Concern has been raised regarding Australian-Israeli dual citizens fighting as part of the Israeli military and reserve forces in the past generally and particularly during the ongoing Israeli invasion of Gaza potentially committing war crimes. This comes in the wake of several media reports describing dual Australian-Israeli citizens who have returned to Israel in October 2023 to participate in current hostilities as well as a report that an Australian has been killed while fighting on behalf of the Israeli forces last weekend.

On 20 December 2023, the Australian Centre for International Justice wrote to the Minister for Home Affairs, the Attorney-General and the Australian Federal Police Commissioner with respect to Australian citizens who are currently engaged in hostilities in Israel and the Occupied Palestinian Territory.

The Australian Centre for International Justice (ACIJ) has called for an investigation into Australians participating in the IDF stressing that despite no prohibition on Australians fighting in foreign armed forces, the government fails to warn individuals of potential criminal offences under Australian law.

The organisation invokes Australia’s obligations under international law to investigate and prosecute war crimes, crimes against humanity, genocide, and torture. The alleged inadequacy of warnings from the Department of Home Affairs raises concerns about Australia’s compliance with the Genocide Convention.

Despite the publicly available information about Australian nationals’ engagement in the conflict as part of the IDF and violations of international law by the IDF, it appears that the Australian government has failed to provide any public statements advising of the risks involved particularly in respect of the potential legal consequences and individual criminal liability that could arise from the conduct of Australian nationals participating in the conflict as a member of the IDF.

Noting that there is no prohibition on Australian citizens from fighting in the armed forces of the government of a foreign country, the reported guidance from the Department of Home Affairs does not warn individuals that their actions could constitute criminal offences under Australian law, which could result in the initiation of criminal proceedings against them.

A failure to investigate and prosecute Australian nationals for involvement in potential war crimes, crimes against humanity, genocide and torture as codified in Divisions 268 and 274 of the Commonwealth Criminal Code, would be in breach of Australia’s obligations under international law to investigate and prosecute these crimes.

With respect to acts of genocide, the Australian government must uphold its obligation as a State Party to the Genocide Convention to not only punish acts of genocide, but prevent such acts. The inadequacy of warnings issued to date by the Department of Home Affairs may constitute a failure by Australia to comply with its obligations under the Convention.

The Australian Federation of Islamic Councils (AFIC) has called on the government to ensure it is meeting its obligations, to protect Australian lives and ensure that Australians do not undertake acts that are potentially considered contraventions of international law.

In light of the ongoing human rights violations in Gaza, AFIC urges an immediate ban on Australians fighting for non-Australian forces globally. The Coalition’s response, advocating for exclusion zones in Lebanon, is criticised by AFIC as a diversion from addressing the root cause and protecting Australians.