Palestinians walk through a residential neighbourhood in Gaza devastated by the Israel Defence Force soon after 7 October, 2023. (Photo: Oxfam International)
Newly declassified documents reveal how early and how much Australia knew of Israel’s genocide in Gaza after 7 October – and how it is failing to uphold its international obligations.
Australia has a duty, under Article 1 of the Genocide Convention, to “undertake to prevent and punish” the crime of genocide, and to “employ all means reasonably available to them, so as to prevent genocide so far as possible.”
The ‘Israel Country Brief’ published by the Department of Foreign Affairs and Trade (DFAT) confirms that ‘Australia and Israel share a close relationship with significant people-to-people links and broad commercial engagement. Australia established diplomatic relations with Israel in 1949.’
The International Court of Justice (ICJ), in the case of Bosnia and Herzegovina v. Serbia and Montenegro, determined that a key factor in determining what a state must do is its “capacity to influence effectively the actions of persons likely to commit, or already committing genocide.”
The fact that during Israeli Prime Minister Benjamin Netanyahu’s visit to Australia in 2017, he said, “…We have an extraordinary friendship, it’s based on values. When I colour the map, I colour Australia in the same colour as the United States…” is a demonstration of the depth of Australia’s links to, and the strength of its capacity to influence, Israel and highlights Australia’s obligation to try to prevent the commission of genocide.
Knowledge of possible genocide
The ICJ, in the case of Bosnia and Herzegovina v Serbia and Montenegro, held that the obligation to prevent genocide arises “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”
DFAT documents obtained under Freedom of Information by Declassified Australia [LEX 10306] include an email from the Assistant Director, International Law and Security Section/Legal Division dated 3 November 2023 headed ‘UN experts allegations of genocide, partners’ responsibilities’.
The email relates to the 2 November 2023 UN Special Rapporteur’s press release “Gaza is ‘running out of time’ UN experts warn, demanding a ceasefire to prevent genocide”.
The DFAT Legal Division’s email references the press release in stating:
‘We note the UN has published the following statement overnight – Gaza is running out of time’ UN experts warn, demanding a ceasefire to prevent genocide. (s47E(d), s47C…but please let us know if there’s anything further that we can assist with.
Key extracts are as follows: “We remain convinced that the Palestinian people are at grave risk of genocide”, the experts said. “The time for action is now. Israel’s allies also bear responsibility and must act now to prevent its disastrous course of action”, they said.
The experts expressed “deepening horror” about Israeli airstrikes against the Jabalia refugee camp in northern Gaza since Tuesday (31 Oct) night, which have repeatedly killed and injured hundreds of Palestinians calling it a brazen breach of international law.
“The Israeli airstrike on a residential complex in the Jabalia refugee camp is a brazen violation of international law – and a war crime. Attacking a camp sheltering civilians including women and children is a complete breach of the rules of proportionality and distinction between combatants and civilians”, the experts said’. (Emphasis in original)
Israeli airstrikes destroyed Al Zahra City with residential towers in Gaza turned into rubble soon after the 7 October Hamas attacks. (Photo: Alef Multimedia/Oxfam International)
The document has several redactions but interestingly, one redaction seems to be about advice prepared for the Minister. It is based on s47(C)(i) of the Freedom of Information Act (Cth) which says that ‘a document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or a Minister or the Government of the Commonwealth’.
Departmental documents obtained under FOI by Declassified Australia from the department of Prime Minister and Cabinet (PM&C) reveal that between 7 October 2023 to at least 14 October 2023, the PM&C were receiving updated ‘Situational Reports’ and Inter-Departmental Emergency Taskforce (IDETF) readouts.
By 5.56am on 11 October 2023 – just over three days after the October 7 Hamas attacks – an email from PM&C to the Prime Minister’s Office (PMO) containing DFAT media talking points (version 12) anticipated questions about the legality of Israel’s military response.
‘Talking Points’ drafted for the minister in response to anticipated questions included a warning not to make any legal commentary:
‘This was a shocking attack on Israel and we have recognised Israel’s right to defend itself. Australia’s consistent position in all contexts is to call for the protection of civilian lives and the observation of IHL [International Humanitarian Law]. Not helpful to get into legal commentary but, in every conflict, Australia calls on the parties to respect international law. We are aware the humanitarian situation in Gaza is deteriorating and are monitoring developments closely.’
Version 20 of the DFAT’s Talking Points (14 October 2023) obtained by Declassified Australia specifically states:
‘The predicted mass displacement of people from Northern Gaza is expected to exacerbate the already precarious humanitarian situation’.
This suggests the Australian Government was either predicting or had knowledge of an imminent violation of international law.
Handling claims of ‘genocide’ and ‘war crimes’
Further DFAT documents, some of which have been obtained by Declassified Australia, include direct advice on how to respond to the most difficult of questions.
One batch of documents dated 16 November 2023 [Lex 10306] include ‘Talking Points’ prepared to deal with anticipated questions about war crimes, genocide and why the Australian Government wasn’t going to remove the Australian Ambassador from Israel or the Israeli Ambassador from Australia.
In response to ‘genocide’ it states:
‘Australia’s consistent position in all contexts is to call for the protection of civilian lives, the observation of international humanitarian law, and respect for human rights. We need to be very careful about using the term genocide, which is specifically defined in international law. It is one of the strongest allegations that can be made against any State or actor.’
In response to the Government refusing to use the term ‘war crimes’:
‘Australia’s consistent position in all contexts is to call for the protection of civilian lives, the observation of international humanitarian law, and respect for human rights. We need to be careful when using the term ‘war crimes’ which has a specific legal definition covering a range of different crimes. Australia has called on Israel to exercise restraint and adhere to international law.’
And in response to the removal of Ambassadors:
‘Australia is a longstanding friend of Israel. As a friend we raise concerns when and where they exist. Embassies and diplomatic staff are essential to maintain official channels of communication between governments. Our diplomatic relationship allows us to make direct representations to Israel on issues of concern.’
On that very day – 16 November 2023 – UN experts were calling on the international community to prevent genocide against the Palestinian people.
One day earlier, on 15 November 2023, UNRWA had released its ‘Situation Report #31 on the situation in the Gaza Strip and the West Bank, including East Jerusalem’. By that time, over 11,078 people had been killed in the Gaza Strip; two thirds of them reportedly children and women, and 1.6 million persons had been displaced.
The very latest date that Australia might claim awareness of the existence of a serious risk that genocide will be committed is certainly the ICJ’s order of 26 January 2024, but the evidence suggests that the duty on Australia to take preventative action came well before that date, probably in early November 2023.
All this may help to explain media reports that ‘several applications made to the Defence Department’s weapons export regulator have remained unanswered since the Israel-Gaza war began in early October’. This was likely due to the Australian government not ‘judging from afar’ but receiving regular reports of what was unfolding on the ground in Gaza from 7 October 2023.
Trade just keeps on keepin’ on
The capacity of Australia to influence Israel’s actions in Gaza is in part determined by the depth of its economic ties to Israel.
Moreover, British barrister and King’s Counsel Philippe Sands appeared for Palestine before the International Court of Justice (ICJ) on February 19 and said:
“The right of self-determination requires that UN Member States bring Israel’s occupation to an immediate end. No aid. No assistance. No complicity. No contribution to forcible actions. No money, no arms, no trade, no nothing. All UN Members are obliged by law to end Israel’s presence on the territory of Palestine. Period.”
According to DFAT’s current online ‘Israel Country Brief’:
‘Australia’s bilateral economic relationship with Israel continues to grow. In 2021, Israel was Australia’s 46th largest two-way trading partner and 54th largest export market. In 2021, two-way goods and services trade amounted to approximately $1.34 billion, of which Australian exports were worth $325 million and imports from Israel $1.02 billion.
‘In 2020, Australian investment in Israel totalled nearly $1.6 billion and Israeli investment in Australia was $585 million, mostly centred in the innovation sector. Major merchandise exports to Israel are live animals followed by plastic products, pearls and gems, beef, and aluminium. As at November 2022, 19 Israeli companies were listed on the Australian Stock Exchange (ASX), making Israel the tied third largest source of foreign company listings.’
The Austrade team in Israel is based at the refreshingly honestly named ‘Australian Trade and Defence Office’, which exists to facilitate trade, investment and defence industry partnerships.
Heavily redacted FOI response to a request from the author on the role of Israeli company SmartShooter.
Department of Defence documents produced under Freedom of Information reveal that on 6 November 2023 an email was sent from the Austrade & Defence Office in Jerusalem in relation to Smartshooter, an Israeli company manufacturing automated weapons systems.
The content of the email was heavily redacted, but we know that in August 2023 Smartshooter announced the establishment of its new Australian subsidiary, Smash Australia, to provide automated weapons to the Australian military, and we also know that Smartshooter has been used in Gaza.
Documents produced under FOI from the Department of Foreign Affairs and Trade, and obtained by Declassified Australia, include documents dated 24 November 2023 and 23 January 2024, confirming that Australia is ‘Engaging with Israel to build on trade and investment relationships but not currently a Free Trade Agreement’.
Post-dating the 26 January 2024 ICJ order upon Israel to act to prevent genocide and for Australia to act to prevent it, t confirms that Australia “is engaging with Israel to build our trade and investment relationship” but “not currently considering a Free Trade Agreement”, that the Israel Feasibility Study and potential Free Trade Agreement was “not a public document and that following the feasibility study in 2021, “both Australia and Israel expressed interest in continuing discussions on a possible Free Trade Agreement.”
Inaction is the chosen policy
No economic sanctions, including trade and arms embargoes, have been threatened or imposed on Israel by Australia, and there has been no suspension of economic associations or agreements with Israel.
By the evidence in documents obtained by Declassified Australia in these FOI releases, Australia has done nothing to attempt to prevent genocide by Israel.
Silence has ensued in relation to six major multimillion dollar trade and cooperation agreements and programs between Australia and Israel. [*see bottom of the article for details]
The existence of all of these trade cooperation agreements serves to avoid the controversy of signing a Free Trade Agreement with Israel, but still facilitates a quite similar result.
All of these lay the groundwork for Australian access to Israeli technology, but part of the price is Australia’s diplomatic support.
Commercial interests could be a lever, but…
The Australian Government’s commercial activities, public procurement and public pension fund investments create another opportunity for Australian preventive measures.
On 28 February 2024, Israel’s Elbit Systems was awarded a contract worth approximately $600 million (A$917 million) to supply systems to Hanwha Defense Australia for the Australian Land 400 Phase 3 Project. Elbit is the primary provider of land-based military equipment and unmanned aerial vehicles to the Israeli forces and is the country’s biggest defence company.
No announcements have been forthcoming about the cancellation or suspension of this contract with Elbit, nor any directives given that no public funds be invested in it.
It is also not clear what action the Australian government has taken to prevent companies from becoming involved in acts of genocide in Gaza and sanction them if they do, or whether it has even engaged with any companies to identify and prevent the risk of their activities being linked to acts of genocide.
The United Nations Guiding Principles on Business and Human Rights (UNGPs) provides guidance for Australian decision making.
Elsight, for example, is an Israeli company listed on the Australian Stock Exchange (ASX). Israeli newspaper Haaretz reported in March that ‘Since October 7th, there has been a surge in demand for Elsight’s systems from various entities in the defense establishment, but the company’s management prefers not to share much information on this subject. They are only willing to say that the high demand has caused their sales mix to change, increasing the military and defense component – a trend that will apparently continue in the future.’
An opportunity to act morally, and legally
Since October 7 2023, the Australian Government has talked the talk.
It has condemned the attacks on Israel by Hamas, called for hostages to be released, urged all parties to respect international law, international humanitarian law and exercise restraint to protect civilian lives, spoken with governments in the region, provided humanitarian support to Occupied Palestinian Territories.
Is that a clear demonstration of the Australian government employing all means reasonably available to it, so far as possible to prevent genocide? That’s the legal test Australia is required to pass.
Firstly, Australia’s diplomatic activities have done absolutely nothing to influence the actions of persons likely to commit, or already committing genocide. Seeing every day the humanitarian catastrophe unfolding and worsening before our eyes, and Israel’s clear abandonment of the obligations it assumed on joining the UN, demonstrates Australia’s – and the entire world’s – complete inability to achieve peace, or anything, diplomatically.
That being the case, what other steps has it taken to fulfil its obligation? Nothing in terms of imposing formal trade or other restrictions, or even in terms of imposing restraints with any significant economic consequences.
To its credit, Australia has this month taken the vital step of joining most countries and peoples of the world in voting to support official Palestinian statehood, albeit a vote with watered-down wording.
That vote has importance on the genocide issue only in reinforcing Australia’s obligation to take stronger action to immediately stop all unlawful activity against a people it recognises.
On that score Australia again would not be acting alone but would be joining the growing number of countries that are putting morality, humanity and the rule of law in their proper place ahead of diplomatic convenience, political expediency, and geostrategic considerations.
As was the case with formerly apartheid South Africa, it takes more than words to end a genocide. It is only united international action with real and immediate economic bite that will have any effect.
* Major trade and cooperation agreements between Australia and Israel:
- Agreement between the Government of Australia and the Government of the State of Israel on Bilateral Cooperation in Technological Innovation and Research and Development (Sydney, 23 February 2017). An Agreement designed to assist further developing the relationship in many areas, including drone technologies.
- Memorandum of Understanding Defence Industry Cooperation signed in October 2017 and renewed in October 2022 which has not been released publicly.
- Memorandum of Understanding (MOU) on cyber security cooperation which has not been released publicly.
- The Australia and Israel Tax Treaty which reduces tax impediments to bilateral trade and investment, including tax discounts to Israeli companies. As well as eliminating the risk of double taxation, there is significant savings in withholding tax. For example, if an Australian subsidiary is paying dividends to its Israeli parent, they would currently need to pay 30% withholding tax. Under the new treaty, this will drop to 5%. One wonders how many Israeli subsidiary companies in Australia are generating and funnelling back this extra cash to support the genocidal actions of the Israeli Government.
- Victoria’s VISTECH trade promotion program which is jointly managed with the Innovation Israeli Authority and valued at up to $1.6 million, will support companies conducting R&D to test or conduct pilots in both the Victorian and Israeli markets before releasing their product or service for export to global markets.Applications to the next round of the Victoria-Israel Science and Technology Research and Development Fund (VISTECH) closed as recently as 11 September 2023.
- NSW-Israel R&D Tech Innovation Program, with the state government distributing financial grants of up to AU$250,000 to NSW-based businesses looking to partner with entities in Israel on research and development projects. The government’s contribution will cover 50 percent of a participating NSW business’ project costs, with the remaining costs to be covered by the participant or a third party.
KELLIE TRANTER is a lawyer, researcher, and human rights advocate. She tweets from @KellieTranter
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