A spokesperson for Australia’s Department of Foreign Affairs and Trade on Tuesday told J-Wire: “Australia is concerned by the ICC Prosecutor’s proposal to consider the situation in the Palestinian Territories, subject to a ruling by the Court’s Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction in the matter (Australia echoes the United States in its reaction to ICC decision on Israel).”
ICC, the International Criminal Court that sits in The Hague, Netherlands, has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. It is intended to complement existing national judicial systems and it may therefore exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court.
The spokesperson continued: “Australia’s position is clear – we do not recognize a so-called ‘State of Palestine’ and we do not recognize that there is such a State Party to the ICC’s Rome Statute. We consider that the question of territory and borders can be resolved only through direct negotiations between Israel and the Palestinians. This is the only way to ensure a durable and resilient peace.”
Last Friday, the International Criminal Court’s chief prosecutor, Fatou Bensouda, issued a statement saying: “In brief, I am satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip; (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice. (Prosecutor Bensouda Asking Hague Court to Rule on Indicting Israel for ‘War Crimes’)”
She referred to the Palestinian Authority explicitly as the “State of Palestine” – an entity which does not exist, which means that it does not have the power to appeal to the ICC.
On September 10, 2018, then US National Security Advisor John R. Bolton said the ICC lacks checks and balances, exercises “jurisdiction over crimes that have disputed and ambiguous definitions,” and has failed to “deter and punish atrocity crimes.”
Besides the question of the PA’s right to appeal to the ICC, there’s the issue of the ICC’s right to intervene in the decisions and processes of Israel’s legal system in dealing with war crimes.
Olympia Bekou, writing on the Complementarity Principle for Oxford Bibliographies, explains that Complementarity is a fundamental principle upon which the ICC is premised.
“Complementarity governs the relationship between the ICC and national legal orders. Article 17 of the Rome Statute allows the ICC to step in and exercise jurisdiction where states are unable or unwilling genuinely to investigate or prosecute, without replacing judicial systems that function properly. ‘Unwillingness’ and ‘inability’ are key concepts in the determination of the admissibility of a case before the ICC.
“A state may be determined to be ‘unwilling’ when it is clearly shielding someone from his or her responsibility for ICC crimes. A state may be ‘unable’ when its legal system has collapsed. The statute provides some guidance in the determination of these elements but the precise thresholds are subject to much academic debate as well as judicial determination in the emerging case law of the ICC.
“Moreover, issues relating to fairness, amnesties, pardons, or other nonjudicial mechanisms and their role in the determination of the admissibility of a case before the ICC have also been controversial and merit further exploration, not least because the statute remains silent on how they fit with complementarity.”
Secretary of State Mike Pompeo declared last Saturday: “We firmly oppose this and any other action that seeks to target Israel unfairly. We do not believe the Palestinians qualify as a sovereign state, and they therefore are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC (Pompeo: US Firmly Opposes ICC Probe Into Alleged Israeli War Crimes).”