Since Palestine acceded to the Rome Statute in 2015, the ICC Prosecutor has been undertaking a preliminary investigation into war crimes in Palestine.  These investigations have focused on settlements in West Bank and East Jerusalem as well as military attacks on Gaza.  The former is focused on possible crimes of the Israeli military, the latter also includes armed Palestinian groups. 

The ICC prosecutor’s report released in December 2019 indicated that all the statutory criteria under the Rome Statute for the opening of an investigation have been met – indicating both territorial jurisdiction as well as a prima facie case that war crimes have been committed.  However, given the complexity of the territories, and the fact Israel is not a signatory to the Rome Statute, they asked the ICC pre-trial chamber to confirm their opinion regarding the territorial jurisdiction.   The pre-trial chamber has given until 16 March 2020 for submissions, and invited others including States, persons and organisations to submit a request to intervene as an amicus party and provide observations by 14 February.

Israel has been lobbying hard for countries to reject the ICC’s jurisdiction over Palestinian territory, which would allow them to continue to enjoy impunity.

Australia was one of six countries (along with Hungry, Brazil, Austria, Germany, Czech Republic) to indicate they seek to make a submission (read submission here).  Australia’s submission does not indicate a position, but it begins by stating that Australia does not recognise the State of Palestine, and it seems likely they will make a submission arguing against ICC jurisdiction.   The Australian Centre for International Justice said the move undermines Australia’s commitment to uphold and promote accountability and international justice on the global stage (read more).