A complaint concerning the Australian Signals Directorate to the Inspector General of Security and Intelligence.

As a signatory to the 1949 Convention on the Prevention and Punishment of Genocide Australia has an obligation to prevent genocide (Article I) and an obligation not to be complicit in genocide (Article III(e)).

Following the International Court of Justice Order of 26 January 2024 in Case 192 - Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the Australian government has a responsibility to ensure Australia is not complicit in any acts of genocide by Israeli forces in the Gaza Strip, including acts identified by the ICJ in its order.

Australia must ensure that it is not complicit in any acts of genocide in Israel including acts identified by the ICJ in its order.

In these circumstances the Inspector General of Intelligence and Security has a responsibility to inquire into recent and current activities of the Australian Signals Directorate in relation to Israel and the situation in the Gaza Strip to ensure Australia is not complicit in any acts of genocide in Israel, including acts identified by the ICJ in its order.

Under Sections 8 (2) (a) of the Inspector General of Intelligence and Security Act 1986, No. 101, 1986, the IGIS is tasked with ensuring compliance by the ASD with the act in terms of (iii) the propriety of particular activities of that agency; or (iv) an act or practice of that agency that is or may be inconsistent with or contrary to any human right…

Minimally, in the face of even the interim order, the Australian government has an obligation to scrutinize its direct and indirect military relationships with Israel, to ensure that nothing Australia has done or is doing in any way vitiates our obligations under the Genocide Convention.

Furthermore, the Inspector General of Intelligence and Security has a responsibility to ask whether the activities of the Australian Signals Directorate at the Joint Defence Facility Pine Gap in relation to possible complicity in acts the ICJ regards as plausible claims of genocide are characterized by propriety, in the common sense of conformity to conventionally accepted standards of behaviour or morals (Oxford Languages).

The ICJ Order of 26 January

After establishing the jurisdiction of the Court to hear the matter, the Order of 26 January determined, amongst other matters, that:

… at least some of the rights claimed by South Africa and for which it is seeking protection are plausible… (Paragraph 54)

… there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision. (Paragraph 74)

The Order stated that Israel must:

… take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

• (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group….(Paragraph 78).

Possible complicity of Australia in activities specified by the ICJ order through the Joint Defence Facility Pine Gap

The essential argument of this complaint is that unless the Australian direct and indirect military relationship to Israeli activities in the Gaza Strip specified in its Order are closely reviewed by the Inspector General of Intelligence and Security, it is not possible for the Australian government to assure the parliament and the Australian public that Australia is not complicit in plausible acts of genocide.

There are five elements to this argument, for which evidence will be briefly adduced below:

• The technical capabilities and roles of United States geosynchronous signals intelligence satellites controlled through Pine Gap with coverage of the Gaza Strip
• The historical record of United States geosynchronous signals intelligence satellites controlled through Pine Gap in United States provision of military intelligence to Israel
• Flows of raw and processed intelligence data from Pine Gap to the United States National Security Agency
• Documentation of signals intelligence cooperation agreements between the United States and the Israel Defence Force
• the absence of restrictions apropos the Gaza conflict following the ICJ Order placed either by the Australian government on intelligence flows to the NSA, or by the US government on NSA flows to IDF intelligence units.

Evidence on each of these points are detailed in the full version of my submission to IGIS, available here.

Conclusion Both domestic Australian and international law require the Australian government to investigate in good faith the possible complicity of this country in genocide through the provision of Australian sourced intelligence to Israel.

Under the 1948 United Nations Convention on the Prevention and Punishment of Genocide, which Australia has signed, ratified and publicly championed, Australia has an obligation to prevent and punish plausible or demonstrated cases of genocide.

Prevention clearly requires consideration of plausible and imminent possibility, a mandatory legal imperative rendered more compelling by strong evidence of possible Australian involvement through the provision of military intelligence to Israel through Australias apparently unrestricted institutional and technological integration into United States-auspiced global signals intelligence networks.

Faced with Australias responsibilities under both domestic and international law, Attorney-General has a responsibility to investigate such a possibility, and to report to both the Cabinet and the parliament on Australias standing in relation to the ICJs interim order.

More specifically, the independent Inspector-General of Intelligence and Security has a statutory obligation concerning the six Australian intelligence agencies whose activities it reviews, including the Australian Signals Directorate concerning Pine Gap,

to ensure that the agencies act legally and with propriety, comply with ministerial guidelines and directives, and respect human rights.

Following the announcement of the ICJ Order, the Australian Human Rights Commission, through its president, Professor Rosalind Croucher, urged the Australian Government to work with all parties to enforce the ICJ order for provisional measures.

Minimally, in the face of even the interim order, the Australian government has an obligation to scrutinize its direct and indirect military relationships with Israel, to ensure that nothing Australia has done or is doing in any way amounts to complicity in the activities set out by the ICJ order regarding a plausible and imminent danger of acts amounting to genocide.

Propriety, in the common sense of conformity to conventionally accepted standards of behaviour or morals may not be a highly precise term in law, but its use in the IGIS Act indicates an intent that intelligence agencies should be scrutinised by the Inspector General according to a shared idea of conventionally accepted standards of behaviour or morals.

It would be difficult to exclude possible Australian complicity in the acts specified in the ICJs order from such a consideration.

It is difficult to conceive of any meaningful sense in which the level of empirical detail or evidence adduced in this complaint could raise genuine security concern almost all of this information has been available for several decades.

Accordingly, simply asserting that considerations of national security would automatically render impossible any inquiry by IGIS reporting responsibly in comparable detail would be unconvincing.

The primary questions the IGIS is asked to address here are simple.

To reiterate the earlier formulation, does anything the ASD has done or is doing in any way amounts to complicity in the activities set out by the Order from the International Court of Justice?

Does Pine Gap-derived intelligence forwarded to the National Security Agency do so?

In such a case, does the government concur with such a policy?

And if the government does concur in such a policy, is not a veto, at least until final judgement by the International Court of Justice, not the appropriate response?

If not for a plausible and urgent claim of genocide, subject to a case before the worlds highest court that raises the possibility of Australian complicity, then for what would Australia ever exercise its sovereign right to veto what happens on Australian soil?

Read the full version of the complaint to the Inspector General of Security and Intelligence here:

Richard Tanter, Does Pine Gap place Australia at risk of complicity in genocide in Gaza?, A complaint concerning the Australian Signals Directorate to the Inspector General of Security and Intelligence, 27 March 2024.

Richard discussed the question ‘Pine Gap, Gaza, and genocide is Australia culpable?’ on 27th March in the webinar Pine Gap and Gaza: Blood on Our Lands, Blood on Our Hands, with Nasser Mashni, Barbara Flick, Kathryn Gilbey, and Peter Cronau. The video of the webinar is available online here:

https://www.youtube.com/watch?v=X3pqplouD3k

The slides of Richard’s talk are available here.