Alexander Downer slams ICC probe of US ‘war crimes’ in Afghanistan
Alexander Downer has accused the ICC of ‘posturing’ after a decision to pursue an investigation into war crimes in Afghanistan.
A decision by the International Criminal Court to investigate possible US war crimes committed in Afghanistan is an act of political “self-harm’’ that will undermine its credibility and give weight to claims it has been captured by anti-American activists, says the man who signed Australia up to the court.
Former foreign minister Alexander Downer has accused the ICC of “posturing’’ after its appeals chamber overturned a decision blocking the Office of the Prosecutor from pursuing an investigation into war crimes in Afghanistan.
The decision paves the way for a comprehensive investigation of war crimes committed by the Taliban, Afghan national security forces and the US military, and also the CIA over its program of extraordinary rendition that saw terror suspects, some of whom were Afghan nationals, taken to CIA black sites.
Australia is not included in its remit.
However, the Morrison government could be placed in an invidious position if it is forced to choose between assisting the ICC, as it is obliged to do, and riling its main ally, the US, which has taken active steps to shield its personnel from the court’s authority.
Mr Downer said in investigating the US, which has never recognised the ICC’s authority, the court had overstepped the mark.
“The ICC is a fallback if all else fails. It’s stepping on exactly the sort of international landmine people like George Bush and John Howard warned of,’’ Mr Downer told The Australian.
Mr Downer said there was no chance that an American would ever stand before the court.
“Where is this really going?’’ the former foreign minister asked.
“This is really about making a political point against the Americans and addressing the criticism that it has been too focused on Africa.’’
Australia signed on to the Rome Statute, the agreement that created the court in 2002, following ferocious lobbying from Mr Downer.
Then prime minister Mr Howard opposed Australian involvement and the cabinet was split.
The Bush administration in the US was vehemently against the court.
Eventually, Mr Howard told his foreign minister to resolve the impasse by putting the issue to the partyroom. “It was a huge debate,’’ Mr Downer said.
“I feel embarrassed about it now. I can feel Howard mocking me.’’
Despite his objections to the ICC’s current course, Mr Downer said he remained a supporter of the court, which he said strengthened the rule of law, upheld human rights and brought justice to victims.
“This is the first time I’ve really bridled about something it has done,’’ he said.
The ICC’s investigation is not expected to have any direct bearing on Australia, which is conducting a series of investigations into alleged war crimes committed by Australian troops in Afghanistan.
Under the ICC’s rules, the Office of the Prosecutor can mount an investigation only if a member state is unable or unwilling to do so themselves, conditions that do not apply in Australia.
University of Melbourne senior lecturer in international law Carrie McDougall said as a matter of course, the ICC would send a request for assistance to all member states, including Australia.
That would start “a conversation’’ between Australia and the court. “It would not be uncommon for the Attorney-General to respond to the request and say it’s too broad,’’ Dr McDougall said.
“Often there is a back and forth as the scope of the request is refined. There will have to be a process to identify exactly what is being asked of each party.’’
