Senator David Shoebridge – Estimates questions regarding the behaviour of Mossad; and Australia’s commitment to the ICC and its arrest warrants

Photo of Senator David Shoebridge
May 30, 2024

I asked you earlier about whether or not Australia would comply with its obligations under the ICC and enforce an arrest warrant if it was issued against Benjamin Netanyahu. I think you said that it hadn’t yet been issued and because it hadn’t yet been issued you weren’t in a position to make that statement. Do you remember that?

Senator SHOEBRIDGE: Secretary, we had that discussion earlier about the ICC. I think it’s covered in both this section and the next section.

Ms Jones : Potentially.

Senator SHOEBRIDGE: There have been revelations in the last 24 hours that the Israeli security agency, Mossad, have been actively targeting and trying to undermine the independence of a prosecutor of the ICC. If an ICC investigator were in Australia, would such activities be unlawful under Australian law—for an agency like Mossad to seek to undermine their independence with threats and the like?

Ms Chidgey : We can’t comment on that.

Senator SHOEBRIDGE: Australia has an obligation to support the ICC, correct?

Ms Jones : As Australia is a state party to the convention, it comes with certain obligations.

Senator SHOEBRIDGE: That includes doing all in its power to support the operations of the ICC. That’s one of the obligations, isn’t it? I think we had this discussion earlier, Secretary.

Ms Jones : We did.

Ms Chidgey : That’s right, and the issue is about the Rome Statute. The Integrity and International Group, my group, administers the crime cooperation provisions in the International Criminal Court Act.

Senator SHOEBRIDGE: In light of that obligation to support and cooperate, has there been any request for the AGD to seek some advice about whether or not such conduct by Mossad, if it occurred in any way in the Australian jurisdiction, would be unlawful?

Ms Chidgey : No.

Senator SHOEBRIDGE: Are you aware if, through either your minister, the department or another government agency, there’s been a ‘please explain’ request that’s gone out?

Ms Jones : We’re not aware. I think if there were to be any request like that it would be through the Department of Foreign Affairs and Trade.

Senator SHOEBRIDGE: I asked you earlier about whether or not Australia would comply with its obligations under the ICC and enforce an arrest warrant if it was issued against Benjamin Netanyahu. I think you said that it hadn’t yet been issued and because it hadn’t yet been issued you weren’t in a position to make that statement. Do you remember that?

Ms Jones : Yes.

Senator SHOEBRIDGE: Well, there has been an arrest warrant issued against Vladimir Putin. If Vladimir Putin were to come to Australia, would Australia exercise its obligations to the ICC and take whatever steps necessary to arrest Vladimir Putin? He’s had a warrant issued against him.

Ms Chidgey : We just can’t comment on particular cases. Ultimately—

Senator SHOEBRIDGE: You can’t say you’d arrest the leader of a country that’s engaged in an outright war of aggression that’s continuing, who’s had an arrest warrant issued against them by the ICC, to which we’re a party? You can’t say whether or not you would seek to enforce that warrant?

Ms Chidgey : We’re not going to speculate on a scenario that hasn’t arisen. In these matters, we would, as we explained, provide advice to the Attorney-General, and he would consider all of those issues.

Senator SHOEBRIDGE: Would the Attorney-General’s Department consult with the AFP? Does the AFP have a role in enforcing an ICC warrant?

Ms Chidgey : If there were an individual in Australia and an arrest needed to be effected, yes, they could have a role in doing so.

Senator SHOEBRIDGE: Who would initiate that process? Would it be initiated within the AFP, or would it be initiated within your department?

Ms Chidgey : It happens through the application of those provisions in the ICC Act that I’ve mentioned.

Senator SHOEBRIDGE: But how does it get from provisions in the ICC Act to an AFP officer knocking on someone’s hotel door and arresting them?

Ms Chidgey : As we’ve said, we provide advice to the Attorney-General, and then there are steps that the Attorney-General can choose to take.

Senator SHOEBRIDGE: What are the steps?

Ms Chidgey : We can run through the provisions in the Act for you.

Ms Inverarity : Under the ICC Act, there are a few steps that would need to be followed if a request were made to Australia by the International Criminal Court for the arrest and surrender of a person. The Attorney-General would need to first consider whether to issue a certificate under section 22, I think, of the act. If issued, that would then allow the Attorney to make a written notice, which would be directed to a magistrate, to state that the arrest was received. The magistrate would then issue an arrest warrant, and that arrest warrant would then be put into effect by a law enforcement agency.

Senator SHOEBRIDGE: Given the unambiguous obligations Australia has under international law, on what basis could an Attorney exercise discretion not to issue the certificate, if Vladimir Putin turned up?

Ms Chidgey : We’re responsible for the act, which does provide that the Attorney may do so. Obviously, we would provide advice to the Attorney-General on international obligations.

Senator SHOEBRIDGE: There’s an arrest warrant—there’s been a notorious crime, it’s been identified by an ICC prosecutor and affirmed by the panel, and a warrant has been issued. What would be the possible discretionary reasons that the Attorney could use, in the example of Vladimir Putin, not to take steps to ensure the arrest of Vladimir Putin?

Ms Chidgey : The Integrity and International Group is responsible for aspects relating to international obligations. There are a range of different international obligations that the Attorney-General could take into account, and we’d provide advice on those. In the absence of a case, I won’t speculate on details.

Senator SHOEBRIDGE: You’re not suggesting there’d be one rule for Benjamin Netanyahu and different rules for other people who’ve been the subject of an arrest warrant, are you?

Ms Jones : There was no suggestion of that type made at all.

Ms Chidgey : Depending on the details of the case, there could be different relevant considerations.

Senator SHOEBRIDGE: Is it your understanding that the government continues to have a full and unambiguous commitment to being an active member of the ICC? Is that government policy? I put that to you, Minister.

Senator Chisholm: We certainly respect the role of the International Criminal Court.

Senator SHOEBRIDGE: Is the government fully committed to fulfilling its obligations as a member of the ICC?

Senator Chisholm: We think it’s important that international law is upheld.

Senator SHOEBRIDGE: Are you committed to fully complying with our obligations as a party?

Senator Chisholm:   We’re committed to the International Criminal Court.

CHAIR: Senator Shoebridge, I’m giving you a little wind-up, and then I’ll have to hand over the call.

Senator SHOEBRIDGE: Could I ask about legal advice about Australians who have participated in the conflict in Gaza. Has the department been asked to provide such advice?

Ms Jones : I need a little bit more detail so that I can properly answer that question.

Senator SHOEBRIDGE: Why don’t we start with this.

CHAIR: I gave you a wind-up, Senator Shoebridge, so you’re going to put one last question, and then I’m going to share the call.

Senator SHOEBRIDGE: Has the department been asked to give any advice in relation to potential criminal prosecutions for war crimes of individuals who have been serving with the Israeli Defense Forces, given the conclusions of the ICC and indeed some of the findings of the ICJ?

Ms Jones : Not that I’m aware of.

Senator SHOEBRIDGE: I will come back to this.

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