Australia must overturn its listing of Hamas as a terrorist organisation

Oct 24, 2022
Israel and Hamas flags painted over cracked concrete wall.And lava flows behind.Israel vs Hamas war.

In or about October 2021 the Parliamentary Joint Committee on Intelligence and Security (PJCIS) – under the previous government – listed Hamas as a terrorist organisation under the Criminal Code.

The PJCIS – under the new government – has just completed a review of such listing and confirmed the listing. The writer assisted in the drafting of a submission opposing the continued listing made by the Australian Friends of Palestine Association (AFOPA), based in Adelaide.

AFOPA believed that the original listing followed representations from the pro-Israel lobby, including ECAJ and AIJAC.

The submission draws attention to the fact that Hamas has engaged in forms of violence that is not terrorism. Hamas was within its rights to resist Israeli aggression and to do so with deadly violence, including by the use of rockets, the only form of resistance left open to it.

To categorise Hamas as a terrorist organisation is a bid to discredit it. It is a simple policy of de-humanisation that unfortunately appears to have considerable success with an unwary public.

The writer reproduces part of AFOPA’s submission made earlier this year.

“It is not sufficient that other countries may have listed Hamas as a terrorist organisation. AFOPA understands that the U.S., the U.K. and Canada may have done so. Australia is a sovereign nation and must arrive at such decisions independently. If what other countries did was a consideration it would be relevant to note that the vast majority of the world’s nations have not acted to list Hamas as a terrorist organisation.

“What is Hamas?

“Hamas is a Palestinian nationalist and Islamist movement in the West Bank and Gaza Strip that is dedicated to the establishment of an independent Islamic state in historical Palestine. Hamas ran in the 2006 elections for the Palestinian Legislative Council and won a victory over Fatah, the notional successor to the secular PLO.

Hamas opposes Israel, and its policies. It has every right and reason to do so. Israel presently illegally occupies the West Bank and the Golan Heights, and controls and restricts the sovereignty of Gaza.

Hamas also represents Palestinian refugees, ethnically cleansed from Israel and presently living in Gaza and elsewhere and prevented by Israel from returning to their homes, in defiance of UN Resolution 194. Hamas’s ultimate objective is the liberation of Palestine. It is a bona fide resistance group.

“Israel’s record

“Hamas’ conduct must be compared with the conduct of its nemesis. Consider the record of Israel and its religious settlers:

  • The murder of Palestinian civilians including children in the West Bank and Gaza on a continuous basis;
  • Use of excessive force and recurrent military targeting of civilians and civilian homes, demolition of homes, killing thousands, arbitrary arrest and detention of children, fishermen and other vulnerable groups;
  • Encouraging settlers to move, illegally, into the West Bank, and escalating settler violence;
  • Forcibly transferring Palestinians from their homes and land, i.e. ethnic cleansing;
  • Creating an apartheid State, as declared in 2021 by the New York based Human Rights Watch and the Israeli human rights organisation B’Tselem;

“It is significant to note that in February 2022, after the listing currently under review, and hence a new factor to be taken into account, that Amnesty International also made a determination that Israel is an apartheid state. Amnesty’s report is entitled ‘Israel’s Apartheid Against Palestinians, a Cruel System of Domination and a Crime Against Humanity’. The Amnesty report documents hundreds of incidents, laws, regulations, etc., which compel the finding of apartheid. The most significant law of course is the ‘nation state’ law, in 2018, which enshrined Jewish supremacy over the country’s Arab citizens. The reference to a ‘crime against humanity’ in the title is not without significance. The Rome Statute of the International Criminal Court describes apartheid as a crime against humanity. Apartheid itself is described as the implementation and maintenance of a system of legalised racial segregation in which one racial group is deprived of political and civil rights.

“Today the religious right is in government in Israel and Naftali Bennett asserts: “There will never be a Palestinian state”. Such an assertion renders impossible the much vaunted ‘two State solution’. And one of the causes of the May 2021 conflict with the Palestinians was the militarised violence against the Al-Aqsa mosque and the forced displacement of Palestinians from Sheik Jarrah.  These actions are an incitement provoking a response from Hamas.

“AFOPA considers that it is appropriate to quote from an article written by Professor John Dugard in December 2021 under the auspices of the Balfour Project. John Dugard is Emeritus Professor of Law, Universities of Leiden and the Witwatersrand; Former Director of the Lauterpacht Centre for International Law, Cambridge; and a former UN Special Rapporteur on Human Rights in Palestine.

“John Dugard:

(T)he actions of the Israeli Defence Force (IDF) feature most prominently in investigations by the international Criminal Court. After all, in its offensives against Gaza it has inflicted more harm, killed and wounded more persons and caused more damage than the militants of Hamas. The IDF has terrorised more Palestinians than Hamas’s rockets have ever done to Israelis.

In 2008-9 in Operation Cast Lead the IDF killed over 1,400 Palestinians, of whom at least 850 were civilians (including 300 children and 110 women) and wounded over 5,000. Four Israeli civilians were killed by Palestinian rockets, ten soldiers were killed and 148 wounded. In 2014, in Operation Protective Edge, some 2,200 Palestinians were killed, of whom 1,492 were civilians (including some 500 children and 300 women), and over 10,000 wounded. Sixty-six Israeli soldiers were killed and six civilians were killed by rocket and mortar fire from Gaza. In 2018 in the course of Palestinian protests along the border of Gaza, dubbed the Great Return March, over 120 Palestinians were killed by live fire and tear gas and 13,000 wounded. From 10 to 21 May of this year 256 Palestinians were killed in Gaza (including 66 children and 40 women) and 2,000 wounded. In the West Bank 26 Palestinians were killed and 6,900 wounded. Thirteen Israelis were killed, including two children and six women.

Israel’s above air and ground offences against Gaza can in no way be described as acts of self-defence. They were simply actions taken to enforce Israel’s prolonged occupation of Palestine and to inflict collective punishment on the people of Gaza for their actions of resistance to occupation.

The statistics of Israel’s indiscriminate offensives against Gaza show convincingly that the IDF, equipped with sophisticated modern weaponry, has killed, wounded and terrorised a disproportionate number of civilians. These actions more aptly qualify as crimes against humanity and war crimes than the relatively ineffective actions of Hamas, using unsophisticated rockets. In short, if either side is to be designated as ‘terrorist’ it is the State of Israel rather than Hamas.

“Racism is behind it.

“Racism must be confronted ….in Palestine. It is not necessary to go further than the Zionist catchcry: “A land without a people, for a people without a land”. Between the lines, Palestinians, who had lived in “the land” for at least 3,500 years, are not ‘people’- “a land without a people” – they are not “humans”. They are sub-humans – shades of terra nullius. Just as people of African descent were there to do “the white man’s work”, so too in Israel you have prominent politicians saying that Palestinians, if some are to be in Israel, will be there to serve the Jewish population. In other words they will be slaves.

“Hamas has the right in international law to resist the crime of apartheid being carried out in its historic home.

“Questions

“What is the effect of not reviewing and withdrawing the listing? Would it mean that if AFOPA advanced monies to a hospital in Gaza it would be guilty of an offence under s.102.6 of the Criminal Code 1995 (the Code), i.e. getting funds to a terrorist organisation (maximum penalty 15 years imprisonment); or under s.103.2 of the Code, financing a terrorist (maximum penalty imprisonment for life)?

Would it mean that for AFOPA or one of its members to speak publicly in support of Hamas it would be guilty of an offence under s.102.7 of the Code, i.e. providing support to a terrorist organisation (maximum penalty 25 years imprisonment)?”

End of quotation.

In conclusion AFOPA submitted that Australia should be bolstering the capacity of the Palestinian people to fight for the self-determination of its people. It does not do so by declaring Hamas to be a terrorist organisation.

Subsequent to that unsuccessful submission AFOPA was given the opportunity to speak to the PJCIS’S Report of September 2022 confirming the listing of Hamas as a terrorist organisation and commenting upon the Recommendations of the Committee.

The Report sought to down play the risks of injustice occurring whilst at the same time acknowledging “genuinely held concerns” by organisations such as AFOPA and APAN (Australia Palestine Advocacy Network). The Report concluded with two Recommendations which contemplated the Committee monitoring “unintended effects” of the impact of Hamas’s listing, and in one respect, upon “engagement with the Palestinian diaspora in Australia, and other governmental activities relating to Gaza”.

AFOPA notes that this issue arises at a time when Palestine is a political issue in Australia. The ALP National Platform, as adopted at the 2021 Special Party Platform in March 2021 includes a resolution calling upon the next Labor Government to recognise Palestine as a State.

Palestinian elections are in contemplation. Whatever else it is, Hamas is a political party which would likely contest any such election, and if successful, form government.

The capacity of ECAJ and other pro-Israeli lobbyists to conflate such government, constituted by a ‘terrorist organisation’, with the State, or at least blur the issue, cannot be discounted. Such would clearly be an unintended effect. Moreover, it would greatly prejudice Australians of Palestinian background.

AFOPA and the writer regret that the Committee did not adequately address the submission put that as with Israel, so too does Palestine have a right to self-determination and to defend itself. Any questioned acts by Hamas go no further than exercising those rights.

The Committee heard oral comments on Monday 17 October. The Committee has not articulated any further views concerning the listing.

It is a pity that the events of this week were not known at the time of the oral submissions. On Tuesday 18th October the Albanese government announced its decision to drop recognition of West Jerusalem as Israel’s capital. In doing so it brought Australia back into line with the vast bulk of the international community which maintains that Jerusalem’s status can only be determined by final status peace talks.

An instance of the ‘unintended effects’ of the terrorist listing of Hamas was then forthcoming in the form of an article in Thursday’s (October 20) Adelaide Advertiser under the title “Terror groups ecstatic”.

The article asserts that the decision “has been backed by proscribed terror group Hamas … stoking … outrage over the diplomatic bungle”. One can only ask rhetorically “what diplomatic bungle?”

The article draws attention to the fact that Hamas “released a statement ‘welcoming’ Australia’s decision.” One can again ask rhetorically “why wouldn’t it, legitimately, do so?”

The shadow attorney-general Julian Leeser is quoted as saying “why would they (the government) want to even appear to be on the same side as terrorist organisations?” And Alex Ryvchin from ECAJ is quoted – “Labor has alienated the vast majority of Australians who abhor Islamic terrorism with this move”.

All of this evidences just the ‘unintended effects’ of the wrong listing of the government in Gaza as a terrorist organisation, doing irreparable harm to the cause of Palestinian Australians and others of goodwill seeking to advance the cause of Palestinian statehood.

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