Lawyer says Australians fighting in Gaza should have been warned about potential prosecution

June 9, 2024
Gazan children at Al-Aqsa Martyrs’ Hospital after Israeli attacks killed 40 Palestinians and injured 100 others in Deir El-Balah, Gaza on February 22. Photo: @anadoluagency

The Benjamin Netanyahu government issued a call on October 10 for its 360,000 army reservists to show up for military action it had launched in the Gaza Strip.

It is understood that about 1000 Australians with dual citizenship heeded that call.

Headlines here affirmed Australians flying to join the assault on Gaza: The Sydney Morning Herald on October 13 ran a piece titled “Australians fly to Israel to join war as Palestinians urged to flee to southern Gaza”.

More recently, freedom of information releases show that government departments were concerned about war crimes and genocide in Gaza early on.

But rather than act to prevent this, staff seemed to be  contemplating how to best avoid the subject during media conferences.

Apart from this behind-the-scene strategising, the government did not seem to consider it should have warned citizens going to join the Israeli  military could lead to their potential prosecution, on return to Australia.

The Australian Centre for International Justice wrote to federal Attorney-General Mark Dreyfus last December, outlining that he had a responsibility to advise these duel citizens of possible ramifications and that it should investigate them on their return.

South Africa submitted a claim of genocide against Israel to the International Court of Justice in December. On January 26, the judges overwhelmingly ruled that Israel is plausibly conducting genocide in Gaza under the international convention.

Sydney Criminal Lawyers spoke to Australian Lawyers Alliance criminal justice spokesperson Greg Barns SC about the consequences Australians fighting in Gaza could face on their return and rising Islamophobia.

Labor doesn't appear to have provided advice to those travelling to Israel to fight the war in Gaza about potential consequences. What should it have done?

The first point I’d make is that we’re not making any accusations against any Australian who has fought in the Israeli Defense Force.

Certainly, it is important for governments to ensure that people who want to fight in foreign countries, whether Ukraine or Israel, that they understand the provisions of the Commonwealth Criminal Code, which incorporates into domestic law what is called the Rome Statute: the International Criminal Court’s statute.

That includes offences such as war crimes, crimes against humanity and genocide. And it applies to Australian citizens, including to alleged activities offshore.

We’ve seen it in operation, as it were, in relation to allegations, which are simply allegations, that have been made against Australian soldiers in Afghanistan.

Following the ICJ ruling that Israel is plausibly conducting a genocide in Gaza, Labor did not publicly reflect on it, let alone reach out to these citizens.

Do you consider that as the ICJ found that there was a likely breach of the Rome Statute it heightened the government’s responsibility to issue some sort of warning to those fighting in the Israeli military?

The broader issue here is the Australian government’s heeding of what the ICJ said, and the lack of preparedness to join with South Africa and now, a range of other countries, most recently Chile, in supporting the application to bring about some justice in the Gaza conflict.

It has been disappointing to watch major powers, including middle powers such as Australia, to not join that particular action and those proceedings.

In relation to whether or not anyone could be liable because it has been said that there’s plausible evidence that genocide is being committed, you would have to look at each and every case.

Just because a person is in an area and participating in a conflict where there are allegations of crimes against humanity or war crimes, it does not mean that that person themselves is liable, or potentially liable, in criminal law.

It depends on particular actions.

To go back to the example of Afghanistan, there were allegations made in relation to United States troops and serious breaches of human rights that didn’t mean that Australian soldiers or any other nation that joined with the US in Afghanistan was responsible.

It depends on the individual.

Given the government knows that Australians are fighting with Israel, but did not advise them about their situation, is it likely that a case involving the Rome Statute offence would be launched against a returning soldier? How would one of these cases likely arise?

All these charges require the consent of the Attorney-General to be proceeded. That’s quite a high threshold there: it is not simply the Department of Public Prosecutions that has to sign off.

Secondly, it really depends on whether or not there is some evidence produced. If you look at what has allegedly happened in Afghanistan, as we know through the David McBride case, for example, material was provided to the media.

And, of course, we’ve seen images of what has been alleged to be wrongdoing.

It really does depend on having some form of evidentiary basis to proceed against an individual.

The point we have been making is that the Australian government would have been wise — and I assume it hasn’t done so — to indicate to those who do go to battle in foreign lands that they need to be very careful and make sure that they fully comply with Australian law.

Government officials have been weaponising the charge of antisemitism in an attempt to silence the pro-Palestinian street protests and the university Gaza solidarity encampments.

This would appear to display ministers propagating disinformation in regard to what these activists stand for.

Is there a danger in the nation’s highest officials spreading these mistruths?

There is no doubt there has been some rise in antisemitism. The question is to what extent has it been used to silence opposition to Israel.

It is very easy to cast aspersions on others by saying they’re antisemitic. So, we need to be careful there.

There has also been a very big rise in Islamophobia, which the media hasn’t commented on, despite the fact that Arab Australians have found life very difficult over the last few months.

That needs to be recognised.

There seems to be a sense that antisemitism is rife, but we seem to be forgetting about Islamophobia.

It is important that labels are not used to close down freedom of speech, freedom of expression and a right for people to stand against and express their views about inhumanity, war crimes and genocide, wherever it might be happening in the world.

Labor has also been avoiding discussions related to the International Criminal Court and the supply of arms to Israel. Should politicians be concerned that they will face legal consequences for their actions over the last eight months?

There has been some discussion about the aiding and abetting action in the British context against that government.

The issue really is whether governments are signing off on export licences, knowing that the exports that are being sent to Israel — either diverted through a third-party or directly to Israel — and the extent to which they know these are going to be quite likely used in the execution of what are alleged to be war crimes, crimes against humanity and genocide.

The Australian government has indicated that it is a very small supplier of weaponry and defence products to Israel. They’ve said there haven’t been any arms export approvals for some time.

What we don’t know and we should know — it should be fully transparent — is what export licences they have signed off on.

For example, this could be software with dual purposes or equipment that has dual purposes. Have those licences been approved since this conflict began?

It is very important for the Australian government to be absolutely transparent about these licences.

Now they, of course, will rely on national security [not to disclose]. But we are entitled to know the level of participation by the government in terms of support for Israel.

[This article was first published at Sydney Criminal Lawyers.]

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