On 20 December 2023, the Australian Centre for International Justice wrote to the Minister for Home Affairs, the Attorney-General and the Australian Federal Police Commissioner with respect to Australian citizens who are currently engaged in hostilities in Israel and the Occupied Palestinian Territory (OPT).
Following the Hamas attacks in Israel, on 10 October 2023, the Israeli government issued an order to 360,000 military reservists to engage in the ongoing hostilities. Numerous media publications have reported that dual Australian-Israeli citizens returned to Israel to participate in hostilities.
Australian nationals' engagement in the conflict is occurring in the context of decades of widespread, serious, documented violations of international law by the Israel Defense Forces (IDF) in the OPT. Despite the publicly available information about Australian nationals' engagement in the conflict as part of the IDF and violations of international law by the IDF, it appears that the Australian government has failed to provide any public statements advising of the risks involved particularly in respect of the potential legal consequences and individual criminal liability that could arise from the conduct of Australian nationals participating in the conflict as a member of the IDF.
Noting that there is no prohibition on Australian citizens from fighting in the armed forces of the government of a foreign country, the reported guidance from the Department of Home Affairs does not warn individuals that their actions could constitute criminal offences under Australian law, which could result in the initiation of criminal proceedings against them.
A failure to investigate and prosecute Australian nationals for involvement in potential war crimes, crimes against humanity, genocide and torture as codified in Divisions 268 and 274 of the Commonwealth Criminal Code, would be in breach of Australia's obligations under international law to investigate and prosecute these crimes. With respect to acts of genocide, the Australian government must uphold its obligation as a State Party to the Genocide Convention to not only punish acts of genocide, but prevent such acts. The inadequacy of warnings issued to date by the Department of Home Affairs may constitute a failure by Australia to comply with its obligations under the Convention.
The catastrophic situation in the OPT and in Gaza in particular, warrants clarification from the Australian government of its position and intended response to the real risk that Australian nationals may be involved in the commission of international crimes.
