Whether Terrorist Groups Or National Armies, War Crimes Must Be Prosecuted


The Australian Muslim community has expressed serious frustration with the government’s new package of anti-terrorism measures. A recurring theme is the double standard in the government’s approach to targeting Australians involved in conflicts overseas, particularly in relation to Jewish Australians who become dual Israeli citizens and volunteer in the Israeli army without any fear on return.

This is a valid criticism. But the prime minister and the government’s response to those arguments have been evasive and not entirely honest.

On Monday’s episode of Q&A, Attorney-General George Brandis seemed to perpetuate this evasiveness and add to uncertainty about where our law stands in relation to Australians fighting in conflicts abroad.

When Tony Abbott met with Muslim leaders in Sydney to discuss how to stop young people becoming extremists and joining groups like ISIS in August, his response to the double standards contention was that Australian law does not prohibit dual nationals fighting with militaries of other nation states, but it does prohibit those fighting with designated terrorist groups like ISIS. On Q&A, Brandis parroted a similar line.

Similarly, ASIO chief David Irvine suggested to an audience of Arab-speaking journalists that if Israel was under a UN – and subsequently Australian – sanctions regime, there would be a prohibition against dual nationals fighting in the Israeli army.

Irvine confirmed that there was a prohibition on Australians fighting in the Syrian army but not, for example, the Iraqi army.

Like Brandis and Abbott, however, Irvine has missed the point, perhaps deliberately.

The government might think its distinction based on national armies and terrorist organisations, or the imposition of sanctions, are enough to quell those raising the double standard.

But the broader point here is not whether there should be a prohibition on dual Australian citizens from joining national armies (perhaps there should) but whether the engagement of those dual citizens with national armies leads to the commission of international criminal acts such as war crimes, crimes against humanity and genocide.

It should not be a surprise to anyone that it is not only terrorist groups who engage in such crimes and we should be just as concerned about states perpetrating these crimes as we are about terrorist groups.

Australian criminal law has a series of offences that allow for the prosecution of Australians (and indeed non-Australians who are present in our jurisdiction) whether they fight in national armies or terrorist organisations, and have engaged in war crimes, crimes against humanity or genocide. They are indictable offences and our courts have the jurisdiction to prosecute them.

South African human rights organisations have already put dual South African-Israeli citizens who serve in the Israeli army on notice that prosecutions are likely and forthcoming. Evidence is being collected to ascertain persons who may be involved.

This can and should happen here. The government should be leading the efforts.

If Australia is serious about ending impunity for international criminal acts, it needs to take action, not just against Australians involved in the ISIS butchery, but against any Australian who is engaged in militaries overseas committing war crimes, genocide and crimes against humanity.

If the government is looking into Australian Muslims, it should also look into Australian-Israeli dual nationals fighting in the Israeli Defence Force, for example, or Australians engaged with the Syrian army, or the Russian army, or in any conflict zone where there are allegations of serious violations of international humanitarian law.

Of the $630 million counterterrorism package announced in August, $32.7 million is earmarked to investigations and prosecutions.

One would have hoped that funding and resources be invested in re-establishing the war crimes investigative divisions within the Attorney-General’s Department, the Commonwealth Director of Public Prosecutions and the AFP, which could properly handle these investigations and others.

The ambit of their investigations should be widened to include those Australians involved in Israel’s ‘Operation Protective Edge’, which led to serious allegations of war crimes and crimes against humanity. We know that some Australian-Israelis have participated in that operation and they and others should be questioned as to their specific conduct on return.

It is disheartening that the AFP decided to close the case on its five-year war crimes investigations into the Balibo five, a clear affront to accountability and our international obligations, without any real justification and after a long battle for justice and accountability.

Australia has an international obligation to protect and enforce compliance with international humanitarian law and in ending impunity for crimes of an international nature. And if the government is serious about stopping terrorism and prosecuting those involved in it, it can just as easily end the double standard and apply the law equally to all.

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