That position, Minister, which you’ve just stated leaves unanswered the critical question: does Australia accept the premise of South Africa’s case.
CHAIR: Welcome back, everyone. Senator Steele-John, have you got some questions for us?
Senator STEELE-JOHN: I certainly do. First of all, to the topic of Ukraine: In a media statement released by the Minister for Foreign Affairs on 2 October 2022, it was stated:
Australia strongly supports Ukraine’s decision to bring this case before the International Court of Justice…
referring to the Ukrainian case brought against the Russian Federation in relation to violations of the genocide convention. Do we still remain committed to supporting this case?
Mr McCarthy : It’s important to note that the short answer is: yes. When we say support, it is in the context of article 63 of the ICJ charter, the charter of the International Court of Justice. We are not party, as you know, to the Ukraine-Russia case, but it involves the interpretation of the genocide convention, and where a convention is being interpreted, or its provisions are being interpreted, those countries that are states party to it are allowed to intervene. In this particular case, it is an unprecedented and novel interpretation of the genocide convention. I think it would be fair to say that, if Russia had acceded to the compulsory jurisdiction of the ICJ, Ukraine may have looked at another means of pursuing accountability for the Russian Federation. But, in this particular case, Ukraine has taken the case alleging that Russia’s false accusation of genocide against Ukraine, used as a pretext for an act of aggression—that being the invasion of Ukraine—is in fact a breach of the genocide convention.
Senator STEELE-JOHN: I understand the case. In that same media release, I believe there was also an announcement of new sanctions against the Russian Federation. The Attorney-General stated:
Our intervention underscores our commitment to upholding fundamental rules of international law and the integrity of the Genocide Convention.
Does this statement still reflect the contemporary view of the government?
Mr McCarthy : I am not responsible for sanctions, but my understanding would be yes.
Senator STEELE-JOHN: Is that also your understanding, Minister?
Senator Wong: I don’t have the document you’re reading from. If you want me to respond, I would like to see it.
Senator STEELE-JOHN: I can see if I can find one of the Attorney-General’s old media releases.
Senator Wong: With respect, I’ve had documents misconstrued, incorrectly quoted or quoted out of context, so, if you’re going to ask me questions about a document, I’d want to see it.
Senator STEELE-JOHN: But, for the sanctions that we levelled on the Russian Federation in October 2022, is it still the case that an aspect of our decision to apply those sanctions—one of the reasons we did that, if you like—was to underscore our commitment to upholding the fundamental rules of the international rules based order and the integrity of the convention?
Senator Wong: I’ve now been handed it. It says:
The Australian Government will impose further costs on Russia for its unilateral, illegal and immoral war on Ukraine.
Additional targeted financial sanctions and travel bans will be imposed on 28 Russian appointed separatists, ministers and senior officials.
Among them are individuals who are flouting international law to legitimise Russia’s illegal actions in Ukraine …
I would make the point that what we are seeing in Ukraine is the unprecedented situation where a member of the very body that the international community set up to safeguard the UN Charter is flouting and breaching the UN Charter—that is, a member of the Security Council is breaching a key aspect of the UN Charter.
Senator STEELE-JOHN: Absolutely, and Russia’s invasion of Ukraine is illegal and immoral on that basis. But, if you just continue reading the media release, you will see the quote from the Attorney-General:
Our intervention underscores our commitment to upholding fundamental rules of international law and the integrity of the Genocide Convention.
Is that still the contemporary view of the government—that those actions are related to our desire as a nation to uphold the convention?
Senator Wong: I think we can all see where you’re seeking to go. The Attorney-General’s statement speaks for itself.
Senator STEELE-JOHN: What resourcing has Australia committed to supporting Ukraine’s case at the ICJ?
Mr McCarthy : An intervention was prepared. It was delivered by the Solicitor-General in the oral phase of proceedings. It would be fair to say that officials in both the Attorney-General’s Department and the Department of Foreign Affairs and Trade were involved in the preparation of that intervention.
Senator STEELE-JOHN: Do we continue to provide resourcing, or have any resources been called upon from the Australian government to support our continuing involvement in the case?
Mr McCarthy : Not at this stage. It may be possible in the future, depending on further developments.
Senator STEELE-JOHN: Minister Wong, I refer you to your remarks that you made in Jordan on 15 January. You stated:
Our support for the ICJ and respect for its independence does not mean we accept the premise of South Africa’s case.
However, you then went on to state the following day:
I would note Australia is not currently a party to the case and that at this stage the ICJ has not invited interventions from other parties.
For the sake of further questions, and for clarity of the public record: does the governor reject the premise of South Africa’s case?
Senator Wong: I think you will recall in terms of the timing, and Mr McCarthy might assist me, that was prior to the first decision or findings—sorry, I’m not sure what the correct legal term is—of the court. Subsequent to that decision or findings we made a further statement, including in the ANZMIN statement—which I’m looking for but haven’t quite got in front of me—about the decision of the International Court of Justice being binding on the parties and our expectation. Mr McCarthy might be able to assist me.
Mr McCarthy : That is certainly correct. Basically, the invitation for states who are parties to the genocide convention was received by us last Friday, which was 9 February.
Senator STEELE-JOHN: That’s in relation to the invitation to join the main case—is that what you’re referring to?
Mr McCarthy : I wouldn’t use the word join; the word ‘intervene’.
Senator STEELE-JOHN: That happened on Friday, you are correct. Are you stating, Minister, that the difference in your language there is a result of that communication on Friday?
Senator Wong: Sorry, I don’t understand.
Senator STEELE-JOHN: I’m seeking to understand why at one point you stated:
Our support for the ICJ and respect for its independence does not mean we accept the premise of South Africa’s case.
And then have further stated:
I would note Australia is not currently a party to the case and that at this stage the ICJ has not invited interventions from other parties.
I’m seeking to clarify whether the government rejects the premise of South Africa’s case.
Senator Wong: I don’t think you listened to my answer, so I will say it again. The statement in Jordan preceded the ruling by the ICJ—that is my recollection, and Mr McCarthy is nodding. I was invited to comment on a case where there was not an ICJ ruling, and I declined to do that. Once the ICJ had ruled, the Australian position was articulated, amongst most things, succinctly in the statement with the New Zealanders after the 2+2. I will read it:
Ministers noted the International Court of Justice’s (ICJ) ruling on provisional measures in South Africa’s case against Israel. Ministers expressed their respect for the independence of the ICJ and the critical role it plays in upholding international law and the rules-based order, and noted that decisions of the ICJ are binding on the parties to the case. Ministers expect Israel to act in accordance with the ICJ’s ruling, including to enable the provision of basic services and humanitarian assistance.
That is the Australian government’s position as outlined in the joint statement.
Senator STEELE-JOHN: That position, Minister, which you’ve just stated leaves unanswered the critical question: does Australia accept the premise of South Africa’s case.
Senator Wong: We accept the rulings of the ICJ.
Senator STEELE-JOHN: Does the government accept the premise of the case? Your officials have just told you and reminded you that the Australian government does accept and has expressed support for Ukraine’s case against the Russian Federation. However, your government has not made clear whether you support the premise of the case taken by South Africa.
Mr McCarthy : If I may respond: as you’d be well aware, the Australian government is a very strong supporter of the rules based order. As such, it is for the ICJ to either accept or not accept the premise of South Africa’s case or the nature of Israel’s defence. South Africa has brought a case in this instance, as it is entitled to. Israel is defending that case, as it is entitled to. The ICJ will rule at some point on that case, and then, as we’ve said, that ruling will be binding as between the parties to the case.
Senator STEELE-JOHN: Minister, your government has expressed public support for Ukraine’s case against the Russian Federation, as it should have. Your officials have just confirmed that that support continues. This is in the absence of an ICJ ruling. Why will you not clearly state to the Australian people your government’s position in relation to the premise of South Africa’s case?
Senator Wong: I refer to my answer. I have outlined Australia’s position. I know that you don’t wish to accept it. It is a principled position that backs the court and expresses a view about the nature of decisions of the ICJ being binding on the parties. That is the position we have. Mr McCarthy has added to my answer.
Senator STEELE-JOHN: It is a contradictory position, isn’t it, Minister, because your government supports one case but not the other?
Senator Wong: That’s a political statement.
Senator STEELE-JOHN: It’s a fact, isn’t it?
Senator Wong: No, it’s a political statement. I understand your political statement.
Senator STEELE-JOHN: Do you support the case?
Senator Wong: I have responded to you, Senator.
Senator STEELE-JOHN: What difference does your—
Senator Wong: I have responded to you. I understand your political proposition. There has been a lot of politics in everything that are doing when it comes to Israel and Palestine. I understand that. But I have outlined Australia’s position.
CHAIR: Last minute.
Senator STEELE-JOHN: What difference does your government see between the humanitarian suffering occurring right now in Bakhmut or Mariupol as opposed to the humanitarian suffering occurring right now in Rafah and Gaza?
Senator Wong: We mourn every innocent civilian life. We consistently advocate for the observance of international humanitarian law. We have done so in relation to Gaza since the conflict began.
Senator STEELE-JOHN: Isn’t supporting one case and not the other inherently a political statement, Minister?
Senator Wong: We are taking a principled approach to this, and I’ve outlined why.
CHAIR: Thanks a lot, Senator Steele-John.