Court in the act

Court in the act

Gareth Narunsky – The Australian Jewish News – 11 February 2021

THE International Criminal Court (ICC) has been roundly condemned following its determination that it has the jurisdiction to investigate alleged Israeli war crimes in the Palestinian-controlled territories.

A pre-trial chamber of the ICC announced last Friday that it considers Palestine a state for its judicial purposes, yet at the same time determined it does not have the authority to declare it an actual state.

Australian Foreign Minister Marise Payne expressed the government’s “deep concern” with the decision.

“Matters relating to territory and borders can only be resolved through direct negotiations between Israel and the Palestinians,” she said.

“Australia does not therefore recognise the right of any so-called ‘State of Palestine’ to accede to the [ICC’s founding document, the] Rome Statute. The International Criminal Court should not exercise jurisdiction in this matter.”

Liberal Senator James Paterson told Sky News the government was keeping a promise made by Prime Minister Scott Morrison to “always call out antisemitism masquerading as concern for human rights”.

“That’s exactly what Marise Payne has done … The ICC has concocted an artificial jurisdiction over Israel and Palestine which does not exist, which is a legal fiction and we should call that out,” he said, noting that the fact the court “is not bending over backwards to find jurisdiction to investigate human rights abuses against the Uyghurs in Xinjiang” was telling of its motivations.

Israeli Prime Minister Benjamin Netanyahu concurred, labelling an ICC probe into “fake war crimes … pure antisemitsm”.

He added that the ICC “claims that when democratic Israel defends itself against terrorists who murder our children, rocket our cities, we’re committing another war crime”.

In a statement on Monday, the Embassy of Israel in Canberra thanked the Australian government for “its quick and strong opposition” to the ruling.

“The court has unfortunately succumbed to politicisation, violated its mandate and allowed itself to be dragged into a political conflict,” the embassy said, adding, “This unwarranted intervention effectively rewards the Palestinian refusal to return to negotiations, plays into the hands of extremists and turns the court into a tool of anti-Israel propaganda.”

Australia/Israel & Jewish Affairs Council (AIJAC) executive director Colin Rubenstein dubbed the case “a legal witch-hunt against a democratic country with enemies at its border”.

“Palestine is not a state and international law should not be abused in order to manufacture one,” he said. “A Palestinian state will only be created after negotiations with Israel resolve important issues such as borders, refugees and the status of Jerusalem.”

He added, “Israel has an independent legal system which is quite capable of addressing any allegations of war crimes, and the ICC is only supposed to intervene where such domestic legal processes are not available. Rather than doing the bidding of Israel’s enemies, the ICC should focus on the egregious human rights breaches in Xinjiang, in Myanmar and in Iran.”

Calling the ICC’s determination “deeply disappointing” and saying it had avoided “basic issues of fact and law and order” the Executive Council of Australian Jewry (ECAJ) said once again Australia “stands as an island of sanity in the world’s troubled seas”.

The ECAJ noted the dissenting judgment by Judge Péter Kovács, – who argued there was “no legal basis in the Rome Statute, and even less so, in public international law” for the decision – “will only add to the scepticism with which the decision will be viewed”.

Zionist Federation of Australia president Jeremy Leibler condemned the decision as “a clear case of activism trumping common sense”.

“It is yet more proof of the politicisation of the ICC, which undermines its raison d’être, and will lead to more Palestinian refusals to negotiate with Israel, and thus make peace more remote.”

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