Senator David Fawcett – Estimates questions regarding UNRWA funding; the removal of Hamas from power; and the application of international humanitarian law

photo of Senator David Fawcett
February 15, 2024

People accepted the fact that ISIS had to be defeated. So there is a conundrum here for our engagement with Israel in that we don’t have a plan to remove Hamas, yet Hamas has indicated that if they remain in power they will repeat the atrocities of 7 October.

Senator FAWCETT: I look forward to further announcements then. Can I come to the topic of aid? There has been a lot of discussion this morning about UNRWA, and there has been a lot of media commentary about how they are essential and that they are the only way to get aid. But what we have seen in previous conflicts—when I think of ISIS and their invasion in northern Iraq and the Yazidi people having to flee to Mount Sinjar—the effective aid delivery was actually a military operation that delivered aid. I reflect on the discussions that were publicly announced by both Israel and Cyprus in December last year looking at the potential for a maritime corridor originating in Larnaca—where security checks could be done delivering aid; and I assume it would have to be a military operation—to Gaza, which would enable a greater volume of secure aid, and with a beach head, making sure that it got to the Palestinian people and was not commandeered by Hamas. Has the government given any consideration to that announcement of the agreement, that is, the planning by those two nations to engage with and support that as a way of enhancing effective aid to the Palestinian people in Gaza?

Mr Maclachlan: One of the consistent messages the government has made throughout this crisis has been on the need to ensure humanitarian access, not just into Gaza but within Gaza itself. Quite a number of ideas have been floated, including the one you have mentioned. All of those ideas are driven by the fundamental problem that exists, and that is getting aid into Gaza. Notwithstanding the efforts of Israel to facilitate trucks going in, it is insufficient. Prior to 7 October, there were some 500 trucks a day going into Gaza. In January this year the average was between 140 and 150 trucks a day, no doubt all of them welcome, but clearly insufficient when you think the demands for assistance there are so much greater than they were prior to 7 October.

The idea about which you have spoken is one that has not been able to be operationalised. It doesn’t look like it will have much chance of being operationalised in the near term, and so we and other partners are focused on trying to lift the number of trucks that are getting in with vital food and medical supplies, and then of course enabling distribution within Gaza itself, because the north is somewhat cut off. Trucks are either unable, for operational reasons or for security reasons, to get through to the north. My colleague, Ms Delaney, may have more to add.

Ms Delaney: As Mr Maclachlan has mentioned, we are very seized of the need to try to get not only more aid into Gaza but also within, and we acknowledge that enormous obstacles remain. The only thing that I would add to Mr Maclachlan’s point is that the minister has had engagements with the newly-appointed UN Special Coordinator for Gaza. Her mandate, her focus, is on trying to increase that access, where possible, through land. That would involve increasing more land routes as well as, where possible, air, but I think the point in relation to the sea routes is that it’s challenging, and that’s partly just a consequence of geography.

Senator FAWCETT: Has the concept been raised, either in meetings that Australia has participated in within the UN context or bilaterally, between Cyprus or Israel and Australia?

Ms Delaney: I don’t have the details in front of me. It was raised, from my understanding, during a humanitarian forum towards the end of last year, and certainly it is one that we’ve been engaging in with our networks—as you would expect us to—on: what are the options available, how viable are they and how do we increase? The point I would make is that we have been advocating at all levels to increase access, and that includes the viable access routes to enable more humanitarian support to flow.

Mr Innes-Brown: Our mission in Cyprus is keeping a close watch on this issue and talking to partners on the ground about whether there is any momentum for that idea. If I recall correctly, at the moment there is not, unfortunately.

Senator FAWCETT: I’d be interested in getting any updates on that because volume, clearly, is a function of not only how it has moved but also the rate at which security checks can be done, as well as security on the ground. Reporting just this week of the bunker in which the leader of Hamas and his family were living, with more than adequate food and supplies and everything else, just lends credibility to the reports and videos we’ve seen of Hamas hijacking at gunpoint; in fact, some of them shooting Palestinians to get the aid that is brought in. Volume and secure delivery and distribution is key. If we have doubts about UNRWA, these kinds of alternate paths are important. Particularly to your point, Minister Wong: if Hamas has no future in government, then we need to start putting in place and working with allies’ systems which will support the Palestinian people in the absence of Hamas. Can you take on notice that, if there are further updates, you’ll provide that to the committee?

Mr Innes-Brown: I’ll take it on notice, Senator. I should add that we are also keeping in touch with what Israel’s thinking is, and that is obviously still evolving. I just assure you that we are trying to stay in close touch with the Israeli authorities about those sorts of issues.

Senator FAWCETT: I welcome your comment, minister, that your government thinks that there is no future for Hamas in a future government in Palestine. How we operationalise that, to use the word that was taken, I think, about the maritime supply route, is the challenge. On one hand, you have correctly identified that Israel has a right to defend itself in accordance with international humanitarian law, but we have in Hamas an entity which, if you go to the statements of Ghazi Hamad, have indicated that they intend to repeat 7 October as many times as they are able until they destroy Israel. What discussions is your government having? I know you can’t tell me details, obviously, but are discussions occurring as to how the international community remove Hamas from power if we are going to tell Israel that they can’t do it?

Senator Wong: There’s a lot in that. Firstly, Hamas is a terrorist organisation which is dedicated to the destruction of the state of Israel. It is not just today, but it is in so many statements where we have made clear the view from the Australian government—I think the Australian parliament and community, I hope—that they have no role in the future governance of Gaza. The question you go to, though, raises a much broader set of questions and issues, which is: what is the pathway to peace and the process by which there can be genuine progress on a two-state solution; and what are the governance arrangements that are associated with that? There is not an answer on that the international community has coalesced around, or the parties have coalesced around. It is one of the right questions to ask.

Senator FAWCETT: Is the government or officials in the UN seeking to lead any discussion to start a process of getting consensus?

Senator Wong: We are not the central player in the Middle East. I think ‘leading’ would be—well, I’m not sure that would be helpful.

Senator FAWCETT: Okay, perhaps to agitate for us—

Senator Wong: No. Well, we don’t need to agitate. This is front and centre in so many of the discussions I have with counterparts. It was front and centre in the discussions when I went to the region, not only in Israel and in Ramallah but also in the United Arab Emirates and in Jordan. People are very seized of this. There is not, I think, a pathway yet, but people recognise this is one—it is not the only one—of the sine qua nons of that pathway to peace.

Senator FAWCETT: My concern, minister, is that I look in history and so I think of the liberation of Mosul, as an example, when ISIS attacked the Yazidi people. The United Nations Security Council was very quick to condemn it, and then to call on all able nations to join the fight to destroy ISIS. Despite the horrific destruction that occurred in Mosul, the thousands of civilians who were killed—it has even become an International Committee of the Red Cross case study for the application of international humanitarian law—nobody called for a ceasefire. People accepted the fact that ISIS had to be defeated. So there is a conundrum here for our engagement with Israel in that we don’t have a plan to remove Hamas, yet Hamas has indicated that if they remain in power they will repeat the atrocities of 7 October.

I guess I am trying to understand what discussions we are a part of and, as you identify, what we are doing within the limited role we may play to try to push for a solution that Israel can go, ‘Yes, the international community will partner with us in dealing with Hamas, as opposed to repeating what we saw after 2014, where Hamas just re-armed and re-offended.

Senator Wong: I’ll ask Mr Maclachlan, to give you some information first.

Mr Maclachlan: It is a rich tapestry that you have woven there. The world has moved on a bit since Mosul. It’s clear that this issue is working its way through UN fora and through other multilateral fora and becoming a dominant issue around which it is very difficult to find consensus. In the example you used, perhaps we were able to find it more easily. That’s the first observation. The second observation is that we share the views that have been articulated many times this morning: there is no place for Hamas in the future. That’s a widely-held view. However, that’s only one of the steps that will be necessary in order to realise a two-state solution, and there are many other challenges that will have to be dealt with.

The third observation, which I think the minister articulated well, is that we are not a direct player in this. But we have a voice, and it’s a voice that’s listened to by others in the region and welcomed. The countries of the region—the Arab countries, Israel, the US—are clearly the most influential parties in finding a pathway that gets us beyond the conflict and gets us on a pathway of political diplomatic negotiation dialogue. We’re quite some way from that. It is more likely, I would have thought, that at its core that dialogue will have to be a regional dialogue supported by others in the international community.

Senator FAWCETT: Mr Maclachlan, I accept the comments you’ve made, but the reality is that the government took a position, for example, in the United Nations’ vote around the ceasefire. I personally disagreed with the position that was taken, but we took a position. Why? Because our voice, albeit a minor voice, is still a voice that matters. I still think we have to have clear in our own mind the position we want to take in working with the international community, including those key regional nations, to put our voice forward on the fact that we have to have a plan to allow Israel to say: ‘The threat that we have a legitimate right to defend ourselves against is going to be dealt with by the international community.’ History has shown that if nobody steps up to help them, that threat just keeps on coming back because its raison d’etre is the destruction of Israel and its people. That’s a comment. You don’t have to answer that.

I do have a question. You said we have moved on since Mosul, but international humanitarian law, particularly the principles of proportionality, precaution and distinction, has not moved on. They were very well articulated by the International Committee of the Red Cross. The high-level military working group that my former colleague Senator Jim Molan was part of analysed in some detail the Israeli actions in 2014 against Hamas, as well as a range of other conflicts around the globe where we have actors who do not respect the rule of law engaging with democracies who do respect the rule of law. Their conclusion was very clearly that Israel upholds, to a standard probably beyond many other nations, the application of IHL in those kinds of conflicts. I’m interested to know whether DFAT has its own internal legal advice on the matter of how international humanitarian law is applied. It strikes me that many of the facts on the ground would indicate that the use by Hamas of otherwise protected facilities, such as hospitals et cetera, means that, under the well-established framework of international humanitarian law, Israel is within its right, as it applies proportionality, precaution and distinction. It has been proven to do so. It is acting legally—albeit the results are dreadful, but it is acting legally. I am interested to know whether you have your own legal advice that’s providing briefs to the government. I look at Prime Minister Albanese’s comments after some of the attacks that have occurred in or around hospitals that would imply that Israel is not applying IHL.

Mr Maclachlan: Just to be clear about my earlier comment about the world moving on: I’m talking about the dynamic in multilateral institutions. I agree with you entirely that IHL is an enduring law, enduring principles by which nations are expected to abide. To the question you ask about us forming a judgement about whether or not Israel is acting legally: this is not the forum in which we are going to come to those sorts of judgements.

Senator FAWCETT: I am not asking about this forum. I am asking: do you have your own internal legal department that provides you and the government with advice?

Mr Maclachlan: Chief counsel has joined us at the table.

Mr McCarthy: My presence here would indicate that indeed we do have an internal—

Senator FAWCETT: It isn’t on your name tag, but that’s alright.

Mr McCarthy: Yes, we do, Senator.

Senator FAWCETT: You heard my question. Does your advice to the department, and therefore the government, reflect the fact that, by its actions, Hamas has removed the protection under IHL for almost every facility in the Gaza Strip?

Mr McCarthy: I’ll take a step back. Regarding specific legal advice—that is, the application of the relevant laws to the facts on the ground—as you well know, it has been the practice under governments for some period of time not to disclose that to this committee. What I would say is that most of the specific examples that you have referred to fall under the category of war crimes, which are defined as grave breaches of the Geneva Conventions and are set out in the statute of the International Criminal Court—

Senator FAWCETT: War crimes by Hamas, through the use of those facilities?

Mr McCarthy: I am not referring to specific factual circumstances. What I am saying—

Senator FAWCETT: Mr McCarthy, it’s important—

Senator Wong: Senator, he should be allowed to finish.

CHAIR: Senator, please allow the witness to finish his answer.

Senator FAWCETT: Can I just add a note of caution, though—

CHAIR: No, no, no!

Senator Wong: He’s allowed to finish his answer.

Senator FAWCETT: Chair, this is a point of order—

CHAIR: Senator, there is no point of order. Let the witness finish his answer and then you’ll have the opportunity to respond.

Mr McCarthy: The key point I wish to make here is that war crimes are codified in the Treaty of Rome and the Rome Statute of the International Criminal Court, and individual responsibility attaches to them. In other words, where there’s an accusation of a war crime, the prosecutor of the International Criminal Court has the prerogative to investigate those accusations and it is for the International Criminal Court to deliver a verdict on whether a war crime has or has not taken place. That’s the point I’m trying to get to.

Senator FAWCETT: In the context of my question, my concern is that the use of that term would imply that perhaps DFAT thinks Israel has been committing war crimes. That narrative then spreads like wildfire, as you pointed out earlier, Senator Wong, through various people’s social media accounts.

Mr McCarthy: I didn’t say anything like that at all. At the beginning of my comments, I noted that I am not attributing any particular laws to any particular factual circumstances on either particular side of this conflict. I’m outlining where the general law is set out on this question. The government is a very strong supporter of the rules based order and the body that is charged, under that rules based order, with reaching a determination on those.

Senator FAWCETT: Thank you. That is an accurate description. I accept that.

Senator Wong: I’d like to say that there are those who throw those phrases around as part of their political campaign. It’s not for government to do that. That wasn’t what Mr McCarthy was doing.

Senator FAWCETT: I realise that, Minister. My concern was that others will take excerpts and put them up on social media and claim that they back their claims, which is why I wanted some precaution and distinction in that comment. Thank you.

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