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Australia, Israel and the ICC. One rule for Ukraine, another for Palestine

by Ian McGarrity | May 28, 2024 | Comment & Analysis, Latest Posts

Already on trial for genocide, Israel has defied the International Court of Justice and amped up its slaughter of Palestinians. Ian McGarrity looks at the ‘global rules based order’, Australia and the predicament for world justice.

How many times have you heard Australian political leaders and senior bureaucrats intone our country’s belief in, and strategic reliance on the international community conforming to the ‘rules-based international order’?

But how consistent is a country like Australia likely to be when faced with supporting orders and obligations flowing from last week’s actions of rules-based entities like the International Criminal Court (ICC) and International Court of Justice (ICJ) when it doesn’t suit us or our own domestic values environment? Let alone those espoused by our ally, the United States?

The ICC is like a standing war crimes entity that deals with individuals accused of committing certain prescribed international crimes who are not likely to be dealt with by their own nation’s judicial system. The ICJ is a UN instrumentality dealing with disputes between countries.

Anthony Albanese and our urbane Foreign Minister, Penny Wong, are currently trying to navigate the complex thicket the ICC and ICJ have presented them. And the PM is seemingly not making a great fist of mastering the nuanced political, and arcane legal language used by the ICJ and the ICC in their respective orders and actions concerning the Gaza war last week.

ICJ orders and ICC’s Netanyahu arrest warrant

The ICJ made orders on May 17, which, on their face, appear to require Israel to cease military operations in the Gaza city of Rafah. The language of these orders is so tortured from seeking compromise and agreement from 13 of the 15 relevant judges, that international legal experts and the two dissenting judges are not really sure of their exact legal meaning.

Yet international political commentators seem to have no such difficulty interpreting the majority of the ICJ’s Rafah orders. They often take a small amount of knowledge and understanding and organically grow that into awesome conclusions that may not be factually sound.

The Chief Prosecutor of the ICC, on the other hand, put very clear meat on his bones regarding the action he wants: for a three-judge panel of the ICC to approve the issuing of arrest warrants against three Hamas leaders and the Prime Minister and Defence Minister of Israel. And if those arrest warrants are issued, for the 124 signed-on member countries of the ICC, including Australia, to arrest any of those five should they land in Australia.

One senior Australian Government Minister, Chris Bowen, has supported what he believes (really can he be sure he knows) the ICJ has ordered Israel to do by saying: “Australia believes international law should be complied with”.

Australia believes the binding rulings (of the ICJ) should be complied with, and we believe Rafah should not be invaded by Israel.

I wonder whether he’ll be as certain of his position if the Benin, Romanian and Mexican ICC judge panel of three decides Australia should arrest the Israeli Prime and Defence Ministers in accordance with the arrest warrant the ICC’s Chief Prosecutor seeks.

Or will he say the 124 members of the ICC are obligated to arrest the three Hamas leaders should their arrest warrants be approved, but remain silent on any applying to Benjamin Netanyahu and Yoav Gallant?

Australia’s response

Our PM, of course, and Foreign Minister Wong back in January had already opined that they did not agree with the basic premise of the genocide case South Africa brought before the ICJ.

Presumably, that means they must have some doubts about the ICJ orders last Friday (even if Bowen does not) concerning Israel and Rafah, which, also presumably, to some extent support the contention before the ICJ that genocide is happening or about to happen in Gaza.

So much for our PM’s reluctance last week to comment mid-stream on the ICC’s arrest warrant process when he and Wong clearly did just that back in January concerning the ICJ process.

The fact is, the ‘rules-based international order’ is really a minefield inhabited by a range of countries seeking different outcomes, usually ‘according to each’s national interest’.

The ICJ and, in particular, the ICC are fundamentally political as well as judicial entities. They are not just finding that the facts comprise ‘2’ and ‘3’ and hence the sum of those facts is ‘5’. They are dealing, like Justice Lee, in the Higgins Lehmann case, much more in ‘the balance of probabilities’.

Palestine and the ICC

The matter actually begins with the ICC admitting the State of Palestine as a member of the ICC on 1 April 2015. That was nine years ago.

As a member, on 22 May 2018, Palestine raised an issue for the ICC to adjudicate regarding relevant crimes alleged to be committed by Israelis in the territory of Palestine since 13 June 2014, with no end date.

On 5 February 2021, a previous ICC panel of three judges determined (by a 2-1 majority) that the ICC had jurisdiction to examine the alleged relevant crimes covered in the Palestine referral. The previous ICC Chief Prosecutor had referred this jurisdiction matter to the panel on 22 January 2020.

Australia provided its views to the three-judge panel on 14 February 2020 and opposed the ICC having jurisdiction concerning the relevant crimes set out in the Palestine referral of 22 May 2018. The investigation by the office of the Prosecutor, which led to last week’s application to the ICC three judge panel for arrest warrants to be issued, commenced on 3 March 2021.

Note that all this action over the 6 years since Palestine became a member of the ICC, and

occurred at least 19 months before the Hamas attack on Israel on 7 October last year and the Israeli response.

The ICC genocide case – what’s next?

On 17 November 2023, the current Chief Prosecutor, Karim Khan, received referrals from five ICC members, South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, requesting an investigation into possible relevant crimes in the West Bank, East Jerusalem and Gaza (the ‘territory’ of a member’s ‘state’ – Palestine). Chile and Mexico were added to the list of referral members on 18 January 2024.

Under the Rome Statute, where a signatory has referred a matter to the Office of the Prosecutor and it determines that a reasonable basis exists to commence an investigation, the Office is obliged to act. This is thre process that led to last week’s referral.

In my view, the political and legal options open to the three judges from Benin, Romania and Mexico now considering Khan’s request for 5 arrest warrants to be issued are:

  1. Neither Hamas nor Israeli leaders (notwithstanding the Prosecutor’s request and the referrals from the eight members);
  2. Issue arrest warrants for leaders of either Hamas or Israeli leaders alone; or
  3. Issue arrest warrants for leaders of both Hamas and Israel.

I can only imagine that many, if not all, at the top of the ICC tree probably think it would be best for its panel to find any substantial reason to delay any decision on the arrest warrant application because all of the options above are almost certain to do great damage to the ICC.

For the ICC’s sake I hope in view of the majority only (2-1) decision regarding jurisdiction of February 2021 – and the cleft stick on which the ICC rules and processes have hoisted the Chief Prosecutor and the ICC judges – the panel can refer the decision on jurisdiction for further review.

This would place the Prosecutor’s application for arrest warrants into Chelmsford like deep sleep.

Albanese and Wong must also be hoping that deep sleep envelops Karim Khan’s latest application for arrest warrants to be issued against Netanyahu and Gallant.

What about Putin and Ukraine?

However this was not their view when Khan requested the ICC issue arrest warrants for Vladimir Putin, and his Commissioner for Children’s Rights Maria Lvova-Belova, on 22 February 2023 and such warrants were approved by the Court just 23 days later.

Australia had joined 42 other countries in referring the Ukraine invasion matter to Khan at the ICC and indicated it would act on the warrants if ever that was relevant.

Can one pick and choose which international rules-based order decisions one supports or rejects?

Could Australia say it would not support arrest warrants for Netanyahu and Gallant and remain an ICC member?

Editor’s Note: ministers in the Australian government reacted strongly to a media outcry about antisemitic graffiti on a wall in Melbourne but have yet to respond to the latest orders by the International Court of Justice.

Ian McGarrity is a freelance writer who formerly was the Executive Producer of ABC TV documentary and current affairs programs, and the first Head of SBS TV and later deputy to the Head of ABC TV. As nominee of the 7, 9 and 10 TV Networks he later became Chair of Digital Broadcasting Australia.

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