Scott Morrison ministry
(Image: AAP/Rohan Thomson)

Australia is helping efforts to block an International Criminal Court investigation into alleged war crimes in Palestine. It’s a move that’s been criticised by human rights organisations and Palestinian groups.

In an amicus brief filed last Friday, Australia argued that the court lacks jurisdiction to conduct an investigation because Palestine is not a state.

Only a handful of other states (Austria, Germany, Brazil and the Czech Republic) have intervened to file similar briefs contesting the court’s jurisdiction. The move has been welcomed by Israeli Prime Minister Benjamin Netanyahu, and is further evidence of Canberra’s pro-Israel position. 

A contested investigation

In December last year, ICC prosecutor Fatou Bensouda announced that a five-year preliminary examination had found sufficient evidence of war crimes committed by Israel and Hamas to proceed with a full investigation.

However Israel, which is not an ICC member, disputed whether the court had jurisdiction over the Palestinian territories, on the basis that Palestine is not a state. Bensouda requested the court’s Pre-Trial Chamber confirm whether or not the court has jurisdiction.

The question is complicated, reflecting the contested nature of Palestinian statehood.

In 2012, Palestine was granted non-member observer status following a vote by the United Nations General Assembly. Three years later, it acceded to the Rome Statute, which governs the International Criminal Court. 

Dr Carrie McDougall, a senior lecturer in international law at the University of Melbourne and a former legal adviser at the Department of Foreign Affairs and Trade, told Crikey that the best legal view is that, since Palestine is a state party to the Rome Statute, the ICC has jurisdiction over Rome Statute crimes committed by Palestinian nationals and on Palestinian territory. 

Nevertheless, she noted that the arguments in the prosecutor’s request “raise a range of complex legal issues concerning statehood, self-determination and occupation”.

And moreover, since a number of recent ICC decisions have been unexpected, McDougall says it’s difficult to predict what the outcome of that request could be.

An obstruction of justice?

It’s standard practice for the ICC to invite interested states to make submissions on questions like this one. But usually only a small number of the most interested states take up the offer.

Australia’s decision to intervene is therefore a clear statement of intent, and show of support for Israel. It has also, unsurprisingly, divided opinion.

Rawan Arraf, director of the Australian Centre for International Justice has expressed disappointment and called on the government to let the investigation continue.

“Australia is trying to block a full and proper investigation of crimes that the international community think are most egregious,” she said.

Bishop George Browning, president of the Australia Palestine Advocacy Network, attacked the government, arguing it was “getting in the way of justice”. 

“Australia’s request to make a submission to the International Criminal Court is a shameful support of the Trump and Netanyahu agenda to sabotage progress towards justice and freedom for Palestinians,” Browning said.

But Jewish organisations praised the move. Jeremy Leibler, president of the Zionist Federation of Australia, told Crikey the decision to intervene was both correct and in line with Australian foreign policy.

“An ICC investigation risks politicising the court by artificially extending the limits of its jurisdiction,” Leibler said. 

In a statement, the Australia Israel and Jewish Affairs Council said it “welcomes Australia’s legally principled stance” on the matter.

Morrison continues to court Israel

Bipartisan support for Israel has been a constant feature of Australian foreign policy. But the decision to intervene indicates that support may have deepened under Scott Morrison.

One of Morrison’s earliest acts as prime minister was to follow Donald Trump’s lead and recognise West Jerusalem as Israel’s capital, despite warnings it would inflame tensions in the region and undermine relations with Muslim countries. 

Speaking in parliament to mark the 70th anniversary of Australian-Israeli diplomatic relations last year, Morrison noted that Australia had “opposed six resolutions that attacked Israel in the UN General Assembly”.

“In the past, we’d abstained on these resolutions — not anymore and not on my watch.”

McDougall said the latest move appears consistent with the Morrison government’s position on Israel-Palestine issues, “including its support for various controversial positions adopted by the Trump administration”.

But for Browning, Australia’s intervention in the ICC was further evidence that “we’ve never had a more frankly anti-Palestinian government”.

“This move is entirely consistent with this government’s proposal to recognise Jerusalem as Israel’s capital, its consistently anti-Palestinian voting record in the United Nations, [and] its mean-spirited aid cuts to the Palestinian Authority,” Browning said.