The Arab League summit wound up in Qatar overnight, in the presence of the UN secretary-general, Ban Ki-moon. Nothing odd about that, except that one of the participating heads of state was Sudan’s Omar al-Bashir, who has been indicted by the International Criminal Court for war crimes and crimes against humanity.

It was a graphic demonstration of the imperfections in the international justice system. Qatar, like most middle eastern states, has not ratified the statute of the international criminal court and therefore regards itself as under no obligation to arrest al-Bashir. Other notable non-parties include the United States, Russia, China and India.

With so many countries not co-operating, the Court’s powers seem limited. The Darfur case was referred to it by the UN Security Council (which is how it got jurisdiction in the first place, since Sudan hasn’t ratified either), so in theory the warrant should be binding on all UN members. But if the court were to actually follow that logic and start issuing warrants against other world leaders for shielding al-Bashir, it would just risk having its impotence further exposed.

Australia is a party to the ICC, but only after a nasty little battle within the Howard government in 2002. Foreign Minister Alexander Downer (remember him?) had publicly committed Australia to ratification, but right-wing backbenchers were deeply hostile to the court and it was widely feared that John Howard would step in and overrule his minister, as he had with the parallel case of the ACT heroin trial.

Instead, Howard evidently judged it as an opportunity to show that he was not a captive to the hard right and Australia ratified. Perhaps a residual liberalism on his part, or perhaps just a skilled politician’s acknowledgement that there was a limit to the electorate’s enthusiasm for isolationism.

But don’t take that as a sign of enthusiastic participation on our part in the international justice system. The same year, the Howard government voted against strengthening UN rules against torture and so far there has been little sign from the Rudd government that it accords much priority to international human rights.

There’s plenty we could do if we chose. In Spain, a court is already weighing a criminal investigation into Alberto Gonzales and other American officials who promoted torture. Jurisdiction against torture is universal; Australia too had citizens in Guantanamo; yet no-one seriously suggests that members of the Bush administration have anything to fear from visiting Australia.

The Arab states, in their defence of al-Bashir, point to a western double standard: crimes in poor countries are investigated, while those committed by Israel and the US are ignored. Syria’s President Assad said, “we can discuss [Sudan] with them after they bring those who committed the atrocities and massacres in Palestine, Lebanon and Iraq to the court.”

While there is some truth in this, it is also true that remedies against western officials are more readily available. It’s no great handicap for al-Bashir to avoid travelling to any of the countries that are likely to arrest him. But the ICC and a few aggressive European prosecutors could make life quite uncomfortable for some suspects from the democratic world.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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