Pearls and Irritations

Earlier this year we co-authored two op-eds on this site (“The prosecution of Australians complicit in Israel’s crimes in Gaza” (29 February 2024); “Australians at risk if they serve in the IDF” (19 January 2024)) concerning the legal issues that are raised by Australians travelling to Israel to fight with the Israeli Defence Force (IDF).

On Wednesday The Guardian reported that an FOI request response has revealed; “The Department of Home Affairs and the ABF are aware of four (4) Australian citizens who have travelled outside of Australia since 7 October 2023 and who were suspected to have departed Australia to serve or attempt to serve with the IDF… The ABF intervened with three (3) of the four (4) Australian citizens suspected of departing for Israel since 7 October 2023.”

The Department of Home Affairs and the ABF it seems, has asked no questions of the other Australians who have allegedly headed to Israel for the sole purpose of assisting the IDF in its brutal and unrelenting destruction of lives and key infrastructure in Gaza. The Australian Centre for International Justice (ACIJ) has identified some 20 individuals in Australia who have recently fought, or are currently serving in the IDF. The Centre’s Rawan Arraf, principal lawyer and executive director, told The Guardian her Centre has “identified about 20 individuals in Australia who have recently fought or are currently serving in the Israeli army”. The AFP will be provided with this information, she said.

And that is not the end of the story. In a letter to the Minister for Home Affairs, the Attorney General and the Commissioner of the AFP last December, the ACIJ identified that although the IDF does not release official statistics in relation to serving foreign nationals, it is aware of estimates of up to 1,000 Australians currently serving in the IDF or being active reservists.

The Albanese government should have been, and should now be given the FOI response release this week, much more transparent in ensuring that it sends a clear public message to any Australians fighting with overseas forces, and Israel is most definitely no exception to this, that it will question anyone who is going to serve with the IDF, or any other foreign force, on their way out of Australia and on their return. And given that one can assume that Prime Minister Albanese, Attorney General Mark Dreyfus, Foreign Minister Penny Wong, Claire O’Neil, Home Affairs minister, and the Commissioner of the AFP, Reece Kershaw, have all been briefed about the identities and the details of Australians who have served or are currently serving in the IDF since 7 October 2023, the government should tell us how many citizens have, or are serving in the IDF and whether they have been questioned about their activities, intended or completed, in the Gaza conflict.

Such transparency is a key component of Australia’s commitment to being a law-abiding nation that respects the rule of law and the international rules based order, here particularly the Genocide Convention and the Rome Statute of the International Criminal Court, which is incorporated in domestic law through the Commonwealth Criminal Code.

To be clear we are not suggesting any Australian who has or is serving with the IDF in the Gaza conflict has committed, or is committing war crimes, crimes against humanity or genocide. Our concern is with ensuring our government is applying national and international rule of law principles consistently.

That there is an urgent need for greater transparency from the government about participation by Australians in the Gaza conflict is fortified when one considers that since our previous op-eds, there have been a number of authoritative international judicial decisions, prosecutorial decisions, and reports that tell us how critical it is for Australians serving in the IDF to be warned by the government publicly about the risk of being liable to criminal investigation and potential prosecution.

Some of those unprecedented developments include the following:

• On 20 May 2024, ICC Prosecutor Karim A.A. Khan KC announced that he was filing applications for arrest warrants before Pre-Trial Chamber I of the International Criminal Court in the Situation in the State of Palestine against:
  • Israeli Prime Minister Benjamin Netanyahu, and Israeli Defence Minister Yoav Gallant, for war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023; and
  • three Hamas leaders , Yahya SINWAR (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI, more commonly known as DEIF (Commander-in-Chief of the military wing of Hamas, known as the Al-Qassam Brigades), and Ismail HANIYEH (Head of Hamas Political Bureau) for war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023.
• On 3 June 2024, United Nations Secretary-General Antonio Guterres added Israel’s military to a global ‘black list’/’list of shame’ of offenders that have committed violations against children. The UN’s so-called blacklist also includes Russia, Afghanistan, Iraq, the Democratic Republic of the Congo, Somalia, Sudan, Syria, Haiti and Yemen.
• On 12 June 2024, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, published a report finding that the Israeli authorities are responsible for war crimes and crimes against humanity committed during the military operations and attacks in Gaza since 7 October 2023. The Commission also found that Palestinian armed groups are responsible for war crimes committed in Israel.  Notably that report recommends:
  • that all UN Member States, [which of course includes Australia]:

1. Ensure compliance by all States Parties with all treaty obligations, including common article 1 of the Geneva Conventions, the CAT and the Genocide Conventions;
2. Conduct investigations under domestic or universal jurisdiction on core international crimes committed during the current war.

• • that all State Parties to the International Criminal Court, which includes Australia]:

1. Support and cooperate fully with the investigation by the Office of the Prosecutor of the International Criminal Court in its investigation into the Situation in the State of Palestine.

Israel’s claims to being a “civilised democracy” and having “the most moral army in the world” have come under severe scrutiny by the international community since its disproportionate and dysregulated reaction to the horrific events of 7 October 2023. Whilst the flaming flags of “civilisation versus barbarism” are still being waved in Israel’s favour by some corners of the Albanese government, opposition parties and the media, such advocacy cannot be allowed to undermine Australia’s rule of law responsibility to protect its citizens from complicity in war crimes by foreign military forces, but also to show that the law applies to all, and that it is not antisemitic to state that to be the case.

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