Local Laws Criminalise Citizens Partaking on Either Side of the Israeli Carnage in Gaza

updated on
Information on this page was reviewed by a specialist defence lawyer before being published. Click to read more.
Foreign fighting

Two Australian citizens were killed by Israeli airstrikes in southern Lebanon on Wednesday, attorney general Mark Dreyfus confirmed at a 28 December presser, and he added that Hizballah, a listed terrorist organisation, has claimed links to one of the Bazzi brothers.

An Israeli missile hit a Bint Jbeil family home where 27-year-old civilian Ibrahim Bazzi and his Lebanese wife Shorouk Hammoud, along with his brother Ali, were residing. The newly married couple were to return to Australia, while Hizballah has claimed an association with 30-year-old Ali.

The nation’s chief lawmaker explained that fighting with a listed terrorist organisation or providing it with financial assistance are both “very serious terrorist” offences under federal law, and added that his government recently enacted constitutionally-sound citizenship stripping laws that could apply.

But the local commentariat has been raising a greater concern, which involves the dozens of Australian citizens reportedly having joined the conflict on the Israeli side, which is continuing to perpetrate what many allege are ongoing multiple war crimes and crimes against humanity.

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

While locally, the legalities around such participation may be somewhat blurred now that 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 last week that the 30 March Movement has filed a legal challenge in the Netherlands regarding Dutch-Israeli citizen Jonathan Ben Hamou and whether his participation in Israeli operations has violated both local and international law.

“More legal actions will be taken in the Netherlands and Belgium,” the activist confirmed in a post.

Just a week into Israel launching the wholesale massacre upon the 2.3 million Palestinians within the walled-in region of Gaza, media reports outlined that Australians with specialist skills were flying to Israel to join that nation in its Gaza operations, which has the stated aim of destroying Hamas.

Australians in Israel were called upon to partake in the assault upon the Gaza Strip within its first week. And while the Sydney Morning Herald named a number of Australians called in for training, another involved in the first wave of Gaza attacks couldn’t be named due to the nature of his unit.

A spokesperson for the Department of Home Affairs told the masthead that Australians returning to Israel to take part in the fighting must be a part of the Israeli Defence Force or they risk breaking the law. And she then refrained from outlining how many Australian citizens were involved.

The AG, however, didn’t make statements about citizens potentially breaking local laws in this country in the early days of the assault on Gaza. Indeed, reports on those heading to Israel to join the onslaught upon the Palestinians have him stating “Australia stands as one with Israel”.

Yet, three months into the conflict, Israel has killed over 20,000 Palestinians, the overwhelming majority of whom were purposefully targeted civilians, and over 10,000 of those killed have been 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 Abbott government enacted foreign fighter laws, which were part of three tranches of terror legislation introduced in 2014 that 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 approval since the 2001 9/11 terror attacks in New York, which have incrementally been eroding the civil liberties of all citizens and residents.

Passed at the height of fears about an emerging Islamic State in November 2014, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 inserted part 5.5 into the Criminal Code Act 1995 (Cth). And this was the second tranche of the 2014 terror laws.

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 heightens the likelihood of local acts of terrorism.

Part 5.5 division 119 of the Criminal Code contains a number of offences related to entering an area that the foreign minister has designated as having an Australian government listed terrorist organisation engaging in hostile activity against the local government or people.

Offences created, like 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.

And all these international crimes are absolute liability offences, meaning the prosecution does not have to prove a mental element, such as intention, knowledge, recklessness or negligence, to see a defendant found guilty of the crime, and neither are any defences open to the accused.

Core international crimes

So, while foreign fighter laws do aim to prevent Australians travelling to the Middle East to fight alongside Hamas and Hizbollah as they’re listed terrorist organisations, they do little in regard to local citizens fighting on behalf of Israeli forces, despite their alleged ongoing war crimes.

Yet, the international crimes in the Rome Statute of the International Criminal Court (ICC) are reflected in local federal law. And whilst charges of war crimes and crimes against humanity have been levelled at the 7 October Hamas incursions, most have targeted Israeli actions.

One hundred and twenty three nation states are a party to the Rome Statute, which requires them to create the same international criminal offences in their own domestic law. And the state of Palestine has ratified the ICC treaty, whilst Israel has not.

The 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, wilful killing and inhumane acts.

But the key charge has been genocide by killing, contrary to section 268.3 of the Criminal Code, which is an offence that involves causing 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.

So, whilst the foreign fighter crimes might capture any Australian citizens who fight on behalf of Hamas or Hizballah, the real issue here, the issue that was widely reported as a nonissue in the early days of the humanitarian crisis, is whether Australians are fighting on behalf of Israel.

As in a similar way to European activists, who’ve commenced proceedings against fellow nationals that may have broken international laws enacted under domestic law, locals here have the opportunity of taking such legal measures against Australians who have fought on the side of Israel.

The UK International Centre of Justice for Palestinians has warned British politicians supporting Israel that they may be prosecuted for complicity and encouraging war crimes, whilst three US Palestinian groups have filed a case against PM Benjamin Netanyahu with the ICC.

So, Australian citizens caught up in fighting on behalf of the Israeli military forces could face the very real prospect of domestic criminal charges being laid against them on return to this country.

And as this issue has been completely ignored by the Albanese government, which has been unable to admit that Israeli operations in Gaza are illegal and have trangressed international norms, it certainly can’t condemn Australians in assisting Israel in what it continues to deem self-defence.

Centre photo of main image is of Australian citizen Ibrahim Bazzi and his Lebanese wife Shorouk Hammoud, who were both killed in an Israel airstrike in southern Lebanon last week

Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

Receive all of our articles weekly

Your Opinion Matters