The Albanese government has given its clearest statement yet on the legality of Israel’s conduct in Gaza. Anthony Albanese told the ABC at the weekend that it was a breach of international law and a breach of humanity. Evidence of Israel’s violations of international law has been compelling for some time. Examples include the indiscriminate targeting of the Palestinian population, a failure to apply the principle of distinction between Hamas and Gazan residents, and a breach of its Geneva convention obligations to provide food, medical supplies and aid to civilians.
It is rare for an Australian prime minister to make such unambiguous statements on international law matters, especially with respect to the conduct of a friend such as Israel. These comments are the latest in a series of observations over the past year, whether they have taken the form of joint prime ministerial statements with Canada and New Zealand, or the statement issued on Friday which said: “Gaza is in the grip of a humanitarian catastrophe. Israel’s denial of aid and the killing of civilians, including children, seeking access to water and food cannot be defended or ignored.”
The time has come for the Albanese government to do more than just issue statements decrying breaches of international law. Ample scope exists under Australian law to impose autonomous sanctions on Israel to make clear its objections to the ongoing Gaza conflict. On 10 June Australia joined Canada, New Zealand, Norway and the United Kingdom in sanctioning Itamar Ben-Gvir and Bezalel Smotrich for inciting violence against Palestinians in the West Bank.
If those two Israeli ministers can be sanctioned for inciting serious abuses of Palestinian human rights, what further steps can be taken against Israeli ministers responsible for directing actions in direct violation of international law?
Australia has imposed autonomous sanctions in relation to Russia in response to the “Russian threat to the sovereignty and territorial integrity of Ukraine”. There is no legal reason why similar sanctions cannot be approved with respect to Israel’s threat to Palestine and Palestinians.
Israel’s conduct in Gaza has also placed the spotlight on Australia’s position on the recognition of a Palestinian state. The prime minister also made clear at the weekend that Australia will not recognise Palestine while Hamas is in power in Gaza, and that Australia will not recognise Palestine as a “gesture”.
Nevertheless, President Emmanuel Macron’s announcement that France will recognise Palestine at the September meeting of the United Nations general assembly will continue to place a spotlight on the Albanese government’s response given the momentum towards Palestinian recognition over the past year. About 147 states now recognise Palestine. Those that do not are predominantly from Europe in addition to Australia, Canada, New Zealand and the United States.
Four traditional criteria are applied to recognition of a new state. First, a defined territory. Palestine comprises the West Bank, Gaza and parts of Jerusalem. While those borders are well known they are contested by Israel. However, contested borders cannot be used as an effective block and many countries have disputed borders, as is evidenced by the conflict between Cambodia and Thailand.
Second, there must be a permanent population which is satisfied by the Palestinian peoples who predominantly occupy Gaza, the West Bank and Jerusalem.
Third, there must be a government which is met by the Palestinian Authority. While the PA may have limited capacity to control affairs in Gaza as that territory is under Israeli occupation an allowance can be made for that exceptional situation.
Finally, there must be evidence of the ability to enter into international relations. That is occurring through the PA’s engagement with UN institutions including the general assembly and the international criminal court, and through the many other states that recognise and engage with Palestine. That Palestine has yet to attain the formal status of a UN member is not determinative of its status. Switzerland only joined the UN in 2002 after a long period of remaining distant due to its desire to maintain neutrality.
Any decision by the Albanese government to recognise Palestine would only come after cabinet endorsement. Unlike other decisions to recognise new states such as Timor-Leste or South Sudan, Australia’s recognition of Palestine will generate fierce domestic political debate.
Albanese has made clear that recognition of Palestine is conditional on Hamas having no ongoing role. Yet in the short term it remains improbable that Hamas will be completely removed from Gaza or as a force in Palestinian politics. Any recognition of Palestine by Australia could include a special condition which made clear it would not politically recognise an Hamas-led Palestinian government. This would be a break from Australian recognition policy towards new states but would acknowledge the exceptional nature of the Palestinian question and that Australia would not tolerate any form of Hamas Palestinian government.
Anthony Albanese insists that Australian foreign policy is made in Canberra and not overseas. However, with respect to both sanctioning Israel over Gaza and eventually recognising Palestine there is every prospect that Australia will seek to avoid any Trump administration fallout in the form of increased unilateral tariffs on Australian exports.
Donald Rothwell is a professor of international law at the Australian National University
