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Australia argues the ICC should not be investigating the “situation in Palestine”

Mar 20, 2020 | Sharyn Mittelman

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As it has been flagging since December, the Australian Government this week provided a formal submission to the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC), outlining legal “Observations” that suggest the ICC does not have territorial jurisdiction to consider “The situation in Palestine”.

Australia has consistently argued that the ICC does not have jurisdiction to investigate alleged Israeli war crimes in the West Bank, Gaza and east Jerusalem, because “Palestine” is not a sovereign state according to international law.

In December Australia’s Prime Minister Scott Morrison sent a letter to Israeli Prime Minister Benjamin Netanyahu conveying the Australian Government’s view that “Palestine” is not a party to the ICC, and in February, the Australian Government formally requested that it be allowed to provide a submission to the ICC on this issue (https://www.icc-cpi.int/CourtRecords/CR2020_00465.PDF), a request which was granted.

The submission notes that Australia does not recognise a State of Palestine, and argues that ICC efforts to assert jurisdiction over this “state” are both legally incorrect and risk jeopardising any hopes of negotiating a two-state Israeli-Palestinian peace. Australia explained its stance on the “State of Palestine” as follows:

“(10) Australia is a longstanding supporter of a two-state solution to the conflict between Israel and the Palestinians.  Australia is committed to an outcome in which Israel and a future Palestinian state coexist, in peace and security, within internationally recognised borders… 

“(11) Australia’s position is that a two-state solution must be advanced through direct negotiations between the parties.  The resolution of ‘final status issues’ is key to a negotiated peace settlement.  These final status issues include the status of Jerusalem, the right of return for refugees, the provision of security and future borders, including the status of Israeli settlements.

“(12) The question of Palestinian statehood cannot be resolved prior to a negotiated peace settlement and therefore Australia’s position is clear: Australia does not recognise a ‘State of Palestine’.”

The matter is before the ICC’s Pre-Trial Chamber following an announcement in December by the  Court’s Chief Prosecutor Fatou Bensouda that she wanted to launch a formal investigation into the “Situation in Palestine” because there was  “reasonable basis to believe that war crimes were committed” by the Israel Defence Forces, Hamas and other “Palestinian armed groups.”

Bensouda said she believes the ICC has jurisdiction to consider the matter given that “Palestine” acceded to the Rome Statute which governs the ICC in 2015 after being accepted as an “observer state” at the UN General Assembly. However, she asked the Pre-Trial Chamber to determine the scope of the court’s territorial jurisdiction.  The PTC consists of three judges: Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin.

Israel, which is not a party to the ICC, has strongly criticised the decision, arguing the Court does not have jurisdiction to consider the matter, as “Palestine” is not a sovereign state and certainly does not have a defined territory which the ICC can claim jurisdiction over.

The decision has also been criticised by many observers as being politicised because Israel is a democracy that conducts its own independent investigations into any war crimes allegations, because the claim Palestine is a state able to join the Rome Statue relies on a non-binding decision of the heavily politicised UN General Assembly, and because there are other much more bloody global conflicts which are being ignored by the ICC – including the Syrian civil war which has raged since 2011 and killed around 500,000, and created millions of refugees.

The US – which is also not a party to the ICC – stands with Israel against the ICC having jurisdiction on this matter. US Secretary of State Mike Pompeo recently accused the ICC of being a “nakedly political body” following the Court’s ruling that its Chief Prosecutor can open an investigation into possible war crimes in Afghanistan by US troops, as well as by the Taliban and the Afghan government forces.  Pompeo stated on March 17:

“As I said the last time I stood before you, we oppose any effort by the ICC to exercise jurisdiction over US personnel.  We will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans.  When our personnel are accused of a crime, they face justice in our country.”

Australia joined several other state members of the Court that have made submissions to the Court, as amicus curiae — a “friend of the court” that is not a party to the case but seeks to offers its perspective – arguing that the ICC does not have jurisdiction to consider the “Situation in Palestine”. These include Germany, Austria, Hungary, the Czech Republic,  Brazil and Uganda.

Australia’s submission was signed by Australia’s Ambassador to the Netherlands H. E. Matthew E K Neuhaus, on behalf of the Australian Government.  The submission’s key conclusions are:

“a.      Australia does not recognise a ‘State of Palestine’ and does not have a treaty with it under the Rome statute.

“b.     The purported accession of the ‘State of Palestine’ to the Rome statute is separate to the question of the Court’s territorial jurisdiction under Article 12(2)(a); and

“c.     The court should not exercise its jurisdiction in respect of ‘the situation in Palestine’ as the jurisdictional preconditions have not been met.  To presuppose questions on the status of the ‘State of Palestine’ and its territory could prejudice accepted international processes…  

“Accordingly, the PTC should rule that the Court does not have jurisdiction over the situation and the PTC should decline the Prosecutor’s request to confirm that the ‘territory’ over which the court may exercise its jurisdiction under Article 12(2)(a) comprises the West Bank, including East Jerusalem and Gaza.

Any resolution to the ICC’s jurisdictional dispute over the “State of Palestine” is likely to be delayed, because the Court announced yesterday that it would be suspending all deliberations for at least a month in view of the Coronavirus crisis.

Australia’s complete submission to the ICC can be viewed here.

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