Lawyers for two Australian flotilla humanitarian activists detained by Israeli authorities following its illegal interception of Gaza-bound humanitarian vessels sailing in international waters near Cyprus, condemn the Australian Government’s tacit acceptance of Israel’s unlawful and deadly blockade of Gaza.
The Australian Centre for International Justice (ACIJ) acts for Ms Helen O’Sullivan and Ms Violet CoCo, two of the 11 Australian nationals among the crews of the Freedom Flotilla Coalition and Gaza Sumud Flotilla. ACIJ has written to the Australian Government on several occasions on behalf of their clients, warning that Australia’s position treats Israel’s naval blockade as legally effective, despite the serious and ongoing unlawfulness of Israel’s siege of Gaza and its obstruction of humanitarian access, amidst an ongoing genocidal campaign.
Overnight, disturbing footage has emerged of unlawfully detained humanitarian flotilla participants being subjected to cruel, inhumane and degrading treatment in Israeli detention, and publicly taunted by Israeli Government Ministers Itamar Ben-Gvir and Miri Regev, a close aide of Benjamin Netanyahu. These developments have compounded ACIJ’s concerns that those detained are being subjected to public humiliation, degrading treatment and politically motivated abuse while in Israeli custody.
The summoning of Israel’s Ambassador is a necessary first step, but it is not enough. ACIJ calls on the Australian Government to make clear that this is not merely a consular issue, but a matter involving serious violations of international law requiring the immediate release of the detained flotilla participants, accountability for Israel’s unlawful conduct, reparations, and a clear rejection of the legal validity of Israel’s ongoing and unlawful naval blockade and siege of Gaza.
ACIJ notes that in several statements made by DFAT officials and in an automated audio recording available on DFAT’s consular emergency crisis line, the Government is discouraging Australians from joining the humanitarian flotilla, stating that: “Israel has a naval blockade in place along the coast of Gaza. Australians are strongly advised not to try to break the naval blockade. The Israeli navy patrols territorial waters and the shared water border zone.”
ACIJ condemns the Government’s reliance on the existence of Israel’s naval blockade as a basis for discouraging civilian navigation and humanitarian action. Public statements that implicitly accept the overarching legal framework within which that blockade is maintained, without clearly stating its illegality under international law, treats an unlawful coercive framework as legally effective, and normalises Israel’s ongoing obstruction of humanitarian relief to Gaza.
Rawan Arraf, Executive Director at the Australian Centre for International Justice, and legal representative to Australian humanitarian activists, Helen O’Sullivan and Violet CoCo said:
“We are deeply concerned for the safety and welfare of our clients and all Australian and other foreign nationals who were illegally abducted by the Israeli military. The Australian Government and all governments must condemn Israel for the illegal interception, unlawful detention and abuse being directed at flotilla participants. At minimum, they must demand reparations and accountability.”
“We call on the Government to move beyond passive consular monitoring, and immediately initiate formal diplomatic protest, and demand accountability, including reparations, for the illegal interception of over 50 civilian humanitarian vessels and the unlawful detention of over 400 nationals.
“While we acknowledge the issuance of general travel advice from the Government, such statements that tacitly accept the existence of the naval blockade, do not displace Australia’s obligations under international law, particularly in circumstances where its nationals are exposed to serious harm.
“It is incumbent on Australia to ensure that its conduct does not support, legitimise, or give effect to measures arising from an unlawful situation, including restrictions on navigation or humanitarian access that lack a lawful basis.”
“This position also exposes the Government’s hypocrisy and double standards. It cannot credibly champion the Declaration on the Protection of Humanitarian Personnel – a Declaration intended to protect all humanitarian aid workers, including volunteers acting to preserve principled humanitarian action as a lifeline for civilians in conflict – while at the same time maligning and discouraging flotilla participants seeking to deliver urgent humanitarian relief and challenge Israel’s deadly and unlawful siege of Gaza. This stands in direct contradiction to the Declaration the Foreign Minister has declared as one of her distinct achievements.”
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Background:
- Israel’s unlawful naval blockade of Gaza has been in place for over 17 years, and was established in January 2009.
- According to the United Nations Convention on the Law of the Sea (UNCLOSE) and the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) which is widely regarded as an authoritative codification of customary international law, international law protects freedom of navigation on the high seas. A naval blockade cannot lawfully be used to enforce collective punishment, starvation, or the denial of humanitarian relief to a civilian population. Even where a blockade is asserted lawfully, it does not displace the obligation to allow and facilitate rapid and unimpeded humanitarian relief to civilians in need.
- Israel’s continued blockade and restrictions on humanitarian assistance to Gaza amount to serious and ongoing violations of international humanitarian law, including the prohibitions on starvation of civilians as a method of warfare and collective punishment, and the obligation to allow and facilitate rapid and unimpeded humanitarian relief. These obligations are reflected in the Fourth Geneva Convention, the First Additional Protocol to the Geneva Conventions, the San Remo Manual, and customary rules of international humanitarian law.
- Israel’s continued blockade and obstruction of humanitarian relief may engage the war crime of starvation of civilians as a method of warfare, which under the Rome Statute includes depriving civilians of objects indispensable to their survival, including by wilfully impeding relief supplies.
- There are outstanding ICC arrest warrants for Benjamin Netanyahu and Yoav Gallant who are among other things, alleged to have used starvation as a weapon of war against the civilian population in Gaza. Israel’s interception of the humanitarian flotilla vessels carrying essential aid to Gaza may constitute war crimes under the Rome Statute, as the interception reinforces the use of starvation as a weapon of war.
- These offences are also criminalised under Division 268 of the Commonwealth Criminal Code, meaning such conduct may also be investigated and prosecuted under Australian domestic law.
- Footage showing humanitarian flotilla participants bound, forced to kneel, publicly taunted and humiliated by Israeli officials raises serious concerns that their treatment may amount to outrages upon personal dignity, a war crime under the Rome Statute. Depending on the full facts, the detention and treatment may also engage war crimes and crimes against humanity of inhuman treatment, wilfully causing great suffering, torture, and unlawful confinement.
- Equivalent Rome Statute offences are criminalised under Division 268 of the Commonwealth Criminal Code, meaning such conduct may also be investigated and prosecuted under Australian domestic law.
- The International Court of Justice in its 2024 Advisory Opinion, has affirmed that Israel’s continued presence in the Occupied Palestinian Territory is unlawful and must be brought to an end as rapidly as possible. It has also made clear that all States, including Australia, must not recognise as lawful the situation arising from that unlawful presence, nor render aid or assistance in maintaining it. Australia must therefore ensure that its conduct (including public statements, travel advice, consular practice, diplomatic conduct, defence cooperation and any other form of engagement) does not contribute, directly or indirectly, to Israel’s unlawful occupation, siege, and obstruction of humanitarian access, as well as any unlawful interference with civilian vessels engaged in lawful navigation.
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