The ongoing violence in the Middle East has reignited discussions about genocide, a term often referred to as the “crime of crimes.” Recent allegations of genocide have been directed at Israel by both the International Court of Justice and the International Criminal Court (ICC), as well as accusations against leaders from both Israel and Hamas. In response to the Gaza crisis, the Australian government temporarily froze A$6 million in funding to the United Nations Relief and Works Agency for Palestine. This action has led to Prime Minister Anthony Albanese being referred to the ICC for allegedly being “an accessory to genocide.”
Amid these international tensions, Australia’s legislation concerning genocide is under scrutiny. Independent Senator Lidia Thorpe has introduced a bill aimed at reforming how Australia addresses genocide allegations, raising questions about the current legal framework.
Current Legal Framework
Australia ratified the Genocide Convention in 1949, but it wasn’t until 2002 that significant changes were made to the Commonwealth Criminal Code, creating a division specifically for atrocity crimes. Under this legislation, Australia can prosecute individuals accused of crimes defined by the Rome Statute, including genocide. However, initiating legal proceedings requires written consent from the attorney-general, a process known as “attorney-general’s fiat.” This decision is final and cannot be challenged or appealed.
Thorpe’s proposed bill seeks to eliminate this requirement, arguing that it hinders justice for victims of atrocity crimes. The explanatory memorandum accompanying the 2002 amendment did not clarify why such consent was necessary, and it is not a standard requirement in many other countries.
The Problems with Attorney-General’s Fiat
The Australian government has justified the attorney-general’s fiat by claiming that prosecutions could jeopardize international relations and national security. However, legal experts and community organizations have pointed out that this rule effectively denies access to justice for victims and survivors of genocide. They argue that it creates potential biases within the government and undermines fundamental legal principles.
Historically, this fiat has been invoked sparingly. For example, in 2009, a request for prosecution against former Israeli Prime Minister Ehud Olmert was denied due to concerns over international sovereignty. Similarly, in 2011, a request to prosecute then-Sri Lankan President Mahinda Rajapaksa was rejected on grounds of head of state immunity—a controversial concept in international law.
Calls for Legislative Change
The current system poses significant challenges for First Nations people seeking justice for what they describe as ongoing genocide perpetrated by the Commonwealth. Many Indigenous groups argue that high rates of child protection removals, deaths in custody, and cultural destruction amount to genocidal actions.
Submissions to a parliamentary inquiry suggest that instead of requiring attorney-general consent, claims of genocide should be directed to the Commonwealth Director of Public Prosecutions (CDPP). This change would ensure greater independence from government influence in prosecuting such serious crimes. The CDPP already investigates other serious offenses like human trafficking and child exploitation.
If Thorpe’s bill passes, it could have significant implications internationally. The Australian Centre for International Justice estimates that around 1,000 Australian citizens have traveled to Israel to join its military forces amid allegations of serious atrocities committed in Gaza. Should these individuals return home, there may be attempts to pursue legal action against them, forcing the government to navigate complex political and economic relationships with Israel.
Conclusion
The future of Australia’s genocide laws hangs in balance as Parliament considers Thorpe’s proposed reforms. The situation underscores a critical paradox: whether a government can effectively remove its own protections against charges of genocide while ensuring justice for victims. As global attention focuses on atrocities committed abroad, Australia faces mounting pressure to align its legal framework with international standards and provide justice for those affected by such grave crimes.