Gaza: Australia’s obligations under the ATT and Genocide Convention

Jan 11, 2024
Flags-of Palestine and Israel painted on the concrete wall with soldier shadow. Gaza and Israel conflict.

Australian governments talk a lot about our commitment to the rule of law and human rights. However Australia’s response – at glacial speed with grossly inadequate measures – to the unprecedented humanitarian crisis in Gaza following Hamas’s brutal October 7 attacks, are putting that commitment to the test. As a nation that has provided political and military support to Israel, we are not doing well.

The nightmare for the people of Gaza has long since become almost unbearable to watch. Under international humanitarian law, healthcare and other civilian infrastructure must be protected during warfare. Despite this, Gaza’s healthcare system has been virtually destroyed. Everything that healthcare and even life itself need have been either bombed or blocked. Surgeries, including on children, are performed without anaesthesia. Infectious illnesses are rising rapidly. A quarter of Gazans face starvation. The picture is one of mounting war crimes.

On 12 December, Australia finally supported a UN General Assembly resolution for an immediate humanitarian ceasefire, after having failed to do so on 27 October.

However far more is needed from Australia – actions in addition to words are called for. Repeated statements into the ether that Israel must obey the law, when Israel’s leaders demonstrate no interest in doing so, have become no more than a distraction from tougher measures.

Australia’s responsibility to act is not simply a moral one in the face of unimaginable human suffering. It stems also from our long-standing strong support for Israel and her policies. The Department of Foreign Affairs and Trade (DFAT) claims – still – that Australia has a “warm and close relationship with Israel”. On 16 October, Foreign Affairs Minister Wong told the Senate that “Australia stands with Israel, and always will.” In his 20 December Lowy Lecture, Prime Minister Albanese persisted with the government’s pattern of condemning only Hamas, not Israel whose actions dwarf those of Hamas in their lethality and destruction. If, as it seems, Australia still stands with a nation committing war crimes, what does that say about our commitment to the rule of law?

Along with political support, there is the important matter of Australia’s sales of weapons and related items to Israel, sales which are likely to be in violation of our international obligations. The Arms Trade Treaty, to which Australia is party, states in Article 7 that nations exporting arms shall assess the potential that items exported could be used to commit or facilitate a serious violation of international humanitarian law. As Australia does not monitor end-use of our weapons exports, one can reasonably assume that Israel will use them for whatever purpose she chooses.

In November, Minister Wong stated that Australia has not supplied weapons to Israel since the start of the current war. However there are many unanswered questions. Was this simply because no exports had already been approved for that period anyway? Have any weapons export permits been revoked specifically because of Israel’s actions in Gaza? Has any explicit decision been made to stop military exports to Israel? If so, why has it not been announced, and if not, why not?

There is also the matter of the case brought by South Africa at the International Court of Justice, accusing Israel of committing genocide against the people of Gaza. South Africa has provided substantial evidence of not only the extent of death and destruction in Gaza, but also, importantly, statements of genocidal intent from Israeli leaders. Initial hearings begin this week. Australia should support South Africa’s action.

Allegations of genocide unfolding in Gaza have been made since the early days of the current war. On 17 November, nearly two months ago, the International Commission of Jurists published a legal briefing on states’ duties to prevent genocide, citing a report of UN experts of a “genocide in the making” against Palestinians. The 1948 Genocide Convention, to which Australia is party, prohibits not only genocide but also complicity in it, for which reason the briefing recommended discontinuing any military assistance that would facilitate genocide.

A declaration from Australia to the International Court of Justice in support of the South African case against Israel, along with an open declaration that Australia will not supply Israel militarily, would be far more powerful ways for our government to help end the current nightmare for Palestinians than by softly, softly words. They would also fulfil our obligations under the Arms Trade Treaty and the Genocide Convention.

Australia has strongly and appropriately – and repeatedly – condemned Hamas’ illegal attacks on Israeli civilians. Three months on, what’s still missing is Australia’s explicit condemnation of Israel’s collective punishment of the Palestinian people, and appropriate measures in response. Currently Australia is applying the rule of law very selectively and remains a part of the problem – not only for the people of Gaza, but also for prospects for peace for all Israelis and Palestinians. Israel cannot bomb her way to security. Real security needs justice for both sides.

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