Stark lessons for Australia in ICJ Genocide Ruling: But is anyone listening?

Jan 29, 2024
The International Court of Justice (ICJ), the principal judicial organ of the UN, deliver its Order on the Request for the indication of provisional measures submitted by South Africa in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), on 26 January 2024, at the Peace Palace in The Hague, the seat of the Court. Session held under the presidency of Judge Joan E. Donoghue, President of the Court. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized UN organs and agencies. Its official languages are English and French.

I doubt if any Australia political leader was watching the International Court of Justice President Judge, Joan E Donahue (United States of America) deliver the ruling in South Africa’s case alleging Israel has committed genocide on Palestinians in Gaza.

The hour-long detailed assessment by Judge O Donahue should certainly be compulsory viewing for every Federal parliamentarian so they start to acquire better understanding of their responsibilities under international law. Government ministers may require more than one viewing to absorb the implications of the ICJ preliminary ruling for Australian foreign policy. They will certainly need expert briefings to debate how the Australian Government should respond as a signatory to the Genocide Convention.

The International Court of Justice ordered that Israel “take all measures within its power to prevent its troops from committing genocide, punish acts of incitement, take steps to improve the humanitarian situation and report back on its progress within the month.” The current court comprises judges come from the United States, Russia Slovenia, France Morocco, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan Australia, Brazil and Germany. The preliminary ruling demonstrates that the South African government provided evidence which alerted the court to the risk of genocide and the decision of the court reflected that concern.

The following day Australian Foreign Minister Penny Wong announced a pause in the $6million aid package for Gaza, because 12 Palestinian U.N workers had been accused of being involved in the October 7th attack on Israel. Why would our Foreign Minister withdraw these resources from thousands of desperate Palestinians? Why did she choose to make this announcement at the very time when the International Court has asked for Israel to guarantee humanitarian aid? Bad advice and timing or a calculated decision on behalf of ‘like-minded countries “designed to divert attention from ongoing crimes against humanity? There are more than 13,000 Palestinian workers employed by the United Nations Relief and Works Agency trying to provide essential services in Gaza, yet these alleged 12 miscreants have come to the attention of U.S Secretary of State, Antony Blinken who immediately demanded a high-level investigation. Presumably he has not demanded any comparable inquiry into how 100+ U.N. workers died doing their life saving work in Gaza.

Clearly official advice and the preference of some ministers is that the Australian Government should avoid comment on the recent international ruling …an argument no doubt boosted by the International Court of Justice ruling being a preliminary statement with the final determination of Israeli genocide to follow at some time in the future. However, only a very biased or naïve adviser would attempt to sideline an official Australian response within the next few weeks.

Within the global community there will be intense debates as nations monitor how Israel responds to the International Court of Justice by February 27th. In the parliament there will be calls for Australia to review its diplomatic relationship with Israel. Will Australia recall its ambassador or introduce sanctions against Israel? Will the government review recent statements offering “unconditional support” to the nation which has been asked by the International Court of Justice to take action to prevent genocide?

Australian governments over a number of years have failed to encourage informed parliamentary or public debate about foreign policy because Australia has a history of choosing automatic support for our traditional allies, “the good guys” who “share our values” But how should the Australian Government respond when trusted allies ignore international law.? Will Prime Minister Netanyahu be welcome to travel to Australia or will he be prohibited like President Putin also identified for ignoring international law?

Australians need to know if the Federal Government has prepared detailed legal analysis and advice about our responsibilities to respond to this international Court of Justice ruling. This is major international decision which requires an independent Australian response. The Australian Government needs to catch up with the implications of the International Court of Justice statement to assess its relevance for Australian foreign policy. And indeed, how Australia itself may be in breach of its obligations under the Genocide Convention

The Albanese Cabinet needs to conduct a comprehensive review of Australian government departments and related agencies’ relationships with the Government of Israel to assess any complicity with allegations of genocide. This includes military support and any financial transactions which could be citied in a future legal action involving Australia. We know our defence systems…be it Pine Gap or arms sales are locked into American foreign policy so with or without Australian consent, this country may have been compliant in actions against the Palestinians. Prime Minister Albanese must now take charge of Australia’s response and require his ministers to detail the activities of their departments which may not have recognised the significance of policy and decision making which could have assisted the Government of Israel in its war on Gaza.

Of course, there will be the naysayers who will continue to be in denial about Australia needing to take seriously its obligations under the Genocide Convention. Empty political statements about the so called “national interest “may appeal to a largely unaware public, but they will not stand up to legal scrutiny about whether Australia may have been complicit in genocidal acts now being considered by the International Court of Justice.

The Australian Government’s response to the behaviour of the Netanyahu regime has been biased and inadequate. It has compromised Australia’s independence, undermined our international reputation and disgusted all those Australians who expect their national government to champion humanitarian law. The next month provides the Australian Government with the opportunity to show real leadership and prove it is indeed the nation which is committed to international law standards. That cannot be compromised in the name of diplomatic friendship. While we support the citizens of all nations, it is not possible to support those who become their leaders. This is why international law making has been developed to protect people when governments fail, so the International Court of Justice ruling is a significant wake up call to the Albanese Government.

You might wish to read the ICJ Ruling.

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