At the National Press Club this week with Ben Saul, Chris Sidoti argues that recognition of Palestine is important, but that Australia must also comply with international law obligations, including acting on arrest warrants from the International Criminal Court.

Ben Saul has outlined why recognition was necessary. I want to describe why it is insufficient.

To begin with, recognition addresses a consistent pattern of inconsistency in the way in which the Australian Government has approached Israel and Palestine since the very beginning. It is a long way away, as the prime minister is fond of saying, but we have had engagement on this issue from the start.

Australia was a member of the UN Committee in 1947 that came up with the idea of two states living in peace and security side by side, a Jewish state and an Arab state, he said in the UN resolution that Ben referred to. We were a member of the committee that came up with that proposal. We were the first state in the General Assembly vote conducted alphabetically to vote yes to the adoption of the proposal.

And very quickly, we recognised the state of Israel. Doing so not entirely in implementation of the resolution because the resolution did not anticipate a unilateral declaration of independence by the state of Israel, and yet that’s what occurred. Nonetheless, we proceeded to recognise the state of Israel. And when Doc Evatt was president of the General Assembly, Australia supported Israeli membership of the General Assembly and of the United Nations.

So we were there at the time of those critical events, and we played a central role in relation to them. We recognised the state of Israel very quickly, but it’s only now, 75 years later, that we have got round to recognising the state of Palestine. And even now, there are continuing inconsistencies.

Ben has well outlined the Montevideo Convention provisions relating to recognition and about how the state of Palestine, in the acceptable international discourse of international lawyers, meets the four principal criteria under the Montevideo Convention. Having met those criteria, any additional conditions placed upon recognition become political matters rather than legal matters.

I have no problem with the political conditions that the prime minister and the foreign minister set some months ago, conditions that have now been translated into commitments by the Palestinian Authority, their political conditions, but Hamas should not be a member of a future government. There should be demilitarisation. There should be a restructuring of the Palestinian Authority. There should be elections. I have no trouble with those political conditions at all.

But they’re not being applied to the state of Israel. Why is there not a political condition that Likud, the Jewish power party, and religious parties should play no part in a future government of the state of Israel because they are parties that have been responsible for the commission of war crimes and crimes against humanity and genocide in Gaza?

Why should there not be similar provisions for full or partial demilitarisation of the state of Israel to ensure the security and peace within the region? Why should we not require truly democratic elections in the state of Israel rather than partially democratic elections that see the Palestinian citizens of Israel experiencing discrimination?

Two days ago, the Israel Country Brief and the Department of Foreign Affairs and Trade started out very early in the statement, “The state of Israel is a robust parliamentary democracy.” Well, it’s not. So recognition as a legal act has occurred, but it needs to be followed by consistency in the political approach to the state of Israel and the State of Palestine.

That’s just the first thing. In looking at what further steps are necessary, my approach is very much to depend upon the obligations that Australia has under international law. Talking about us as far away, as not having much influence, not being a great power.

Framing our response in those terms is framing a response based on the wrong question. It’s the question, what can be effective? A fair enough question that we have to be addressed, but a secondary question. The primary question is what are our legal obligations under international law and what must be to meet them?

There have been a number of decisions over the last year and a half that point very strongly to the fact that we have current pressing urgent legal obligations under international law to which we have provided a start of a response, but not much more than that.

In January last year, the International Court of Justice ordered provisional measures in the case of South Africa against Israel under the Genocide Convention. In doing so, the court acknowledged that there was a possibility of genocide in Gaza. It did not decide the question of genocide, but it decided there was a possibility.

And certainly, no later than that decision by the court, perhaps earlier, the obligation that Australia has under the Genocide Convention to prevent genocide was triggered. The Genocide Convention not only requires that we not commit genocide, it also requires that we act to prevent genocide. And that obligation to act to prevent was triggered by the International Court of Justice Order of Provisional Measures.

And the court made two further orders of provisional measures in April and May 2024, which reinforced the obligation to act to prevent. In July, the International Court of Justice issued its advisory opinion on the question of the lawfulness of Israel’s occupation and the Israeli settlements.

And the court said then that the occupation was unlawful and the settlements were unlawful, that Israel should act to end the occupation, and it should withdraw all settlements from the occupied Palestinian territory. The court highlighted the obligations of other states under international law. It directed a large part of its opinion to other states, and that’s us.

And it said that other states have obligations not to aid or assist the continuation of the unlawful activity in any way. When I look at international law, I’m aware of these obligations, treaty obligations, the obligation under the Genocide Convention to act to prevent genocide, the obligation under the Geneva Conventions dealing with international humanitarian law, to act to ensure that other states respect international humanitarian law.

This is the basis of current legal obligation on Australia. There are things that we can do and should do that we have barely begun to do. One immediate step that should have been taken was a complete review by the Australian Government, at least immediately after July last year, of all aspects of the relationship between Australia and the state of Israel, to identify those aspects that could be considered aiding or assisting the continuation of unlawful acts.

And to consider any aspects of the relationship that may be assisting the commission of war crimes or crimes against humanity or in any way preventing the risk of genocide in Gaza. And yet, I know of no such review. There should have been a review. The results should have been made public. If it exists, make it public. If it doesn’t exist, do it. That’s the starting point.

Then there are a number of very specific acts that should be taken. The first is the prohibition of all military-related trade with the state of Israel. Australia has an arms embargo. What that means is disputed. It certainly means that Australia does not provide weapons and munitions to the state of Israel and has not done so for several years now.

But that’s not enough. The prime minister, the foreign minister, keep on reiterating that. The prime minister did again as recently as last night in response to some comments I made two days ago. That’s not good enough. I accept and welcome the fact that we don’t provide munitions and weapons, but we must also look at components.

And here we’re talking about the components for the F-35 fighter jets, which we know have been used by the Israeli military in Gaza since 7 October, 2023. This is certainly part of a broader international deal with Lockheed Martin, but we can’t rely on the fact that this is part of an international deal and others are providing components and we don’t need to worry about it.

If components that are being manufactured here in Australia are finding their way into F-35 aircraft being used by the Israeli Air Force to bomb the hell out of Gaza, we share responsibility. It’s as simple as that. Regardless of the trade relationships, the component construction industry, the supply chains, we have legal obligations.

Next, we have to look at whether there are any materials that are being provided that can be used for the production of weapons by Israel itself. So this means, for example, steel that can be used in the production of tanks or other components, including metals. Anything that can be militarily related needs to be caught. Dual-use items. We tend to import drones from Israel rather than export them.

Drones are manufactured by the Israeli company, Elbit, and they’re some of the most effective in the world, particularly for surveillance. But we still need to look more broadly at dual-use items. That means items that can have civilian or military purposes. If they can have a military purpose, we should not be trading. So that’s the first. It’s arms-related trade, militarily-related trade.

It’s not just a ban on the provision of weapons and munitions. Second, we should take the next step and end all military and trade co-operation with the state of Israel. In 2019, Australia established a trade and defence office in Jerusalem to promote defence co-operation and trade with the state of Israel. That office should be closed.

And any defence co-operation components of Australian diplomacy in the Australian Embassy in Tel Aviv should be ended, as well as anything that promotes trade in areas that are questionable. Australian individuals, some are dual citizens, serve in the Israeli Defence Forces. And many soldiers or former soldiers come to Australia.

Our Commission of Inquiry has found since June 2024 that the state of Israel is committing war crimes and crimes against humanity in Gaza, both individual acts and importantly through the whole pattern of strategy and operations there. We have said that any soldier, airmen, aircrew, surveillance personnel, radar personnel, naval crew who have had any involvement in the war in Gaza is a suspect.

A suspect who should be investigated and if the evidence warrants it, prosecuted, and if a court is satisfied, convicted. The necessary consequence of that is that anyone, whether an Australian citizen or not, who seeks to enter this country, having served in any arm of the Israeli military in Gaza since 7 October, 2023, should be treated as a suspect and investigated, and if necessary, prosecuted.

We have, under the Commonwealth Criminal Law, Australian domestic criminal offences relating to the commission of war crimes and crimes against humanity and genocide anywhere in the world. So our law covers this. This is not just international law. This is our law. We need, in fact, to broaden the scope of the existing law.

At the time of the ISIS uprising, our law was amended to criminalise or prohibit and criminalise Australian citizens serving in international armed groups, foreign armed groups. That needs to be extended to cover service in foreign military forces as well. There is no reason why Australian citizens should be permitted to serve in the military forces of another country, whether it’s China or Russia or the US or Israel.

It’s as simple as that. We need to sanction individuals in Israel more broadly. Positive steps already. We have sanctioned the two most extremist ministers in the Israeli Government, Ben-Gvir and Smotrich. And we have sanctioned a number of the more extremist, violent Israeli settlers. That’s a good start.

But the responsibility for the war crimes, the crimes against humanity and the genocide extends more broadly through the Israeli political and military leadership. So sanctioning needs to be extended. We need to end co-operation in innovation, security and development. Again, to go to the DFAP briefing. In recent years, there has been significantly increased engagement across a range of sectors, including innovation, security, and defence.

Innovation means information technology, which means surveillance technology, which means all of the technology that is being used to watch Palestinians, particularly through facial recognition and other forms of very sophisticated IT. That co-operation means that we should stop importing this software, these technologies or techniques.

Because in doing so, we are funding research and development in Israel of the very technologies that are being used against the Palestinians. A simple step. We should end trade with settlements. The International Court of Justice made it clear last June that settlements are unlawful.

The Israeli Government has responded to pressure building in Europe about trade with settlements by disguising the origins of products so that they may be seen as manufactured in Israel on their stamps rather than in the settlements. It’s up to the state of Israel to prove that a product is made in Israel and not in a settlement.

And if they fail to do that, well, then the entitlement, the obligation even, extends beyond trade with settlement products to trade with products coming out of Israel. Unless the Israeli authorities make the distinction possible, the sanctions need to be more broadly based. And also relating to settlements, we should end all funds transfer from Australia to settlements themselves or to organisations that support the creation and the maintenance of settlements and settlement activity.

And we should end tax deductibility for any Australian organisations that raise money for those purposes. The obligation not to aid or assist the continuation of the unlawful acts means stopping any form of Australian activity that supports the establishment and maintenance of settlements. And finally, we should very clearly indicate that we will respect and enforce orders of international courts.

The time for fudging this issue is long passed. We have clear obligations under international law, and we should be very clear that if anybody subjected to an arrest warrant from the International Criminal Court sets foot in this country, that person will be arrested. These are simple steps. They’re not dramatic steps. And they’re steps that we necessarily must take.

Recognition is an important step. It starts to address the issue of inconsistency, but the obligations that we have under the law extend well beyond recognition. So it’s necessary to recognise, but it is clearly far from sufficient.

The views expressed in this article may or may not reflect those of Pearls and Irritations.