Housed in the ornate Peace Palace in The Hague and sometimes referred to as the “world court,” the International Court of Justice, or ICJ, was created after the end of the second world war as the “principal judicial organ” of the United Nations. It can adjudicate disputes between states (under its “contentious” jurisdiction) or provide opinions on matters of international law (under its “advisory” jurisdiction). Its fifteen judges from different countries currently include Australian lawyer Hilary Charlesworth.
Since January, the Court has delivered orders and decisions in three Palestine-related cases. Together they give an insight into how international law sees the violence and how countries including Australia are obliged to respond.
The first of the cases was launched in December 2023 when South Africa alleged that Israel had violated its obligations under the Genocide Convention of 1948. South Africa argued that Israel’s acts and omissions are “genocidal in character” and had been committed with the intent “to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”
States that have signed the Genocide Convention (including Israel and Australia) have the obligation to prevent, and punish, genocide — even if it is being committed somewhere else. Committing or attempting to commit genocide is punishable, as is inciting genocide and conspiracy to commit genocide. Also punishable is complicity in genocide — namely, the provision of material, strategic, or political support for genocide. This last point is particularly important for governments that might have military and economic ties with a state allegedly committing genocide.
The ICJ’s final judgement on whether Israel’s actions amount to genocide seems likely to be years away. But South Africa also requested “provisional measures,” similar to an urgent injunction in domestic law. At this stage of proceedings, the court need not make a definitive ruling about whether a genocide is occurring — instead, it needed to determine whether the rights being asserted by South Africa were plausible. In late January 2024, the ICJ did make such an order, and essentially found that there is a plausible claim that genocide is occurring in Gaza.
By an overwhelming majority, the court ordered Israel to adhere to its obligations under the Genocide Convention and “take all measures within its power to prevent the commission” of all genocidal acts. In relation to Palestinians in Gaza, Israel must stop killing members of this group; causing serious bodily or mental harm to them; deliberately inflicting “conditions of life calculated to bring about” the destruction of members of this group; and “imposing measures intended to prevent births” within this group. The court also ordered Israel to take immediate and effective steps to enable humanitarian assistance to Palestinians in Gaza.
Only a few days later, Israeli prime minister Benjamin Netanyahu ordered further military action in the southern Gaza city of Rafah. South Africa again approached the ICJ, this time with an “urgent request for additional provisional measures.” In March, the court handed down a new order reiterating the earlier provisional measures and outlining additional measures. These included a unanimous order that Israel adhere to its obligations under the Genocide Convention by taking “all necessary and effective measures” to ensure the provision of “urgently needed basic services and humanitarian assistance” including “food, water, electricity, fuel, shelter, clothing, hygiene and sanitation” and “medical supplies and medical care.” Israel must also ensure that its military doesn’t commit a genocidal act by preventing the delivery of humanitarian assistance.
In May, South Africa returned to the ICJ to request further provisional measures. On 24 May, the court ordered a halt to Israel’s military offensive in Rafah and insisting that the Rafah crossing remain open for humanitarian assistance.
These orders make Israel’s obligations clear. But what do they mean for Australia and other countries? As a party to the Genocide Convention, Australia has the obligation not to commit or be complicit in genocide, and to prevent and punish genocide occurring elsewhere. In earlier cases, the ICJ found that the obligation to prevent genocide requires any governments that is aware (or should be aware) of the serious risk of genocide “to employ all means reasonably available to them to prevent genocide so far as possible.”
What about states that provide military support to Israel? This question was raised in the second Palestine case at the ICJ this year. In March, Nicaragua sought an ICJ declaration that Germany had failed in its obligations under the Genocide Convention and “contributed to the commission of genocide” in violation of the convention. Nicaragua also claimed that Germany “has failed to comply with its obligations under international humanitarian law” by providing assistance to Israel.
Nicaragua sought an provisional measures order that Germany immediately suspend military aid and exports of military equipment to Israel to the extent that it could be used in violation of the convention and other rules of international law. The court declined the request in terms that will be of interest to officials in Australia for a couple of reasons.
First, the ICJ relied heavily on the fact that German manufacturing, marketing and exporting of military equipment must be approved by an “inter-agency process” involving at least two ministries. Export licenses are granted only after a formal “assessment” of whether the item would be used in the commission of genocide or other crimes. The ICJ also found that the value of military export licences had fallen significantly since November 2023, and Germany had not yet acted on some pending requests from Israel. As a result, the ICJ concluded, provisional measures were not needed at this stage.
But the ICJ did make several clear points about the situation in Gaza and the responsibilities of states. It reiterated that signatories to the Geneva Conventions — regardless of whether they are a party to a specific conflict — are required “to respect and to ensure respect” of the conventions and comply with them. It also recalled that signatories must “employ all means reasonably available to them to prevent genocide.” Finally, the court considered it “particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict” to avoid the risk that these arms be used to violate the Geneva Conventions and the Genocide Convention. The message from is clear: signatories including Australia need to be very careful to comply with their legal obligations.
This year’s third ICJ decision concerning Palestine — an advisory opinion on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” — was delivered on 19 July. The action dates from December 2022, when the UN General Assembly asked the ICJ to advise on “the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory.” Unlike the two other cases, this advisory opinion relates to Israel’s actions in the entirety of the occupied Palestinian territories, not only Gaza.
The ICJ concluded that Israel’s occupation of the occupied Palestinian territories is unlawful. It violates the right of Palestinian people to self-determination; imposes a comprehensive regime of restrictions on Palestinians that “constitutes systemic discrimination” on the basis of race, religion or ethnicity; violates the Convention on the Elimination of all Forms of Racial Discrimination (which prohibits racial segregation and apartheid); and facilitates a systematic practice of unlawful settlement that is part of a broader policy of annexation.
Once again the ICJ pointed to the obligations of governments, including Australia’s, “to abstain from entering into economic or trade dealings with Israel” that may “entrench its unlawful presence” in the occupied territories; to “take steps to prevent trade or investment” that assists the illegal situation in the occupied territories; and not to render aid or assistance in maintaining the situation created by Israel’s illegal presence there. All parties to the Fourth Geneva Convention — which include Australia — have the obligation “to ensure compliance by Israel with international humanitarian law.”
In light of these three cases, how can we summarise Australia’s obligations? Put simply, Australia has clear international obligations: to act to prevent the plausible genocide occurring in Gaza; to punish genocide if it is established; to ensure that it is not complicit or involved with any genocidal acts (by providing support to Israel); and to ensure Israel’s compliance with international humanitarian law and human rights law throughout Palestine.
How compliant is Australia with these obligations? What are the economic and military ties between Australia and Israel? What defence industry partnerships are in place? What arms are being sent to Israel – perhaps via third countries? What military intelligence is being provided (including through the Pine Gap surveillance base near Mparntwe Alice Springs)?
Publicly available information is scarce but concerning, and suggests continued Australia support for Israel’s military activities in Gaza and the illegal occupation of Palestine. While Australian officials have denied that Australia is “supplying Israel with weapons which are being used in the conflict in Gaza,” the landscape of military technology and bilateral trade is complex.
Australia’s Department of Foreign Affairs and Trade, or DFAT, notes that “Australia continues to broaden bilateral cooperation with Israel” and that “in recent years, there has been significantly increased engagement across a range of sectors, including innovation, security and defence.” The bilateral economic relationship between Australia and Israel is strong and “continues to grow,” according to DFAT. Two-way trade between the two countries was worth $1.34 billion in 2021.
Particularly since 2017, “Australia and Israel have expanded cooperation on national security, defence and cyber security,” according to DFAT, and a memorandum of understanding “on defence industry cooperation” was signed in October 2017. Even into 2024, the military trade between Israel and Australia continued to expand: for example, in February 2024 a new joint venture agreement worth US$600 million was concluded between the Australian Army and Israeli military company Elbit Systems.
Permits are required under the Defence Trade Controls Act 2012 to export Australian military goods and technologies. Military and “dual-use” goods and technologies are listed on the Defence and Strategic Goods List and the permits are issued (and may later be revoked) by the Defence Minister. Without a permit, a supplier would face ten-year imprisonment or $825,000 fine.
For a permit to be issued, the minister must be “satisfied that the supply would not prejudice the security, defence or international relations of Australia.” To determine this, the minister “must have regard” to criteria set out in the Defence Trade Controls Regulations 2013, which gives domestic expression to Australia’s obligations under the Arms Trade Treaty. One criterion is the risk that the goods or technology may become available to a country where “it may be used in a way contrary to Australia’s international obligations or commitments.” Another is the risk that the goods or technology “may be used to commit or facilitate serious abuses of human rights.”
How does this system measure up in light of Nicaragua’s case against Israel? At the provisional measures stage the ICJ believed Germany’s inter-agency process was sufficient to avoid breaches of international humanitarian law. But Australia’s system is different in several ways from Germany’s, including the difference between an “assessment” and “having regard” to certain criteria, and the German requirement for more than one ministry to be involved. For these reasons, Australia’s system doesn’t appear to be as robust as Germany’s.
Defence minister Richard Marles has revealed that eight export permits have been granted for Australian shipments of defence goods to Israel since 7 October 2023. Of these, seven were for “items which have gone to Israel to be worked on and then returned to Australia.” This suggests that the export permits were not provided for goods destined solely for Israeli use — but also that a two-way trade in military technologies continues between the countries.
Marles’s figure doesn’t capture the number of export permits granted before 7 October 2023 that are still in place. In June, it was confirmed that around sixty-six such permits are still operational. Marles has stated that these permits are for “dual use” technology, but this is a murky area: while the goods might be suitable for civilian use, they may also be used in commission of a crime. This was recognised by a Dutch Court that in February 2024 ordered the Dutch government to stop the export of fighter jet parts to Israel because there is now an “undeniable” and “clear risk” that these parts would be used in violation of international law.
Of particular concern is Australia’s role in a broader supply chain of component parts that then go to another country for integration into a product to be supplied to Israel. One example is the component parts made in Australia for F-35 fighter jets. Lockheed Martin, the manufacturers of the F-35s, noted in a now-deleted website post that “every F-35 built contains some Australian parts and components.” In June 2024, Israel’s defence ministry signed a $3 billion agreement with the United States to acquire twenty more of these fighters. The Israeli military has confirmed that F-35 aircraft are being used in its attacks on Gaza.
A related concern is Australian export of military goods and technologies to another country, which then sends it to Israel. In August 2024 Australia “streamlined” its weapons trade to the United States and Britain as part of the AUKUS military partnership. From 1 September, around 900 export permits previously required under Australia’s system are no longer necessary, representing around $5 billion worth of military exports per year.
Goods can therefore leave Australia without a permit, bound for the United States or Britain, which both have significant miliary trade with Israel. Just days ago, Britain withdrew some of its export permits given the “clear risk” that military exports might be used in violation of international humanitarian law. This may seem reassuring: Britain has its own permit system, and a risk was identified the permit has been revoked. But this change suggests that goods may have previously left Britain while at risk of being used in violation of international humanitarian law.
Given all this, Australia’s military and economic ties to Israel appear to remain significant, and Australia is at risk of providing military and economic support to a state that is plausibly committing genocide and violating international law — thereby making Australia complicit in these crimes.
For these reasons, more than one hundred Australian international lawyers recently called for “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 lawyers (I was among them) also called for Australia to “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.” These lawyers are not alone: Save the Children, Amnesty International, the Jewish Council of Australia and the Australian Centre for International Justice have all made similar calls. More than 5500 Australian citizens signed Petition EN6141 to “Impose Trade and Arm Sanctions on Israel.”
In its decision in the South Africa v Israel case, the ICJ took note of a statement by a United Nations official: “Gaza has become a place of death and despair… its people are witnessing daily threats to their very existence — while the world watches on.” In the face of this plausible genocide, Australia must comply with its obligations: to prevent further genocidal acts, and to ensure respect for international humanitarian law. •
