Enforcing international law: Australia's responsibilities

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1 August 2006

Australia must play a more constructive role in the Middle East, argues BEN SAUL

THE Australian government’s position on the conflict between Israel and Hezbollah has not helped the search for a peaceful settlement. Apart from rescuing its own nationals, Australia done little but give Israel a green light to keep pounding Hezbollah, regardless of the cost in civilian lives. Even after Israel attacked and killed unarmed United Nations observers, Australia did not supported a ceasefire through the Security Council nor urge Israel to exercise more restraint.

On one view, Australia is a long way from the Middle East and it is unrealistic to expect Australia to play a major role in settling either the current conflict between Israel and Hezbollah or the broader stalemate in Palestine. Australia is a small (rather than ‘middle’) power, with little leverage in the region, and no more strategic interests there than anyone else. Neither Israel nor Hezbollah are known for taking other countries’ advice, let alone a small country somewhere near Antarctica.

Yet these constraints do not mean that Australia should not do its best to work for a peaceful settlement of the conflict. For one thing, about 100,000 Jewish people and 300,000 Australians of Lebanese origin live in Australia, while there were up to 25,000 Australians living in Lebanon. Despite heavy-handed criticism in the media, the Australian government and its diplomats did their best, under difficult circumstances, to extract Australians from the war zone in Lebanon. It is plainly in Australia’s interests to protect its citizens and their families from violence overseas.

While the conflict is hardly likely to spill over into the Australian streets, it is also in Australia’s interests to prevent conflicts which generate tensions in the Australian community. The despicable attack on a Jewish synagogue in Parramatta is a case in point. Such attacks are hardly an inevitable consequence of foreign conflicts, and most of the time the Australian community remains pretty level-headed. Even so, since Australia allows its dual citizens to fight in foreign armies, there is considerable potential for community tension to escalate in Australia.

The most important reason why Australia should become more engaged in settling the conflict is humanitarian. As a member of the United Nations, and a party to international humanitarian, human rights and refugee law treaties, Australia has a paramount national interest in ensuring that other countries observe basic international law rules. Small countries like Australia also benefit the most from the international rule of law, and Australia can hardly expect other countries to observe their obligations towards Australia if Australia shows little regard for enforcing international law. Australia also participates in the peacekeeping force in southern Lebanon, and has been forced to withdraw its twelve observers. The crisis has displaced 750,000 people in Lebanon, which should also gravely concern Australia.

What can and should Australia do about the current conflict? Firstly, Australia must insist that both parties to the conflict comply with international humanitarian law. As a party to the Geneva Conventions, Australia has a duty “to ensure respect” for international humanitarian law “in all circumstances”. The question of who started the conflict and who is exercising self-defence is irrelevant to the application of humanitarian law once the conflict is underway. It should be questioned, however, whether Hezbollah’s cross-border raid on an Israeli military patrol really amounts to a sufficiently serious “armed attack” that would trigger Israel’s right of self-defence under article 51 of the United Nations Charter.

In any case, Australia should call on Hezbollah not to indiscriminately fire rockets at civilian areas in Israel, and to release its hostages (or at least to treat captured Israeli soldiers as prisoners of war). Australia must also urge Israel to exercise more care in targeting militants and avoiding civilian casualties. Israel is killing roughly ten times as many Lebanese civilians (more than 500) as Hezbollah is killing Israeli civilians (around 20). This may simply mean that Israel is striking more military targets than Hezbollah, which necessarily involves incidental civilian casualties. Clearly Israel possesses vastly superior military technology and a capacity to reach deep into Lebanese territory by land, sea or air. The more strikes on military targets, the greater the likelihood of a higher number of civilian deaths.

On the other hand, evidence from some attacks indicates a certain lack of care by Israeli forces in properly identifying military targets, differentiating civilians from militants, and in avoiding unnecessary civilian casualties. The problem in assessing the lawfulness of Israel’s targeting choices is that in the fog of war it is very difficult for independent observers to move freely throughout the war zone and to gather evidence verifying whether targeting was appropriate. Even so, some of Israel’s attacks appear to be disproportionate, and some incidents may amount to war crimes, such as murder of civilians, attacks on humanitarian personnel, unlawfully attacking civilian objects and extensive destruction of property.

In particular, Israel’s attack on a well-known United Nations observer post, and its bombing of the civilian infrastructure in Lebanon, far from the border, may be unlawful. Israel has targeted hospitals, water and electricity supplies, airports, roads, bridges, and apartment blocks. While Hezbollah are undoubtedly hiding among civilians, humanitarian law requires that Israel only target Hezbollah fighters while they are participating in hostilities, and cannot execute them when they are out of combat.

Israeli claims that it has warned civilians to leave areas of military operations in southern Lebanon. Following the warnings, the Israeli justice minister made the extraordinary statement that “All those now in south Lebanon are terrorists who are related in some way to Hezbollah”. This dubious claim ignores the fact that many civilians were unable to leave because Israel refused any temporary ceasefires, making it unsafe to leave. The elderly and the sick may be unable to travel. Most importantly, giving warnings does not absolve Israel of its usual humanitarian law obligations not to target civilians and to avoid unnecessary casualties. “Free fire zones” are never permitted in international law.

Australian should also draw attention to any violations of humanitarian law in Gaza, which have been eclipsed by the Lebanese conflict. The Palestinian Centre for Human Rights estimates that since the end of June 2006, 115 Palestinians have been killed and more than 500 wounded, most of them civilians. Israel has also arrested eight ministers and 26 members of the elected Palestinian Legislative Council, and destroyed significant parts of the civilian infrastructure.

Thirdly, if there is evidence of war crimes by either party, Australia must insist that the relevant authorities conduct full and impartial investigations and prosecutions where appropriate. Civilian casualties should also be compensated by the authorities. If the Lebanese or Israeli authorities fail to prosecute where there is sufficient evidence that a war crime has been committed, then Australia should urge the Security Council to refer the matter to the International Criminal Court.

In addition, if any Hezbollah or Israeli personnel suspected of such crimes travel to Australia, then Australia must arrest and prosecute them under the Australian law implementing the Rome Statute of the International Criminal Court. Since 2002, Australia has been able to prosecute war crimes wherever and by whomever committed, even where there is no connection with Australia or its interests.

Secrecy in the issue of arrest warrants may be important. Recently, the English courts were thwarted when a holidaying Israeli general, suspected of war crimes, was tipped off when he landed at Heathrow airport that a secret arrest warrant had been issued. He was advised not to get off the plane and returned safely to Israel. It remains unknown whether British or Israeli intelligence infiltrated airport security.

Fourthly, the Australian government must adopt a more impartial approach to the conflict. In a recent interview with Australian Jewish News, Foreign Minister Downer described Australia as more pro-Israel than 99 per cent of the world. On the ABC, Prime Minister Howard regurgitated the old Zionist belief that Israel is in danger of being “pushed into the sea”, despite Hezbollah having nothing like that capability. Although Australia supports a Palestinian state, the Australian government is characterised by a craven lack of criticism of Israel, even when Israel actions are beyond the pale. This approach is encouraged by Australia’s close relationship with the United States, which supplies arms and funding to Israel.

This position is compounded by an inherent bias in the Australian media’s coverage of the conflict. While considerable sympathy has been shown for the plight of Lebanese civilians, reporting of the conflict relies heavily on articulate Israeli government media spokespeople, or pro-Israel voices in Australia. In contrast, Hezbollah is outlawed as a terrorist organization in Australia, making it impossible for its spokespeople to have an equal voice in how the conflict is portrayed. Anyone who speaks on behalf of Hezbollah is liable to be arrested and charged under anti-terrorism laws for being a leader, member or associate of a terrorist organization.

The contrast with the status of Hezbollah in Lebanon is pronounced. Lebanon sees Hezbollah as a legitimate resistance group, which hastened the end of the eighteen-year Israeli occupation of southern Lebanon. Hezbollah has three ministers in government and fourteen parliamentary seats, and controls about one third of local councils. It is involved in numerous community, charitable and professional organizations, as well as providing some essential services. A recent survey suggests that 70 per cent of all Lebanese supported Hezbollah’s cross-border raid which killed and captured Israeli soldiers. Likewise, Israeli public opinion is overwhelmingly in favour of Israel’s military actions.

While Australia’s listing of Hezbollah as a terrorist organisation in these circumstances is questionable, particularly given its democratic support, Australia must insist that Hezbollah disarm in accordance with Security Council resolutions. That said, Security Council resolutions do not command great confidence in the region given Israel’s decades-long refusal to withdraw from the Occupied Territories, as required by the Security Council.

Fifthly, Australia could consider banning any of its dual citizens from fighting in any foreign military forces, whether in the armed forces of a country or in non-state forces such as resistance, mercenary or terrorist groups. There may be up to 100 Australians serving in the Israeli army, with between 200 and 300 in reserves. Australia has an interest in preventing the proliferation of international violence, and allowing its citizens to fight in foreign armies threatens Australia’s commitment to international peace.

The current policy is also contradictory. David Hicks fought in the de facto state military forces of the Taliban, yet is regarded by the Australian government as a suspected terrorist and war criminal. While Hicks is treated as a criminal for fighting for a cause he believed in, dual nationals are free to fight for their other country of nationality - even if, for example, that country is engaged in unlawful aggression or an illegal occupation of foreign territory.

Finally, Australia should call, through the Security Council, for an immediate ceasefire and the creation of a stronger peacekeeping force, with ample powers of self-defence and enforcement, along the Israel-Lebanon border. In doing so, Australia should use its “special relationship” with the US to persuade the US to take a more impartial, less pro-Israel stance towards the conflict. The US has blocked efforts to deal with the situation in the Security Council, preventing any resolution condemning Israel’s attack on the United Nations post and the apartment block in Qana, and instead agreeing to weaker statements of “shock and distress”. Australia should also protest about the supply of weapons by the US to Israel, until such time as they will be used lawfully.

Israel has understandable concerns about its security and independence in a volatile region, concerns which partly stem from the manner in which it was founded and the measures it has taken to ensure its survival. Lebanese and Palestinians have equally valid concerns about their political independence and territorial integrity, and the protection of their civilians. While the establishment of Israel was undoubtedly based on profound injustices towards its Arab inhabitants, Israel’s existence is a reality which must be accommodated, including by Hezbollah. Australia must play a more assertive role in achieving a just peace in the Middle East, starting with Lebanon. •

Ben Saul is director of the Charter of Rights project at the Gilbert + Tobin Centre of Public Law.

Photo: A resident collects his belongings from his apartment whose external walls have been blown out from a blast in the southern suburbs of Beirut on Monday 31 July. AP Photo/Mahmoud Tawil.

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