Tēnā koutou, yumalundi, and welcome to this edition of ANZSIL Perspective.
Welcome to Edition 45 of ANZSIL Perspective which is my last one as editor. I am very proud to have moved our excellent publication from a members’ web page to a freestanding website. Over the last 6 years as editor, we have had some significant contributions from a range of international law experts from sea to land and across human rights and criminal law. I have loved my role as editor. I would like to thank all the team members I have worked with who work so hard on the reviewing and processes. I think we leave ANZSIL Perspective in good hands for the next editorial team. A special thank you to my assistant Phillipa Stafford who has borne the finalisation of each edition with aplomb.
This edition includes excellent perspectives from Maryam Fakhar and Malcolm Patterson on Iran and something from myself and Ruby Evans on Modern Slavery. For this edition, I have also included my own thoughts from joining over 1000 signatories to an Australian lawyers’ letter calling for an immediate ceasefire in Gaza, and for the Australia government to impose targeted financial, immigration and trade sanctions on Israel.
Like many lawyers, I have despaired at the appalling hostage taking in Israel and then the consequential humanitarian consequences of the military assault on Gaza by Israeli forces commanded by the Israeli government. There are laws against all these actions which are intended to regulate the conduct of international communities and to protect people from harm. They need to be honoured and enforced.
In fact, Australia can do more:
Prime Minister Albanese has expressed his “strongest criticism yet” in recent days, but still Australia remained notably absent from a joint statement by allies UK, France and Canada which foreshadowed imposing sanctions on Israel.
Talking is important, as is restorative justice, but Australia also needs to act, especially when the very viability of international law is at stake. If the Israeli government’s conduct is permitted to stand without meaningful rebuke from its allies, we are on the edge of a very dark phase in human history. The obligation to prevent genocide must have regard to the evidence, especially when senior officials in the Israeli government are on record speaking of removal of Gazan people.
I welcome Senator Penny Wong’s recent announcement of sanctions against Israeli Minister for National Security, Itamar Ben-Gvir and, the Israeli Minister for Finance Bezalel Smotrich. Ben-Gvir has been open about his intention to renew settlements in Gaza. He has indicated he considers the permanent removal of Gazans to be “the most moral, correct and non-coercive solution.” As the Minister responsible for Israeli prisons and military, he has presided over widespread, documented cases of human rights abuses including torture, sexual assault and inhumane conditions leading to deaths and amputations. Mr Ben-Gvir has lauded his track record, calling for the execution of Palestinian prisoners: “They should be killed with a shot to the head, and the bill to execute Palestinian prisoners must be passed in the third reading in the Knesset.” This against a background where the global community is moving away from the death penalty for criminal conduct, never mind political opponents. Smotrich has similarly implicated himself by his own words. He is a dedicated advocate for resettling the Gaza Strip and has described the ambition to starve two million people as “justified and moral.” Starvation is a war crime.
Such comments are just a small selection of references to a purpose to dehumanise and seek superiority, rather than peace and security. These words by senior officials cannot be dismissed as rhetoric, or political grandstanding. They must be seen as evidence of conduct which is defined as illegal in international law.
Imposing sanctions against those implicated in the events in Gaza, such as Ben-Gvir and Smotrich are a necessary but still insufficient step to ending this ongoing humanitarian catastrophe. In fact, Australia must do more.
This explains why so many lawyers, maintaining our professional balance, support the work of the ICC to judge criminality in armed conflict, determination of which begins long before the issuing arrest warrants against individuals. There is no political or legal justification for the situation in Gaza where more than 2 million men, women and children are trying desperately to survive an endless military assault and confected famine. Words calling for human removal underpin the law on genocidal intent. If governments fail to uphold the rule of law – whether Australian or Israeli – this reflects a political rot from which we may never recover.
When Australia is faced with evidence that the Israeli cabinet openly supports extreme conduct in the occupied West Bank, it must act. In July 2024, Foreign Minister Penny Wong correctly identified illegal Israeli settlements as “a significant obstacle to peace”. Her statements led to Magnitsky-style sanctions on seven Israelis associated with violence, sexual assaults and human rights abuses. Australia should also consider the further nine individuals and eight entities that have been sanctioned by one or more of the US, UK, EU and Canada (and sometimes all four). Identifying corporate responsibility for alleged human rights abuses or atrocity crimes (including through supply chains) is just as important as identifying individual culpability. Justifications for conduct on both sides can be dealt with in criminal trials and through peaceful negotiation but not attacks on populations.
If Australia is to truly stand against extremism and in favour of international criminal law frameworks with its allies, the multilateral approach may see the impact of such targeted sanctions having some effect. It would also send a message to those in command of atrocities that political violence and complicity in conflict is criminal.
I reckon there is a small window for those states committed to the rule of law and upholding universal human rights to take both a humanitarian and practical stand against those who openly repudiate such concepts. 1000 lawyers are not wrong.
As always ANZSIL Perspective welcomes submissions from all levels of post-graduate scholarship and legal practice. Submissions and questions can be emailed to: anzsil@anu.edu.au. Read the submission guidelines here.
We have another edition coming very soon but our next deadline is 26 September 2025.
Felicity Gerry KC (Editor – Go well to the new editor!!)
Chuttersnap/Unsplash
Felicity Gerry KC
Dr Felicity Gerry KC is on the lists of counsel for the ICC and KSC, recently on the defence team for Mr Al Hassan at the ICC and leading the defence for Mr Bahtijari at the KSC. She is admitted in England and Wales and Victoria, Australia and specialises in homicide, terrorism and war crimes trials and appeals. She has a particular interest in complicity law. She led amicus briefs in the Radovan Karadžić appeal on the lack of foundation for JCEIII and in the Dominic Ongwen appeal on the non-punishment principle. She is a Professorial Fellow at RJ4All, an Hon Prof at the University of Salford and formerly Professor of Legal Practice at Deakin University. She has a long history of teaching topics around contemporary international legal challenges such as terrorism, modern slavery law, climate change law and war crimes. She is widely published in areas including women & law, technology & law and reforming justice systems.
