Pearls and Irritations

There has been much talk about nations’ and corporations being complicit in the war crimes, crimes against humanity and genocide being committed by Israel in the wake of Hamas’ horrific attacks on October 7. Much of this discussion, and in fact action, has been taken in the context of governments approving the export of arms and other military supplies to the Israeli military.

A number of countries have suspended arms transfers to Israel, including Belgium, Italy and Spain. A Dutch appeals court recently made a ruling ordering the government of The Netherlands to cease all export and transit of Lockheed Martin F-35 fighter jet parts to Israel within 7 days on the basis of the clear risk of violations of international humanitarian law by Israel in Gaza. European Union officials have also made comments discouraging the export of arms exports to Israel.

In Australia there have been a number of defence export licences approved by the Albanese government to allow military/arms exports to Israel. This is in the context, as Greens Senator David Shoebridge uncovered this week “that Australia has directly exported over $10 million in ‘arms and ammunition’ to Israel over the past five years” according to the Commonwealth’s own data.

As Binoy Kampmark noted on this site recently, “Canberra has approved 322 defence exports to Israel over the past six years. In 2022, it approved 49 permits for Israeli-bound exports; in the first three months of 2023, the number was 23.” Notably, and particularly so in the context of complicity in Israeli war crimes, the Albanese government has refused to reveal if any defence export licences concerning Israel have been approved since October 7. However, it is implausible that there would not have been given Australia’s shameful joined-at-the-hip relationship with Israel.

Assuming such export licences have been approved by the Albanese government, or that other military support direct or indirect, has been sanctioned by the government then this is arguably a case of complicity by key government ministers in the offences under the Rome Statute, to which Australia is a signatory, and which sets out crimes such as genocide, war crimes, and crimes against humanity. These offences are incorporated into Australian law through the Commonwealth Criminal Code, namely Division 268 (“Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court”) but also Division 80 Subdivision C (“Urging violence and advocating terrorism or genocide”).

There is also the possibility that executives of military and defence companies who are exporting to Israel from Australia and who are aware that their product is being used in the current conflict, could be complicit in the war crimes and crimes against humanity provisions of the Code.

But even if there were evidence that either government officials and/or corporate executives were arguably complicit in Israel’s actions, it would take the Attorney-General Mark Dreyfus to consent to a prosecution. This is a decision that is, remarkably and undemocratically, not reviewable in the courts.

So what is it that the Commonwealth AG should examine when there is a brief before him or her alleging complicity in Israel’s crimes against the Palestinians in Gaza by government officials and executives from corporations domiciled and/or operating in Australia?

Unfortunately there seems to be no clear criteria. This was made apparent in a recent response by Mr Dreyfus’ to Victorian senator Lidia Thorpe’s introduction of a  bill to remove the AG’s consent which, as she has rightly pointed out, is unfettered.

The response of the AG, through a spokesman was revealing. While noting that the Albanese government “is firmly committed to its obligations under the Genocide Convention, and we have implemented our obligations under it”, the spokesman went on to say that given the seriousness of genocide offences “and in keeping with other offences that have international aspects the requirement for the Attorney-General to consent to prosecutions of genocide is appropriate.” There was no explanation by the AG or his office of what matters are relevant to take into account in the exercise of the discretion.

Lest it be thought Mr Dreyfus is the only AG to be timid on the issue of consent, he is not. Successive AG’s have been very reluctant to pursue alleged Australian involvement in overseas human rights abuses.

In her second reading speech on the bill, introduced in early February, Senator Thorpe notes “it has been pointed out that the low level of accountability that surrounds the Attorney-General’s decision-making powers exacerbates the problems that arise from the broad discretion and potential for real or perceived political bias.”

She is right. Consider it this way. Would an Attorney-General stand in the way of a prosecution for Rome Statute offences under the Criminal Code if the defendant had sold military surveillance equipment to China knowing, or being reckless to the probability, that it would be used to monitor the Uighur community? Or what about the case of a government official who facilitated a defence export licence to allow a company to supply the Zimbabwe defence force with weaponry? One would think not.

And, as was revealed on Four Corners this week, an indictment issued by the Rwandan government in 2017 for an alleged perpetrator of the 1994 Rwandan Genocide, one of the worst atrocities of the 20th century, has been languishing with the Commonwealth since 2017 and no action appears to have been taken by the AG or the Commonwealth whilst the man accused was let in through Australia’s immigration citizen, has become an Australian citizen and has been living in the suburbs of Brisbane. Perhaps even more surprisingly there hasn’t been even a whimper from Fear-Monger-in-Chief, Opposition leader Peter Dutton on this very serious issue.

In the context of the current Gaza conflict, it is important, in the context of what should happen to Australian government officials or others who are complicit in Israel’s genocide of Palestinians, that Article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide places a positive binding obligation on the Australian government “to prevent and to punish” genocide. Australia was an eager earlier ratifier of the Genocide Convention, one of the first binding treaties of the post-WWII rules based international order. However, there unfortunately appears little evidence of this enthusiasm from our first law officer. And if Australia is being recalcitrant with its binding international legal obligations to the world of nations and humankind, why should we expect anything different from other countries? The truth is Australia can and should be doing much better on the erga omnes (rights or obligations are owed toward all) legal and moral obligation to prevent and punish genocide.

It undermines the rule of law in Australia and the world-at-large for a political figure like the Attorney-General to refuse, despite compelling evidence, a prosecution of any person who is complicit in Israel’s crimes in Gaza because they do not want to upset the strong relationship with that country.

If Australia really takes its Genocide Convention and Rome Statute obligations seriously it would remove political interference in prosecuting cases where a nation like Israel is assisted by Australian residents in the indiscriminate killing of men, women and children. It should not be one law for one nation but not another – justice is blind, right?

Share and Enjoy !

SHARE TWEET SHARE COPY EMAIL PRINT