Australia should be concerned by a court that breaks its own rules

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Australia should be concerned by a court that breaks its own rules

Bren Carlill, Canberra Times, 27 May 2024

The International Criminal Court’s Prosecutor Karim Khan has announced that he is applying to the Court to issue arrest warrants for Israel’s prime minister and defence minister, as well as three Hamas leaders.

The move is a clear overreach in terms of jurisdiction and due process. If Khan’s application is successful, the ICC will appear to be breaching its own constitution.

But far worse is the precedent that this moves sets. It has the possibility of preventing Western armies from operating.

This is the reason, rather than any fondness or concern for Israel, that the Australian Government should be strongly pushing back against Khan’s reckless decision.

Benjamin Netanyahu and Yoav Gallant are democratically elected high officials in a rule-of-law Western democracy whose military abides by the laws of armed conflict.

The Israeli army has gone well above what is required of it to avoid civilian casualties, which is why in this war, the ratio of Palestinian civilian to combatant casualties is about 1:1, compared to the global warfare average of 9:1. Without doubt, the humanitarian situation in Gaza is troubling and, despite the 29,000 trucks of aid that Israel has facilitated going into Gaza, more can and arguably should have been done.

However, that Khan would drag before the court a Western country whose army is abiding by the laws of armed conflict because civilians have been impacted by war (as civilians tragically always are) will send shivers up the spines of all Western military planners, because this precedent – if arrest warrants are indeed issued – will impact the ability of Western militaries to operate.

Let’s remember that Khan has previously said, “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” Much the same could be said about Australia, and yet he still wants to issue warrants.

The precedent Khan is creating has the real possibility of significantly impacting Australia’s national interests, which is why it behoves the government to formally intervene on the matter.

Beyond this dangerous precedent, Khan is further politicising the court by circumventing jurisdiction and due process. A politicised court is in no one’s interest.

Unfortunately, this is what the ICC has become over the years. The siren song of anti-Israel activism ultimately infects all international bodies, as we have seen countless times before. Western countries go along with it, because that’s the path of least resistance. But doing so also undermines the international rule of law, and the absolutely critical issue, in this case, of equality before the law.

This politicisation has manifested itself in numerous ways. The first way is jurisdiction. The ICC only has jurisdiction over members that are states. Israel is not a member. ‘Palestine’ joined the ICC but, as Australia argued in its 2020 submission to the ICC, is manifestly not a state.

Australia should be making the same argument now as it did in 2020 – and principally because it is in Australia’s interests to do so. The court must not be allowed to grant itself powers beyond its remit. Australia – indeed every country – should act, not because of Israel, but because of naked self-interest.

But the more serious manifestation of politicisation is Khan’s willingness to skirt the principle of complementarity. The ICC is supposed to be the ‘court of last resort’. It’s constitution (known as the Rome Statute) specifically says in Article 17 that only if a country’s judicial system is unwilling or unable to credibly investigate allegations of war crimes will the ICC step in. Notwithstanding the serious flaws in Khan’s allegations, he has not yet allowed the Israeli judicial system to investigate the matter.

The Israeli High Court is currently investigating the levels of humanitarian aid entering Gaza; the issue of aid is a key plank in the ICC allegations against Israel. If the ICC issues the warrants despite this investigation, it will be in clear breach of its own rules.

Somehow, exceptions always seem to be made by international organisations when there’s an opportunity to single out Israel.

The ICC is an incredibly important body, and the West should prevent it from undermining itself by allowing anti-Israel activism to destroy its credibility and its reputation of equality before the law.

Australia should join likeminded Western countries in pushing back against this announcement, and call on Khan to drop this self-defeating application.

Dr Bren Carlill is director of public affairs at the Zionist Federation of Australia. His PhD focused on the intractability of the Israeli-Palestinian dispute.

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