Australia turns its back on the rule of law

Feb 25, 2020

Australia’s efforts to block an International Criminal Court investigation into alleged war crimes in Palestine are inexplicable, given the court’s brief to investigate abuses from all sources, be they Hamas, Palestinian paramilitary, or Israel.

This intervention takes Australia’s growing, one-sided, support of Israel to a new high. By denying Palestinians the right to justice, and protecting Israel from justice, Australia undermines the rule of law as the standard by which international behaviour is to be judged, and if necessary, sanctioned. Through this intervention we risk further undermining what moral authority we have and provide comfort nearer at home for the ‘might is right’ approach to international relations.

Australia is a signatory to the Rome Statute that set up the ICC and ratified that statute in 2002. Since that time Australia has supported many of the investigations and prosecutions undertaken by the ICC. Australia has used or called on others to use other International legal systems to reach agreements on contentious issues such as the United Nations Convention on the Law of the Sea (UNCLOS) under which agreement on a sea boundary between Timor Leste and Australia was reached. Australia has made calls on China to follow a similar process in solving the territorial disputes in the South China Sea.

In December last year the ICC announced that a five-year preliminary examination had found sufficient evidence of war crimes committed in Palestine to proceed with a full investigation.

The court’s chief prosecutor, Fatou Bensouda said, “In brief, I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip”

The alleged war crimes that were the focus of the preliminary investigation include the Israel Defense Forces (IDF) intentionally launching disproportionate attacks in Gaza and the transfer of Israeli civilians into the West Bank. It also indicated it may expand the scope of the investigation to investigate IDF lethal and non-lethal means against demonstrators since March 2018 – in actions to oppose the Palestinians Great March of Return.

The alleged war crimes that Palestinian armed groups are being investigated for include intentionally directing attacks against civilians, using protected persons as shields; wilfully depriving protected persons of the rights of fair and regular trial and torture and outrages upon personal dignity.

Not surprisingly Israel (along with the US) is not an ICC member and has disputed whether the court had jurisdiction over the Palestinian territories, on the basis that Palestine is not a state. The ICC prosecutor indicated that she believes that the ICC has jurisdiction, but given the complexty, has requested that the court’s Pre-Trial Chamber confirm this opinion.

Australia filed an amicus brief on Friday 14th of February, indicating Australia does not recognise Palestine and requesting permission to make full argument. Statements by the Prime Minister indicates that this Government asserts that the ICC lacks jurisdiction to conduct an investigation because Palestine is not a state. Following Palestine’s admission to the UN as a non-member State, Palestine was admitted as as a state member of the ICC in 2015. Although Palestinian groups are also being investigated, the Palestinian Authority is clear it wants the investigation to proceed and for justice to be done. Australia is in a minority of countries that does not recognise the state of Palestine. Only a handful of other countries (Austria, Germany, Brazil, Hungary and the Czech Republic) have intervened to file similar briefs contesting the court’s jurisdiction.

As a signatory to the ICC and as a past supporter of its investigations, why has Australia suddenly decided to intervene to oppose the ICC’s jurisdiction over alleged abuses and war crimes in Palestine?

Questions need to be asked of the Australian government.

  • Why cannot Palestinians look for legal recourse to the abuses, theft and violence they have suffered?
  • Why should Israel not be held to account for any war crimes it may have committed? Why is Israel exempt from standards that apply to other countries?
  • Why, given that both Israel and Palestinian groups are being investigated, is Australia opposed to the investigation proceeding?

Palestinians recourse to the ICC for abuses and possible war crimes to be properly investigated should not be opposed. Australia should let the ICC do its job – investigate, and if necessary, prosecute perpetrators of grave crimes, no matter their source.

No Australian interest is served by taking such a partisan position on the issue of Palestinian human rights. This intervention by the Australia government is promoting a culture of Israeli impunity. Further, through this action the Australian government encourages and promotes the most extreme elements of the Knesset and Israeli civil society whose racism, prejudice and exclusivity make any proposition for peace based on fairness and equality the most forlorn hope.

As a responsible middle power and known close friend of Israel, Australia should be using its influence to encourage voices on both sides of this long struggle who wish to reach out in respect and reconciliation across the divide and build bridged of mutuality and concord.

The Australian government and the Australian people face major international grievances much closer to our shores. We need to be known as a country that unwaveringly stands for international law and justice, otherwise we put our own more immediate interests at great risk. Where trust exists, even the improbable is possible. Without trust nothing is possible. International law and its observance lays a foundation for trust.

Finally, Netanyahu and his fellow ministers in the Knesset, constantly insist the Israeli army is the most moral in the world.   They should then submit to the investigation and prove it.


George Browning is president of the Australia Palestine Advocacy Network (APAN) and a retired Anglican Bishop of Canberra and Goulburn.


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