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Will Albo’s referral to International Criminal Court put the brakes on weapons sales to Israel?

by Farah Abdurahman | Mar 9, 2024 | Government, Latest Posts

A team of Australian lawyers led by King’s Counsel Sheryn Omeri have referred Australian Prime Minister Anthony Albanese and a number of senior parliamentarians to the International Criminal Court for complicity to genocide in Gaza. Farah Abdurahman reports.

Filed on behalf of concerned Australian citizens under Article 15 of the Rome Statute, Albanese is the first leader of a Western nation to be referred to the ICC for individual criminal responsibility in aiding and abetting the commission of genocide. 

Omeri KC, a dual qualified barrister practising in London and Sydney, said this case was legally significant because it focused exclusively on two modes of accessorial liability.

“In relation to accessorial liability, a person may be found to be criminally responsible if, for the purpose of facilitating the commission of that crime, that person aids, abets or otherwise assists in the commission of the crime, or its attempted commission, including by providing the means,” Omeri KC said.

“Secondly, if that person in any other way contributes to the commission of the crime or its attempted commission by a group, knowing that the group intends to commit the crime.”

Not only has the Australian government sent more than $13.4 million in military exports to Israel over the last five years, it continues to produce F-35 fighter jet parts which are being used to bomb Gaza. 

Wong, Marles and Dutton in the mix

Lawyers from Birchgrove Legal who drafted the application spent months interrogating available evidence and actions committed by the PM, Foreign Minister Penny Wong, Opposition Leader Peter Dutton, and Defence Minister Richard Marles in respect to the situation in Palestine.

The 92-page document, which has been endorsed by Greg James AM KC, (along with more than 100 Australian senior counsel and barristers, retired judges, law professors and academics,) seeks to test the strength of international law to hold democratic leaders accountable, given the barriers to pursue the matter nationally. 

Omeri KC said the opportunity to investigate and prosecute parliamentarians for international war crimes in Australia required the consent of the Attorney General which posed a conflict. 

“The ICC is a court of last resort. It will prosecute international crimes where States parties to the Rome Statute, such as Australia, are either unable to do so themselves or have shown themselves to be unwilling genuinely to do so,” Omeri KC said.

“Since October 2023, my client (Birchgrove Legal) has twice written to the Office of the PM in respect to the situation in Gaza and on both occasions the communications were ignored. Therefore, we have taken this avenue.”

Senator Lidia Thorpe last month introduced a bill to amend the federal Criminal Code Act 1995 to remove the requirement of the AG’s consent for the prosecution of genocide, crimes against humanity and war crimes in Australian courts. The Bill is presently at committee stage with the committee due to report by November 2024.

No cred says Albo

PM Albanese has dismissed the application as “lacking credibility”, however several key decisions made by the named MPs forms the basis of the argument for the ICC Prosecutor Karim Khan KC to consider and investigate. These include:

  1. Australia freezing $6 million in funding to the primary aid agency operating in Gaza – UNRWA – based on unsubstantiated claims that 12 aid workers out of 13,000 may have had some involvement in the October 7 attack. The aid funding was cut almost immediately after the International Court of Justice found Israel was plausibly committing genocide in Gaza.
  2. Providing military aid and approving defence exports to Israel exceeding $13.4 million over the last five-years which could be used by the IDF during the prima facie commission of genocide and crimes against humanity. 
  3. Ambiguously deploying an Australian military contingent to the region, where its location and role have not been disclosed.
  4. Permitting Australians, either explicitly or implicitly, to travel to Israel to join the IDF and take part in its attacks on Gaza.
  5. Providing unequivocal political support for Israel’s actions, as evidenced by the political statements of the PM and other members of Parliament, including the Leader of the Opposition.
  6. Sharing intelligence with Israel obtained through the US-Australia Pine Gap surveillance facility.

Academic critics of the application have suggested the matter should have been referred to the domestic Office of Special Investigation, which was founded to investigate violations of human rights and war crimes committed by Australian defence force personnel in Afghanistan. 

But a spokesperson for OSI Omeri confirmed the limitations of OSI’s mandate which again sits under the Attorney-General’s portfolio and poses conflict. 

OSI ossified

“The Office of the Special Investigator’s mandate includes reviewing the findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry and working with the Australian Federal Police to investigate the commission of criminal offences under Australian law arising from or related to any breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016.”

The OSI was formed after the now heavily redacted Brereton Report was handed down identifying 39 Afghans had been unlawfully killed by 25 ADF members in 23 incidents. Three-years on from its establishment, OSI has failed to bring responsible ADF soldiers to justice bar one – Oliver Schulz.

When asked for further information OSI referred MWM to DFAT who provided this response: “The Department and Foreign Affairs and Trade has no further comment to the response you received from the Office of the Special Investigator.”

DFAT then referred MWM to the Department of Defence who failed to either acknowledge receipt of the inquiry or provide a response to what ADF personnel were currently doing in the Middle East or the extent to which Pine Gap was supporting Israel.

Principal solicitor at Birchgrove Legal, Moustafa Kheir, said the ICC referral demonstrated a growing desire on the part of western civil society to hold officials to account and ensure their governments do not assist in the perpetration of international crimes.

“This application publicly sets out a case that genocide is taking place in Gaza and political leaders are complicit. Even if we can’t prove it to an individual criminal degree, we can provide it from a theoretical legal perspective so leaders should be doing more to stop it.”

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Farah is a former political reporter for Fairfax Media. She has almost 20 years of media and communications experience in senior and executive roles working across government, research and innovation, and the private sector.

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