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Australian judge to rule on genocide case that could upend war in Gaza

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11 January 2024, The Age, by Matthew Knott

An esteemed Australian judge will help decide a crucial case at The Hague that could order Israel to suspend its military operations in Gaza as Israel seeks to rebut accusations it is committing genocide through its war against Hamas.

International law expert Hilary Charlesworth, the first Australian woman elected to the International Court of Justice (ICJ), will be one of the 17 judges to rule on the widely anticipated case, which will hold emergency hearings beginning overnight on Thursday and continuing into Friday (Australian time).

Although the charge of genocide is expected to take years to decide, South Africa, which has brought the case, has filed a request for the court to urgently issue legally binding interim orders for Israel to “immediately suspend its military operations in and against Gaza”.

The court is expected to issue an initial judgment within weeks and its findings cannot be appealed.

Unlike such cases in the past, the Israeli government is engaging robustly with the ICJ process and has called on its top legal minds in recognition of the trial’s importance to its international reputation and its efforts to cripple Hamas’ military capabilities.

Charlesworth, who holds qualifications from Harvard Law School and the University of Melbourne, was elected to the court in November 2021 and re-elected for a second term in November 2023 with the strong backing of the federal government.

Foreign Affairs Minister Penny Wong, who will visit Israel and other Middle Eastern countries next week, said at the time: “A vote for Judge Charlesworth is a vote to uphold an international legal system that is representative, that is robust, that is fair.”

In an interview after her re-election, Charlesworth said nations had an obligation to resolve disputes through peaceful means, a principle she said was often ignored.

“I think many countries regard international law as a somewhat distant system of law that doesn’t really affect them, and regularly put national priorities before the priority of fully implementing their international legal obligations,” she told AAP.

“As an international lawyer, I unsurprisingly would wish that countries would take their international legal commitments more seriously.”

Australian Centre for International Justice executive director Rawan Arraf said: “Hilary Charlesworth is an eminent scholar and jurist who will listen to the evidence presented and will reach a decision fairly.”

The centre wrote to Wong and Attorney-General Mark Dreyfus this week urging the government to publicly back South Africa’s application and express its support for the court’s authority.

The Department of Foreign Affairs has been contacted for comment on Australia’s position on the trial.

South Africa’s 84-page filing says Israel’s actions – including killing Palestinians and causing serious mental and bodily harm – “are genocidal in character”, and says Israeli officials have expressed genocidal intent, including Israeli Defence Minister Yoav Gallant’s claim that Israel was fighting against “human animals” in Gaza.

As well as the suspension of Israel’s military operations, the application also requests measures to allow more access to adequate food and water, humanitarian assistance, and medical supplies in Gaza.

Australian National University international law expert Don Rothwell said the case was of unprecedented “cultural, diplomatic, historical and political significance”.

“An ICJ ruling that Israel is committing genocide would require a radical modification of Israel’s military operations in Gaza,” he said.

“Israel would, however, retain its right of self-defence against Hamas.

“If the ICJ ordered provisional measures, Australia would be faced with either supporting the international court and the rules-based international order, or Israel’s ongoing military operations.”

The Times of Israel this week quoted legal experts saying Israelis should be worried about the outcome of the initial hearings because of the low evidentiary threshold required and an alleged “bloc of anti-Israel judges” on the court.

A 57-member bloc of Muslim-majority countries including Saudi Arabia, Iran, Pakistan and Morocco has backed South Africa’s case, as has Malaysia, Turkey and Bolivia.

Israeli President Isaac Herzog has condemned the case as “atrocious”, while US national security spokesperson John Kirby dismissed the application as “meritless, counterproductive and completely without any basis”.

Israel has chosen Holocaust survivor Aharon Barak – who served as chief justice of the nation’s highest court from 1995 to 2006 – to join the panel of international judges as an ad hoc member, reflecting how seriously it is taking the trial.

Israeli Prime Minister Benjamin Netanyahu supported Barak’s appointment despite the jurist being a fierce critic of his government’s attempt to weaken the power of the nation’s Supreme Court.

South Africa has also appointed a judge, expanding the permanent roster of 15 judges to a 17-person panel.

Colin Rubenstein, executive director of the Australia/Israel & Jewish Affairs Council, said it was “clearly absurd” to claim that Israel had tried to commit genocide by responding to the “October 7 wave of unprovoked mass murder, rape, torture and kidnapping directed largely against civilians inside Israeli territory”.

Independent ACT senator David Pocock said he was “strongly supportive” of South Africa’s case and urged the federal government to support it.

“Given the extraordinary scale of civilian casualties and human suffering in Gaza and the serious allegations against Israel, I am strongly supportive of the need for a credible and robust examination of Israel’s conduct under the Genocide Convention,” he said.

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Article source: 11 January 2024, The Age, by Matthew Knott

2024-05-08 07:04:10.000000