Gambia is a
formidable African woman and her response to that criticism is
impressive – especially when she is in full flight defending the
institution of the court. Her position is that the criticism is
unfair on the basis that four of those eight country situations
constitute self referrals. The Governments of the Democratic
Republic of the Congo, Uganda, the Central African Republic
and Mali, all states parties to the Rome Statute for the Court,
have come to the Prosecutor of the court and said ‘we are
struggling to deal with the justice issues arising out of the
conflicts that have wracked our countries, in some cases, for
more than 20 years – please help us’. And so the Prosecutor
has, of course, responded to those approaches because the court
was set up to deal precisely with situations where, at the
national level, there is lack of ability or lack of willingness to
deal with the justice issues by the processes and structures in
the country concerned. So four of those countries are asking
for the Court’s help.
Another two of those 8 country situations have been referred to
the Prosecutor of the International Criminal Court by the UN
Security Council. The Security Council has said in relation to
Darfur in Sudan and also in relation to the conflict in Libya that
the Prosecutor has the authority to investigate these 2
situations.So 6 out of 8 situations have come to the court by
way of requests, 4 from the countries themselves, 2 from the
UN Security Council.
The final 2 situations have come by way of the Prosecutor
exercising his or her own initiative and they relate to Kenya
and to Cote d’lvoire ( the Ivory Coast) on the western rump of
Africa. Now in the first of those cases, the Kenyan authorities
came to the then Prosecutor Mr. Ocampo and said ‘it’s
politically unacceptable for us to self-refer the situation in
Kenya, but if you were to undertake your own initiative we
would cooperate fully with you, so please go and do that and
help us out’. Of course the Prosecutor said he was happy to do
that. So 7 out of 8 situations were requests for assistance from
the court. In the eighth situation - in Cote d’lvoire - the
Prosecutor clarified with the authorities in the capital Abidjan
about whether or not a declaration that the authorities had made
a few years earlier accepting the jurisdiction of the court was
still valid and the authorities confirmed that it was. So the
Prosecutor acted on the basis of that acceptance of the Court’s
jurisdiction with full cooperation to date of the authorities in
that country. So 8 out of 8 situations are uncontroversial from
the perspective of each of the countries involved, although the
politics have changed on the ground in Kenya and now Kenya
is a huge critic of the court.
I think the Prosecutor is right that’s it’s not the situation that
the court is simply going after the easy cases in Africa. That’s
where the requests for help came from. However, it is true that
this court was not setup solely to deal with African conflicts. It
was set up for conflicts, at least theoretically, wherever they
occur in the world and you’re absolutely right to ask the
question or to imply in the question that the court is yet to deal
with a first world situation. Until the Court does so, there will
be a question mark over its credibility as an independent
institution.
Currently there are three situations that are currently under
preliminary examination by the Office of the Prosecutor, all of
which involve first world players. The situations are Georgia,
Afghanistan, and Palestine. Georgia is a state party to the
Rome Statute, but the Russians (some of you may remember
the Russian invasion of the Georgian provinces of South
Ossetia and Abkhazia) on the northern border of Georgia with
Russia. The court has jurisdiction over alleged international
criminal court crimes occurring on the physical territory of a
state party even if nationals of non-states party are involved in
that conflict. Russia is not a state party to the Rome Statute but
Georgia is. So the Court has jurisdiction over the acts of
Russian forces in south Ossetia and Abkhazia on exactly the
same basis as it also has jurisdiction over the nationals of nonstates parties on the physical territory of Afghanistan. That
includes US forces at Bagram airbase for example where there
are allegations of systematic detainee abuse and torture. The
Americans are not happy that the Court has jurisdiction given
that the US in not a State Party to the rome Statute by the
way. In the third situation, Palestine has become a state party
to the Rome Statute. The Court has jurisdiction after the 1 of
April this year over the physical territory of the Gaza Strip and
the Israeli-occupied West Bank of the Jordan River. Again,
Israel is not a state party to the Rome Statute and they are
upset, furious in fact, that the Palestinians have subjected them
to the Court’s jurisdiction.
st
The next 4 or 5 years is a critical period for the Court in my
view. This period will determine whether the Court can be an
independent organization in relation to situations like Georgia,
Afghanistan and Palestine where, if there are allegations of
International Criminal Court crimes being perpetrated by nonstates parties who are major players in the developed world, the
Court is still capable of holding people accountable. This will
be important to the credibility of the court. If the Court shies
away from these tough cases it will lose credibility. If,
however, the Court takes on some of these tough cases it is
possible that the State Parties might decide this is all too hard
and shut the Court down. If that sort of radical measure is to
happen, I would rather it be on the basis that the Court stood up
for issues of principle and went down as an institution than for
it to wither on the vine because it was unprepared to take on
some difficult cases. Let’s have this conversation again in
about 5 years time, perhaps just after you’ve graduated from
university, and we will see whether the Court did the right
thing or not as an institution. Thanks great question.
Sorry to have taken so long to answer it. Perhaps I have made it
difficult for others to ask questions by giving such a longwinded response to the first oneLindsay, Mr Farrall.
Lindsay Farrall:
Thank you very much, Tim for your lecture. I found it very
fascinating and I have learnt a lot that I hadn’t known about
before. It is my impression, and this may be just as a fond
father, that Australians and Tasmanians contribute a lot more to
peace and justice in the way you have talked about it than many
peoples from other countries. Am I right or not?
Speaker:
It’s a great question. Thank you Lindsay. I am biased about
this. It doesn’t mean that I am wrong, but Bridget will attest to
the fact that there are lot of questions asked in The Hague and
in the International Criminal Court in particular about all these
Tasmanians who are so fascinated by, and committed to,
international peace and justice. The previous prosecutor, Mr.
Ocampo said, ‘I have got … next time I come to Australia, I
have got to go to Tasmania, I can’t work out it is possible …
how many people did you say live there, less than half a
million, how is it possible that so many Tasmanians end up in
a place like this?’ And that’s also true, not just of the
International Criminal Court or the other international criminal
courts and tribunals, but of the UN itself. As you well know
your own son Jeremy has made some great contributions at UN
Headquarters in New York himself and so have many other
Tasmanians.
I am not sure what the answer is, I don’t think it is just the
purity of the air! There is some research to be done on this.
Perhaps it is that as an island state in an island continent we are
outward looking. Maybe it’s also because there is a warmth in
the hearts of the people of the heart-shaped island: I certainly
like to think so. The way we embraced the Kosovo Albanians
that were here back in late 1990s is a stellar example. My
brother John, who is here today, had major responsibility with
Tasmania Police at that time for running the camp out at
Brighton. I visited the Camp with him one day and I was just
gobsmacked by the warmth that these people had for him and
for the Tasmanian community because of our acceptance of
them. There were many people in the state outraged and
distressed by successive Commonwealth Government policies
in relation to asylum seekers who would love to welcome them
here. I think Mary meets Mohammad is a magnificent
documentary account of a symptom of a general feeling and I
consider it a tremendous export of this island state of ours. It’s
a great pity that commitment to global peace and justice
doesn’t make a difference to the economic bottom line because
if it did we would probably take it more seriously as a society.
But yes I am deeply conscious of this Tasmanians-in-the-world
phenomenon. I have seen plenty of examples of it. I am not
sure I can comprehensively explain it, but it’s a beautiful thing
and I hope it continues into the future. Thanks for the
question.
In The Hague, if anyone happens to be planning to be there for
the last week of June, there will be a public lecture with the
title From the Netherlands to Van Diemen's Land and Back
Again: a Tasmanian Contribution to Global Justice and I am
going to talk about the Tim Hawkins Memorial Scholarship.
You’ll be mentioned in absentia Bridget, but so will the others
who have been part of that program. Any of you will be most
welcome to come along. I don’t know the venue or the precise
date yet but we can work these things out, can’t we? Will
Underwood, who works in the Australian Embassy in The
Hague, another Tasmanian making his own contribution to
international peace and justice, is organising the lecture. How
about a Year 12 excursion to The Hague: hey, that’s a top idea.
Any other questions? Sorry I didn’t your hand up, I was
looking up at the top of the lecture theatre.
Unknown Speaker:
In relation to the recent Bali 9 executions, what do you think
about Australia condemning Indonesia for the infringement of
human rights?
Speaker:
Thanks very much for the question. I think we should first of
all take a good hard look at ourselves and the question that I
would want to ask in response relates to our extradition laws.
We have legislation which precludes us extraditing an
Australian or someone in Australian custody, not necessarily an
Australian national, to another foreign government where that
person could face the death penalty. Our legislation precludes
us extraditing on that ground. How is it then that our Australian
Federal Police can tip off the Indonesian authorities about some
Australians who are engaged in drug smuggling knowing the
consequences for that offence in Indonesia is the death penalty?
I find that extraordinary and I am glad that the Australian
Federal Police have announced a change its policy in relation to
that.
I also want us as a nation to ask ourselves about what our view
really is of the death penalty? We have abolished it by
legislation here, but if we’re really serious about opposing it
then we should be opposing it not just in relation to Indonesia
or Singapore or Thailand, but the United States as well. We
would need to let our close allies know that we are opposed to
it for Australians and I think that means our Government would
need to be much more proactive in protesting about the
possibility of it very early on when a person is convicted.
There is no question that both Andrew Chan and Myuran
Sukumaran were engaged in drug trafficking (the amounts of
heroine involved precluded possession charges) and obviously
they should be punished for that offence. The tragic
thing about it of course is that after 10 years in prison they
were both thoroughly rehabilitated. Something has worked
spectacularly successfully in the Indonesian prison system
ironically. That should be recognised and perhaps studied to
see what lessons our own prisons could learn from it, but for
fellow inmates to offer to die themselves in place of these two
because of the love that they had for them and the appreciation
for the contribution they have made in their lives – that is an
extraordinary thing. I am shocked to learn that that there are a
whole stack of people in the same prison system who would
gladly have gone themselves to the firing squad in place of
those two guys - that says a great deal about their rehabilitation.
This for me is one of the tragedies of the death penalty because
despite them receiving a conviction which was due to them serving 10 years in prison - they have not been given an
opportunity to go on to continue to make a contribution, not
just to society at large, but an educative contribution, perhaps
in Indonesia and here in Australia against drug trafficking. That
opportunity is lost.
So yes, these are tragic circumstances and my hope that this
Australian Government and any future one of different political
persuasion thinks a lot more about being proactive earlier on in
the process rather than what seems to be much too late when
the tide of public opinion and the media turned against the
Indonesian authorities. Thanks for the question….time for one
more Luke or not?
Unknown Speaker:
It is just an addendum to your response, the Senate – I don’t
know whether it’s the standing committee or the other
committee – had the Australian Federal Police reply to exactly
what you were just saying about the tip off and they made the
Indonesian authorities aware. The AFP spokeperson justified
that this morning in the Senate. You were saying that have
been outlawed in 2009, is that correct?
Speaker:
I don’t think ‘outlawed’ is the correct term. It was a change of
policies, it’s not legislatively enacted. It’s not an offence for
the AFP to tip off a foreign government which could lead to the
arrest, conviction and subsequent execution of an Australian
national, but the policy has been changed apparently. I haven’t
seen the written policy, but I understand the policy has been
changed; that we will not be involved in providing the same
information we would normally do in the context of bilateral
relationship if as a consequence of that, a person could face
execution. Instead we will wait until they get on the plane,
arrive in Australia, arrest them and try them here and if that had
happened, both those two guys would have served time in
prison, would have been released, whether or not they have
been rehabilitated in Australian prison is entirely speculative
and we will never know what might have happened to them.