Pearls and Irritations

I refer to my earlier article on Israel and Apartheid. The article made the clear assertion that Israel is an apartheid state and has been found to be such by internationally respected bodies, including Human Rights Watch (HRW) and Amnesty International.

The HRW report is some 211 pages long. Amnesty’s report, published in February 2022, pulls together work by Palestinian, Israeli and international NGOs, and extends to 280 pages of documented incidents.

Nothing has come to light on the issue since my article in April which would refute the accuracy of those reports. Indeed, the accuracy has been re-enforced by admissions to the effect by prominent Israelis, including former Israeli attorney-general, Michael Ben-Yair.

I am concerned that Australia is ignoring the probability that Israel is an apartheid state. To my knowledge Australia has conducted no detailed legal analysis based on the criteria for the international crime of apartheid.

It is necessary to consider the basis for the allegation that apartheid is a crime. What is the legal basis for such an assertion? There are two international legal instruments to consider.

The first is the Apartheid Convention, full title – International Convention on the Suppression and Punishment of the Crime of Apartheid – UN, 1973. Article 1 declares apartheid to be a crime against humanity and refers to Article 2 (not reproduced) for its definition, which, in summary points to three main elements, namely an intent to maintain domination by one racial group over another, a context of systemic oppression by one racial group over another, and inhumane acts.

It would appear that Australia has never become a signatory to that Convention. For our purposes that may be irrelevant, as it is said that the crime of apartheid has that status under customary international law. By customary international law I refer to those principles of law deriving from the community of mankind and the moral obligation to sustain the common good of mankind. The Convention, as with any treaty, can evidence what the law is. In this respect we can look, too, to the Universal Declaration of Human Rights.

Of greater significance for our purposes is the Rome Statute of the International Criminal Court. The text was circulated on 17 July 1998 at Rome and came in to force on 1 July 2002. The Court was given jurisdiction over crimes against humanity, defined, by Article 7, to include (1(j)) the crime of apartheid. By Article 7.2(h) “the crime of apartheid” is defined as “inhumane acts … committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group and committed with the intention of maintaining that regime”.

Of interest for the purposes of this article are Articles 25 and 27.

Article 25 addresses individual criminal responsibility and provides that a person is criminally responsible within the jurisdiction of the court if that person, “(f)or the purpose of facilitating the commission of … a crime, aids, abets or otherwise assists in its commission or its attempted commission…”

Article 27 makes it clear that “a Head of State or Government, a member of a Government or parliament, an elected representative or a government official” is not exempt from liability.

Australia is a State Party, i.e. signatory, to the Rome Statute.

It is apparently a matter of current consideration that Australia enter into a free trade agreement with Israel. No doubt the Ministers of Foreign Affairs and Trade would have a role in bringing such an agreement into effect. Would a free trade agreement with Australia assist the Israeli government in its systematic oppression of the Palestinian people? I believe that a good case could be made that it would.

I raise another action. Elbit Systems Ltd. is an Israeli high-tech company engaged in defence and homeland security – the emphasis is mine. Major activities include surveillance and reconnaissance. Elbit’s advertising highlights its expertise in addressing “ongoing terrorist activities”. It does not require much imagination to conclude that the company is an actor in Israel’s apartheid practices. How is it then that Australia is dealing with the company? Elbit claims that it is a “vital contributor to the digitisation of the Australian Defence Force”. Again, there must be a good case that Australia’s business dealings with Elbit must assist the Israeli government in its systematic oppression of the Palestinian people.

A third activity is that of individual Australians going to Israel on holiday or business. I think it can be accepted that such attendance lends support to Israeli society and the economy and can therefore only facilitate the crime of apartheid being practiced.

So where am I leading? Should Australians be concerned that they, or their political leaders, or corporate enterprises, are accomplices in a war crime which is being perpetrated in Israel and the Occupied Territories?

Well, before we get down to that, perhaps we should consider how established is the fact of apartheid existing in those places. The Foreign Minister, Penny Wong, is on record as asserting that Australia does not accept the various reports to the effect that Israel is an apartheid State. I think Australians are entitled to know on what basis she so asserts. Has Australia conducted a formal investigation? Has a report been produced? If so, may we see it?

Or has the Minister accepted the official Israeli response, namely to the effect that the relevant organisations producing the reports are biased. That is a remarkable assertion but is it what is relied upon?

Consideration might be given to a Freedom of Information Act application seeking all documentation relied upon by the Government in arriving at its decision that apartheid does not exist. I have not ruled out such an application but I note the scope for the Government to claim exemption for any such documentation on the basis that production might affect “national security, defence or international relations” (s.33).

The relevant concerns of Australians that I have identified also entitle Australians to be made aware of the amount of donations given by Israeli interests to the two major Australian political parties, and of the extent of the benefit given to Australian politicians in the form of free trips to Israel.

Assuming that we can be confident that the fact of apartheid is established, what risk is there that the activities identified above amount to aiding and abetting? Aiding and abetting are commonly understood terms. They simply allude to the involvement of a person or entity, with an offence – here, the crime of apartheid. That involvement results in the person or entity being considered an assistant, or someone who associates with the principal, an accomplice, or an accessory, in this case possibly after the fact. Again, I believe that a good case could be made out that aiding and abetting is established.

What then of the risk of prosecution? I would agree that it is highly remote. History shows that the ICC hears few prosecutions. So far as Israel is concerned the ICC faces strong resistance. When in 2021 the ICC Prosecutor – Fatou Bensouda announced an investigation on the situation in Palestine, the United States confirmed its opposition to the investigation and even foreshadowed possible sanctions of the Prosecutor. This was a clear case of the US making clear that its much vaunted “international rules-based order” does not apply to Israel.

But regardless of the risk of conviction I believe that right-thinking Australians would not want to think that Australia is in any way complicit in war crimes.

I call upon the Government to disclose the basis for its assertion that Israel is not an apartheid state.

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