Where is it? Australia’s legal determination on Israel’s genocide?
· Michael West
The Albanese Government has obligations under law to make a legal determination about Israel’s genocide. Where is it? asks Kellie Tranter.
In the aftermath of President Herzog’s visit to Australia, which arguably undermined social cohesion, it is worth reminding the Australian government that Australia’s obligation to prevent genocide and duty to act is triggered when Australia learns of, or should normally have learned of, a serious risk that genocide will be committed.
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From that moment onwards, Australia is under a duty to take any actions available that are likely to deter those suspected of preparing for genocide or reasonably suspected of harbouring the specific intent to do so.
it hasn’t told us
While the Australian Government has been clear that any formal determination of genocide must be left to a competent court, it hasn’t told us whether, as it is obliged to do under its legal obligations to prevent genocide, it has assessed whether a genocide is taking place or is likely to occur.
It is worth noting that to impose provisional measures, the ICJ first must consider whether the rights being claimed by a party plausibly exist – in other words, that they have a basis in international law and can be claimed in the case.
A real risk of prejudice
Second, the ICJ must then consider whether those rights are at risk of “irreparable prejudice”. The Court exercises this right “only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision”.
The ICJ opinion in January 2024 specifically highlighted two rights that were at least plausible: first, the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in article 3 of the Genocide Convention, and second, the right of South Africa to seek Israel’s compliance with its obligations under the convention.
The distinction that some governments posit to deny their legal obligations is that the “real risk” of prejudice to these plausible rights is not the same as a “serious risk” of genocide.
A preposterous non sequitur
Those in power disingenuously rely on the assertion that the ICJ has neither found that Israel has breached its obligations under the Genocide Convention, nor ruled on the plausibility of Israel committing genocide, and accordingly, the ICJ’s Provisional Measures Orders should not be regarded as creating an awareness of a serious risk of genocide.
That assertion is both legally and semantically a preposterous non-sequitur.
The Provisional Measures Orders were not made in a vacuum: the ICJ needed to act on credible evidence to support and make its findings. The standard of proof required that the Court be satisfied of a possible risk of genocide, which ipso facto involves a real risk of the underlying offence being committed.
That is still a high standard to meet and was satisfied in this case; any examination of the evidence filed to support the application makes it abundantly clear why the Court found the claim made out.
Former President of the ICJ, Joan Donoghue, said: “…the Court decided that Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the Court. It then looked at the facts as well, but it did not decide – and this is something where I’m correcting what’s often said in the media – it didn’t decide that the claim of genocide was plausible. It did emphasise in the Order that there was a risk of irreparable harm to the Palestinians in their right to be protected from genocide….”
Impossible to deny
It beggars belief that any rational actor could look at the material before the ICJ and answer, “No, there is not a serious risk of genocide”, but that became impossible to deny after the original evidence was supplemented by an incessant flow of direct verbal, video and photographic evidence – including from Israeli government ministers and IDF soldiers – about what Israel is doing in the Palestinian territories and why.
Most Australians are appalled by the sheer barbarity of Israel’s onslaught against the Palestinians, the manipulative mendacity of its officials and supporters, and its glaringly banal hypocrisy in claiming to be a moral actor and a democratic state.
The unprecedented popular support for the Palestinians through all categories of Australian society – and the co-relative detestation of Israel’s actions – so clearly demonstrated in the size and composition of the protest march across the Harbour Bridge seems to have shocked both State and Federal governments out of their languid deference to their colonial and political masters, but not enough to have them openly accept the reality that for more than two years Israel has been and is committing genocide literally before our eyes.
What is the excuse?
Has the Australian government assessed, as part of the obligatory foundational determination of its individual legal obligations under the Genocide Convention, whether there is a serious risk of genocide? If not, what excuse does it proffer for its failure to comply with that legal obligation?
If it has, why has it not announced its determination and the reasons for it?
We will not be fobbed off with the usual attempts to shift responsibility for making a decision to other parties, whether the ICJ or our “Western allies” or otherwise: the determination process is a course that our Government must stand up and take independently in its own right.
The Australian people need to know what has been determined and why, so they can truly be satisfied, by more than rhetoric, that our government has made a proper and appropriate determination and that Australia is diligently complying with any legal obligations flowing from that determination.
When politicans fail, police go rogue, justice fails to protect