By Paul Gregoire, Sydney Criminal Lawyers, July 18, 2024
In early March, Sydney law firm Birchgrove Legal presented a communiqué to International Criminal Court prosecutor Karim Khan consisting of 92 pages of documented evidence, claiming that the Australian PM and a number of other high level local politicians are complicit in the Gaza genocide.
On Tuesday this week, the firm announced that the Office of the Prosecutor of the ICC had added the document “to the evidence gathered as part of the ICC’s investigation into the Situation in the State of Palestine”, as well as having been transmitted “to relevant staff members for further review”.
The claim was lodged under article 15 of the Rome Statute, which provides that the ICC prosecutor will analyse the evidence and if it’s enough to proceed, they will submit it to the pre-trial chamber, which, on examination, may call for extra evidence, and if satisfied, it can launch an investigation.
On the 4 March presenting of The Conduct of Members of the Parliament of Australia, in Relation to the Situation in Gaza, Palestine: Accessorial Liability for Genocide communiqué to Khan, Anthony Albanese became the first leader of a western nation to be referred to the ICC for prosecution.
And now that the Article 15 claim has been accepted into the evidence of the broader investigation of allegations of war crimes in the occupied Palestinian territories, which could lead to potential prosecutions, the PM and other major party politicians listed now face that same prospect.
The proof is in the claim
“As set out in the communication to the ICC, over the last 10 months Australian leadership has failed to attempt to dissuade their Israeli counterparts from committing war crimes in Gaza and, it appears, have continued to participate in the provision of fighter jet parts to Israel,” said Sheryn Omeri KC.
A barrister at Cloisters Chambers, Omeri led the claim that was brought by Birchgrove Legal and was further co-signed by over 100 other Australian lawyers.
“These cases demonstrate a growing desire on the part of western civil society to ensure that their governments do not assist in the perpetration of international crimes,” added the King’s Counsel in the 16 July statement.
Omeri raised the point that the 26 January preliminary finding of the International Court of Justice in regard to the case brought against Israel by South Africa was that, based on the evidence before it, the Netanyahu government is plausibly committing genocide upon the Palestinians of Gaza.
And the barrister added that the case submitted to the ICC had specifically highlighted matters regarding Australian arms exports to and intelligence sharing with Israel. And she underscored that when it comes to transparency around this, the Albanese government has remained tight-lipped.
“This, coupled with the permanent displacement of more than 2.3 million Gazans, the deliberate starvation of the entire population and the arbitrary arrest, imprisonment and torture of doctors, nurses, civil service workers, as well as women and children make a compelling case of complicity in genocide,” the legal eagle made certain.
The ICC Palestine investigation
The Palestinian government lodged a January 2015 claim with the ICC regarding war crimes committed in the occupied Palestinian territories since 13 June 2014.
And the then ICC prosecutor Fatou Bensouda announced in late 2019 that based on the evidence an investigation should proceed, however as Israel is not a party to the ICC or the court’s governing Rome Statute, she called on the pre-trial chamber to ensure the court had jurisdiction to proceed.
Bensouda then opened the case on the Situation in the State of Palestine in March 2021, before she vacated the role of ICC prosecutor in June that year. And the investigation now “extends to the escalation of hostilities and violence since the attacks… on 7 October 2023”.
Indeed, current ICC prosecutor Khan has applied for arrest warrants in relation to Israeli PM Benjamin Netanyahu and defence minister Yoav Gallant, as well as Hamas head Yahya Sinwar, military commander Mohammed Diab Ibrahim al-Masri and political bureau head Ismail Haniyeh.
These arrest warrants are in regard to a litany of war crimes and crimes against humanity in relation to both the Israeli figures and those from Hamas that have been carried out since last October. And significantly these warrant applications are a part of the Palestine inquiry launched by Bensouda.
So, as the Birchgrove Legal media release from 16 July outlines the Article 15 communication brought against key Australian government figures has been added to the ICC Palestine investigation that has led to the application for arrest warrants against high-level Israeli and Hamas political figures.
Potential for local warrants
Birchgrove Legal principal Moustafa Kheir outlined on Tuesday that the ICC Office of the Prosecutor has invited Birchgrove Legal to make additional submissions in support of the claim it lodged earlier this year, which, as noted, is part of the process prior to an investigation.
The March lodged claim didn’t solely name the PM as being complicit in genocide, as it also implicated foreign minister Penny Wong, defence minister Richard Marles, home affairs minister Clare O’Neil, government services minister Bill Shorten and Liberal leader Peter Dutton.
So, six of our highest-profile major party politicians, five of them currently serving ministers, with the top one heading the list, are now being seriously considered by an international court as to whether their actions and statements may have contributed to the deaths of over 40,000 Palestinians.
And one would consider just to have these allegations lodged against a politician with an international court would cause them great concern, let alone the emotions that would flow if the international court went as far as to apply for arrest warrants against them.
“Australian resources have supported grave atrocities across the Gaza Strip. We have documented each of these and fully intend to add our evidence to the existing communication to further assist the prosecutor,” Kheir explained in the Tuesday statement.
“As lawyers, we consider that this communication tests the strength of international law to hold all leaders, including western leaders, to account where national law fails. We will continue to do what we can within our remit to fight this gross injustice,” he said in concluding the statement.
