Senator Penny Wong – Estimates question about alleged war crimes in the Palestinian Territories

photo of Senator Penny Wong
March 5, 2020

Questioned the Australian government’s position that the International Criminal Court does not have jurisdiction to consider allegations of war crimes in the Palestinian Territories.

I understand from your answers that, put very simply—you’ll say it much more precisely and elegantly, I’m sure—the current Australian government does not believe that those representing the Palestinian territories have jurisdiction of the court in relation to the Palestinian territories. Maybe you can explain our view.

Whole interaction with Mr James Larsen (Chief Legal Officer, DFAT) during Senate Estimates (Foreign Affairs, Defence and Trade Legislation Committee, Foreign Affairs and Trade Portfolio).

Senator WONG: Mr Larsen, would you mind not leaving? Senator Waters asked a number of questions in relation to the ICC matters. I understand from your answers that, put very simply—you’ll say it much more precisely and elegantly, I’m sure—the current Australian government does not believe that those representing the Palestinian territories have jurisdiction of the court in relation to the Palestinian territories. Maybe you can explain our view.

 

Mr Larsen : There are a number of issues that would need to be considered by the International Criminal Court in addressing the question of whether an international crime has been committed under the statute—

 

Senator WONG: Sure.

 

Mr Larsen : in the territories. One of the issues would be, of course, the determination of what constitutes the territories of the State of Palestine. So that’s one issue. Another issue, of course, is whether the International Criminal Court is competent to consider the question of crimes committed within the territories of the State of Palestine in circumstances where we would contend anyway that there is not a State of Palestine. We, as a state party to the International Criminal Court, would assert that we have an absolute right to maintain that position.

 

Senator WONG: So the government’s position is the court doesn’t have jurisdiction?

 

Mr Larsen : Correct.

 

Senator WONG: Well, the court could find that without us making an intervention. The court has jurisdiction to determine its own jurisdiction.

 

Mr Larsen : We would assert that that’s not the case. The court is a servant of the parties. It’s not a court erga omnes.

 

Senator WONG: I want to ask this question: there’s an allegation of war crimes, correct?

 

Mr Larsen : A particular allegation?

 

Senator WONG: There are allegations of possible war crimes in the Palestinian territories.

 

Mr Larsen : There are assertions, yes.

 

Senator WONG: I’m trying to use the word ‘allegation’. You want to call it an assertion. If the government’s position is that for a particular legal reason the ICC shouldn’t deal with this, where are you saying it should be dealt with?

 

Mr Larsen : Well, of course, it is absolutely the question that if we have a gross crime committed in any location, the desirable thing is for that gross crime to be dealt with, especially if it’s a serious breach of international law. I think, however, there is also a question about the integrity of the international system and the integrity of a court such as the International Criminal Court. From an Australian perspective, we would certainly argue that something we wish to bring to the attention of the court in considering this matter is those jurisdictional concerns that we—

 

Senator WONG: I understand the argument. I am making a very practical point. You have assertions of potential war crimes. You are saying the government’s position is that the ICC does not have jurisdiction. I’m saying to you: where do you say these issues should be dealt with?

 

Mr Larsen : Respectfully, that’s not a question I can answer.

 

Senator WONG: But it’s a policy question.

 

Mr Larsen : My view, and the government’s view, is that the court is either competent to deal with the matter or it is not on the basis of its statute. The court may well find that it has competency. That is a matter for the court. But Australia, as a state party, is certainly entitled to put forward the view.

 

Senator WONG: You are not answering my question. You are responding to the legal proposition. I understand it. I’m not sure I agree with it, but I understand it. I’m making a different point. If we say you can’t go here because you’re not a state, what are we actually saying should occur if there are allegations of war crimes?

 

Mr Larsen : I think the evidence would suggest, obviously, that it is difficult to prosecute a war. There is only one judicial institution established that can look at war crimes.

 

Senator WONG: Correct.

 

Mr Larsen : That is the International Criminal Court.

 

Senator WONG: Correct.

 

Mr Larsen : But I think from the perspective of a state party, we have an entitlement as a state party to take a view—

 

Senator WONG: That is the same argument. But it’s actually not, with respect, responsive. I understand the point you’re making. I think your answer is there is nowhere else.

 

Mr Larsen : There is nowhere else extant. But you could create a new tribunal or jurisdiction if you wish.

Link to full Hansard transcript.

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