31 January 2024

To the Prime Minister, Minister for Foreign Affairs, Minister for Defence and Attorney General

As Australian and/or Australian-based scholars and practitioners of international law, conflict studies and genocide studies, we call on the Australian government to act without delay to ensure it is compliant with its international obligations in light of the International Court of Justice (ICJ) ruling on 26 January 2024 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

In an almost unanimous ruling, the ICJ found that it was “plausible” that the State of Israel was in violation of its obligations under Convention on the Prevention and Punishment of the Crime of Genocide. Although this finding is not prejudicial to the Court’s decision on the merits, it puts every state, including Australia, on notice about the potential legal implications of their ongoing relations with the State of Israel. Ongoing cooperation with Israel may amount to complicity with genocide. The prohibition of genocide is a jus cogens norm of supreme moral and political importance. It protects not only individuals but also human groups and humanity as a whole from the moral disaster of collective annihilation. The legal and moral significance of this prohibition means that all states must exercise a heightened level of caution.

The International Court of Justice “consider[ed] that the catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further” (para 72) and thus ordered the State of Israel to comply with six provisional measures. Foremost, the State of Israel must “take all measures within its power to prevent the commission” of acts of genocide. The Court also ordered that the State of Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”. We note that this measure is worded in a strong and unambiguous manner: it creates an obligation of result, not merely of conduct. Additionaly, the court ordered the State of Israel to prevent and punish the direct and public incitement to commit genocide, to prevent the destruction and ensure the preservation of evidence and to report to the Court within one month.

Although the ICJ did not formally order a ceasefire, it is clear that current military operations may amount to genocide. Complying with the Court’s provisional measures at least requires a large reduction in civilian deaths from combat, disease or starvation, and thus arguably requires both a ceasefire and ample humanitarian aid. So far it is difficult to see in news reports any change in the conduct of the State of Israel: civilian casualty numbers remain extremely high with 339 Palestinians reportedly killed and 600 Palestinians reportedly injured between the afternoons of 26 and 28 January 2024.

The ICJ’s ruling that it is “plausible” that the State of Israel is violating the Genocide Convention has important legal implications for Australia. As a signatory to the Genocide Convention, Australia has binding international obligations to prevent and punish genocide, conspiracy to commit genocide, incitement to genocide and complicity in genocide. The obligation to prevent genocide arises “the instant that the state learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” (Bosnia and Herzegovina v Serbia and Montenegro (2007)). Given the ICJ ruling, all states are now on notice of this risk. To ensure compliance with international obligations, and to avoid complicity in violations of the Genocide Convention, we call on the Australian government to:

• Call on the State of Israel to comply with the ICJ’s provisional measures ruling in full;
• Halt any export of arms and arms components to Israel, suspend defence industry partnerships with Israel and ensure that intelligence from Pine Gap is not being provided to the Israel Defence Forces (IDF) to inform its military operations in Gaza;
• Warn any Australian citizen who is fighting with the IDF that their actions may contribute to genocidal acts, and investigate and prosecute Australian nationals for involvement in potential war crimes, crimes against humanity, genocide and torture, as well as any acts which potentially breach the binding ICJ orders;
• Immediately reinstate funding to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) which was suspended on 27 January 2024. UNRWA is the main organisation providing aid, shelter and food to Palestinians in Gaza. The ICJ noted that over 1.4 million Palestinian in Gaza who have been forced to leave their homes are sheltering at UNRWA facilities, which are already “overcrowded and unsanitary” (para 49). There have been warnings for weeks about the “severe risk of collapse of the humanitarian system” in Gaza. Without international funding UNRWA’s desperately needed humanitarian work could “collapse any time now”. The UN Special Rapporteur on the Right to Food has warned that international funding cuts to UNRWA mean that famine in Gaza is “inevitable”. Such action to suspend aid during this critical time, is arguably a form of “collective punishment” of the civilian population of Gaza and  undermines binding ICJ orders for “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance”. A failure to reinstate UNRWA funding risks making Australia directly complicit in violating article 2(c) of the Genocide Convention by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.

Australia must treat the risk of being complicit in genocide and directly contributing to genocide with the utmost seriousness. The Government must act immediately to ensure it is compliant with its obligations under the Genocide Convention and the ICJ’s provisional measures order. A failure to do so would signal that Australia and other western governments are no longer committed to the international rule of law or the prevention and prohibition of genocide. Ignoring the ICJ’s call carries a real risk of Australia’s complicity in genocide against Palestinians, as well as the risk of Australia’s complicity in the disintegration of the norm against genocide itself.

Yours sincerely,

1. Dr Ntina Tzouvala, ANU College of Law
2. Professor Lucas Lixinski, UNSW Sydney
3. Dr Claerwen O’Hara, La Trobe Law School, La Trobe University
4. Dr Jordana Silverstein, University of Melbourne
5. Dr Balawyn Jones, La Trobe University
6. Dr Tamsin Phillipa Paige, Deakin Law School
7. Dr Ghena Krayem, University of Sydney
8. Dr Rachel Killean, University of Sydney
9. Dr Wanshu Cong, Australian National University
10. Dr Elizabeth Hicks, University of Münster
11. Associate Professor Erin Fitz-Henry, University of Melbourne
12. Dr Laura Griffin, La Trobe University
13. Dr Erin O’Donnell, University of Melbourne Law School
14. Ms Sumedha Choudhury, Melbourne Law School
15. Dr Souheir Edelbi, Western Sydney University
16. Professor Dianne Otto,    Melbourne Law School
17. Mr Dylan Asafo, University of Melbourne
18. Dr Martin Clark, La Trobe Law School
19. Professor Sarah Joseph, Griffith University
20. Dr Ozlem Susler, La Trobe University
21. Dr Julia Dehm, La Trobe University
22. Professor Ben Golder, UNSW
23. Mr Haris Jamil, University of Melbourne
24. Ms Sahiba Maqbool, La Trobe University
25. Professor Sundhya Pahuja, University of Melbourne
26. Associate Professor Jessica Whyte, University of New South Wales
27. Dr Lana Tatour, University of New South Wales
28. Associate Professor Jasmine Westendorf, La Trobe University
29. Mr Siddharth Narrain, Adelaide Law School, University of Adelaide
30. Ms Anna Saunders, University College London
31.  Ms Kate Jama, Melbourne Law School
32. Associate Professor Matthew Zagor, Australian National University College of Law
33. Dr Divya Garg, RMIT University
34. Dr Richard Joyce, Faculty of Law, Monash University
35. Dr Noam Peleg, University of New South Wales
36. Dr Coel Kirkby, University of Sydney
37. Dr Marika Sosnowski, University of Melbourne
38. Dr Sophie Rigney, RMIT University
39. Professor Jessie Hohmann, University of Technology Sydney
40. Associate Professor Tanja Dreher, UNSW
41.  Associate Professor Maria Giannacopoulos, Director Centre for Criminology Law and Justice, University of New South Wales
42. Dr Brian Cuddy, Macquarie University
43. Dr Edwin Bikundo, Griffith Law School
44. Professor Luke Glanville, Australian National University
45. Dr Joanna Kyriakakis, Monash University
46. Dr Emma Palmer, Griffith University
47. Dr André Dao, Melbourne Law School
48. Professor Luis Eslava, La Trobe University
49. Dr Ihab Shalbak, University of Sydney
50. Dr Adil Hasan Khan, Melbourne Law School
51. Dr Simon McKenzie, Griffith Law School
52. Dr Sara Dehm, University of Technology Sydney
53. Dr Lauren Nishimura, Melbourne Law School, University of Melbourne
54. Associate Professor of International Law Megan Donaldson, University College London
55. Associate Professor Crystal McKinnon, University of Melbourne
56. Dr Bree Carlton, University of Melbourne
57. Dr Sahar Ghumkhor, University of Melbourne
58. Dr Shannon Woodcock, University of Melbourne
59. Chief Executive Officer Nerita Waight, Victorian Aboriginal Legal Service
60. Dr Charlotte Mertens, University of Melbourne
61. Associate Professor Juliet Rogers, Criminology, University of Melbourne
62. Associate Professor Ramona Vijeyarasa, University of Technology Sydney
63. Dr Laura Bedford, University of Melbourne
64. Emeritus Professor Andrea Durbach, University of New South Wales
65. Associate Professor Bianca Fileborn, University of Melbourne
66. Dr Amanda Porter, University of Melbourne
67. Emeritus Professor David Dixon, The University of New South Wales
68. Dr Dave McDonald, University of Melbourne
69. Professor Alison Young, University of Melbourne
70. Associate Professor Diana Johns, The University of Melbourne
71. Dr Andrew Brooks, UNSW
72. Ms Sonia Qadir, UNSW
73. Dr Emma Russell, La Trobe University
74. Dr Randi Irwin, University of Newcastle
75. Dr Claire Loughnan, University of Melbourne
76. Dr Shih Joo Tan, University of Melbourne
77. Associate Professor Nesam McMillan, University of Melbourne
78. Dr Kathryn Greenman, University of Technology Sydney
79. Professor Amanda Wise, Macquarie University
80. Professor Douglas Guilfoyle, UNSW Canberra
81. Ms Caitlin Murphy, Melbourne Law School
82. Associate Professor Cristy Clark, University of Canberra
83. Dr Holly Doel-Mackaway, Macquarie University
84. Dr Dara Conduit, University of Melbourne
85. Dr Lucia Sorbera, The University of Sydney
86. Dr Liyana Kayali, University of Sydney
87. Dr Caitlin Biddolph, University of Sydney
88. Ms Cassandra Seery, University of Melbourne
89. Associate Professor Amy Barrow, Macquarie University
90. PhD (ABD) Binish Ahmed, Policy Studies, Toronto Metropolitan University
91. Ms Scheherazade Bloul, Deakin University
92. Professor Thalia Anthony, Faculty of Law, University of Technology Sydney
93. Dr Michael Griffiths, University of Wollongong
94. Dr. José-Manuel Barreto, Javeriana University, Bogotá
95. Mr Tim Lindgren, University of Melbourne
96. Mr Adil Akram, Informit
97. Dr Tor Krever, University of Cambridge
98. Dr Katrin Travouillon, Australian National University
99. Mr Samir Batshon, IE Aust.
100. Ms Mariam Ibrahim
101. Dr. Lina Koleilat, Australian National University
102. Dr Adam Masri, Deakin University
103. Mr Ian Curr, 4PR – Voice of the People
104. Professor Anthony Burke, UNSW
105. Dr Randa Abdel-Fattah, Macquarie University
106. Professor Raihan Ismail, University of Oxford
107. Professor Emeritus Kim Economides, Flinders University
108. Professor Susan Harris Rimmer, Griffith University
109. Ms. Olga Prokopis, Deakin University
110. Dr Melathi Saldin, Deakin University
111. Dr Dylan Holdsworth, Deakin University
112. Dr Tom Sandercock, Deakin University
113. Associate Professor, Fengshi Wu, UNSW
114. Mr Pathmanathan, National Bolts Pty Ltd
115. Mr Brett Healion, Member of the Public
116. Sophia Malin Araújo Almeida, CCLS
117. Professor Mohamad Abdalla, Centre for Islamic Thought and Education
118. Dr Amireh Fakhouri, University of Melbourne
119. Ms Samiya Malik, APAN
120. Associate Professor Trace Ollis, Deakin University
121. Associate Professor Maree Pardy, Deakin University
122. Associate Professor Jonathan Symons, Macquarie University
123. Dr Astrid Lorange, UNSW
124. Ms Filzah Rahmat, NA
125. Mr Zaqy Alfaiz, NA
126. Dr Rosemary Kelly, Medical Association for the Prevention of War
127. Dr Meribah Rose, La Trobe Law School
128. Dr Cait Storr, University of Melbourne
129. Senior Research Fellow Hadeel Abdelhameed, Monash University
130. Associate Professor Jeanine Leane, University of Melbourne
131. Dr Daniele Fulvi, Western Sydney University
132. Dr Alba Rosa Boer Cueva, The University of Sydney
133. Mr Tony Barta, La Trobe University
134. Associate Professor Melanie O’Brien, University of Western Australia
135. Dr Carolyn Adams, Macquarie Law School, Macquarie University
136. Professor Kiran Grewal, Goldsmiths, University of London
137. Dr Thomas Gibson