Australia’s Anti-ICC Lobby
Throwing caution to the wind, grasping the nettle, and every little smidgen of opportunity, Australia’s opposition leader, Peter Dutton, was thrilled to make a point in the gurgling tumult of the Israel-Hamas war. Israel’s leaders, he surmised, had been hard done by the International Criminal Court’s meddlesome ways. Best for Australia, he suggested, to cut ties to the body to show its solidarity for Israel.
Dutton had taken strong issue with the announcement on May 20 by ICC prosecutor Karim A.A. Khan that requests for five arrest warrants had been sought in the context of the Israel-Hamas War. They included Hamas chief Yahya Sinwar, the commander-in-chief of the Al-Qassam Brigades Mohammed Al-Masri, Ismail Haniyeh, head of the Hamas Political Bureau, Israeli Prime Minister Benjamin Netanyahu and Defence Minister, Yoav Gallant.
The measure was roundly condemned by Israel’s closest ally, the United States. US President Joe Biden’s statement called the inclusion of Israeli leaders “outrageous”. There was “no equivalence – none – between Israel and Hamas.” US lawmakers are debating steps to sanction ICC officials, while the US Secretary of State Antony Blinken has promised to cooperate with the measure.
The United Kingdom also struck the same note, “There is no moral equivalence between a democratically elected government exercising its lawful right to self-defence and the actions of a terrorist group,” declared UK Prime Minister Rishi Sunak during a Prime Minister’s Questions (PMQ) session in the House of Commons. When asked if he would, in the event of the warrants being issued, comply with the ICC and arrest the named individuals, a cold reply followed. “When it comes to the ICC, this is a deeply unhelpful development … which of course is still subject to final decision.”
Australia, despite being a close ally of Israel, has adopted a somewhat confused official response, one more of tepid caution rather than profound conviction. Australian Prime Minister Anthony Albanese thought it unwise to even take a formal stance. “I don’t comment on court processes in Australia, let alone court processes globally, that which Australia is not a party,” he told journalists.
In light of what seemed like a fudge, the Department of Foreign Affairs and Trade thought it appropriate to issue a clarifying statement that “there is no equivalence between Israel and Hamas.” Treasurer Jim Chalmers followed suit. “There is no equivalence between Hamas the terrorist organisation and Israel, we have it really clear in condemning the actions of Hamas on October 7, we have made it clear we want to see hostages released, and we want to see the Israeli response comply completely with international humanitarian law.”
Albanese’s opposite number preferred a punchier formula, coming out firmly on the side of Israel and donning gloves against the ICC and its “anti-Semitic stance”. The PM had “squibbed it”, while his response had tarnished and damaged Australia’s “international relationships with like-minded nations”. “The ICC,” Dutton insisted on May 23, “should reverse their decision and the prime minister should come out today to call for that instead of continuing to remain in hiding or continuing to dig a deeper hole for himself.”
Opposition Liberal MP and former Australian ambassador to Israel, Dave Sharma, is also of the view that Australia examine “our options and our future co-operation with the court” if the arrest warrants were issued. Swallowing whole the conventional argument that Israel was waging a principled war, he told Sky News that everything he had seen “indicates to me Israel is doing its utmost to comply with the principles of international humanitarian law”.
The ears of Israeli officials duly pricked up. Israel’s Strategic Affairs Minister and Observer of its War Cabinet, Ron Dermer, was delighted to hear about Dutton’s views. “I didn’t know the head of your opposition had said that,” Dermer told 7.30, “I applaud him for doing it.”
In a sense, Dutton and his conservative colleague are expressing, with an unintended, brute honesty, Australia’s at times troubled relationship with international law and human rights. Despite being an enthusiastic signatory and ratifier of conventions, Canberra has tended to blot its copybook over the years in various key respects. Take for instance, the brazen contempt shown for protections guaranteed by the UN Refugee Convention, one evidenced by its savage “Turn Back the Boats” policy, the creation of concentration camps of violence and torture in sweltering Pacific outposts and breaching the principle of non-refoulement.
On the subject of genocide, Australian governments had no appetite to domestically criminalise it till 2002, despite ratifying the UN Genocide Convention in 1949. And as for the ICC itself, wariness was expressed by the Howard government about what the body would actually mean for Australian sovereignty. Despite eventually ratifying the Rome Statute establishing the court, the sceptics proved a querulous bunch. As then Shadow Foreign Affairs Minister Kevin Rudd noted, “John Howard is neither Arthur nor Martha on ratification of the International Criminal Court.”
While serving as Home Affairs minister, Dutton preferred to treat his department as an annex of selective law and order indifferent to the rights and liberties of the human subject. For him, bodies like the ICC exist like a troublesome reminder that human rights do exist and should be the subject of protection, even at the international level.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com
Int’l Court of Justice Orders Israel to Halt Rafah Invasion, as Palestinians Face Large Scale Dehydration
The International Court of Justice ruled Friday that Israel must immediately cease its ongoing invasion of Rafah governorate in southern Gaza on the grounds that it is having a genocidal impact. The court’s ruling went this way:
The State of Israel shall, in conformity with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and in view of the worsening conditions of life faced by civilians in the Rafah Governorate:
(a) By thirteen votes to two,
Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part;
IN FAVOUR: President Salam; Judges Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi; – 2 – AGAINST : Vice-President Sebutinde; Judge ad hoc Barak
Some observers were disappointed that the court did not order an immediate ceasefire but limited itself to forbidding the Rafah campaign. Apparently the judges were concerned to distinguish firmly between war-fighting and its inevitable toll, and genocidal actions having the effect of bringing about the destruction of a people in whole or part. They judged that a full-scale Rafah invasion would have that effect but didn’t go so far as to see the war itself in that light.
President Joe Biden had also said that invading Rafah would be a red line because there is no way to ensure the welfare of the civilian, noncombatant population. Israel had ethnically cleansed northern Gaza and forced over a million Palestinians to the south, where they were living in tents impossibly crowded tenement buildings amidst squalor. The population of Rafah had only been about 300,000 but it swelled to a million and a half. Shooting into their midst or bombing these dense settlements, as Israel is now doing, is sure to inflict massive killing and wounding on women, children and noncombatant men.
Biden, having set a red line, however, has watched helplessly as Prime Minister Benjamin Netanyahu and his rogues gallery of ultra-right cabinet members have ordered several brigades into Rafah. Some 900,000 civilians have now again been ethnically cleansed and are seeking shelter in largely destroyed cities in the middle of the Strip, or are being forced with no food or water into the wilderness. Israel has largely halted food and aid shipments as part of the invasion.
If Biden is serious about his red line, he will abstain when the UN Security Council takes up the ICJ ruling, and allow it to place sanctions on Israel for showing contempt of court.
The likelihood, however, is that Israel will continue to enjoy impunity, guaranteed by the United States.
The ICJ was set up after WW II to adjudicate disputes between United Nations members. South Africa prevailed in convincing the court last winter that since both Israel and South Africa are signatories to the 1948 Genocide convention, Pretoria has standing to sue the government of Prime Minister Benjamin Netanyahu over its actions in the Gaza Strip. In January, South Africa sought what we in this country would call a preliminary injunction. For instance, say you sue a company for polluting a river, but you know that it will take years for the court to issue a verdict. You can ask the judge to issue a preliminary injunction against the company spewing pollution into the river until the case can be decided. On January 26, the court ruled again in South Africa’s favor, judging that there is a plausible case that Israel is committing genocide and it should cease immediately those war strategies that would potentially come under that heading.
The Netanyahu government has thumbed its nose at these rulings, and despite some tut-tutting, the Biden administration has fully backed the continuation of the war, resupplying Israel with arms and ammunition for it in real time.
Aid NGOS active in Gaza now say that as a result of the Israeli attack on Rafah, people are thirsting to death or getting sick because they are being denied potable water and hygiene.
The UN’s OCHA reports,
On 22 May, the International Rescue Committee (IRC) and Medical Aid for Palestinians (MAP) reported that some displaced people in central Gaza are surviving on just three per cent of the internationally recognized minimum requirements. According to humanitarian standards, the minimum amount of water needed in an emergency is 15 litres, which includes water for drinking, washing, and cooking. For survival alone, the estimated minimum is three litres per day.
This is the case, for instance, at a shelter visited by the IRC [International Rescue Committee] that houses 10,000 people and receives just 4,000 litres of water per day, translating to about 0.4 litres per person, for drinking, washing, cooking and cleaning.
The IRC stressed that this situation is forcing people to rely on unsafe water sources like seawater and agricultural wells, and the lack of adequate water quantities is contributing to dehydration.
In the absence of sanitation facilities, displaced people are also building their own makeshift latrines, with up to 600 individuals sharing a single latrine, a situation exacerbated by the scarcity or unaffordability of hygiene supplies.
Within this context, communicable diseases, including diarrhoea and suspected Hepatitis A, continue to increase, with children under the age of five being particularly affected.
If you don’t think putting hundreds of thousands of people in this situation is genocidal, then frankly there’s nothing I can do for you because you are either not being honest with yourself and the world, or you are a sociopath lacking basic empathy.
CARE reports that the new flood of refugees to places such as Deir al-Balah lack basic medical facilities for maternal and pediatric care, and there is a danger of a lot of dead babies and mothers.
Interfering in a people’s ability safely to reproduce themselves is an element of genocide to which the International Court of Justice refered in its January 26 ruling.
The likelihood is that despite the coourt ruling, Washington will run interference for the genocidal policies of Tel Aviv, and that this carnage will continue for months to come. In the next stage, more people will die of disease, given the lack of hygienic facilities, than have been killed by Israel’s indiscriminate bombing and shelling — over 35,000 at present not counting thousands more under the rubble, the majority of them women and children.
Juan Cole is Richard P. Mitchell Collegiate Professor of History at the University of Michigan. For three and a half decades, he has sought to put the relationship of the West and the Muslim world in historical context, and he has written widely about Egypt, Iran, Iraq, and South Asia. His books include Muhammad: Prophet of Peace Amid the Clash of Empires; The New Arabs: How the Millennial Generation is Changing the Middle East; Engaging the Muslim World; and Napoleon’s Egypt: Invading the Middle East.
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