Could Australian Politicians Be Complicit in Israeli War Crimes Perpetrated in Gaza?

A couple of hundred pro-Palestinian protesters converged on NSW premier Chris Minns’ Kogarah office on Monday.

Their message was clear: if the Labor leader does not withdraw his support from the smorgasbord of war crimes that the Israeli government has unleashed on Gaza for over 40 days, then they will hold the Labor leader to account the next time the state goes to the polls.

ABC radio reported on Tuesday that Minns was not commenting on the scene outside his office the day prior. But the state leader has been clear and unwavering in his support for Tel Aviv from the beginning of the catastrophe that commenced on 7 October.

The death toll in the Gaza Strip is over 12,000 now, which includes 5,000 children. All food, water, medicine, electricity and fuel has been cut off for the population of 2.3 million Palestinians, who were already reeling from a 16 year goods blockade.

Tel Aviv ordered Gazans to head to the south of the 40-odd kilometre walled-off region, with no way out. But as the IDF has levelled the north of Gaza, with most people having fled to Khan Younis in the south, Israel is now warning people to clear that area. However, there’s nowhere else to go.

Multiple media outlets noted a placard with the NSW premier’s face spattered with blood amongst the crowd before his office, which conveys a simple message of complicity.

Indeed, as a genocide is transpiring with the backing of western allies, voices are rising to warn that not only will Netanyahu be guilty of these crimes against humanity, but, in reiterating that Israel has the right to defend itself via these unlawful acts, Global North leaders could be liable too.

Ongoing Nakba

“What is happening in Gaza has gone way past any civilised notion or legal notion of self-defence,” said International Centre of Justice for Palestinians director Tayab Ali on 13 November. “Palestinians have suffered from 75 years of dispossession, 56 years of occupation and 17 years of blockade.”

“The current cycle of violence is the direct responsibility of the states that have gifted Israel impunity and prevented accountability from allegation after allegation of violation of International law by Israel for decades,” the UK-based criminal defence lawyer continued.

According to Ali, what we’re witnessing today on a grotesque scale is a continuation of the 1948 Nakba, which saw the state of Israel run hundreds of thousands of Palestinians off their own land in order to establish itself as a new nation in the Middle East.

The lawyer stressed that the words of politicians are much more powerful than those of other people, whether that be Netanyahu making comments steeped in genocidal intent or Biden, Sunak, Albanese or Minns speaking out in support of the ongoing war crimes justified as self-defence.

“Many British politicians unequivocally supported Israel’s actions against Palestinians in Gaza, failing to understand that they themselves were becoming complicit in war crimes by encouraging them, a matter that is prosecutorial in the UK and in the ICC, under the Rome Statute.

“That is why the IJCP has issued notice to senior politicians that we would prosecute them for complicity and encouraging war crimes,” he added.

Blindly complicit

“What we are seeing today is a serious violation of international humanitarian law and war crimes,” Human Rights Watch UK director Yasmin Ahmed told the IJCP press conference. And she added that the Hamas perpetrated 7 October atrocities were war crimes, but they don’t justify the response.

“Israel has been committing war crimes, in particular the war crime of collective punishment,” Ahmed made clear. “They are collectively punishing the entire population of Gaza for the unlawful acts of Hamas.”

Israel has been targeting hospitals across Gaza on the pretext that Hamas embeds itself within them to act as a shield. But even if this was true, Ahmed added, this doesn’t permit Tel Aviv to conduct military assaults upon these centres, as international law doesn’t allow it under any circumstances.

Ahmed further emphasised that the wilful impediment of lifesaving supplies is a war crime. “The UK government should immediately suspend any military equipment and arms that are being supplied to Israel because of the risk of complicity in grave breaches and war crimes,” she continued.

Questions regarding the complicity of Australian politicians aiding and abetting Israel’s barbarism are being raised locally as well. PM Anthony Albanese and foreign minister Penny Wong have repeatedly raised Israel’s right to defend itself, as has NSW premier Minns.

Declassified Australia has recently uncovered two direct ways that highlight Australia’s complicity.

Kellie Tranter found that the device that opens the bomb doors on Israeli F-35 fighters being used on Gaza are produced solely by an Australian company, while Peter Cronau revealed this month that the US-Australian facility at Pine Gap is collecting data on Gaza and passing this to Tel Aviv.

On the books

Established in line with the provisions of the Rome Statute in 2002, the International Criminal Court (ICC) is the only permanent court with jurisdiction to prosecute individuals for the international crimes of war, crimes against humanity, crimes of aggression and genocide.

Australia ratified the Rome Statute on the day that it took effect, which required the nation to reflect these international crimes in domestic law, which it did in September 2002. These war crimes are now contained in division 268 of the Criminal Code Act 1995 (Cth).

These criminal offences further carry international jurisdiction, which means that the Australian federal police can investigate and prosecute anyone for perpetrating such a crime anywhere on the planet.

Of course, the AFP can also apply such laws to Australian citizens, as is currently the case with former special forces officer Oliver Schulz, who is currently under investigation in relation to crimes perpetrated in Afghanistan, which were uncovered by the Brereton inquiry.

The laws of war or international humanitarian law sets out the correct behaviour for initiating and progressing an armed conflict, with the aim being to lessen the impact of war, especially when it comes to civilian populations. The main IHL treaties are the 1949 Geneva Conventions.

The 2006 Australian Defence Force Law of Armed Conflict manual lists collective punishment as a prohibited act anywhere at any time in line with the Geneva Conventions, which expressly state that no individual may be punished for the actions of another and this extends to groups of people.

“Two sets of law on two sets of people”

Three Palestinian rights groups – Al-Haq, Al Mezan and the Palestinian Centre for Human Rights – filed a lawsuit with the ICC on 8 November, which accuses PM Netanyahu, president Isaac Herzog, defence minister Yoav Gallant and others of apartheid, genocide and incitement to genocide.

US Palestinian human rights lawyer Noura Erekat told Democracy Now that the challenge isn’t just about the ministers, but it also holds the ICC, international criminal law and legal institutions as a whole to account, as they demonstrate “absolute double standards” in terms of the Global South.

Erekat points out that since the ICC opened two dozen cases in African have been prosecuted, compared to a dearth in the west. And besides Slobodan Milošević, all of those prosecuted under the court’s time in operation have been either African or Arab heads or state or officials.

The Palestinian lawyer considers this to be a prime moment for the ICC to prove whether it can be effective by holding Israel to account, rather than simply again showing “it is actually part of punishing a Global South and letting western countries move forward with impunity”.

“This is a hypocrisy on the part of western governments and demonstrates that there is no such thing as western universalism, but instead continues to be two sets of laws on two sets of people,” Erekat stressed.

“And what’s wonderful, the only thing that provides us hope, is that a mass, mass movement of individuals, peoples, communities have risen up against their governments also to demonstrate the hypocrisy of western democracy,” she ended.