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Common(wealth) Knowledge #54: BRS and Putin - A flawed international war crimes system

War crime allegations against Ben Roberts-Smith and Vladimir Putin reveal the weaknesses in international law.

Justice Anthony Besanko of the Federal Court of Australia has made his decision in Ben Roberts-Smith’s defamation case against several news outlets over allegations that the former SAS soldier was a war criminal. Besanko J found these allegations to be substantially true. But does Australia have any international responsibilities when it comes to war crimes?

It’s important to note that Roberts-Smith wasn’t convicted of committing war crimes, and as it wasn’t a criminal trial it wasn’t proven ‘beyond all reasonable doubt’ that he did. You can check out our article on the trial for more on the standard of proof.

Although Roberts-Smith hasn’t faced charges for committing war crimes, he isn’t the only person in the media facing war crime allegations.

Vladimir Putin is expected to travel to South Africa in August, to attend a conference with other members of the BRICS alliance, which Russia and South Africa are both members of. However, the South African government is facing pressure from the international community to detain Putin when he arrives and surrender him to the International Criminal Court (ICC) to face war crimes charges.

The International Criminal Court was established by the Rome Statute of the International Criminal Court in 2002. It was intended to operate as a permanent war crimes tribunal, after the United Nations was forced to create temporary tribunals in the 1990s, as a result of the Rwandan and Yugoslavian civil wars.

It also has the jurisdiction to hear cases involving crimes against humanity and genocide.

Although the Australian government has the capability to sign international treaties, like the Rome Statute, for them to be binding on the government they must be adopted by Parliament into legislation. This is done through the external affairs power of Section 51(xxix) of the Australian Constitution.

According to the High Court of Australia in the Tasmanian Dam Case (1983), which Parliamentary Reporter Aidan Edgecomb has covered here, this can only be done if the treaty places an obligation on the Australian government. In that case, there was an obligation to protect World Heritage-listed sites.

The South African situation is slightly different. The Australian Constitution predates the UN, whereas the South African Constitution was written in the 1990s, long after the UN was created. Therefore, as seen in Common(wealth) Knowledge #17, it was written with the UN in mind.

This means that South Africa had the opportunity to create a constitutional process for adopting treaties into law. Under Section 231(1) of the South African Constitution, the executive government has the power to sign treaties, just like in Australia.

However, whereas the Australian government needs to rely on proving that a treaty places an ‘obligation’ on the government before it can be adopted into law by Parliament, Section 231(2) of the South African Constitution allows for any treaty to be adopted into law, as long as both chambers of its legislature vote for it.

Although Article 25 of the Rome Statute gives the ICC the power to try individuals for war crimes. However, under Article 17, it does not replace states’ judicial systems. It will only prosecute a person for war crimes if the relevant state’s government “is unwilling or unable genuinely to carry out the investigation or prosecution.”

If there has been an investigation by the government, the ICC has no jurisdiction, regardless of whether the government decided to prosecute the individual for war crimes.

Obviously, as Article 14 says, governments can also choose to refer a case to the ICC. For many developing states, this may be necessary, as the ICC may have more resources than the state’s government can use for an investigation.

Even putting aside the fact that the Rome Statute hasn’t been adopted into Australian law, this is where a massive difference between Roberts-Smith and Putin arises. The Australian Federal Police are investigating whether they can bring a criminal case against Roberts-Smith. Provided that this is a ‘genuine’ investigation, the ICC can’t do anything, unless the case is referred to them.

So, while Australia does have international obligations when it comes to war crimes, These obligations aren’t binding on the Australian government and the domestic judicial system takes priority.

In contrast, there is no way that the Russian government would carry out a genuine investigation into war crime accusations against Putin. This is where the ICC would normally step in. However, it isn’t that straightforward.

A major issue for the UN is the notion of ‘state sovereignty,’ where each state’s government has exclusive jurisdiction within its own borders. As mentioned in Common(wealth) Knowledge #18, the UN relies on the consent of states to do things. When a state doesn’t consent, this creates problems.

The Russian government won’t allow the ICC’s prosecutors to enter its borders and detain its president. This is especially true, given that the US government under President Donald Trump denied entry to an ICC official who was investigating claims of war crimes in Afghanistan, which led to the US leaving the Rome Statute so that it wouldn’t apply to them anymore.

This is why there is pressure on South Africa to detain Putin. Article 27 says that no one is immune to the ICC, but this only works as long as states agree to cooperate with the ICC. The ICC can’t touch him when he’s in his home country, so they have to ask other states to do it for them.

In accordance with Section 231(2) of their constitution, the South African legislature adopted the Rome Statute into domestic law with the inspirationally-named Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. Now, it has to decide between handing over Putin, which would cut South Africa out of the BRICS alliance unless it can convince Brazil, India, and China that it is a good idea, or amending its legislation or finding a loophole, and suffering a massive blow to its reputation with the international community.

And the South African government has just 2 months to make up its mind.

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Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 (‘Tasmanian Dam Case’).

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).


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