Sydney law firm Birchgrove Legal sent a 92-page communiqué to International Criminal Court (ICC) prosecutor Karim Khan in early March, comprising evidence that PM Anthony Albanese and a number of other high level MPs are complicit in the Gaza genocide.
Birchgrove Legal announced on July 16 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”. It also said it was given to relevant staff members “for further review”.
The March 4 claim was lodged under article 15 of the Rome Statute, which provides that the ICC prosecutor will analyse the evidence and, if it is enough to proceed, will submit it to the pre-trial chamber which may call for extra evidence and may launch an investigation.
The Conduct of Members of the Parliament of Australia, in Relation to the Situation in Gaza, Palestine: Accessorial Liability for Genocide communiqué made Albanese the first leader of a Western nation to be referred to the ICC for prosecution.
Now that the claim has been accepted into the evidence for the broader investigation of war crimes allegations in the occupied Palestinian territories, the PM and other MPs could potentially be prosecuted.
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.
Omeri, a barrister at Cloisters Chambers, led the claim brought by Birchgrove Legal and which was co-signed by more than 100 other 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,” she said on July 16.
Omeri said the International Court of Justice’s (ICJ) preliminary finding on January 26 in the case brought by South Africa against Israel, found that the Benjamin Netanyahu government is plausibly committing genocide in Gaza.
She added that the case submitted to the ICC had specifically highlighted matters regarding Australian arms exports to, and intelligence shared with, Israel. She said the Albanese government had not been transparent about either.
“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,” Omeri said.
The ICC Palestine investigation
The Palestinian government lodged a claim with the ICC regarding war crimes committed in the occupied Palestinian territories since June 13, 2014, in January 2015.
Fatou Bensouda, the then ICC prosecutor, 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.
The investigation now “extends to the escalation of hostilities and violence since the attacks … on 7 October 2023”.
Indeed, the current ICC prosecutor Khan has applied for arrest warrants in relation to Israeli PM Benjamin Netanyahu and Defense 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 of Israeli and Hamas officials are in response to war crimes and crimes against humanity since last October. Significantly, they form a part of the Palestine inquiry, which Bensouda launched and Khan has since took over.
Potential for local warrants
Moustafa Kheir, Birchgrove Legal’s principal, outlined that the ICC Office of the Prosecutor has invited Birchgrove Legal to make additional submissions in support of the claim it lodged.
The March claim also implicated Foreign Minister Penny Wong, Defence Minister Richard Marles, Home Affairs minister Clare O’Neil, government Services minister Bill Shorten and Liberal Opposition leader Peter Dutton.
“Australian resources have supported grave atrocities across the Gaza Strip,” Kheir said. “We have documented each of these and fully intend to add our evidence to the existing communication to further assist the prosecutor.”
“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 concluded.
[This article was first published by Sydney Criminal Lawyers.]