Judging genocide

Jan 18, 2024

Australia’s reluctance from afar to recognise Israel’s genocide in Gaza is being challenged by the genocide case against Israel in the World Court.

Australia has finally made clear its official position on the genocide case brought by South Africa against Israel in the International Court of Justice (ICJ) in The Hague.

Prime Minister Anthony Albanese during a radio interview yesterday ruled out Australia as a participant in the ICJ process, saying: “We need to have a pathway to security and peace…Not any court case.”

While the government may nominally support a peace in Gaza, it’s not so far been backed by substantial actions. And statements from the leadership provide little confidence in their stance.

Infamously, in October, Foreign Minister Penny Wong declined to condemn from afar Israel’s order for a ‘total siege’ and to cut food and water supplies from Gaza. Wong said: “I think it’s always very difficult from over here, to make judgements about what security approach other countries take.”

“We need to have a pathway to security and peace… Not any court case.”  Prime Minister Anthony Albanese, 15 January 2024

The government of South Africa’s 84-page application to the World Court – titled, ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)’ – includes nine pages of evidence of genocidal intent, including statements from Israeli decision makers and military officials.

The Department of Foreign Affairs and Trade (DFAT) previously said that, “it was aware of the proceedings but that it was not appropriate to comment on matters before the court.”

This stands in stark contrast to another recent analogous Australian government stance. In September 2023, Australia joined with 31 other countries intervening before the ICJ in support of Ukraine’s case alleging Russia had violated the Convention on the Prevention and Punishment of the Crime of Genocide.

At this point, however, the Australian government hasn’t taken its usual course to join in the statements of the United Kingdom and United States about the lack of merit of the proceedings. But the pressure on Australia has been considerable.

A recently leaked ‘urgent’ cable from the Israeli Foreign Ministry has confirmed it has instructed its embassies worldwide, including the Israeli Embassy in Canberra, to press diplomats and politicians in their host countries to issue statements against South Africa’s case at the International Court of Justice.

The 4 January 2024 cable states that Israel’s “strategic goal” is for the ICJ to reject the request for an injunction, refrain from determining that Israel is committing genocide in Gaza, and recognise that the Israeli military is operating in the Strip according to international law.

The Foreign Ministry instructed the Israeli Embassy in Canberra, and other capitals, to ask diplomats and politicians at the highest level “to publicly acknowledge that Israel is working to increase the humanitarian aid to Gaza, as well as to minimise damage to civilians, while acting in self defence after the horrible October 7th attack by a genocidal terrorist organisation.”

The Embassy cable even dictates the possible words for a public statement from the Canberra government:

“We ask for an immediate and unequivocal public statement along the following lines: To publicly and clearly state that YOUR COUNTRY rejects the outrageous, absurd and baseless allegations made against Israel.”

Declassified Australia has attempted to clarify Australia’s position by specifically asking the Department of Foreign Affairs for the Government’s position in relation to rulings of the ICJ being binding.

On 13 January 2024, a Department of Foreign Affairs & Trade spokesperson responded that, ‘As the principal judicial organ of the United Nations, the International Court of Justice (ICJ) plays a critical role in upholding international law and the rules-based order. Australia respects the independence of the ICJ and the judicial process. Judgments of the ICJ are binding on the parties to a case’ [emphasis added].

If that is the case and the ICJ, as expected, makes interim orders in the proceedings directing Israel to desist in its military activities in Gaza, then a necessary corollary of our Government’s stated position must be that it immediately cease any activity that provides material or other support for the prohibited activity. To do otherwise would contradict its stated position of respect for ICJ determinations.

“No one will stop us, not The Hague, not the axis of evil and not anyone else.” Israel’s Prime Minister Benjamin Netanyahu, 14 January 2024

The Australian government has been put into a difficult position by Israeli Prime Minister Benjamin Netanyahu. He has made a public declaration that he will ignore any interim measures imposed by the ICJ that interfere with Israel’s planned operations.

In televised remarks Netanyahu said, “No one will stop us, not The Hague, not the axis of evil and not anyone else.”

Australia, which professes to support an international rules-based order, has at least acknowledged the gravity of the destruction, maiming and mass murder occurring in Gaza. How it can now express its respect for the decisions of the ICJ, while maintaining its support for Israel, without a gross contradiction and hypocrisy, is not certain.

The signs by Australia are not entirely positive. Australia has already shown close support militarily for the Israeli assault and bombardment of the Palestinians in Gaza. Declassified Australia has documented the provision of essential components of the F-35 jet fighter being used to bomb civilians in Gaza. The government has supported more than 70 Australian companies being awarded “over $4.13 billion in global production and sustainment contracts through the F-35 program to date”.

In November, just a month into the conflict, Declassified Australia exclusively revealed the vital intelligence and targeting role being played by the Pine Gap US-Australian surveillance base (JDFPG) in collecting an enormous range of communications and electronic intelligence from the battlefield and providing this to the Israel Defence Forces.

Over coming days the Foreign Affairs Minister, Penny Wong, is visiting Jordan, Israel, the Occupied Palestinian Territories and the United Arab Emirates (UAE). The Minister confirmed in her press release of 15 January 2024 that in her engagement with Israel’s officials she will “convey Australia’s support for Israel’s security and its right to defend itself in the face of terrorism, while stressing that the way it does so matters.

“I will reaffirm Australia’s call for the immediate and unconditional release of hostages and meet with the families of hostages and survivors of the terror attacks on Oct 7. I will be joined by Australia’s Humanitarian Coordinator and will discuss practical ways to support an increased and more effective flow of humanitarian assistance.

“I will make clear Australia’s support for Palestinians’ right to self-determination and commitment to meeting humanitarian need in Gaza and the West Bank with officials in the Occupied Palestinian Territories. I will meet with representatives of communities affected by settler violence and reaffirm our view that settlements are illegal under international law. I will also emphasise Australia’s opposition to the forcible displacement of Palestinians and our view that Gaza must no longer be used as a platform for terrorism.”

Given that the Foreign Minister speaks for the country, she also needs to make clear that supporting Israel’s actions in Gaza is causing division in, and consequently a diminution of, Australia’s civil society.

She ought also warn Israel that in the absence of a permanent ceasefire in Gaza or non-compliance with any findings of the ICJ, Australia’s support is politically unsustainable and will be withdrawn.

It is unfortunate that Minister Wong arrives in the Middle East without any moral authority, particularly on the back of Australia’s ill-advised support for the bombing of Yemen, and Australia’s a long-standing involvement in the US-led Saudi-UAE coalition war against Yemen.

Australia’s military has close links with the military of UAE, which is fighting the war in Yemen that has seen the deaths of over 377,000 people. It’s been previously revealed Australia has approved dozens of Australian ex-soldiers joining the UAE military and its special forces commander heading UAE’s elite Presidential Guard.

Many Member States, including Switzerland, made it clear during the 12 January 2024 United Nations Security Council Briefing that UN Resolution 2722 did not authorise the use of force against Yemen, may potentially undermine the peace process in the impoverished nation of Yemen, risks destabilising the entire region, and fails to acknowledge the root cause of the problem, namely the Israel/Palestine crisis.

Australia’s support for and involvement in our AUKUS partners’ actions was concealed from the Australian public until after the first round of bombings on 12 January 2024. No details were provided about the precise role of the Australians deployed to the US operational HQ in Doha.

The secrecy and suspect legality of the UN unauthorised bombings raises serious questions about what Australians can expect from its AUKUS partnership itself and what we might be roped into as a result of that quasi-alliance.

Hanging over the Australian government too is the fact that it is a party to the Genocide Convention and has an obligation to take affirmative action to prevent genocide. If the ICJ finds a prima facie case that it has jurisdiction to hear the case, government lawyers will need to consider the legality of its political support and defence exports – both direct and indirect – to Israel.

It is worth noting that the US Center for Constitutional Rights has filed a suit against the US President, Secretary of State, and Security of Defence on behalf of Palestinian organisations and civilians in the United States and Palestine, to challenge the US government’s aiding and abetting of genocide and demand that it work to prevent genocide. A hearing on the preliminary injunction motion is scheduled for January 26, 2024.

Contemporaneously a group of about 40 lawyers from South Africa led by law firm, Wikus Van Rensburg Attorneys, gave formal notice to the United States on 2 January 2024 that it intends to bring legal proceedings against the United States based on overwhelming evidence that the US Government has, and is, aiding, abetting and supporting, encouraging or providing material assistance to genocide.

The genocide it refers to is the enabling and perpetuating international crimes against the Palestinian people, by the State of Israel and the Israel Defence Forces.

Our other AUKUS partner, the United Kingdom, received a similar notification. Perhaps, though less likely, we might get one too. It is naïve at best for the Australian government not to anticipate that firstly the world and second Australians in general, and lawyers in particular, will be watching closely as events unfold.

Australians may have no choice but to suffer the fate of our elected government putting us on the wrong side of history. If our government is to continue to support any party to any existing war, or proposed warlike activity, then it ought to provide Australians more openness.

At the very least the Australian government owes both our Parliament and our citizens a detailed legal and moral explanation and justification of the position it takes, and a clear statement, in advance, of its immediate objectives and its intentions for the future.

 

First published in DECLASSIFIED AUSTRALIA January 16, 2023

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