Pearls and Irritations

If Australian anti-terror laws are to be considered principled and fair, they must apply equally to all organisations that meet the criteria, including state military forces where appropriate.

The criteria for designating terrorist organisations in Australia are rooted in clear legal definitions, covering both legislative and non-legislative factors. To be classified as a terrorist organisation under section 102.1 of the Criminal Code, an entity must be involved in, or support, the planning, preparation, or execution of terrorist acts. When an organisation like Lebanon-based political and militant group Hezbollah is proscribed, it logically follows that the same standards should apply to all groups, including state actors, if they meet the criteria.

The recent actions of Israel and the Israeli Defence Forces (IDF) raise pressing questions about the consistent application of Australia’s anti-terror laws. Two significant incidents this year, which could be considered acts of terrorism under Australian and international humanitarian law, underscore this need.

Terror Attack 1 – The killing of Zomi Frankcom

On 1 April 2024, Australian aid worker Zomi Frankcom was killed in Gaza by an IDF airstrike while delivering food aid with the World Central Kitchen (WCK). The attack targeted clearly marked WCK vehicles, with logos visibly displayed on their roofs, and the IDF was reportedly well aware of WCK’s movements. Frankcom’s death prompted a strong response from Australian officials, with Foreign Minister Penny Wong condemning the attack as “outrageous and unacceptable” and demanding accountability, however no further action was taken. This strike, directed at a civilian aid worker, meets the legislative criteria of a terrorist act under Australian law, as it involves intentional acts aimed at civilians to intimidate, harm, or instill fear.

If Hezbollah can be proscribed for activities confined to the Middle East without direct harm to Australian citizens, assets or interests, then the IDF’s actions, which have directly impacted Australian nationals, surely meet a comparable threshold. This attack alone demonstrates a disregard for international humanitarian norms, fitting within Australia’s established legal framework for proscribing terrorist entities.

Terror Attack 2 – The use of explosive devices in Lebanon and Syria

On 19 September 2024, UN experts condemned a coordinated IDF operation involving explosive booby-traps disguised as pagers and radios, which detonated across Lebanon and Syria. The attack caused mass casualties, including 32 fatalities and over 3,000 injuries. This attack targeted both civilian and armed personnel associated with Hezbollah, with no attempt to differentiate between civilians and members of Hezbollah.

The scale of harm caused by these simultaneous, indiscriminate detonations aligns with international definitions of terrorism. The UN has called for an investigation, citing that such acts violate the right to life and could constitute war crimes, given the indiscriminate harm to non-combatants. The terror and instability generated by this operation serve to intimidate and instill fear among civilians in Lebanon, further fitting the definition of terrorism.

Since these attacks, including the use of explosive booby traps disguised as civilian items, Israel has escalated its actions, launching incursions into Lebanon—a sovereign state—and targeting civilians, journalists, and medics, further meeting the definition of terrorism.

In a statement on 19 June 2024, Chris Sidoti of the Commission of Inquiry on the Occupied Palestinian Territory including East Jerusalem and Israel remarked, ‘I don’t know whether it’s one of the most moral armies in the world or not, but what I do have expertise in and what I do have authority to do is make assessments of criminal conduct. And the only conclusion you can draw is that the Israeli army is one of the most criminal armies in the world’. Israel and IDF actions underscore the pressing need for accountability internationally and under Australia’s anti-terror laws.

Inconsistent application of Australia’s Anti-Terror legislation

Australia’s legislative basis for proscribing organisations as terrorist entities is intended to protect its citizens and interests from acts of violence. Australia’s inclusion of Hezbollah as a proscribed terrorist organisation, despite no recorded attacks against Australians or Australian land, raises questions about whether foreign policy and alliances influence these decisions. Australia’s stance appears shaped by pressure from allies like the United States and Israel, rather than a direct, evidence-based threat assessment.

The IDF, in contrast, has not faced comparable scrutiny, despite evidence that its actions have directly endangered Australians. In the case of Frankcom’s death, the IDF has accepted responsibility, yet this tragic incident has not spurred calls for its proscription as a terrorist organisation. If Australian anti-terror laws are to be considered principled and fair, they must apply equally to all organisations that meet the criteria, including state military forces where appropriate.

Upholding Australian sovereignty and independence in foreign policy

Applying Australia’s anti-terror laws consistently is not just a matter of fairness; it is an issue of sovereignty. Australia has a duty to ensure that its proscription decisions are guided by national interests and an objective assessment of threats to its citizens, rather than aligning uncritically with the foreign policy of allied nations.

When organisations or states engage in activities that harm Australian citizens or violate fundamental human rights, those organisations should face the same scrutiny and legal consequences. To uphold our commitment to human rights and international law, Australians should demand accountability and consider proscribing the IDF under section 102.1 of the Criminal Code if it meets the criteria.

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