The International Criminal Court's action against Israeli politicians and the leaders of Hamas is a significant moment
Australia's tepid response risks undermining the post-World War II legal consensus
International criminal justice remains a work-in-progress, but the ICC [International Criminal Court] represents the best chance of continuing the principles brought to life by the UN tribunals. If the people of the world really mean ‘Never again,’ then we have to find a way to engage with and support those institutions that give that sentiment teeth.
— Daniel Terris, director of the International Center for Ethics, Justice
and Public Life, on Ratko Mladic’s conviction for genocide.
The application for arrest warrants against both Hamas and Israeli leaders by International Criminal Court prosecutor Karim AA Khan KC is a significant moment in international law.
It is rare for such warrants to be issued against sitting state leaders and unprecedented for them to be issued against leaders of such a close ally of the US. As expected, this has caused extensive controversy among Israel’s defenders, but it is also worth noting that a number of human rights organisations have called for the charge sheet against Prime Minister Netanyahu and Defence Minister Gallant to include additional crimes, such as genocide.
Israel’s allies have been quick to condemn the “moral equivalence” between Hamas and Israel supposedly drawn by the move, but such claims bear little merit.
The promise of international law has been that no one is above it: it is a product of a post-World War II consensus that certain conduct is unacceptably heinous, no matter the stated justification. While it is fair to say that that consensus has always been fragile at best, Western powers coalescing around their ally to protect it from what is, in fact, carefully considered, evidence-based criticism, only increases this fragility.
The stark distinction between the stated ambitions of the advocates of the “rules-based order” and the practical realities were brought into sharp relief when almost immediately after the announcement by the ICC prosecutor—along with a separate order from the International Court of Justice to halt the Rafah operation—the Israeli military bombed a safe zone where refugees were housed in tents, causing horrific suffering on full display to the world.
Australia’s response to all of this has been tepid.
After the arrest warrant applications were issued, DFAT released a statement that noted Australia’s respect for the ICC, but it also reflexively added that “there is no equivalence between Israel and Hamas.” In the wake of the massacre in Rafah, Foreign Minister Penny Wong noted the “horrific and unacceptable consequences” of the strikes and stated that “Australia has been very clear that Israel must not proceed with its operation in Rafah.” The words might sound strong, but talk is cheap. An ally has defied ICJ orders, dismissed the ICC applications, openly refused to comply with a very reasonable request and the question remains: what is Australia going to do about it?
To be clear, as signatories to the Rome Statute, Australia is under a general obligation to cooperate fully with the ICC’s investigations and prosecutions. The International Criminal Court Act (2002) establishes these obligations in local law. This includes the requirement of executing arrest warrants issued by the court, an obligation of all 124 member states. It would mean that if the applications are successful, and if countries like Australian uphold their obligations, the worlds of Netanyahu and Gallant are about to get a lot smaller.
The utility of the ICC for member states has always had a diplomatic component—a moral justification for the dominance of Western democracies, including middle powers like Australia—but for Australia to breach these objections would be no small matter.
An instructive example took place nearly a decade ago where South Africa essentially refused to enforce a warrant against Omar al-Bashir, the then-President of the Republic of Sudan. Such conduct was met with international condemnation, as well as multiple court rulings against the presiding government for failing to uphold their own laws. In this context, the other example to consider is that of Russia. Australia welcomed the arrest warrants issued for various officials, including Vladimir Putin, when they were issued in March 2023. The Australian government also imposed an extensive sanctions regime on Russia, which includes restrictions on imports and exports, as well as travel bans for certain individuals. It is telling that no such regime of sanctions exists in relation to Israel.
Western double standards will not be forgotten, and as Germany has already done, Australia should confirm that it will execute any warrant that is ultimately issued.
Witnessing the human suffering in this conflict, that of 7 October as well the catastrophic destruction inflicted upon Palestinians, has been unbearable for all thinking people. With each new stage of the military assault on Gaza, the stakes get higher for everyone involved. The Israeli government’s defiance of international law, and the contempt it has shown for UN institutions and staff would be considered unacceptable in any other context and would justify more broad-ranging actions by member states. Their behaviour will have serious ongoing political and diplomatic implications.
If the Australian government is looking for an approach to take, it could consider a recent letter sent by over 700 lawyers in early May. This sets out ten steps that the Australian government should take to ensure accountability within the international legal system, and to protect its integrity, including recognition of a Palestinian state. These ten steps are a bare minimum, but they are actions that will be essential to generate any kind of just peace in the region.
Failure to respond meaningfully to Israeli defiance will have consequences.
It is impossible to imagine how any person in Gaza can have faith in international legal norms in the current circumstances, and that justified cynicism is only likely to grow among ambitious authoritarians and dictators in other parts of the world who are watching closely, as well as in the electorates of liberal democracies. It is notable that both China and Russia have presented themselves as more effective, and at times more rational in the context of the conflict than the US. They have positioned themselves to be involved in shaping the region post-conflict, including by hosting multiple meetings of Palestinian officials. The US, and by association Australia, are dealing themselves out of influencing the future of the region. The consequences of this remain to be seen, but for international relations wonks in government, it is hard to see this as anything other than a failure.
There are many pressing problems we will need to face collectively in coming decades, and if democratic leaders fail to secure a consensus on the most basic of matters, they are unworthy of the power vested in them by their constituents. The answer is not authoritarianism, but a revival of democratic and accountable forms of government that find common cause around human rights and international legal standards. Australia’s response to international legal mechanisms in the context of Gaza is a test of this, to which voters should pay heed.
At some point, the military assault on Gaza will end. The question is what comes after such horrific human suffering? As things stand, our government has so far failed to offer anything very impressive and may not have done enough to uphold its legal obligations. It is time to mobilise to demand better.