Pearls and Irritations

The 26 January findings of the International Court of Justice relating to South Africa’s genocide claim against Israel, do not only have bearing on that state, but they trigger the obligation to prevent genocide required of all 153 state parties to the 1948 Genocide Convention, including Australia.

In finding that it’s “plausible” that Israel’s massacre upon the 2.3 million Palestinians living within the walled-in region of Gaza involves genocidal acts, the ICJ ordered the Zionist nation to halt them, and it reinforced that states complying with the convention must actively attempt to prevent them.

The ruling further called for an “immediate” increase in “urgently needed basic services and humanitarian assistance” into Gaza, as Israel has not only been blocking aid trucks entering into the Strip, but it cut off regular water, food, medicine, power and fuel supplies in early October.

Yet, following the ruling of the ICJ, the UN’s principal judicial organ, Israel charged a few employees of UNRWA, the UN agency for Palestinian refugees, with partaking in the 7 October Hamas attacks on Israel, and, as a result, the Biden administration cut funding to this main aid channel into Gaza.

Australian foreign minister Penny Wong promptly followed the US lead in cutting funding to UNRWA on 27 January. And this appears to directly contradict our nation’s obligations under the Genocide Convention, as the denial of further aid to Gaza only speeds up the potential genocide.

Blood on local hands

The Genocide Convention outlines the five forms genocide can take. The ICJ found Israel is plausibly perpetrating genocide in four ways: attempting to destroy a specific group, via killing, causing serious bodily or mental harm, deliberately inflicting destructive conditions and prevention of births.

The dozen nations that have cut funding to UNWRA are arguably assisting Israel in causing serious bodily and mental harm, as well as its deliberate infliction of destructive conditions on Gaza’s Palestinians, and, in light of the ruling, this could likely be considered aiding and abetting genocide.

Article I of the Genocide Convention requires all nations a party to it to “confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”. Australia ratified this international agreement on 8 July 1949.

However, genocide, in all its forms, is criminalised under Australian federal law, as the nation ratified the Rome Statute on 1 July 2002, which is the legal instrument that established the International Criminal Court, and it has international jurisdiction to prosecute core international criminal offences.

In agreeing to the Rome Statue’s terms, our nation further committed to criminalising the core international offences under Commonwealth law, which included inserting the five primary genocide offences into the Criminal Code. And these atrocity offences have universal jurisdiction.

Such jurisdiction means the laws apply to any such crimes committed globally. So, there’s the potential for cases to be brought against local politicians built around decisions taken here, which then have on the ground implications in other regions across the globe, especially right now in Gaza.

Complicity proceedings underway

South Africa lodged its case against Israel on 29 December, and the court heard it on 11 January. And in the wake of that ICJ ruling, the former apartheid nation has further announced that close to fifty of its lawyers are preparing an ICJ lawsuit against the US and the UK for their complicity in genocide.

Yet, such litigation has also been lodged in the US, where the Defence for Children International Palestine and Al-Haq filed a genocide complicity case with the US District Court against US president Joe Biden, secretary of state Antony Blinken and defence secretary Lloyd Austin.

Launched on 13 November, judge Jeffrey S White dismissed the case last Wednesday, citing laws preventing the judiciary from interfering in foreign policy. However, the federal judge did call on Biden to reconsider his “unflagging support” for the Netanyahu government’s mass slaughter.

And the UK-based International Centre of Justice for Palestinians filed a complaint against senior British politicians, charging them with complicity in the atrocities being committed in the Gaza Strip, with the Metropolitan Police War Crimes Unit in mid-January.

The ICJP complaint further implicates Israeli politicians in the commission of atrocities, as well as charges against British citizens who travelled to Israel to take part in the assault on Gaza.

Indeed, local lawyers have been warning that Australians partaking in the conflict could also be prosecuted on return.

“Defunding UNRWA, at this point, is inhumane and immoral,” ICJP director Tayab Ali recently said. “In my view, it’s potentially a criminal act, collective punishment potentially.” And he added that while collective punishment is not a standalone offence, it’s arguably captured in genocide crimes.

Ali further explained that acts by nations that accelerate “death and suffering on the ground”, like the cutting off of aid when they’re a party to the Genocide Convention, could lead state actors to be found to have “secondary party or, even potentially, primary party liability” in the act of genocide.

And whilst raising such a case against Australian politicians in the domestic sphere is yet to happen, all it would take is a concerted effort on the part of Palestinian rights organisations and local legal minds to see senior federal Labor politicians at least facing court over genocide complicity.

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