By Greg Barns: Michael West Media

Israel has killed more than 7000 Palestinians since the brutal Hamas attacks of October 7 sparked the war on Gaza. Human rights lawyer Greg Barns SC examines Australia’s complicity in war crimes.

That Israel and Hamas have – and are – committing war crimes in the Gaza, is the view of many scholars and lawyers around the world. For Australia, the issue is whether in supplying material assistance to Israel, is our government aiding and abetting war crimes?

Clive Baldwin, a senior legal adviser at Human Rights Watch last Friday neatly summarised the current situation with respect to war crimes in this terrible conflict. Baldwin writes that “over the course of the past 20 days, multiple war crimes have been and continue to be committed in Israel and Palestine, with grave concerns that Israeli forces and Palestinian armed groups are carrying out unlawful indiscriminate attacks harming civilians.”  

Baldwin cites Hamas’ killing of around 1400 Israeli citizens since October 7 as a war crime. He also catalogues the Israeli war crimes, which include the following:

  • Israel’s continuous bombardment of the Gaza Strip where “7,000 Palestinians have been killed since October 7, including almost 3,000 children, according to the Gaza Health Ministry.”
  • Israeli forces use of “white phosphorus, a chemical that ignites when in contact with oxygen, causing horrific and severe burns, on densely populated neighbourhoods. White phosphorus can burn down to the bone, and burns to 10% of the human body are often fatal.”
  • Israel’s “collective punishment of Gaza’s population through cutting off food, water, electricity, and fuel. This is a war crime, as it is wilfully blocking humanitarian relief from reaching civilians in need.”
  • The displacement of the population of Gaza which, if they are not allowed to return as soon as possile, means permanent displacement which is a war crime.

The Global Centre for the Responsibility to Protect takes a similar view to HRW.  It noted, also last Friday, that “until a ceasefire is reached, populations in Gaza remain at risk of continued war crimes and crimes against humanity.” 

Netanyahu: collective punishment of Palestinians

The intent of Israel to commit war crimes is evident in the incriminating statement of the Prime Minister Benjamin Netanyahu, who has said Israel’s response to the Hamas October 7 attacks “reverberate…for generations.” Further, Israeli Defense Forces’ (IDF) Daniel Hagari  said, in the context of the bombardment of Gaza, “the emphasis is on damage and not on accuracy”. 

So far the Albanese government has committed to sending a small number of troops and aircraft to the Middle East for the purposes, at this stage, of assisting evacuations. However, government ministers have refused to state the obvious, which is that Israel is committing war crimes on a daily basis.

Foreign Minister Penny Wong refused to acknowledge, during a Senate Estimates hearing last week, that Israel’s conduct in the Gaza amounted to the war crime of collective punishment despite overwhelming evidence this is the case.

Perhaps the most egregious example of the Albanese government’s sanctioning the view that Israel is a ‘special case’ when it comes to war crimes, was in an October 10 interview with ABC Radio in Perth by Defence Minister Richard Marles.  Asked about whether it was justified for the Israeli Defence Minister to order “the complete siege of Gaza, the cutting off of food, fuel and electricity”, Marles replied this way;

“Well, I think Israel is justified in acting to defend itself in this moment. I think it’s justified in seeking to protect and liberate its citizens and to act against Hamas. I mean, this is an incident which is being wrought upon innocent civilians and it is an act of terrorism. And in this moment, that Israel is acting in a way which is seeking to defend itself, I think we can understand.”  

Given that the Albanese government is, as usual, in lockstep with Washington on Israel, it is not inconceivable that it might be asked to supply military assistance if the Gaza conflict continues for weeks or months. The issue would then become whether the Australian government was aiding and abetting war crimes committed by Israel.

Complicity in genocide?

The Intercept reported on October 19 that a group of human rights lawyers in the US have warned the Biden Administration that unqualified support for Israel could amount to complicity in the commission of war crimes. The Center for Constitutional Rights, a respected New York NGO, has issued what it calls an Emergency Legal Briefing Paper which frames the issue in terms of the US, like Australia, being a signatory to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

As the paper notes, the “Genocide Convention places a duty on all 153 signatories to both prevent and punish genocide. The Convention criminalizes not just the commission of genocide, but incitement and attempts to commit genocide, as well as complicity in genocide.”

The US, (and for that matter Australia) are, the paper says, “obligated, from the time of learning of the serious risk of genocide of the Palestinian people, to exercise its influence on Israel to prevent the crime. The United States is not only failing to uphold its obligation to prevent the commission of genocide, but there is a plausible and credible case to be made that the United States’ actions to further the Israeli military operation, closure, and campaign against the Palestinian population in Gaza, rise to the level of complicity in the crime under international law,” the paper concludes.

A case before the International Criminal Court possible

The consequences of this complicity are that the US “and U.S. citizens, including and up to the President” can be liable for “their role in furthering genocide”. And the paper reminds us that any individual who incites or is complicit in genocide could be tried before the International Criminal Court. 

But also, the paper says, “because the prohibition against genocide is recognized as a crime under customary international law, as what is known as a jus cogens norm with erga omnes obligations, it is binding on all countries, and can be prosecuted under the principle of universal jurisdiction”. In other words some countries legal systems which pursue such alleged crimes such as Spain (it was a Spanish magistrates who sought to try former Chilean dictator Augusto Pinochet in 1998 using universal jurisdiction). 

We know that in the past two decades, from when the Howard government decided to ignore the Refugee Convention and impose cruel and unusual punishment on asylum seekers, that Australia has become a rogue state when it comes to international law. If the Albanese government, backed by the opposition, commits material assistance to Israel now, it could find its reputation further tarnished and in the same situation as the US- accused of complicity in war crimes.

Greg Barns is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019).

Greg graduated BA LLB from Monash University in 1984. He has been a member of the Tasmanian Bar since 2003. He is the former National Chair of the Australian Republican Movement and a director of human rights group, Rights Australia. He has written three books on Australian politics, is a Director of the Australian Lawyers Alliance, and a member of the Australian Defence Lawyers Alliance.