‘Clear picture of support’: Why Australia lawyers want ICC to probe their PM for Gaza genocide

Earlier this week, Australian lawyers made history by referring Prime Minister, Anthony Albanese, to the International Criminal Court (ICC) “as an accessory to genocide in Gaza”.

The communication by more than 100 lawyers made him “the first leader of a Western nation to be referred to the ICC under Article 15 of the Rome Statute”, according to a statement from Birchgrove Legal, the Sydney-based firm that filed the case.

Others named in the case include Australia’s Deputy Prime Minister and Defence Minister Richard Marles, Foreign Minister Penny Wong and Opposition Leader Peter Dutton.

It accuses them of having “failed to prevent or respond to the genocide committed by Israel against Palestinians in Gaza and been complicit in carrying out of this genocide”.

This application was made on the instruction of concerned Australians, including those of Palestinian background, Rita Jabri Markwell, a lawyer at Birchgrove Legal, told Anadolu.

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“The purpose … is to ask (ICC) Prosecutor (Karim) Khan to investigate the named individuals, which include the Australian Prime Minister, Foreign Affairs Minister, some other ministers and the opposition leader for alleged complicity in genocide,” she said.

“In this case, we are providing evidence which we say provides a reasonable basis for the claim that there may have been complicity in terms of aiding and abetting the commission of genocide, or contributing to the crime of genocide,” she explained.

The application provides information on crimes within the jurisdiction of the ICC and calls for the Prosecutor to open an investigation proprio motu, or on his own initiative, under the powers granted in Article 15 (1) of the Rome Statute.

It further calls for investigation into “liability for genocide on the part of the Australian government pursuant to Article 25 (3) (c) and (d) in particular … in pursuance of Australia’s foreign policies that provide ideological support, rhetorical obfuscation, political cover and material assistance to Israel’s prima facie genocidal actions against the Palestinian people across Gaza and the West Bank,” reads the filing.

Article 25 (3) (c) states that a person will be criminally responsible and liable for punishment for a crime if they facilitate the commission of “such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”

Article 25 (3) (d) states that a person will be criminally responsible and liable for punishment for a crime if they contribute to the commission or attempted commission of “such a crime by a group of persons acting with a common purpose.”

“Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime,” according to the text of the Rome Statute.

Extensive dossier

The 92-page dossier sent to the ICC has a “great deal” of evidence documented by lawyers over the past five months, according to Markwell.

The lawyers have given the Prosecutor the option to add the referral to an existing ICC investigation related to Palestine or open up a new preliminary examination.

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While the dossier is extensive, there are still unanswered questions about the extent to which material and military assistance from the named Australian politicians is contributing to the death toll in Gaza, said Markwell, who is also a legal adviser to the Australian Muslim Advocacy Network (AMAN).

“We have invited the Prosecutor to investigate and find those facts and to consider them because, unfortunately, the Australian government hasn’t been entirely transparent to date,” she said.

She pointed to the Pine Gap surveillance base that Australia and the US operate jointly for intelligence purposes.

“It’s a surveillance facility and it obtains a lot of data which is then shared and we don’t know who exactly it ends up with and for what purpose it is used,” she said.

This is an example of what we are asking the Prosecutor to investigate, Markwell said.

“If there is complicity between our leaders and Israel’s leaders, that should be investigated and prosecuted to the full force of the law,” she asserted.

‘Clear picture of political and rhetorical support’

Regarding Australia’s political support to Israel for its war on Gaza, which has killed nearly 31,000 Palestinians, the lawyer said it was “through rhetorical statements and through the characterisation of Israel’s actions as a right to self-defence”.

The dossier includes “evidence of verbal intent and genocidal incitement from Israeli military and political figures, evidence of war crimes, the wanton destruction, the indiscriminate bombing, the total siege as direct evidence of genocidal intent and a crime in itself,” said Markwell.

“We documented that and we started to compile all of the Australian government minister responses in time, so we could monitor what they were doing, as the knowledge was coming to them of what was unfolding – what they were saying in response and what they were doing in response,” she explained.

“We could see that there was a clear picture of political support and rhetorical support. In fact, our own Prime Minister said that his goal was to provide political support.”

The case also points the Albanese government’s suspension of funds to the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), saying Australia “has supported Israel’s genocidal intentions in the Gaza Strip by suspending key humanitarian support.”

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Australia ‘critical part’ of Israel’s military supply chain

The application also lays out Australia’s material military assistance to Israel, including weapons exports.

Australia “manufactures a lot of parts which form part of the F-35 fighter jets which Israel uses to drop bombs on Palestinians in Gaza,” said Markwell.

“We are, as a country unfortunately, a critical part of the global supply chain when it comes to F-35 fighter jets,” she said.

The provision also includes Australia’s recent $917 million contract with Elbit Systems, one of the main weapons companies in Israel “that is very involved in what is happening right now in Gaza”, said Markwell.

There is a lot of military assistance which continues to this day and is not clear in terms of its end use in Israel, she added.

“Our government says that they are not providing weapons to Israel, but there is evidence from their own departments showing that defence exports have been approved to Israel,” she said.

“Given our closeness with the US as well, we are very unsure how much of our manufacturing ends up killing Palestinian children, and that is our concern that we are bringing forth to the ICC.”

The application also delves into how the Australian premier and others have not deterred Australians from travelling to Israel to serve in its military and “potentially participate in the commission of crimes”.

“It stands in stark contrast to the way that those named individuals dealt with Russia, for example, in the war with Ukraine,” she said.

According to her, there are some reports saying that there are potentially up to 3,000 Australians who are, maybe, currently in the Israeli military or have been called up for service.

The lawyers are also concerned about the Australian military contingent which has been deployed to the Middle East.

“There is still a lot of ambiguity about where that contingent is, what is their purpose, what has been deployed there, how many people have been deployed there?” said Markwell.

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While the Australian government remains tight-lipped on the issue, she said that it has been revealed that “Australia was involved with the US in the bombing of Yemen”.

Possible outcome and expectations

The lawyer said they expect to hear back from the office of the ICC Prosecutor about the next steps.

“Lawyers in other jurisdictions are watching this situation and we are also watching their steps, and together we are looking to share notes because this is a moment in history where we really do need coordinated and sustained action to enforce international law,” said Markwell.

Regarding the outcome, the legal expert said this is “very much the determination of the Prosecutor.”

“I can’t second-guess what the Prosecutor should do next. However, I would say that, typically, the next step is to decide how it will be investigated, whether it will be part of a new investigation or the existing,” she said.

Speaking about the challenges they faced in the process, Markwell said there was “a barrier to bringing a proceeding domestically in our country”.

“There is a requirement in our law that we obtain the consent of the Attorney-General, who is a member of the government before we bring such a proceeding,” she explained.

That being a major obstacle is why they moved toward the ICC “because it is our only resort”, she added.

Since the filing, Albanese has dismissed the case, saying it “clearly has no credibility”.

Regarding his statement, Markwell remarked: “Parliamentarians, for the most part, are not lawyers. So, I would put our faith into the Prosecutor in terms of him making that determination.”

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