Just before the Bali bombings, I posted a piece on US use of ‘military contractors’ (mercenaries in plain language) and threw in what seemed like an academic aside on the implications for the International Criminal Court. Responding in the comments thread and then on his blog, Bargarz raised the suggestion that terrorists such as Hamas could commit their crimes with impunity as far as the ICC is concerned.
This question is suddenly one of real relevance to Australia. If the Indonesian legal system fails to bring the Bali bombers to justice, as seems all too likely, could accused suspects be tried before the ICC?
Based on this article by Geoffrey Hills I conclude that the answer is, provisionally, “Yes”. Like Bargarz, Hills is a critic of the ICC, but his complaint is that the jurisdiction of the court is too broad, covering ‘crimes against humanity’ as well as traditional war crimes. This is the opposite of the criticism made by Bargarz. It seems clear that the Bali bombing fits the ICC criteria regarding the nature of the crimes covered by the Court’s jurisdication.
The other question is whether crimes committed in Indonesia, by Indonesians or others, are covered. According to this link supplied by Bargarz, Indonesia has not signed or ratified the treaty. I am not clear as to whether this would protect the perpetrators. The US which has signed, but not ratified, and has sought to revoke its signature, clearly does not think that this is sufficient to protect its nationals from prosecution, since it is trying to negotiate bilateral treaties with as many other countries as possible to exempt is nationals.
I’d be interested to from Ken Parish, Kim Weatherall and any other legal bloggers on this issue. In particular, I’d like to know whether, if Indonesia ratifies some time in the future, the jurisdiction of the ICC covers crimes like the Bali bombing, committed after the Treaty came into effect but before Indonesia became a party. I’d also like to know whether there is any way suspects could be tried in Australian courts.