ICJ case against Iran is Australia’s chance to fight lawfare

The ICJ can notice that Iranian leaders over many years have been calling for genocide against Israelis, what Iran ­euphemises as the elimination of the “Zionist regime” - and is acting on its rhetoric through its 'axis of resistance'.

Written by

Greg Rose and Anthony Bergin

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 global 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 sea boundaries.

On the other hand, we’ve made submissions to the ICJ in six advisory opinions, filing 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 UN. Last September, we joined more than 30 countries delivering interventions before the ICJ in support of Ukraine’s genocide case against Russia in response to its illegal ­invasion. 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 warfare in a way that subverts the originally intended legal purpose of a rule or institution. Lawfare is blatant, for example, in South Africa’s case against Israel at the ICJ, that alleges Israel is committing genocide against Palestinians in Gaza. 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 Co-operation has catalysed two ICJ advisory opinions to the UN General Assembly on Israel and Palestine.

In its most recent advice on ­Israel and the Palestinian territories, the court didn’t bother to analyse in any detail the existential security issues faced by Israel. 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’s recent deliberations as would be standard judicial procedure. 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 was the call by the 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 more than 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’d 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.

Greg Rose is professor of international law, University of Wollongong. Anthony Bergin is a senior fellow, Strategic Analysis Australia and an expert associate at the National Security College.

This article was first published in The Australian.

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