An Australian legal group says it is preparing a formal criminal complaint to the federal police seeking investigations into Australians serving with the Israel Defense Forces (IDF) for any potential offences committed.
The Australian Centre for International Justice (ACIJ) contacted the government in early June, requesting it issue warnings to the Australian public about the risks for Australians fighting for the IDF.
It said such warnings should ensure citizens were aware "that engaging in hostilities with the Israeli military in the unlawfully occupied Palestinian Territory, may expose them to criminal investigation and prosecution under Australian law", or elsewhere "where there is evidence that they have participated in the commission of international crimes".
Lara Khider, acting executive director of ACIJ, told SBS News: "We are currently monitoring at least 20 individuals who are serving or have served in the Israeli military, and are preparing criminal complaints to the AFP [Australian Federal Police] seeking investigations into potential offences against the Commonwealth."
A Department of Foreign Affairs and Trade spokesperson confirmed to SBS News the department "does not track the movements of Australians overseas".
"The Australian government encourages all Australians who seek to serve with the armed forces of a foreign country to carefully consider their legal obligations and ensure their conduct does not constitute a criminal offence," the spokesperson said.
Is fighting for another army legal?
Under Australian foreign incursion laws, it's not illegal to serve with a foreign government army — but recruiting someone to do so is.
Australian authorities do not actively monitor Australians who may be serving in foreign armed forces, but the Australian Border Force may provide travellers leaving the country with information about their obligations under Australian law. Credit: AP
It's illegal to recruit people to join an organisation engaged in hostile activities, or to serve in, or with, a foreign military.
But the federal attorney-general can allow recruitment of people to serve with an armed force of a foreign country if "it is in the interests of the defence or international relations of Australia".
"It is well known that Australians are currently serving in the Israeli military, and there have even been reported instances of recruitment occurring on Australian soil," Khider said.
The exact number of Australians who've served or are serving has not been confirmed by Australian authorities.
A freedom of information request in 2024 revealed the Australian Border Force (ABF) had intervened with three of four Australian citizens suspected of departing for Israel for military service since 7 October 2023.
The ABF previously confirmed that when it becomes aware that a person is leaving Australia with the intention of travelling to a potential conflict zone, it "provides the traveller with information on their obligations under Australian law".
The AFP said it cautioned all Australians who seek to engage in hostilities overseas to carefully consider their legal obligations and ensure their conduct does not constitute a criminal offence.
"Any Australian suspected of committing a criminal offence while in a conflict zone may be investigated by the AFP, and, where appropriate, may face prosecution," a spokesperson told SBS News.
The Australian Centre for International Justice is monitoring at least 20 Australians who have served or are serving in the Israel Defense Forces. Source: EPA / Abir Sultan
In the ruling, the ICJ called on Israel to "take all measures within its power to prevent and punish the direct and public incitement to commit genocide", and ordered Israel to "prevent the commission of acts" that fall under under the Genocide Convention — which include "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part"; and "killing members of the group".
The ACIJ said Australia, as a state party to the Genocide Convention, has legal obligations to take all possible measures to prevent genocide.
Australia is also party to a number of international human rights treaties and recognises the ICJ and its jurisdiction on international law matters.
IDF spokesperson Rear Admiral Daniel Hagari said last year the IDF is "a professional military committed to international law".
Government warns Australians at the border
SBS News obtained a copy of a letter from Attorney-General Michelle Rowland addressed to the ACIJ about the issue, in a reply dated 28 July.
In the letter, Rowland said while it was not appropriate for the government to provide specific legal advice, "the government has been clear that all parties to the conflict must comply with international and relevant domestic legal obligations".
Rowland said the government "continues to discourage" Australians from engaging in conflict overseas, and advocates for the protection of civilians, the upholding of international law and the unhindered flow of aid to the region.
"The government continues to caution all Australians who seek to serve with the armed forces of a foreign country to carefully consider their legal obligations and ensure their conduct does not constitute a criminal offence," Rowland said in the letter.
"Where appropriate, the AFP may work with foreign law enforcement agencies and international bodies as part of any potential investigation."
However, ACIJ said it had been raising its concerns on the issue with the Australian government since December 2023 and said the government's reply was "manifestly inadequate".
"The limited cautions issued to date do not sufficiently reflect the seriousness of the atrocities occurring against the Palestinians in Gaza," Khider said.
"Issuing vague or weak cautions does not discharge Australia's obligations under international law.
"The government must act with urgency and clarity to ensure that its international legal responsibilities are met, and that Australians are not complicit in atrocity crimes."
An Australian war crimes investigation unit
Greens senator David Shoebridge said his office had inquired nine months ago into why the Australian government was not tracking people fighting in the Israeli and Russian militaries, and had yet to receive a reply.
"The Australian government's current policy is 'head in the sand'," Shoebridge said.
"If you don't look for war crimes, you won't find them.
"The conflict in these areas has only intensified, and concerns about people being implicated in war crimes have only heightened."
"We know that thousands of people have been travelling to Israel over recent months, many to fight in the IDF, which is a concern when the government does not track or monitor who is fighting in this appalling war," Shoebridge said.
The number of Australians serving or having served with the IDF has not been confirmed, but News Corp reported in 2023 there could be up to 1,000 who have served or were active reservists at the time.
The Greens want a War Crimes Investigation Unit set up in Australia.
"Other countries have these bodies, and they are effective. The lack of one in Australia makes everyone less safe."
