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ZFA Backgrounder on Australia’s intervention to the International Criminal Court

This document provides information about the current International Criminal Court (ICC) involvement in the Israeli–Palestinian dispute, what the Australian Government is doing in this regard, why the Zionist Federation of Australia (ZFA) believes the Australian Government is taking the right action, and why recognition of the ‘State of Palestine’ (before such a state has been established) by governments or the ICC puts back the cause of Israeli–Palestinian peace.

Contents

What the ICC is doing

The Prosecutor of the International Criminal Court (ICC) has recommended that the ICC investigate possible war crimes in the territory of the ‘State of Palestine’—this includes, according to the ICC, Israeli settlement activity.

The ICC only has jurisdiction over the territory of its State members. The ‘State of Palestine’ became a member of the ICC after the UN General Assembly recognised ‘Palestine’ as a non-member observer State. The Prosecutor argues that she is guided by the UN General Assembly in determining that Palestine is a state and, therefore, the ICC has jurisdiction over its territory. However, there are widely accepted conditions of statehood (under the Montevideo Convention) that ‘Palestine’ does not meet.

The Prosecutor has asked the ICC’s Pre-Trial Chamber to determine the scope of the ICC’s jurisdiction. This directive could be interpreted by the Pre-Trial Chamber in one of two ways.

  1. Broadly (and fairly), it could be interpreted as asking the Pre-Trial Chamber if it thinks the ‘State of Palestine’ is actually a state.
  2. More narrowly (which pre-determines the outcome), the other way of interpreting it would be for the Pre-Trial Chamber to accept the Prosecutor’s determination that the ‘State of Palestine’ is a state, and then only determine the territorial scope of that state (i.e. where its borders lie).

(If the Pre-Trial Chamber chooses to investigate whether ‘Palestine’ is actually state and finds that it is, it will then also have to determine its borders.)

The Pre-Trial Chamber invited ‘observations’ from states and interested parties on whether it should agree with the Prosecutor that the jurisdiction of the ICC (i.e. the territory of the ‘State of Palestine’) includes all of Gaza, the West Bank and east Jerusalem.

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What the Australian Government is doing

The Australian Government submitted an observation on this issue (here). The Australian document made a number of points. Namely:

  • The ‘State of Palestine’ is not actually a state, and since the ICC only has jurisdiction over states, the ICC has no jurisdiction in this regard.
  • The Prosecutor’s argument—that because the ‘State of Palestine’ acceded to the Rome Statute (the treaty that created the ICC), it is a state, because only states can be members of the ICC—is invalid, because, within the Rome Statute, becoming a member of the ICC is treated separately from determining jurisdiction.
  • The UN General Assembly resolution that granted ‘non-member observer State’ status to the ‘State of Palestine’ did not make Palestine a state—indeed, the resolution expressed aspirations that such a state would eventually be established.

It is worth noting that when the UN General Assembly granted ‘Palestine’ non-member observer State status in November 2012, Australia’s UN ambassador said,

Australia’s decision to abstain in the voting on resolution 67/19 balances our long-standing support of the right of the Palestinian people to self-determination and their own State with our concern that the only durable basis for the resolution of this conflict is direct negotiations between Israel and the Palestinians. The resolution does not confer statehood; it grants non-member observer State status to the Palestinian Authority in the United Nations. We have long supported a negotiated two-State solution that allows a secure Israel to live alongside an independent future Palestinian State. Australia has concerns that this resolution may actually make it harder rather than easier for the two parties to return to direct negotiations.

But our support for a future Palestinian State achieved through negotiations remains steadfast, as does our support for Israel’s legitimacy and right to security. In looking beyond today’s vote, we urge all sides to return immediately to negotiations in good faith. It is critical that no party seek to exploit or overreact to the outcome of today’s vote, including within the United Nations system, in ways that could undermine prospects for a just and lasting settlement.

Australia’s prediction came true and its warning was ignored.

Only six states made observations to the ICC, and all of them urged the Pre-Trial Chamber to find that the ICC does not have jurisdiction.
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Additional reasons why the ZFA thinks the ICC does not have jurisdiction

The ZFA agrees with the reasons provided by Australia to the ICC. It also notes that there are additional reasons why the ICC does not have jurisdiction over settlements.

Beyond the reasons provided by the Australian Government, the ZFA also notes that the 1993 Declaration of Principles, which was signed by the Palestine Liberation Organisation (i.e. the ‘State of Palestine’), states in Article IV,

Jurisdiction of the Council [i.e. the Palestinian Authority] will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations.

The issues to be negotiated in the permanent status negotiations are listed in Article V (3):

Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours, and other issues of common interest.

Thus, even if the ICC accepts that the ‘State of Palestine’ is a State, this ‘state’ agreed that it would not have jurisdiction over Jerusalem or the settlements (or other issues of common interest) until a permanent status agreement between it and Israel was signed (which has not yet occurred). The ICC works on the principle that States delegate jurisdictional authority to the ICC. That the ‘State of Palestine’ did not have the jurisdictional authority to delegate to the ICC is another reason that the ICC has no jurisdiction over settlements.
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The reasons why the ICC should not grant itself jurisdiction

Beyond the fact that ‘Palestine’ is not a State, that the ICC is attempting to redefine the meaning of statehood, in order to grant itself jurisdiction, is of concern because it means the court is politicising itself. No courts, whether domestic or international, should be allowed to politicise themselves, because therein lies a weakening of the rule of law.

(It is of interest that, in September 2014, the Prosecutor wrote, ‘[S]ome legal scholars … appear to advocate that as the object and purpose of the ICC is to end impunity for mass crimes, the Court ought to intervene, even where clear jurisdictional parameters have not been met. This is neither good law nor makes for responsible judicial action.’)

Australian foreign policy has long been premised on the concept that the international community should uphold the rule of law; the politicisation of any court, especially an international court, represents a diminution of the rule of law. That the Australian Government made an observation to the ICC on this issue is thus consistent with longstanding bipartisan foreign policy.

The ICC was designed to bring to justice the world’s worst war criminals. Regardless of the merits or even legality of the Israeli settlement enterprise (see below), this does not amount to the severity of crimes for which the ICC was constituted. Again, by following this path, the dignity of the ICC will be compromised.

The Prosecutor’s main argument that the ICC has jurisdiction is that so many countries have recognised Palestine as a state. This risks encouraging sponsors of break-away states, such as South Ossetia and Abkhazia, to increase their efforts to have countries recognise them. For instance, Russia has effectively bribed a number of Pacific island states with promised aid if they recognise South Ossetia and Abkhazia. This is not in Australia’s interests. Thus, beyond directly weakening the rule of law by granting itself jurisdiction, an ICC determination that ‘Palestine’ is a State risks flow-on effects, indirectly weakening the rule of law.

As above, Israel and the PLO have a binding agreement that they will determine final status issues (including settlements and statehood) in direct negotiations. An ICC determination about any final status issue risks pre-determining the outcome of these negotiations. (Australia made this point in its observation as well). Beyond risking the chance of future Israeli–Palestinian peace, a move such as this will place doubt in any bilateral peace negotiations, as parties will reason that they will find more favourable terms by internationalising their dispute. This bodes ill for Australian and international diplomatic efforts.

(Additionally, though not directly relevant, the PLO is obligated under its binding agreement with Israel not to pursue international relations; that the ICC has even accepted ‘Palestine’ as a member has weakened the agreement.)
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If settlements are a war crime according to the ICC, why shouldn’t they be investigated?

Regardless of how one feels about the Israeli settlements, there is legal context to keep in mind when determining the ethics of the ICC actions.

First (and as above), Israel and the Palestine Liberation Organisation (i.e. the same ‘State of Palestine’ that became a member of the ICC) signed an agreement in 1993 (the Declaration of Principles) that the fate of the settlements would be determined in permanent status negotiations between them. That means that, regardless of whether the Palestinians or the ICC regard the settlements as illegal, because the Palestinians accepted that they would remain in place until at least such a time as a final status agreement was signed, the whole issue is legally moot.

Second, the ICC is guided by the list of crimes in the Rome Statute. The Rome Statute explicitly makes settlements illegal, which goes well beyond other relevant and long-standing international humanitarian laws. For instance, the 1949 Fourth Geneva Convention states that ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.’ This language is ambiguous on Israeli settlements, first because its context was the mass forced transfer of civilians during the second world war and second because Israel neither deports nor transfers civilians into the West Bank, but does allow them to live there. (Israel also argues that the Fourth Geneva Convention doesn’t apply to the West Bank because it was not legitimately held by Jordan in 1967.) However, the Rome Statute states that, ‘The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’ is a war crime. This inclusion (which was made with Israel in mind), and the knowledge that the ICC would eventually be politicised in the same way that many UN organs (such as the General Assembly and the Human Rights Council) have been, was the reason that Israel chose not to join the ICC.
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How an ICC determination that it has jurisdiction will impact Israel and make peace harder

The Pre-Trial Chamber will likely find that the ICC has jurisdiction. The Prosecutor will then launch a formal investigation, which will likely result in subpoenas and arrest warrants issued for Israelis. This poses significant threats to Israel. First, ICC member states (including Australia) are obligated to carry out such warrants. Second, such warrants do not have to be made public when issued, meaning an Israeli might travel aboard unaware that a warrant has been issued for their arrest. Third, there is no governmental or diplomatic immunity from ICC warrants (meaning a government official—or even prime minister—travelling abroad on official business could be arrested). Fourth, because the Rome Statute states that it is a war crime to ‘transfer, directly or indirectly, civilians into occupied territory’, once the ICC has determined it has jurisdiction, any Israeli official or civilian who has, directly or indirectly, formed or carried out policies in regards to Israeli settlement activities could be liable for indictment. This is the case even though Israel is not a party to the Rome Statute (ICC jurisdiction is not over nationals of States parties, but over any crimes that occur on the territories of States parties, regardless of the nationality of those committing the crimes). The impact that this will have on Israeli businesses and diplomatic activities is immense.

There is no doubt that most Palestinians and their supporters oppose settlements, believe them illegal and an obstacle to peace. However, by using a permissive international legal system to wage ‘lawfare’ on Israel (and with the ICC and other international institutions allowing themselves to be so used), the Palestinians, the ICC and others are reducing Israeli trust in Palestinian intentions, and in the international environment. A viable Israeli–Palestinian peace will require each side to take considerable risks, and each side will only be willing to do so if they trust the international environment. Further, these sorts of actions typically increase support for political parties that are opposed to compromising for the sake of a peace process. By allowing itself to become politicised in this manner, the ICC will reinforce within the voting Israeli population a peace-sceptic majority.

If the ICC were to grant itself jurisdiction in this matter, it would reward Palestinian intransigence, thereby encouraging more of the same. The reason the Palestinians have taken the internationalisation route—membership of the UN and accession to numerous international organisations, including the ICC—is because Israeli–Palestinian negotiations have reached deadlock. However, the reason they have reached deadlock is not because of Israeli intransigence but because the Palestinian leadership has reached their perceived limit of concessions. That is, the Palestinian leadership (due to its endemic corruption, dictatorial activities and failure to deliver promises) does not have the political capital required to ‘sell’ the concessions required to gain agreement through negotiations. By following the internationalisation route, the Palestinians are seeking to force Israeli concessions without conceding anything of their own. But this will not lead to a successful Palestinian state or a successful two-state outcome.
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Chronology of situation

  • In January 2009, ‘Palestine’ (claiming to be a state but not as a party to the Rome Statute) declared that it accepted ICC jurisdiction in its territory. In this process, the ICC referred to ‘Palestine’ as the Palestinian National Authority. The acknowledgement made clear that the ICC had not yet made a decision as to whether the Palestinian National Authority was a state.
  • In December 2011, the Prosecutor noted that she ‘continues to review and consult on’ the submissions made to it that the Palestinian National Authority was a state.
  • Following the January 2009 lodging of the Palestinian acceptance of ICC jurisdiction, the Prosecutor launched a preliminary investigation into the situation in Palestine. In April 2012, the Prosecutor closed the preliminary investigation, because Palestine was not (yet) a state.
  • In November 2012, the ICC noted that instruments of accession are deposited by a state with the UN Secretary-General. It also noted that in situations where it is unclear whether a claimed state is a state, ‘it is the practice of the [UN] Secretary-General to follow or seek the General Assembly’s directions on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a ‘State’. Thus, competence for determining the term ‘State’ within the meaning of article 12 [of the Rome Statute] rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of the General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”
    • [Article 112(2)(g): The Assembly shall … (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence”].
  • At the same time, the Prosecutor made clear that she would not determine whether Palestine was a state; it was for the relevant bodies of the UN or Assembly of States Parties [to the ICC] to make that determination. Due to the fact that, at that stage (22 November 2012), the UN considered ‘Palestine’ an observer, as opposed to ‘non-member observer State’, the Prosecutor determined that the ICC still had no jurisdiction.
  • Later that same month (on 29 November 2012), the UN General Assembly passed Resolution 67/19, which upgraded ‘Palestine’s status to non-member observer State.
  • In November 2013, the Prosecutor noted, “the Office’s consideration of jurisdiction does not involve any determination on Palestinian statehood per se. The test consistently applied by the Office is whether Palestine has the ability to accede to the Rome Statute thereby providing jurisdiction pursuant to article 12(1)-(2) or, in the alternative, lodge a declaration accepting the jurisdiction of the Court pursuant to article 12(3). As explained in the Office’s decision of 3 April 2012, in accordance with article 125, the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. Since it is the practice of the Secretary‐General to follow or seek the General Assembly’s directives on whether an applicant constitutes a “State” for the purpose of treaty accession, the Office considers that Palestine’s status at the UNGA is of direct relevance to the issue of the Court’s jurisdiction. Nonetheless, at this stage, the Office has no legal basis to open a new preliminary examination.” Why it considers it has no legal basis to open a new preliminary examination is not explained, but was presumably because the ‘State of Palestine’ had not yet acceded to the Rome Statute.
  • In August 2014, the ICC stated that it had no jurisdiction as it had not received any official document from Palestine since UNGA Resolution 67/19.
  • In September 2014, the Prosecutor wrote that Palestine could now join the Rome Statute on the basis of Palestine’s status upgrade by Resolution 67/19.
  • In January 2015, ‘Palestine’ acceded to the Rome Statute, and the Prosecutor opened a preliminary investigation into the ‘situation in Palestine’.
  • In December 2019 (and again, because of a bureaucratic stuff-up, in January 2020), the Prosecutor announced that she had concluded that war crimes had occurred in the territory of Palestine, but asked the Pre-Trial Chamber I to determine whether it agreed with her that the scope of the ICC’s jurisdiction extended to the entirety of the West Bank, east Jerusalem and Gaza Strip.
  • In January 2020, the Pre-Trial Chamber invited applications from interested parties desirous of making an observation on the scope of the ICC’s jurisdiction.
  • In February 2020, Australia applied to make such an observation.
  • In March 2020, Australia submitted its observation.

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Links to key documents

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