Senator Larissa Waters – Estimates question about the ICC, Trump and annexation

photo of Senator Larissa Waters
March 5, 2020

Questioned Australia’s position on the jurisdiction of the ICC in regard to Palestine, Trump’s proposals for Israel and Palestine, and Israel’s intention to annex areas of the West Bank and Jordan Valley.

Senator WATERS: Both Australia and Palestine are state parties to the ICC, are we not, with Palestine joining in 2015?


Mr Larsen : Australia is a state party to the International Criminal Court. We don’t recognise the Palestinians as a state party.


Senator WATERS: Okay. I understand they are, independent of our assessment, a party to the ICC.


Mr Larsen : A number of states and the court itself treats them as such, yes.

Whole interaction with Mr James Larsen (Chief Legal Officer, DFAT) and Dr Angela Macdonald (First Assistant Secretary, Middle East and Africa Division, DFAT) during Senate Estimates (Foreign Affairs, Defence and Trade Legislation Committee, Foreign Affairs and Trade Portfolio).

Senator WATERS: Thank you. I want to move to Israel, Palestine and, in particular, our intervention in the International Criminal Court.


Senator Payne: I note that questions on this matter have been previously asked and answered.


Senator WATERS: Thank you. I am across the questions that Senator Van asked. I have some different questions.


Senator Payne: I understand that. If there are matters which officials can indicate they’ve already answered, I’ll ask them to do that.


Senator WATERS: That’s fine.


Senator Payne: And then the Hansard is available.


Senator WATERS: Thank you. Just in relation to our engagement with the ICC, particularly regarding the investigation of those crimes within Palestine and noting Senator Van’s earlier questions, can I confirm that Australia has been a strong supporter of the ICC and the treaty that saw its establishment?


Mr Larsen : Australia is a strong supporter of the International Criminal Court and has long been engaged in its activities.


Senator WATERS: Both Australia and Palestine are state parties to the ICC, are we not, with Palestine joining in 2015?


Mr Larsen : Australia is a state party to the International Criminal Court. We don’t recognise the Palestinians as a state party.


Senator WATERS: Okay. I understand they are, independent of our assessment, a party to the ICC.


Mr Larsen : A number of states and the court itself treats them as such, yes.


Senator WATERS: And that occurred in 2015, yes?


Mr Larsen : I’m not sure of the exact date, but relatively recently, yes.


Senator WATERS: Do you accept that we have the same status before the ICC?


Mr Larsen : No, I don’t. We’re a state party. We don’t accept that the Palestinians are.


Senator WATERS: Did we raise any objection at the time they sought to become a party?


Mr Larsen : Yes, we did.


Senator WATERS: Could you perhaps on notice direct me to any documentation that I can read regarding that?


Mr Larsen : Correspondence was filed with the UN Secretary-General and written by our ambassador to the United Nations, Gillian Bird.


Senator WATERS: Thank you. Regarding the preliminary investigation, I understand—


Senator WONG: That will be on notice provided to the committee, or can that be tabled?


Senator Payne: I think Senator Waters has asked for it on notice.


Senator WONG: Yes.


Senator WATERS: Look, if you have it to hand, by all means, please table it.


Mr Larsen : I don’t have it with me. We will provide it on notice, of course.


Senator WATERS: Thank you very much. Regarding the preliminary investigation, I understand that the ICC has been examining crimes allegedly committed by both the Palestinian and Israeli actors. Is that correct as far as your understanding?


Mr Larsen : As I understand it, if I recall correctly, the preliminary investigation is in relation to crimes committed in the Palestinian territories.


Senator WATERS: By both actors, though?


Mr Larsen : I don’t recall the precise terminology. It certainly potentially covers actors on all sides.


Senator WATERS: Does Australia support the implementation of international law in those territories?


Mr Larsen : Of course.


Senator WATERS: I understand that we’re intending to file an amicus brief. I think we know, according to earlier questions, that will be filed on 16 March regarding the pre-trial proceedings in relation to that investigation into Palestine. Can you indicate what general sorts of arguments we’re intending to make in that amicus brief?


Mr Larsen : I might clarify that I don’t think it’s technically an amicus brief. As a state party, we have been invited to submit observations to the court. We were invited to seek leave to submit observations. We have sought leave and been granted leave to submit observations. We intend doing so. The application for leave that we made indicated that the observations would focus on the question of appropriate jurisdiction. That is the basis on which our observations will be drafted.


Senator WATERS: That’s indeed the matter under question. Is our view that jurisdiction of the court is enlivened or not?


Mr Larsen : I’m not going to pre-empt, if I may, the substance of our observations. We have indicated to the court that we will be making a submission which relates to the jurisdictional competence of the International Criminal Court in this matter. The question of ‘statehood’ for the Palestinian territories, of course, is in issue.


Senator WATERS: Will that observation be made public or available to us?


Mr Larsen : I’m not absolutely sure, but I would expect that it will because it’s submitted to the court. It’s a matter for the court as to what the court wishes to do with it. I have a reasonable expectation that it would be published on the court’s website or file.


Senator WATERS: Did we have any direct communication from any state parties or even from any non-state parties encouraging us to make those observations and/or submit an amicus brief?


Mr Larsen : As you would expect, we had exchanges with a number of states in relation to the matter. Some states encouraged us to submit observations, yes.


Senator WATERS: Which states are they?


Mr Larsen : The only one of which I am aware is Israel. But there may well have been others.


Senator WATERS: Could you take on notice which other state parties and non-state parties asked us to do either an observation or an amicus brief or, conversely, asked us not to?


Mr Larsen : I’m not sure that it’s necessary to take it on notice. Israel—


Senator WATERS: If you can answer it now, great.


Mr Larsen : Israel certainly made representations to the Australian government, including myself, but others as well. The substance of my answer is that I’m not aware of anybody else making such representations, but I didn’t preclude it as a possibility.


Senator WATERS: If you wouldn’t mind checking if there are any additional state parties or non-state parties, please, could you get back to us on notice?


Mr Larsen : Insofar as the Department of Foreign Affairs and Trade knows. Unless one of my colleagues here is aware of another direct representation from another country, I imagine it’s just Israel. However, I would emphasise that we were, of course, in communication with a number of other states about their intentions. That, of course, helped inform our assessment.


Senator WATERS: In relation to those other states, are they doing amicus briefs or observations?


Mr Larsen : It’s observations. So a number of those states have filed an application seeking leave to submit observations. I don’t know the answer as to whether they’ve been granted leave, but I expect they probably have. So I expect some of them will.


Senator WATERS: What is the purpose of us providing those observations? What observations will we provide that might be different from some of those other state parties’ observations? What gap are we filling by intervening?


Mr Larsen : I’m not sure that we’re filling a gap. Australia is a state party to the International Criminal Court. It has an obvious stake in the court’s jurisdiction over such matters. We have an obvious stake in contributing to the court’s jurisprudence in considering its jurisdictional competence on matters of fundamental importance. We will put forward such observations as we think are appropriate. It’s neither here nor there whether there’s a gap.


Senator WATERS: What interests of Australia are we seeking to advance by submitting these observations?


Mr Larsen : It’s obviously imperative that an international institution like the International Criminal Court exercises its jurisdiction appropriately in ways which reflect the views of states parties. It is the case that there may well be a difference between some states parties in relation to the jurisdictional competence of the court in this matter. Australia has a particular view. A number of states share that view. I expect those states will put forward observations to ensure that the court is appropriately informed of those views.


Senator WATERS: When you say Australia has a view—


CHAIR: The ICC does not have jurisdiction to declare an organisation a state party for the purposes of its jurisdiction.


Mr Larsen : That’s certainly my view, yes.


Senator WATERS: Thank you. Just on that question: you said that Australia has a view and we will be effectively putting it. Is that the view that you weren’t able to share with me earlier? What is the view that Australia has?


Mr Larsen : You asked me to foreshadow what would be included in our observations. I said I wasn’t in a position to foreshadow it because the settlement of what is in our observations, obviously, will be done via a number of government agencies and settled by ministers. But I did indicate to you that the question of jurisdictional competence is a relevant consideration. Of course, one of the issues is the question of whether or not the Palestinian territories constitutes a state. In Australia’s view, it does not.


Senator WATERS: Thanks for that clarification. I have a few questions about the detailed proposal regarding Israel and Palestine that was released by President Trump in late January. It appears that major world players are seeing this plan as a radical departure from the rule of law. What is Australia’s view on that?


Mr Larsen : We wouldn’t take that view.


Senator WATERS: We don’t take that view. My understanding is that Australia’s policy is to support the negotiation of final status issues between the parties. Is that correct?


Mr Larsen : Correct.


Senator WATERS: Does President Trump’s proposal pre-empt those negotiations by making proposals for every single final status issue?


Mr Larsen : Not in my view.


Senator WATERS: Why is that?


Mr Larsen : It is a plan for consideration by the parties. It puts forward various propositions. The parties are free to reject or accept them.


Senator WATERS: Israel’s Prime Minister Netanyahu has said that he will annex significant parts of the occupied West Bank and the Jordan Valley should he continue on as Prime Minister. What is the Australian government’s position on that proposal?


Mr Larsen : I will defer to my bilateral colleague.


Dr Macdonald : The Australian government’s view is to urge both sides to take no unilateral action that might undermine prospects for direct negotiations in pursuit of a peaceful settlement.


Senator WATERS: Have we made those representations to the Israeli government to urge it against annexation?


Dr Macdonald : In terms of urging against unilateral actions, yes.


Senator WATERS: Have we talked about that in the context of the annexation proposal?


Dr Macdonald : We regularly raise our concerns about some of those activities with Israeli authorities.


Senator WATERS: So they understand that we regard annexation as a unilateral action and that we don’t support unilateral actions?


Dr Macdonald : I can’t speak to their understanding of that.


Senator WATERS: But we’ve put that view to them—that we would regard any annexation as a unilateral action?


Dr Macdonald : No. I would not characterise it like that.


Senator WATERS: I don’t mean to misunderstand. What was our view on the annexation? What have we put to the Israeli government?


Dr Macdonald : Our view is that we urge them not to undertake any unilateral actions that diminish the prospects of a negotiated two-state solution.


Senator WATERS: Including annexation?


Dr Macdonald : Yes.


Senator WATERS: Thank you. I’m sorry to belabour the point, but I want to understand you there.

Link to full Hansard transcript.