A Sydney law firm has written a letter to the International Criminal Court asking it to investigate Anthony Albanese‘s support for Israel during its attacks on Gaza to see if it amounts to assisting genocide — and if so, if Albanese and other Australian government ministers can be tried for it in court.
Australia’s support for Israel barely wavered during the first few weeks of its ceaseless attacks on Gaza.
Initially, Albanese and Foreign Affairs Minister Penny Wong insisted that Israel had a right to defend itself from the Hamas attack on October 7 — even when it was reported that Israel was killing civilians, including young children.
Eventually, after thousands of Palestinian civilians were killed in Gaza, the language our leaders used to discuss Israel’s military campaign shifted to something (somewhat) more critical, with both leaders conceding that civilian deaths are unacceptable and calling for a ceasefire. However, neither have outright condemned Israel’s attacks, with Albanese insisting Australia remains a “friend” to the state.
Sydney law firm Birchgrove Legal said in a statement shared on Tuesday that it referred Anthony Albanese to the ICC over this support to Israel, which it wants investigated on the grounds of potential culpability for genocide.
A team of Australian lawyers led by Sheryn Omeri KC reportedly spent months documenting what they believe could be alleged complicity in the mass killings of Palestinians, outlined by the individual criminal responsibility section under Article 15 of the Rome Statute, which Australia is a signatory of.
Why is Anthony Albanese being referred to the ICC?
The law firm listed specific actions taken by Albanese and other members of Parliament in a 92-page document which it submitted to the office of ICC prosecutor Karim Khan KC.
Some of the actions taken by Albanese, Wong and other Australian leaders that it wants investigated include:
- Freezing aid to the UNRWA amid a humanitarian crisis, after the ICJ found it was plausible that Israel could be committing genocide against Palestinians.
- Providing military aid and defence exports to Israel, which could be used by its defence force in crimes against humanity.
- Deploying Australian military to the region without disclosing where soldiers were located and why.
- Permitting Australians to join the IDF and take part in attacks on Gaza.
- Providing “unequivocal political support” for Israel’s actions (the document referred to speeches by Albanese and other ministers)
Sheryn Omeri KC said the case is legally significant because it focuses on “accessorial liability”, which essentially refers to the fact that a person may be criminally responsible for a crime if that person has aided, abetted or otherwise assisted in the commission of that crime — including by providing materials for the crime to take place. Like weapons for example, or soldiers.
It also looks into whether the person in any way contributed to a group who commissioned a crime, knowing that the group would do so. For example, contributing weapons or support to a state while knowing that state is committing war crimes.
Birchgrove Legal’s principal solicitor Moustafa Kheir said his team reached out to Albanese twice over their concerns, but said they were ignored both times.
“Since October we have attempted communications with our Prime Minister as we reasonably believe that he and members of his cabinet are encouraging and supporting war crimes committed by Israel against Palestinian civilians through their political and military assistance,” Kheir said in a statement.
How has Anthony Albanese responded to the letter?
Albanese has dismissed the legal letter as “misinformation” that has “no credibility”.
“I don’t wish to comment particularly on something that clearly has no credibility going forward,” he said in a press conference on Tuesday.
“I don’t think that peaceful resolution is advanced by misinformation and there has been substantial amounts of misinformation about what is occurring and we stand by our position.
“Australia joined a majority in the UN to call for an immediate ceasefire and to advocate for the release of hostages, the delivery of humanitarian assistance, the upholding of international law and the protection of civilians.
“If you go back to the resolution that was carried with the support of both major parties, in October, we have made it very clear that every innocent life matters, whether that it is Israeli or Palestinian.”
While it’s true that Albanese has called for a ceasefire, Omeri KC told ABC’s News Breakfast that she believes Albanese’s change in rhetoric does not remove culpability of his earlier support of Israel.
“Between [October] and now, there has been very little in the way of urging restraint on Israel and discouraging what the International Court of Justice found on January 26 to be a plausible case of genocide,” she said.
So, will Albanese go to trial in the ICC?
In Australia, the Attorney General (right now that’s Mark Dreyfus) has the power to block any prosecution of Australians for international crimes. Which is good for Albanese, but not so much for anyone trying to prosecute him for allegedly aiding genocide.
However, earlier this month, Senator Lydia Thorpe introduced a bill to senate to remove these blocking powers. If adopted, that means the Attorney General wouldn’t be able to block crimes against humanity cases from being heard in Australian courts, and this case could proceed.
Even then, all of this speculation is premature — the ball is now in the ICC’s court, and we’ll have to wait and see what its investigation finds.
Image: Matt Jelonek/Getty Images.
