Australians at risk if they serve in the IDF

Defence and Security, International relations, Israel / Palestine, Politics

Australians at risk if they serve in the IDF

Jan 19, 2024

Soldiers of Israel army walking with an Israel national flag.

Australian citizens are at risk of being prosecuted under Australian law if they commit, or are complicit in crimes being perpetrated by the Israeli Defence Forces in Gaza.

Since the commencement of the Gaza war, when the Israeli government issued an order to 360,000 military reservists to engage in the onslaught of Gaza, multiple dual Australian-Israeli citizens returned to Israel to fight in the Israeli Defence Forces (IDF). This development saw some Australian media outlets appearing to celebrate the fact that Australian citizens were being called up to join the brutal onslaught of the beleaguered population of Gaza.

Although the IDF does not release official statistics in relation to serving foreign nationals, the Australian Centre for International Justice has reported estimates of up to 1,000 Australians currently serving in the IDF or being active reservists.

Given the clear evidence of war crimes, crimes against humanity, and genocide being committed by Israel against the Palestinians the question is whether, if there is evidence of Australian citizens involvement in these activities, there is a risk for them of being prosecuted under Australian law. It is not suggested they have, but given the level of risk because of the conduct of the IDF in Gaza, it is surely incumbent on the Australian government to warn its citizens who participate in the conflict as members of the IDF, that they need to understand war crimes can be prosecuted under Australian law.

To provide some context about how dangerous it is for Australians to fight with the IDF we note that on 16 November 2023, in a show of unprecedented solidarity, over 40 UN human rights officials issued a statement calling on on the international community to prevent crimes against humanity, including genocide. The statement said; “The international community has an obligation to prevent atrocity crimes, including genocide, and should immediately consider all diplomatic, political and economic measures to that end.”

How is it then that Australian citizens are at risk of being prosecuted under Australian law if they commit, or are complicit in crimes being perpetrated by the IDF in Gaza. The answer lies in the adoption, by the Howard government through what is called the Rome Rome Statute.

Australia signed the Rome Statute on 9 December 1998 and deposited its instrument of ratification on 1 July 2002. The International Criminal Court (ICC) was established by the Rome Statute, and commenced operations in 2002.

In addition, what the Howard government’s 2002 laws did was to amend the Commonwealth Criminal Code (the Code) to include what are called ‘Offences against humanity and related offences’. In other words, incorporating the Rome Statute into Australian law.

More particularly, and this is the part of the Code which is applicable to any Australians fighting with the IDF, Division 268 of the Code is entitled “Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court”. Section 268.1(b) states that “It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.”

As former Attorney-General Daryl Williams stated in the Second Reading Speech on 25 June 2002, the main purpose of Australia incorporating the Rome Statute into Australian law was because; “it is important that Australia enact laws specifically covering all of the crimes in the International Criminal Court statute so that we can take full advantage of the principle and protection of complementarity.”

And, said Mr Williams, “[b]y enacting these crimes, Australia can be sure that we will be able to investigate and prosecute under Australian law persons accused of crimes within the jurisdiction of the International Criminal Court…The government believes that the establishment of the International Criminal Court is an important development to ensure that those who commit the most egregious crimes against humanity are brought to justice. It is clearly in Australia’s national interest to be part of this important international effort to deter and punish those who commit atrocities.”

One of the difficulties with prosecuting individuals under the Code for offences against humanity is that it is the Commonwealth Attorney-General who must approve a prosecution proceeding. While such a power is open to being abused for political ends it will be a test of Australia’s rhetoric and legislative actions to date for the first law officer to properly consider allowing a prosecution if he or she is presented with a brief from the Commonwealth DPP. You cannot refuse to allow a prosecution simply because it involves the actions of an ally.

As we noted at the outset, there is no accusation at this stage that any of the 1000 plus Australians who are fighting in the IDF have committed, either directly or through complicity, in war crimes. However there is surely an obligation on the Australian government to warn these Australians of the consequences of doing so.

As the Australian Centre for International Justice noted on 22 December 2023 despite the knowledge about Israeli war crimes in this conflict, “it appears that the Australian government has failed to provide any public statements advising of the risks involved particularly in respect of the potential legal consequences and individual criminal liability that could arise from the conduct of Australian nationals participating in the conflict as a member of the IDF.” This is an apt observation and one that should be heeded.