Australia turns its back on the rule of law.
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
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
• 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.