Lips are sealed on Australians fighting with the Israel Defense Forces in Gaza: FOIs
by Michael West
Jul 5, 2024
(Graphic inserted)
What is the legal position of the estimated 1,000 Australians fighting for the Israel Defense Forces amid allegations of IDF genocide in Gaza and International Court of Justice proceedings? Michael West reports on the progress (or not) of Freedom of Information requests.
What is the legal position of Australians fighting for the Israel Defence Forces (IDF) in Gaza amid claims of widespread breaches of international law in a conflict which has taken the lives of 40,000 people, more than half of them women and children?
As more countries sign up to South Africa’s case at the International Court of Justice which alleges Israel’s military campaign in Gaza amounted to genocide, has the Australian government warned the estimated 1000 Australians either actively serving or enlisted as reservists of their risk of prosecution?
In March, it was revealed that the British government received advice from its own lawyers saying Israel had breached international humanitarian law in Gaza but has failed to make it public.
Freedom of Information (FOI) requests by MWM correspondent and former senator Rex Patrick asking for government advice on foreign fighters have been stonewalled by the Department of Foreign Affairs.
Plenty of information, but sorry
Responses during the processing of the requests show that there is a large volume of information surrounding the issue. Unfortunately, the government is not sharing its advice. On May 24, Patrick received this response from the Department for Foreign Affairs:
“Even if we only provided the relevant parts of the Talking Points relating to your request, they would still comprise an estimated 300 pages. I also estimate the balance of the documents would. comprise a further 300 pages bringing the total number of pages to 600 pages, down from the original 1,300 pages.”
The FOI was rejected on the basis that the documentation was too large. The exchange is published below. Meanwhile, independent legal counsel has found that there is a risk for these foreign fighters. Writing for MWM in October last year, Greg Barns SC found that there was a legal risk.
And three months later as the death toll rose dramatically, writing for John Menadue’s Pearls & Irritations, Greg Barns and Benedict Coyne found Australian citizens were at risk of being prosecuted under Australian law “if they commit, or are complicit in, crimes being perpetrated by the Israeli Defence Forces in Gaza.
“Since the commencement of the Gaza war, when the Israeli government issued an order to 360,000 military reservists to engage in the onslaught of Gaza, multiple dual Australian-Israeli citizens returned to Israel to fight in the Israeli Defence Forces (IDF). This development saw some Australian media outlets appearing to celebrate the fact that Australian citizens were being called up to join the brutal onslaught of the beleaguered population of Gaza.”
Although the IDF does not release official statistics in relation to serving foreign nationals, the Australian Centre for International Justice has reported estimates of up to 1,000 Australians currently serving in the IDF or being active reservists.
“As the Australian Centre for International Justice noted on 22 December 2023 despite the knowledge about Israeli war crimes in this conflict, “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.”
Despite fears that Australian foreign fighters could be held responsible for war crimes, the Australian government has batted off FOI requests from Rex Patrick.
A chronology of stonewalling
On April 5, Patrick made a request to DFAT for
Documents created or received by DFAT since 7 October 2023 that relate to Australian citizens serving in the Israeli Defence Force (IDF).
April 29 – DFAT responded saying:
Searches undertaken by MEB have captured documents consisting of over 1,330 pages. A large proportion of the documents are Talking Points and Senate Estimates Briefs. While these documents only contain a small amount of information relevant to your request, you have stated that ‘Where a record in part contains information relating to the above matter, I seek access to the entirety of the document’.
May 4 – Patrick suggested a reduction of scope to:
“Correspondence/emails received from the Attorney-General’s office/ADG or the Foreign Ministers Office and ministerial briefs/talking points provided to the Attorney-General’s office/ADG or the Foreign Ministers Office documents created or received by DFAT since 7 October 2023 that relate to Australian citizens serving in the Israeli Defence Force (IDF).
May 7 – DFAT emailed:
The Department of Foreign Affairs and Trade (the department) is continuing to process this request. They requested an extension to Monday 27 May.
Patrick reasonably took this to mean that the scope was now manageable.
“I agreed an extension to Friday May 24, noting that Estimates started on Tuesday 28 May. Note that I advised them my deadline was related to Estimates.
May 24 – DFAT wrote to Patrick formally saying that they were refusing to process the request.
After careful consideration including with the relevant departmental areas, I consider that the practical refusal reason still exists. I am therefore notifying you of my decision to refuse your FOI request, in accordance with section 24(1)(b) of the FOI Act.
I have once again considered the advice provided by colleagues in the Middle East Branch who were tasked with undertaking searches using your revised scope, and they documents they have identified. While your revised scope no longer includes … access to the entirety of the document where only part of the document contains information relating to your request, your request still includes all Talking Points. Even if we only provided the relevant parts of the Talking Points relating to your request, they would still comprise an estimated 300 pages. I also estimate the balance of the documents would. comprise a further 300 pages bringing the total number of pages to 600 pages, down from the original 1,300 pages.“They waited 20 days,” says Patrick, and in the meantime asked for an extension – to tell me that the request was still too voluminous.
The information Commissioner guidelines to Agencies state:
Agencies and ministers are only obliged to undertake a request consultation process once for any particular request (s 24AB(9)), but they may choose to continue discussions with an applicant in order to refine a request that is still too large or vague.
Further proof Australia’s FOI regime is busted
At least we know there is a lot of information floating around inside Government on this issue, says Patrick, and they are reluctant to hand it over easily.
May 24 – Patrick immediately refilled two requests – one to DFAT and one to the Minister’s Office.
June 12 – DFAT requested a 30-day extension.
June 13 – Noting the history, Patrick said no.
FOI is due on June 24.
June 18 – DFAT invoked a privacy concern to extend the request to July 23, but indicated that they were intending to provide a response in the week starting July 1.
June 24 – A short release of talking points from the Minister’s office showing the Government has legal concerns but it not weighing in.
July 5 – Radio silence
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.
Lips are sealed on Australians fighting with the Israel Defense Forces in Gaza: FOIs - Michael West