Australia's Crucial Question Following UN Report on Gaza Genocide Findings

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In light of a new report accusing Israel of committing genocide in Gaza, legal experts and human rights groups suggest that Australia has grounds to pursue further action. However, the precise measures the federal government might adopt remain uncertain.

Pillay emphasized that “statements made by Israeli authorities are direct evidence of genocidal intent,” according to the report’s findings.

Israel has consistently refuted claims of genocide in Gaza, with its foreign ministry denouncing the commission’s report as “distorted and false.”

All UN member states, including Australia, have been urged by the commission to not only stop the genocide but also hold those accountable. Experts argue that these recommendations sketch a path for Australia to take bolder actions, such as imposing stricter sanctions, though it’s uncertain if the government will follow through.

A silhouette of a man walking through dust on a street.

Navi Pillay, chair of the UN commission of inquiry, noted that “genocide is occurring in Gaza and continues unabated.” Source: AAP / Yousef Al Zanoun

Caitlin Reiger, CEO at the Human Rights Law Centre, said it is the “strongest call so far” from the UN that Israel is committing genocide.

Genocidal intent

What sets this report apart from previous findings is the conclusion of “genocidal intent”.

“For me, that’s the most important thing, the finding of intent,” said Dr Juliette McIntyre, senior lecturer in law at the University of South Australia.

The report found that 46 per cent of the 65,000 people killed in Gaza since 7 October 2023 were women and children. During the first 12 months of the Hamas-Israel war, life expectancy in Gaza dropped by nearly half, from 75.5 years to 40.5, it found.

“They are not collateral damage. They are the direct consequence of a military strategy of saturation bombing and scorched earth when it comes to the people of Gaza,” Sidoti said.

Israel has denied prior accusations of employing a scorched earth policy, understood as a military tactic that involves annihilating resources useful to the enemy, including agriculture and infrastructure.

The finding is distinct from the International Court of Justice’s (ICJ) interim finding in January 2024, which ruled there was a risk of genocide being committed, but stopped short of calling for a ceasefire.

Ben Saul, an international law expert at the University of Sydney and UN special rapporteur on human rights and counter-terrorism, highlighted that the UN commission’s report “activates the duty on all countries to take feasible measures to prevent genocide from occurring.”

Does Australia have an obligation to act?

The Commission of Inquiry called on all UN member states, such as Australia, to “prevent the commission of genocide” in Gaza.

“Australia is not a bystander,” said Lara Khider, senior lawyer at the Australian Centre for International Justice.

One of the recommendations calls on member states to cease the transfer of arms and other equipment or items to Israel where there is reason to suspect their use in military operations that have involved or could involve the commission of genocide.

The Australian government says it does not export arms to Israel, but is involved in the supply chain for the F-35 fighter jets used by the Israeli Air Force. Defence Minister Richard Marles told the ABC in early August “there is no step that we can take here which has any impact in relation to the activities of Israel”.

However, McIntyre says the report’s obligations are clear.

“What the report is calling on us to do is to stop sending that material,” she said.

Another recommendation is to take action, including sanctions, against Israel and individuals or corporations involved in facilitating genocide.

“We haven’t imposed sanctions on those most responsible for the conduct of the war, a prime minister, the defence minister, the war cabinet, the military commanders who are prosecuting the war. And so I think it is time for Australia to take tougher action,” Saul said.

Saul also says that Australia can push for stronger action at the upcoming UN General Assembly in New York.

“Australia has obviously pledged to recognise Palestinian statehood but of course, that alone is not going to change the situation. It’s not going to end starvation or famine or war crimes. So that is also got to go beyond symbolism and take concrete action to pressure Israel.”

“For instance, Australia could join the genocide case against Israel at the ICJ, or increase its support to the International Criminal Court. Numerous avenues are available for Australia to pursue.”

What happens if we fail to meet the obligations?

While the Commission of Inquiry’s report is not legally binding, McIntyre says the ICJ can prosecute a failure to prevent genocide.

“One of the only genocide cases that we ever had, which was in respect of the Srebrenica genocide, was a finding about a failure to prevent genocide. So it is something that can occur,” McIntyre said.

Two empty chairs with a sign in front of it saying "Israel"

Israel, along with the US, has opted out of engaging with the Human Rights Council, standing firmly against the findings of the recent report. Source: AAP / Salvatore Di Nolfi

McIntyre points to a case brought to the ICJ from Nicaragua against Germany over its military support of Israel. The case was ultimately rejected by the court, but it shows that states could be held accountable in international forums in the future.

“Of course it requires other states to have an interest in pursuing that kind of action, and at this stage the focus is on getting Israel to stop what its doing, and less on pursuing other states for their failure to prevent it,” she said.

There could also be indirect consequences.

“Having contributed in some way to the commission of the genocide against the Palestinian people is, you know, shameful. And I think will have consequences for governments domestically as well. You know, they will not be voted back into office,” McIntyre said.

Political response

The government is yet to indicate whether it will commit to the recommendations.

In a statement on Tuesday night, Foreign Minister Penny Wong said that it was clear long before this report that Gaza had “gone beyond the world’s worst fears”.

“Together with partners, we have condemned Israel’s denial of aid and the killing of civilians seeking to access water and food.”

Opposition foreign affairs spokesperson Michaelia Cash said that Israel has the right to defend itself from terrorism, but that it must comply with international law.

“The UN should be clear-eyed about who is responsible for prolonging the suffering — Hamas, a listed terrorist organisation that still holds Israeli hostages and continues to use civilians as human shields,” Cash said.

A spokesperson for Attorney-General Michelle Rowland said the Albanese government’s position was that “every effort must be made to safeguard innocent life and end the suffering and starvation of the people of Gaza”.

They said the Netanyahu government must comply with the binding provisional orders made in 2024 by the International Court of Justice in South Africa’s case against Israel under the Genocide Convention.

Those provisional orders demanded that Israel ensure its military did not commit acts that violated the rights of Palestinians under the Genocide Convention and take immediate steps to provide humanitarian assistance, among other requirements.

“Australia’s longstanding position on questions relating to genocide is to respect the independence of international courts and tribunals and their role in upholding international law.”

Israel has rejected the claim of genocide, with retired Brigadier General Amir Avivi telling ABC Radio on Wednesday morning that the UN has “completely lost its moral compass”.

“You see in Gaza today every possible attempt to minimise collateral damage,” Avivi said.