Australia’s selective use of foreign fighter laws in Israel's war on Gaza

January 3, 2024
Medic carrying wounded Palestinian child in Gaza in October. Photo: Ghassan Salem/ BY 4.0

Two Australian citizens were killed by Israeli air strikes in southern Lebanon on December 27, Attorney General Mark Dreyfus confirmed on December 28. He added that Hezbollah, a listed terrorist organisation, had claimed links to one of the Bazzi brothers.

An Israeli missile hit a home in Bint Jbeil where 27-year-old civilian Ibrahim Bazzi and his Lebanese wife Shorouk Hammoud, along with his brother Ali, were staying.

The newly-married couple was planning to return to Australia, while Hezbollah claimed an association with 30-year-old Ali.

Dreyfus said fighting with a listed terrorist organization, or providing it with financial assistance, are “very serious terrorist” offences. He said Labor has recently enacted constitutionally-sound citizenship stripping laws that could apply.

But there is a greater concern which the government is not discussing: dozens of Australians are reportedly going to Israel to fight for it. This is despite it perpetrating what are alleged to be multiple war crimes and crimes against humanity.

South Africa warned that its naturalised citizens could be stripped of their citizenship status if they join in what it has declared to be a genocide.

The legalities around such participation may be blurred here since Australia is part of the Israeli-supporting US-led coalition “Operation Prosperity Guardian”.

A tale of different criminalities

Belgian-Lebanese activist Dyab Abou Jahjah announced on December 26 that the 30 March Movement had filed a legal challenge in the Netherlands regarding whether Dutch-Israeli citizen Jonathan Ben Hamou’s participation in Israeli operations had violated local and international law. “More legal actions will be taken in the Netherlands and Belgium,” he said.

Just a week into Israel launching its war on the 2.3 million Palestinians in the walled-in region of Gaza, the Sydney Morning Herald (SMH) said Australians with specialist skills were joining Israel in its Gaza offensive, which has as its stated aim the destruction of Hamas. Australians in Israel were called on to join the assault on the Gaza Strip in its first week.

SMH named a number of Australians called up for training, but one person involved in the first wave of attacks was not due to the “nature” of his unit.

The SMH quoted a spokesperson for the Department of Home Affairs saying that Australians returning to Israel to take part in the fighting must be a part of the Israeli Defense Forces, or risk breaking the law. The spokesperson did not say how many Australians were involved.

In the early days of Israel’s assault on Gaza, the Attorney General said nothing about Australian citizens potentially breaking local laws. Indeed, reports on those heading to Israel have Dreyfus stating: “Australia stands as one with Israel”.

Three months into the genocidal war, Israel has killed more than 20,000 Palestinians, the overwhelming majority of whom were civilians, and more than 10,000 were children.

Criminal foreign fighters

“We are continuing to make inquiries,” Dreyfus said regarding the Australians killed by Israel. “But I’d repeat, Hizballah is a listed terrorist organisation under Australian law” and it’s an offence for any Australian “to cooperate with, to support, let alone to fight with” such a terror organisation.

The Tony Abbott Coalition enacted foreign fighter laws, which were part of three tranches of anti-terror legislation introduced in 2014. They included laws establishing the metadata retention regime and others that enhanced ASIO computer surveillance capabilities and provided spies with immunity.

These laws were a notable selection from the now 100-odd pieces of national security and terrorism legislation that have been passed with bipartisan support since the 2001 9/11 terror attacks in New York.

These laws, which include the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 which was inserted part 5.5 into the Criminal Code Act 1995, have eroded the civil liberties of all. They were the second tranche of the 2014 terror laws and passed with bipartisan support at the height of a scare campaign about the Islamic State in November of that year.

Foreign fighters, the bill’s explanatory memorandum sets out, “may have fought alongside listed terrorist organisations in overseas conflicts and return to Australia with enhanced terrorism capabilities and ideological commitment”, which, it argues, heightens the likelihood of local acts of terrorism.

Part 5.5 of division 119 of the Criminal Code contains a number of offences related to entering a military zone in another country in which the Australian foreign minister has designated a terrorist organisation is engaging in hostile activity against that country’s government or people.

Offences such as entering a foreign country to engage in hostile activities, preparing to or accumulating weapons to engage in such activities, training others to engage in hostile activities, as well as allowing buildings or vessels to be used in such activities, are liable to life imprisonment.

All these international crimes are absolute liability offences, meaning the prosecution does not have to prove intention, knowledge, recklessness or negligence, for a defendant to be found guilty of the crime. Neither are any defences open to the accused.

Core international crimes

While foreign fighter laws do aim to prevent Australians travelling to the Middle East to fight alongside Hamas and Hezbollah, listed terrorist organisations by Australia, the laws do little to stop Australians joining the Israeli Defense Forces.

This is despite the fact that international crimes in the Rome Statute of the International Criminal Court (ICC) are reflected in federal law.

Most of the charges of war crimes and crimes against humanity, since October 7, have been levelled at Israel’s actions. One hundred and twenty three nations are party to the Rome Statute, which requires them to create the same international criminal offences in their own domestic law. Palestine has ratified the ICC treaty, while Israel has not.

The John Howard government passed the International Criminal Court (Consequential Amendments) Bill 2002. This inserted division 268 into chapter 8 of the Criminal Code, which holds multiple offences relating to three core international crimes: genocide, war crimes and crimes against humanity.

Some of the international crimes that exist in Australian law, and have been directed at Israel’s actions over the past three months, include genocide by inflicting destructive life conditions, extermination, persecution, apartheid, willful killing and inhumane acts.

But the key charge against Israel — genocide by killing — comes under section 268.3 of the Criminal Code: it is an offence to cause the death of one or more persons of a particular national, ethnical, racial or religious group in order to destroy it, in part or entirely.

While the foreign fighter crime might capture Australians who fight on behalf of Hamas or Hezbollah, the real issue is whether Australians are fighting on behalf of Israel.

Just as European activists have started proceedings against fellow nationals that may have broken international laws, enacted under domestic law, Australians have an opportunity to take such legal measures against citizens who have fought on the side of Israel.

The British International Centre of Justice for Palestinians has warned British politicians supporting Israel that they may be prosecuted for complicity and encouraging war crimes.

Three United States Palestinian groups have filed a case with the ICC against Prime Minister Benjamin Netanyahu.

It is possible, therefore, that Australians fighting on behalf of the Israeli Defense Forces may face domestic criminal charges against them on their return.

[Paul Gregoire writes for Sydney Criminal Lawyers, where this article was first published.]

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