Two months have passed since the events of October 7. Publicly, Australia has done nothing except perhaps indicate that it desires a two-state solution, and expects Israel to only take action which has regard to the need to protect civilians. Is this enough? The answer is no.
Let us commence by considering what facts are uncontentious.
Fact 1: Since 1967 Israel has had the status of an occupying military power over the West Bank, East Jerusalem, and Gaza. The regime of occupation therefore applies, governed by the 1907 Hague Regulations and IV Geneva Convention relative to the occupier’s obligations to protect civilians in the occupied lands.
Fact 2: Israel is promoting the transfer of Palestinians from Gaza.
Fact 3: Israel has taken action to restrict Palestinian access to food, water, health services, housing, at the least.
Fact 4: Israel has engaged in disproportionate attacks which has killed some 15,000 plus Palestinians, including 6,000 children, by carpet bombing of Gaza, which bombing has included hospitals and refugee establishments.
Fact 5: Israel is supporting settler action in the West Bank to remove Palestinians from their land.
There are some facts which I would assert but I understand that some might like to contest. I state them.
Fact 6: Israel is an apartheid state.
Fact 7: Israel’s actions in Gaza since October 7 cannot be justified as acting in self-defence.
Let us consider October 7. The Palestinian government in Gaza, known as Hamas, asserts that the reason for the military operation was to put the Palestinian cause back on the map. Such is a legitimate cause. Was it entitled to do so by means of a military raid? The answer is yes. An occupied people are entitled to oppose such occupation. That right includes armed resistance, accepting that such is bound by the rules of international humanitarian law: refer Rome Statute, Article 31, 1 (c) and (d). Did it go too far and engage in contact beyond a military raid? That is yet to be determined. Certainly, hostage taking cannot be justified. Israel asserts that atrocities were committed, but the evidence remains confidential to the ongoing Israeli investigation. Propaganda is rife.
What is however clear is that the fact that the Palestinians may have breached the rules of international humanitarian law on 7 October does not mean that Israel is no longer bound by those same rules.
So just looking at the uncontentious facts for the moment. How can it be said that they are uncontentious? Well, for the most part, the facts are announced and claimed by Israeli leadership. Thus, Israel has confirmed cutting off energy supplies, stopping food deliveries, attacking hospitals, destroying homes, forcing Palestinians to move under threat of mortal danger, bombing civilian areas. Israel has promoted the transfer of Palestinians from Gaza to Egyptian Sinai. It has taken measures to ensure the evacuation of civilians from north to south and made it clear that there will be no returning. What does international law have to say in respect thereof? And what action can and should be taken and by whom to seek to address such conduct?
We go to the Rome Statute of the International Criminal Court which came into force in 2002. The Court’s Pre-Trial Chamber ruled in 2021 that Palestine was a State for the purposes of the Statute.
International law establishes certain offences. Amongst them is genocide, established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Article 6 of the Rome Statute asserts that genocide means, inter alia,
“any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;”.
What is also clear is that genocidal action is incompatible with self-defence: Article 31, 1(c). Accordingly, the mantra “Israel has a right to defend itself”, has no relevance to the genocidal conduct that Israel has engaged in in Gaza over the last two months. Engaging in the infliction of “conditions of life calculated to bring about … physical destruction” of a group clearly includes denial of access to food, to water, to medical care, to housing, for a start.
Of course, intent must be established against any person charged with genocide. On that score forced population transfer is relevant. Here, statements by potential defendants, such as Benjamin Netanyahu, must be taken into account. Such statements have clearly indicated that Palestinian society in Gaza is to be destroyed and that the Palestinians must give up their sovereign rights and abandon their land.
All of this is against the realisation that Israel takes no account of the Palestinian people’s right to self-determination on their own land, the land recognised as such by Security Council resolutions, namely the West Bank, East Jerusalem and Gaza. It is appropriate to refer to SC Resolution 2334 which Israel has refused to implement: refer Blood: The bitter harvest of breaching Resolution 2334: Nov. 29, 2023.
There are some other relevant offences. Article 7(1)(d) of the Rome Statute acknowledges the crime against humanity of deportation or forcible transfer of population. Article 8(2)(b)(i) asserts the war crime of attacking civilians. Article 8(2)(e)(iv) asserts the war crime of attacking protected objects. Protected objects include religious buildings, viz. mosques, or Christian churches, and also, relevantly, hospitals.
What recourse is there? Well, there is the International Criminal Court (ICC) established in 2002 with jurisdiction over crimes identified in the Rome Statute.
There are three ways of getting to the ICC. The first is by referral of a matter by the Security Council to the Prosecutor for investigation. The second is the referral of a matter to the Prosecutor for investigation by a State member of the ICC. Finally, the Prosecutor can initiate an investigation himself, provided it is authorised by a panel of ICC judges known as the “pre-trial chamber”.
As it happens, six member States (South Africa, Bangladesh, Bolivia, the Comoros Islands and Djibouti) have formally filed a referral. And the Prosecutor, Karim Khan, has himself initiated an investigation. However, the ICC is only empowered to prosecute individuals, not States. Some consideration of who might be appropriate defendants to a complaint to the ICC is appropriate. Clearly Netanyahu, and of course other members of his cabinet, and principal military personnel. May I be so bold as to suggest that Joe Biden should at least be considered.
Then there is the separate institution, the International Court of Justice (ICJ), or World Court. The conduct of States is adjudicated by the ICJ, also located in The Hague. Indeed, the ICJ may well be the more appropriate forum to address the question of whether there has been the commission of genocide by Israel. History suggests that the ICJ may have a more favourable timeline than the ICC, which has a reputation for delayed meaningful action. The ICJ has the capacity to order interim relief. There is a jurisdictional basis for the ICJ to adjudicate on a dispute about Israel’s compliance with the Genocide Convention. Israel is a state party to the Convention.
Why hasn’t Australia joined the other five – re the ICC, or demanded of the Prosecutor that he issue arrest warrants against Israel’s leaders? For that matter, why hasn’t Australia as a contracting party to the Genocide Convention sought a ruling as to the responsibility of Israel for genocide from the ICJ? Why hasn’t Australia named and condemned Israel’s unfolding genocide in Gaza? Australia must decide where it stands. And why hasn’t Australia taken some positive action to stop the settlements? It has numerous options open to it.
And why is Australia beholden to Israel? Come on Mr. Albanese and Ms. Wong. You could start by explaining why you don’t accept that Israel is an apartheid State. So much flows from that. Then you might explain why, back on 30 December 2022, Australia voted against a UN General Assembly resolution requesting the ICJ to investigate practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory.
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Paul Heywood-Smith is an Adelaide KC 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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