Sydney Criminal Lawyers write
Over 100 Australian and Australia-based lawyers and legal scholars published an open letter on Thursday 22 August 2024, calling on prime minister Anthony Albanese, foreign affairs minister Penny Wong, defence minister Richard Marles and attorney general Mark Dreyfus to implement an arms and energy embargo on Israel.
This is in light of a 19 July 2024 advisory opinion of the International Court of Justice, which finds that Israel’s presence in the occupied Palestinian territories – the West Bank, the Gaza Strip and East Jerusalem – illegal, and that it’s required to remove its occupying force, settlement and settler communities from the region where it is operating an apartheid regime.
“These historic findings by the ICJ do not create new obligations for states,” the local lawyers explain to the politicians, who should be aware of this, as it is. “These obligations have existed for decades, and – regrettably – most states, including Australia, have been in violation of them. Rather, the advisory opinion is a formal, authoritative reminder of these obligations.”
Hopefully, the AG does take heed of this warning, as depending upon the other key ministers to action it could be a stretch as currently Albanese, Wong and Marles have all been charged with complicity in the ICJ ruled “plausible” genocide that’s taking place in Gaza, within a case that was submitted to the International Criminal Court (ICC) by 100-plus Australian lawyers in March.
And 11 months into the Gaza genocide, with the official death toll having surpassed 40,000, and many thousands more deaths yet to be accounted for, the Albanese government now stands nakedly before the public, after having attempted to deny that genocide-facilitating trade with Israel does exist, not only complicit in mass slaughter but contributing to apartheid as well.
Merely fulfilling our obligations
According to the 100 plus legal experts, the obligations that our nation is bound to as a result of these findings include not recognising Israel as encompassing the occupied Palestinian territories, abstaining from treaty relations or diplomatic missions that involve Israel acting on behalf of them, and ending economic, trade or investment relations that contribute to the occupation.
Further requirements that Australia is obligated to take under international humanitarian law are not to aid or assist in the illegal occupation of the Palestinian territories, ensure that the occupation is brought to an end to permit Palestinian self-determination and to contribute to efforts that bind the UN General Assembly and its Security Council to act in accordance with this advice.
“We consider the legal obligations pertaining to trade and investment to be crucial from a legal and practical point of view,” the Australian lawyers warn the Albanese government in their 22 August statement published in Overland.
“Any good-faith interpretation of this obligation involves, at the very least, a comprehensive arms and energy embargo on Israel that covers the export, import and transfer of weapons, including parts, components and other dual-use items, as well as military jet fuel,” the legal professionals make certain.
The lawyers further point to the ICJ’s “detailed exposition of the role of water management, city planning and infrastructure and land policies in Israel’s illegal practices of occupation, racial segregation and annexation”, so, they explain to the top ministers, including the nation’s chief lawmaker, that this means “Australia must urgently suspend” ties related to these areas.
A slightly inadequate response
On the day following the ICJ advice publication, the foreign minister released a statement that didn’t mention it whatsoever, but instead announced that she’d “imposed Magnitsky-style targeted financial sanctions and travel bans on seven Israeli individuals, and targeted financial sanctions on one entity, for involvement in settler violence against Palestinians in the West Bank”.
Magnitsky laws permit governments to place sanctions on specific individuals abroad involved in human rights abuses. So, following the World Court having ordered this nation and all others to halt ties with Israel in relation to its occupation of the Palestinian territories, Wong appears to have responded with a targeted sanction against just seven settlers, after all were called upon to leave.
On Thursday, the local lawyers advised the minister that this was “insufficient”. And due to the fact that Wong must not be able to understand why that is, or her actions would’ve spoken otherwise, the lawyers set out the reason, which is the ICJ found “settler violence in the West Bank is not the aberrational doing of individual extremist settlers”, rather it’s part of Israel’s occupation policy.
“In light of this, the Australian government must impose targeted sanctions, including asset freezes against Israeli individuals and entities involved in Israel’s illegal occupation, settlement enterprise, annexation, persecution, racial segregation and/or apartheid policies,” the legal eagles further advised.
An apartheid state
The Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, as the advice is known, is not a response to the wholesale slaughter and starvation project that Israel has been perpetrating in the Gaza Strip since last October, but rather it answers questions put to it in 2022 by the UN General Assembly in resolution A/77/400.
The lawyers further explain that “Israel’s prolonged occupation violates multiple facets of the right to self-determination of Palestinian people, including permanent sovereignty over their natural resources”, which, the court confirmed, is a right that’s “erga omnes and jus cogens in nature”.
An erga omnes matter is one that all states have a legal interest in seeing fulfilled due to what it involves, while jus cogens refers to an international law legal norm.
“The erga omnes and jus cogens nature of this right mean that this is not a bilateral dispute, but rather a multilateral issue with legal ramifications for all states, including Australia,” the lawyers further explain to the prime minister and his colleagues.
But when the resolution to investigate the Israeli occupation of Palestinian territories was adopted on 30 December 2022, the PM and foreign minister had long been aware that the occupation of these territories was in breach of international law, and they’d also been key Labor supporters of recognising the state of Palestine, which was part of Labor’s 2021 and 2023 policy platforms.
To the Prime Minister, Minister for Foreign Affairs, Minister for Defence and Attorney General
As Australian and/or Australian-based lawyers and legal scholars, we call on the Australian government to act without delay to ensure Australia’s compliance with its international obligations, as articulated by the International Court of Justice (ICJ) Advisory Opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.
The ICJ Advisory Opinion of 19 July 2024 provides an authoritative legal statement of the illegality of the policies and practices of Israel in the Occupied Palestinian Territory and found multiple grave breaches of international law. Specifically, the ICJ found with overwhelming majorities that:
- the State of Israel’s prolonged occupation of the Occupied Palestinian Territory, which includes Gaza, the West Bank and East Jerusalem, is unlawful and, therefore, Israel is under an obligation to bring this unlawful occupation to an end as rapidly as possible;
- Israel’s prolonged occupation violates multiple facets of the right to self-determination of Palestinian people, including permanent sovereignty over their natural resources. The Court confirmed that this right is erga omnes and jus cogens in nature. The erga omnes and jus cogens nature of this right mean that this is not a bilateral dispute, but rather a multilateral issue with legal ramifications for all states, including Australia.
- The State of Israel engages in systematic violations of Art. 3 of the Convention on the Elimination of all Forms of Racial Discrimination, which prohibits racial segregation and apartheid.
- The State of Israel engages in a systematic practice of unlawful settlement in parts of the Occupied Palestinian Territory. Importantly, the Court found that both the maintenance of settlements and ongoing settler violence against Palestinians are not isolated acts carried out by ‘rogue’ individuals or groups, but part of a broader policy of unlawful annexation.
We also note that in her separate opinion the recently re-elected Judge Hilary Charlesworth emphasised the specific harms inflicted by Israel’s policies on Palestinian women and girls. Her emphasis on intersectional harm is a reminder of the additional legal obligations that all states, including Australia, have under international human rights law toward different Palestinian groups including women and girls, but also Palestinians living with disabilities, Afro-Palestinians and Palestinian children.
These historic findings by the ICJ do not create new obligations for states. These obligations have existed for decades, and – regrettably – most states, including Australia, have been in violation of them. Rather, the Advisory Opinion is a formal, authoritative reminder of these obligations. In particular, we note that the ICJ held that all states are under a number of concrete and far-reaching obligations, including the obligation:
- not to recognise any changes in the physical character or demographic composition, institutional structure or status of the territory occupied by Israel on 5 June 1967, including East Jerusalem, except as agreed by the parties through negotiations and to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967;
- to abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the Occupied Palestinian Territory or a part thereof on matters concerning the Occupied Palestinian Territory or a part of its territory;
- to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory;
- to take steps to prevent economic, trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory;
- not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory;
- while respecting the Charter of the United Nations and international law, to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end; and
- to contribute to multilateral efforts at the UN to ensure the General Assembly and Security Council consider and take appropriate further action to realise the obligations outlined in the Advisory Opinion to put an end to the illegal presence of Israel in the Occupied Palestinian Territory.
We consider the legal obligations pertaining to trade and investment to be crucial from a legal and practical point of view. Any good-faith interpretation of this obligation involves, at the very least, a comprehensive arms and energy embargo on Israel that covers the export, import and transfer of weapons, including parts, components and other dual-use items as well as military jet fuel. In addition, given the Court’s detailed exposition of the role of water management, city planning and infrastructure, and land policies in Israel’s illegal practices of occupation, racial segregation and annexation, this obligation extends to all dealings between Australia and Israel in these sectors. Australia must urgently suspend all investment, trade and scientific, technical and technological cooperation in these areas and engage in a systematic evaluation of all economic ties with Israel.
We consider Australia’s government’s imposition of sanctions and travel bans against seven individuals and one entity for involvement in settler violence against Palestinians in the West Bank to be insufficient. This is because the ICJ found that settler violence in the West Bank is not the aberrational doing of individual extremist settlers, but part of Israel’s broader policy of unlawful occupation, annexation and apartheid. In light of this, the Australian government must impose targeted sanctions, including asset freezes against Israeli individuals and entities involved in Israel’s illegal occupation, settlement enterprise, annexation, persecution, racial segregation and/or apartheid policies.
Australia has been vocal about its ongoing commitment to international law and institutions. We call for a public statement by the Minister of Foreign Affairs welcoming the Advisory Opinion and confirming that Australia will comply with its obligations promptly and fully, and demand Australia take concrete steps ensure compliance with its international obligation.
If you wish to add your name to the statement, use this form. For enquiries, please email [email protected]
Signatories
1. Dr Julia Dehm, La Trobe Law School
2. Sophie Rigney, RMIT University
3. Lana Tatour, University of New South Wales
4. Dr Emma Russell, La Trobe University
5. Jonathan Symons, Macquarie School of Social Science, Macquarie University
6. Emma Palmer, Griffith University
7. Professor Thalia Anthony, UTS Law Faculty
8. Amanda Porter, University of Melbourne
9. Dr Ghena Krayem, University of Sydney
10. Dr Ntina Tzouvala, Australian National University, College of Law
11. Dr Claerwen O’Hara, La Trobe Law School
12. Anthony Burke, University of New South Wales
13. Dr Shannon Woodcock, University of Melbourne
14. Dylan Holdsworth, Deakin University
15. Maria Giannacopoulos, University of New South Wales
16. Sumedha Choudhury, University of Melbourne
17. Matthew Zagor, ANU College of Law
18. Dr Richard Joyce, University of Melbourne Law School
19. Maree Pardy, Deakin University
20. Liz Hicks, University of Melbourne
21. Associate Professor Jessica Whyte, University of New South Wales
22. Dylan Asafo, University of Melbourne
23. Adam Masri, Deakin University
24. Sarah Schwartz, University of Melbourne, Victorian Aboriginal Legal Service
25. Dr Rachel Killean, University of Sydney Law School
26. Erin Fitz-Henry, University of Melbourne
27. Professor Luis Eslava, La Trobe University
28. Dr Dave McDonald, Melbourne Law School, University of Melbourne
29. Associate Professor Elise Klein, ANU
30. Dr Kathryn Greenman, University of Technology Sydney
31. Dr Tamsin Phillipa Paige, Deakin Law School
32. Dr. André Dao, Melbourne Law School, University of Melbourne
33. Professor Dianne Otto, Melbourne Law School, University of Melbourne
34. Dr Souheir Edelbi, School of Law, Western Sydney University
35. Dr Ozlem Susler, La Trobe University
36. Professor Emeritus Kim Economides, Flinders University
37. Dr Bree Carlton, University of Melbourne
38. Marika Sosnowski, Melbourne Law School, University of Melbourne
39. Sarah Joseph, Griffith University
40. Erin Buckley, La Trobe University
41. Professor Karima Laachir, Australian National University
42. Edwin Bikundo, Griffith University
43. Dr Sara Dehm, Faculty of Law, University of Technology Sydney
44. Dr Lauren Sakae Nishimura, Melbourne Law School, University of Melbourne
45. Wanshu Cong, Australian National University
46. Muhannad Alasali, Metro-Bek City Council
47. Haris Jamil, University of Melbourne
48. Ufuk Taner, University of Melbourne
49. Jeanine Leane
50. Isabella Raco, RMIT
51. Dr Jordana Silverstein, University of Melbourne
52. Sarah Cupler, University of Melbourne
53. Ratu Ayu Asih Kusuma Putri, Melbourne Law School, University of Melbourne
54. Sahiba Maqbool, La Trobe University
55. Dr Johanna Commins, Melbourne Law School, University of Melbourne
56. Dr Elliot Dolan-Evans, Monash University
57. Harmonie Cribbes, Refugee Legal
58. Tanvee Nandan, University of Melbourne
59. Apoorva Sharma, La Trobe University
60. Sanam Amin, Melbourne Law School
61. Anna Saunders, University College London
62. Amireh Fakhouri, University of Melbourne
63. Viva Swords, Lawyer
64. Danish Sheikh, La Trobe University
65. Janelle Koh, University of Melbourne
66. Leila Kouatly, Australian National University
67. Dr Burcu Cevik-Compiegne, The Australian National University
68. Rita Jabri Markwell, Birchgrove Legal
69. Amina Youssef Immi, House Legal
70. Sarah Aljassim, Solicitor
71. Bilal Rauf, Barrister
72. Akin Ozyigit, TELUS Health
73. Majed Kheir (Jnr), Kheir Lawyers
74. Zaid Khan, Barrister
75. Ben Fogarty, Barrister
76. Roba Rayan, Justice
77. Fia Hamid-Walker, Melbourne Law School
78. Faiza Rahman, University of Melbourne
79. Dr Laura Bedford, University of Melbourne
80. Ameena, University of Technology Sydney
81. Associate Professor Joanna Kyriakakis, Monash University
82. Greg Barns SC, Former National President Australian Lawyers Alliance
83. Benedict Coyne, Barrister-at-Law
84. Hanan Sahmoud, University of Melbourne
85. Wael Skaf, District Legal
86. R. Bulli, Sydney & Family Criminal Defence Lawyers
87. Nagham, Lawyer
88. Enis Erdem, Criminal Defence Lawyer
89. Hannah Gordon, University of Melbourne
90. Caitlin Murphy, Melbourne Law School
91. Samiya Malik, University of South Australia
92. Laura Griffin, La Trobe University Law School
93. Dr. Lina Koleilat, Australian National University
94. Maria Elander, La Trobe University
95. Dr. Adil Hasan Khan, Melbourne Law School
96. Ihab Shalbak, University of Sydney
97. Nesam McMillan, University of Melbourne
98. Simon Miller, General Counsel
99. Cristy Clark, University of Canberra
100. Shaun McVeigh, Melbourne Law School
101. Dirk Moses, University of Sydney
102. Dr Balawyn Jones, La Trobe University
103. Dr Martin Cark, La Trobe Law School
104. David Mejia-Canales, Human rights lawyers
105. Monique Hurley, Human rights lawyer
106. Nashy Universe, RMIT University
107. Cait Storr, University of Melbourne
108. Cassandra Seery, Melbourne Law School
109. James Parker, Melbourne Law School
110. Roanna Mcclelland, University of Melbourne
111. Nikolai Haddad, Lawyer
112. Dr Vicki Sentas, University of New South Wales
113. Daniel Joyce, UNSW Sydney
114. Dr Stacey Henderson, Flinders University
115. Rohan Bilimoria, Law Ninjas
116. Aman, University of New South Wales
117. Paul Czarnota, Barrister
118. Ashleigh Buckett, Lawyer
119. Amal Naser, Lawyer
120. Saika Sabir, Melbourne law school
121. Caitlin Biddolph, University of Technology Sydney (UTS)
122. Kate Jama, University of Melbourne
123. Saika Sabir, Melbourne Law School
124. Dr Daniel McLoughlin, University of New South Wales
125. Katyayani Sinha, Melbourne Law School
126. Maria Bhatti, Western Sydney University
127. Michael Swanson, Barrister
128. Niall Connolly, Catherine Henry Lawyers
129. A/Prof Tanja Dreher, UNSW
130. Dr Dorothea Anthony, University of Wollongong
131. John Sebastian, University of Melbourne
132. Tricia Dearborn, Writer/Editor
133. Dr Erin O’Donnell, University of Melbourne
134. Dr Janice Sim, Griffith School of Criminology and Criminal Justice
135. Kellie Tranter, Lawyer
136. Professor Shiri Krebs, Deakin University
137. Shohini Sengupta, University of New South Wales
138. Emeritus Professor David Dixon, UNSW Law & Justice
139. Ben Golder, UNSW
140. Holly Cullen, University of Western Australia & Deakin University
141. Associate Professor Marc de Leeuw, UNSW LAW
142. Luke McNamara, UNSW Law & Justice
143. Louise Chappell, UNSW Faculty of Law and Justice
144. Louise Page
145. Dr Astrid Lorange, UNSW
146. Amelia Thorpe, UNSW
147. Kelly Tudhope, Lawyer
148. KZA Parker, Independent legal scholar
149. Dr Juliette McIntyre, University of South Australia
150. Andy Kaladelfos, University of New South Wales
151. Ehab Afiouny,, Lawyer
152. Cevdet Basiacik, Lawyer, First Light Lawyers
153. Dylan Lino, Universoty of Queensland
154. Rawan Arraf, Executive Director and Principal Lawyer, Australian Centre for International Justice
155. Amra Lee, ANU
156. Dr Sahar Ghumkhor, University of Melbourne
157. Omar Shabaneh, Senior Lawyer, University of Tasmania
158. Shifrah Blustein, Lawyer
159. Maureen Doyle, Retired
160. Lisa Radford, VCA, University of Melbourne
161. Dr Susan Reid, University of Sydney
162. Peter Duncan, Attorney General in the 1970s Dunstan Labor Government; Minister in the Hawke and Keating Labor Governments
163. Sandra Wendlandt, Barrister
164. Rabea Khan, Barrister
165. Rain Jago Ratajczak, Lawyer and Genocide Scholar
166. Eleanor Rhines, Retired
167. Nilufer Okur, Associate Solicitor
168. Alex Fleck, PhD Candidate at UNSW
169. Claire Howell, Barrister
170. Andrew Zhu, University of Melbourne
171. Mary Cotter
172. Megan Beatrice, RMIT University
An open letter from legal experts on the ICJ Advisory Opinion
