Australia must stop applying “double standards” to Israel on alleged war crimes and uphold the global rules-based order, legal experts warn, as pressure piles on the Albanese government to act decisively in response to a UN commission’s findings that Israel is committing genocide in Gaza.
The United Nations independent international commission of inquiry, which does not speak on behalf of the UN as a whole, found on Tuesday that “genocide is occurring in Gaza and is continuing to occur”, according to its chair, Navi Pillay.
“When clear signs and evidence of genocide emerge, the absence of action to stop it amounts to complicity,” she said. “All states are under a legal obligation to use all means that are reasonably available to them to stop the genocide in Gaza.”
Prof Ben Saul, a leading human rights expert, said Australia “should put its money where its mouth is” and use the tools it has – sanctions and trade embargos – to apply further pressure on Israel to end its invasion of Gaza.
“I think there’s long been a double standard on Israel compared to certain other countries” Saul, who is also the UN’s special rapporteur on counter-terrorism and human rights, told Guardian Australia, noting sanctions imposed on Russia after its 2014 annexation of Crimea and ongoing offensive in Ukraine.
“When countries violate law, they should be treated the same way – not in this incredibly selective way.”
The report also accused Israel’s prime minister, Benjamin Netanyahu, and other senior Israeli leaders of incitement of genocide. Israel’s foreign ministry categorically rejected the report’s finding and urged for the commission’s abolition.
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The report’s release comes days before world leaders are expected to meet in New York City for the UN general assembly.
Anthony Albanese announced in August that Australia would join the UK, Canada and France in recognising Palestinian statehood at the meeting this weekend in an effort to “bring an end to the conflict, suffering and starvation in Gaza”.
But legal experts, advocacy groups and politicians are urging the Australian government to impose sanctions on members of the Netanyahu government and trade embargos on companies connected in any way to genocidal acts in the wake of the UN commission’s report.
Chris Sidoti, an international human rights lawyer and a member of the UN commission, said Australia had “an immediate obligation” under the genocide convention to punish and prevent genocide. That obligation technically came into effect in January 2024 under interim orders on Israel by the international court of justice, he said.
Australia must take four steps to ensure it is upholding the rule of international law, Sidoti told Guardian Australia: prevent any arms trading, investigate all Australians returning from service in the Israel Defense Forces since 7 October 2023, suspend any diplomatic relations related to defence or trade links, and stop any trade that supports illegal activities in Gaza and the West Bank.
Donald Rothwell, an international law professor, said any government “genuinely committed” to abiding by the genocide convention should ensure it is not providing any assistance or support at all that could “find its way to Israel” and “be used in the commission of acts of ongoing genocide”.
In a statement after the release of the UN commission’s findings, the foreign affairs minister, Penny Wong, said Australia and the international community agreed the situation in Gaza “had gone beyond the world’s worst fears”.
“The Netanyahu government is more isolated than ever. Israel will be judged by the international court of justice [ICJ] on its compliance with the genocide convention,” she said.
A timeframe has not yet been set for the ICJ’s hearing into Israel’s compliance with the convention, but observers expect it is unlikely to occur before 2027.
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The Albanese government has publicly stated its support for the both the ICJ and the international criminal court. In June, Australia joined the UK, Canada, New Zealand and Norway in placing financial sanctions and travel bans on two Israeli government ministers for inciting “extremist violence” in the West Bank.
But politicians from across the parliament have urged further action against Israel.
The Labor MP Ed Husic and ACT independent senator David Pocock are both pushing for the government to sanction members of the Israeli government after the UN commission’s findings.
Pocock said Australia had a positive duty under international law to prevent genocide.
“Australia does not need to wait for a final finding from the [ICJ], which may not come until 2027, before acting,” he said. “What is the threshold for the government to step up and apply sanctions on Netanyahu and his government?”
Meanwhile, Husic wrote on social media on Wednesday, “the genocide convention requires parties – and Australia is one of them – not just to punish but prevent genocide”.
The Greens senator David Shoebridge said it was time for Australia to apply the same sanctions regime against Israel as it had against Russia after its illegal invasion of Ukraine.
“Instead of acting, the Albanese government has been gaslighting the Australian public about its role in the genocide and its legal responsibilities to prevent it,” he said.
The shadow foreign minister, Michaelia Cash, said claims of genocide have been “categorically rejected by Israel” and Hamas’s killing of Israeli civilians on 7 October was the root cause of the ongoing conflict.
“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.