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Australia must never be a party to cynical, pro-Hamas lawfare

Jun 11, 2024 | Colin Rubenstein

Image: Shutterstock
Image: Shutterstock

The Australian – 10 June 2024

 

Following Israel’s dramatic rescue on Saturday of four innocent people seized at a music festival and then held for eight months, we can see more clearly than ever the absurdity of the growth in “lawfare” in support of the Hamas war against Israel. Such lawfare has been increasing across the world in recent months – encompassing European cabinets, the United Nations and international courts.

Rather than recognising Israel had no choice but to undertake this daring and unprecedentedly difficult rescue inside a Palestinian refugee camp, much of the international reaction to this amazing story of redemption seems focused on Hamas’s unconfirmed claim that scores of innocent Palestinian civilians were killed when the IDF rescuers fought back against dozens of well-armed Hamas terrorists who tried to prevent them fleeing with the hostages.

This perverse reaction is in line with the announcement last month by the International Criminal Court’s chief prosecutor, Karim Khan, that he would be seeking arrest warrants for war crimes, not only for the leaders of Hamas who planned the unprovoked October 7 massacre, but also for Israeli PM Benjamin Netanyahu and Defence Minister Yoav Gallant. Israel never signed up to be part of the ICC, yet the ICC says it can charge Israelis because it has jurisdiction over the undefined territory of the nonexistent “state of Palestine”.

Furthermore, the arrest warrant request violates the ICC principle of “complementarity”, which says the ICC is supposed to act only when a state’s own legal system is unable to lay charges. Yet Kahn himself has admitted Israel’s legal system is “robust” and able to hold its citizens to account for war crimes or avoidable errors – as witnessed by Israel’s jailing of a former prime minister and president, and the charges already pending against Netanyahu.

But beyond the violations of the ICC’s own founding statute, Khan’s accusations against Netanyahu and Gallant are Orwellian because, as John Spencer, chair of urban warfare studies at the Modern War Institute at the West Point Military Academy, and one of the world’s top experts in the field, noted in early May: “Israel has done more to prevent civilian casualties in war than any military in history.” This includes making great efforts to facilitate the entry of aid in extremely difficult circumstances.

Indeed, Israel has again proven its commitment to minimising civilian casualties in the limited and carefully piecemeal Rafah campaign to defeat Hamas’s last battalions and cut the lifeline Hamas receives through Gaza’s border with Egypt. Addressing US and international concerns, the operation proceeded only after more than a million civilians were successfully evacuated to designated areas set up with humanitarian infrastructure.

The precision airstrike last week on armed terrorists who had set up a base of operations in two rooms of a UNRWA school housing refugees in Rafah was also fully compliant with the laws of armed conflict – yet much of the international reaction was focused only on the fact that Israel targeted a school housing refugees.

Meanwhile, the International Court of Justice, a different UN body, has also made ­­itself a tool of South Africa’s lawfare efforts to abuse the Genocide Convention to try to manipulate the court to effectively hand victory to Hamas – which South Africa openly supports. Rather than rejecting this abuse of process, the ICJ made itself party to it by issuing two ambiguous, widely misinterpreted rulings in January and May that have been broadly deployed as weapons by those seeking to support the Hamas-led war on Israel.

And the extreme anti-Israel biases that have long dominated the UN system and made much of this lawfare possible were further underscored by the indefensible announcement by the UN secretary-general’s office this week of plans to place Israel on the list of nations that violate the rights of children in warfare.

There is a thread connecting this UN lawfare to the Palestinian Authority’s partial success in upgrading its status at the UN General Assembly on May 10, and Norway, Ireland and Spain recognising “Palestine”.

The Palestinian leadership does not hide its goal of using the UN system to inflict maximum pain on Israel using legal and diplomatic means as an alternative to negotiating a final status peace deal – something it has explicitly shunned since 2014.

This is why Prime Minister Anthony Albanese and Foreign Minister Penny Wong’s responses to the ICC’s politicised charges, and the unilateral Palestinian statehood recognition drive, have been so disappointing. Unlike the US, UK and Canada, we didn’t condemn the ICC’s baseless manoeuvres. Meanwhile, Senator Wong suggests recognising Palestine “as part of a pre-peace process” could be a way to advance a two-state resolution, when it is clear this would actually disincentivise and greatly delay any such outcome.

The Albanese government needs to take a more effective and principled stance in the face of this lawfare. It should operate on two commonsense assumptions: whatever benefits Hamas damages Australian foreign policy, and; any move that might be perceived as rewarding Hamas’s aggression on October 7 cannot possibly encourage a pathway to a two-state peace or strengthen Palestinian moderates.

Colin Rubenstein is executive director of the Australia/Israel & Jewish Affairs Council.

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