“(I)f pressed on legality … our position is that it is for competent judicial bodies to determine whether crimes against humanity have been committed” – (DFAT, 2022, FOI release). What then are DFAT and Australia’s obligations following the finding by the International Court of Justice that Israel has established an apartheid system in the Occupied Palestinian Territories?
Readers may recall that in an earlier article – Australia must clarify Israel’s status as an Apartheid state: November 3, 2022 – I addressed the consequences for Australia of Israel being established as an apartheid state, as was asserted by two then recent reports by Human Rights Watch and Amnesty International (the Reports). I also drew attention to the fact that Foreign Minister Wong was on record at that time as asserting that Australia does not accept that Israel is an apartheid state.
In a subsequent article – Australia’s DFAT blocks FOI request on Israel apartheid status: January 9, 2023 – I informed of an FOI application seeking, inter alia, any report emanating from DFAT on the question of Israel practicing apartheid in Israel or the Occupied Territories.
A third article – FOI exposes Australia’s attempts to protect Israel on apartheid status: March 28, 2023 – detailed the results of the FOI application, including the limited disclosure given. The conclusion was that there was no suggestion of Australia having carried out any in depth analysis of either of the two Reports such as to question the reliability of same.
It is appropriate here to re-visit the “limited disclosure” given. One document marked “LEX7052 – RELEASED BY DFAT”, necessarily post March 2022, and addressing “HRW/Amnesty allegations of apartheid” asserted “(t)he term (apartheid) is not helpful in progressing the meaningful dialogue and negotiation necessary to achieve a just and enduring peace”, and that “(i)f pressed on legality … our position is that it is for competent judicial bodies to determine whether crimes against humanity have been committed” (emphasis added).
Has the ICJ’s Advisory Opinion advanced the matter? The answer is yes. For a start, the Court – the ICJ – must be accepted as “a competent judicial bod(y)”. Indeed, it can appropriately be described as the world’s highest judicial body. The Court found that Israel, through legislation and administrative policy of separation in the West Bank and East Jerusalem, is in breach of Article 3 of CERD – (International Convention on the Elimination of All Forms of Racial Discrimination). That breach is constituted by the fact of racial segregation and apartheid (paras.224-229). Strictly, the finding appears to be confined to “the Occupied Palestinian Territory, including East Jerusalem”, as that was the subject of the advisory opinion sought by the General Assembly. However, the legislation addressed by the ICJ is legislation having application to Israel proper, and it is inconceivable that the finding would not apply equally to Israel itself.
How important is this finding by the ICJ? The answer is that it is hugely important. In the first place, it is not a finding that Australia can challenge in any way. There is no appeal from the finding, and Australia, as a member state of the United Nations is bound to comply with the UN Charter, which establishes the Court.
What then flows from the finding and the acceptance of the fact that in the Occupied Palestinian Territory, including East Jerusalem, Israel has established an apartheid system? Well, what it means is that Israel is guilty of a crime against humanity, and, indeed, Israeli officials are war criminals. Does international law impose any obligation or duty upon a state such as Australia, in this situation? The answer is yes.
May I restate the law. Of primary significance is the Rome Statute of the International Criminal Court, done in 1998. The Court was given jurisdiction over crimes against humanity, defined, by Article 7, to include (1(j)) – the crime of apartheid. By Article 7.2(h) “the crime of apartheid” is defined as “inhumane acts … committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group and committed with the intention of maintaining that regime”. And as with all crimes, there can be complicity. Australia is an UN member state. It cannot conduct itself in any way which supports the Israeli government which seeks to maintain the system. In other words, it cannot engage in arms sales with Israel, or Israeli companies, nor enter into preferential trade agreements, such as a free trade agreement, with Israel. Such would be seen to assist Israel to prolong its occupation and apartheid. Indeed, Australia must consider imposing sanctions on Israel for so long as it continues to maintain the occupation.
What then has Australia done, if anything, since the publication of the ICJ judgment on 19 July? There can be no half measures here. It was never considered that South Africa could negotiate a compromise.
Well, on 25 July, the Prime Minister and Foreign Minister announced that seven settlers in the West Bank were to be sanctioned by Australia: they were to be denied the possibility of a visa to enter Australia. But anyone can see that such a penalty/restriction is all but meaningless for seven persons intent on stealing land from Palestinians in the West Bank, so that they can live on it, not travel to Australia. What Australia must do is to act against the occupation, including but not just the continued existence and expansion of the settlements. And it is not just Australia that must consider its position. Australian corporations, super funds, etc., must all examine their dealings with Israel or Israeli entities.
Let me ask our erstwhile Prime Minister, and Foreign Secretary, some pertinent questions:
- Do you accept that Israel is overseeing an apartheid system in the Occupied Palestinian Territory, including East Jerusalem?
- If not, why not?
- Do you accept that such conduct constitutes a crime against humanity?
- If not, why not?
- Do you accept that for Australia to engage in trade with Israel or Israeli companies, or to suffer Australian corporations or citizens to do likewise renders Australia an accomplice in the crime against humanity?
- If not, why not?
- Do you accept that for Australia to recognise a Palestinian state would be consistent with a declared Australian position that Australia supports a two State solution, and also consistent with the recommendations of the ICJ?
- If not, why not?
Finally, Pearls & Irritations has agreed to make a commitment to publish any answers to those questions by the Prime Minister and Foreign Secretary or either of them. We look forward to receiving and reading those answers.
Paul Heywood-Smith is an Adelaide SC of some 20 years. He was the initial chairperson of the Australian Friends of Palestine Association, an incorporated association registered in South Australia in 2004. He is the author of The Case for Palestine, The Perspective of an Australian Observer published by Wakefield Press in 2014.
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