The difference between a marital commitment and an amorous affair is like the difference between Australian rhetoric and actual support for international law. We utter legal rhetoric about our committed relationship. But we do what pleases us whenever convenient.
In theory, international law is useful to us: it leverages international rules, institutions and allies to uphold a global order that serves our trade and security interests. But our inconsistency is highlighted where international law is inconvenient. During our maritime boundary dispute with East Timor, for example, we withdrew from the jurisdiction of the International Court of Justice in matters involving maritime boundaries.
On the other hand, we’ve made submissions to the ICJ in six advisory opinions, filing written statements on questions such as the legal consequences of the construction of a wall in the Occupied Palestinian territory, the legality of nuclear weapons and the institutional powers of the United Nations. Last September, we joined over thirty other countries delivering interventions before the ICJ in support of Ukraine’s genocide case against Russia in response to Russia’s illegal invasion of Ukraine. Attorney-General Mark Dreyfus stated that our intervention before the ICJ demonstrated our “unwavering commitment to upholding fundamental rules of international law”.
Some lawyers in the Australian government may admit that infidelity to international law is inevitable as we see the increasing practice of “lawfare” in the ICJ: the weaponisation of international law for political or kinetic war in a way that subverts the originally intended legal purpose of a rule or institution. Lawfare is blatant, for example, in South Africa’s current case against Israel at the ICJ, that alleges Israel is committing genocide against Palestinians in Gaza. Think of global company funding a corrupt country as its front to bring an international human rights lawsuit to further the company’s interests against another government. It seems that Iran put South Africa up to it. Columbia, Libya, Mexico, Nicaragua, Palestine, Spain and Turkey joined South Africa.
The Organisation for Islamic Cooperation has catalysed two ICJ advisory opinions to the General Assembly on Israel and Palestine. In its most recent legal opinion, the court didn’t bother to analyse in any detail the context and legal consequences of terrorism threats and existential security issues faced by Israel. Six of the 15 judges criticised the one-sided approach of the majority judgment. As noted by ICJ Vice-President Judge Julia Sebutinde in her dissenting opinion: “In my view, the Court, in exercising its discretion judiciously and maintaining the integrity of its judicial role, should have refrained from rendering the Advisory Opinion requested. The framing of the questions in resolution 77/247 [requesting this Opinion] assumes certain legal and factual conclusions, thereby precluding a thorough and balanced examination of the Israeli-Palestinian conflict’s distinctive historical background. Furthermore, most statements in the Court dossier present a unilateral perspective of the conflict, which reinforces the imbalanced approach in the Court’s Advisory Opinion.”
The current President of the ICJ is Nawaf Salam, a former Lebanese government official who has made numerous virulently anti-Israel comments and was once the Hezbollah endorsed candidate for Prime Minister. He didn’t recuse himself from the ICJ recent deliberations as would be standard judicial procedure. A judicial body should objectively consider facts, even a UN judicial body. Sadly, however, the ICJ is delivering a convenient political service. There are at least twice as many more lawfare cases in the pipeline to isolate and delegitimise Israel.
Lawfare undermines the integrity of international law and institutions. It risks triggering a backlash by states that gradually disengage from international law as its manipulation poses threats to their interests. But the current Australian position in these matters is to look the other way. Instead, we should take on the mantle of a world leader in promoting equal and fair application of international law.
We should act on our obligation to prevent and punish genocide under Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide by initiating a case against Iran at the ICJ. Iran signed the Genocide Convention in 1948 and ratified it in 1956.
But Iranian leaders over many years have been calling for genocide against Israelis, what Iran euphemises as the elimination of the “Zionist regime” with the help of the “axis of resistance” (that includes Hezbollah, Hamas, the Houthis and a variety of militant Palestinian groups).
Incitement to genocide is a crime set out in the Genocide Convention (Article 3(c) and (e)). Some recent local evidence of this crime was the call by Iranian Ambassador to Australia, Ahmad Sadeghi, who referred to Israel as a “Zionist plague” to be wiped out by 2027, adding that he was “looking forward to such a heavenly and divine promise”.
And it’s not all bluster: in April Iran sent over 300 missiles and drones into Israeli territory. It’s reportedly very close to acquiring nuclear weapons. Australia could point out that the axis of resistance is being supported by Iran through training, arming, and financing.
In filing a complaint against Iran, we would launch a manoeuvre against destructive lawfare in the ICJ. We would show that the Genocide Convention shouldn’t be applied selectively or conveniently. We would demonstrate that recent actions against Israel in the ICJ amount to nothing more than lawfare. We would bring Iran to justice and give the international community a chance to comprehend the threat Israel faces.
An Australian complaint against Iran for incitement to genocide would support international law and help sustain the international legal order that we say we’re committed to.
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