Australian Outlook

Criminalising Gaza

12 May 2022
By Dr Tristan Dunning and Dr Jeroen Gunning
Boys enrolled in Hamas-affiliated summer camps in the Gaza Strip. Source: Joe Catron

The Australian government recently announced its intention to designate the entirety of Hamas as a terrorist organisation. Doing so all but precludes the possibility of constructive engagement to alleviate the ongoing humanitarian crises in Gaza and reaching a meaningful political solution to the Palestine-Israel conflict.

This follows similar blanket designations by the United States and the United Kingdom. From 2003 until now, Australia has only designated the movement’s armed wing, the Izz ad-Din al-Qassam Brigades, as a terrorist organisation, marking a clear separation between the movement’s armed and socio-political aspects.

The Australian decision is flawed on both procedural and practical grounds. Procedurally, there was a severe lack of transparency and fair representation in the recommendation process. Strikingly, no Palestinians were invited to give evidence to the Joint Parliamentary Committee on Intelligence and Security. Of the non-governmental witnesses providing evidence, only experts and advocacy groups with known pro-Israel positions were given a hearing. The Australia Palestine Advocacy Network told the authors that they were not even informed that the hearing was taking place, let alone asked to make a submission.

This bias is further evidenced in the way the “terrorism” label is used to obscure the context and criminalise one party to the conflict. Indubitably, the Qassam Brigades have committed numerous atrocities throughout their history, including the targeting of non-combatant civilians. However, the labelling of terrorist elides why some Palestinian actors resort to armed actions, which should be understood within the context of an illegal fifty-five-year military occupation that has been condemned by dozens of UN Security Council resolutions. Israel’s settler-colonial activities in the occupied West Bank arguably are in breach of Article 49 of the Fourth Geneva Convention and the Rome Statute of the International Criminal Court. According to international law, Palestinians have the right to resist foreign occupation, thereby legitimising armed resistance – if not necessarily the individual acts of violence undertaken. Ukrainian citizens are exercising their right to take up arms against Russian aggression. Why is this different for Palestinians?

As for the killing of civilians, the number of Palestinian non-combatants killed by Israeli security forces outstrips the number of Israeli civilians killed by Palestinians by a factor of six, according to the Israeli human rights organisation, B’Tselem. This raises the question why the Australian government only blacklists one side in the conflict, rather than, for instance, supporting the International Criminal Court in determining the extent to which each side has committed war crimes.

Second, the decision is flawed on practical grounds. There are no clear counterterrorism benefits domestically because there is no evidence that Hamas operates in Australia. In his testimony to the committee, Director-General of Security of the Australian Security Intelligence Organisation Mike Burgess opined that blacklisting the entirety of Hamas would be of no operational benefit to Australian intelligence.

Previous decisions by the Australian government regarding the proscription of the Qassam Brigades, but not Hamas in its entirety, note the operational independence of the former and its separation from Hamas’ wider socio-political activities. Further, the committee previously noted that the Qassam Brigades sometimes act against the wishes of the political leadership. It is unclear what has changed since then, especially given the current decision was made during a period of reduced tension between Hamas and Israel, which included the allowance of workers from Gaza back into Israel

The de facto separation between armed and socio-political activities, which has a long history in Hamas, is pragmatic for all parties involved, insofar as it allows public political engagement with armed non-state organisations seeking to address socio-political grievances. Analogies with Sinn Fein and the Provisional Irish Republican Army are useful here.  Engagement with Hamas can be constructive, as demonstrated by the Swiss government  following Hamas’s electoral victory in 2006. With both Israeli former intelligence chiefs and the UN having asserted that there is no military solution to the conflict, political engagement, however difficult, is the only way forward. The terrorist labelling hinders such endeavours.

The decision may also have dire implications for pro-Palestinian initiatives in Australia, given the difficulties of assessing who is and is not linked to Hamas. This is especially the case given that anyone dealing with Gaza from abroad will have to go through the Hamas-led government there. Under Australian counterterrorism laws, any individual found guilty of offences related to terrorism, including membership, recruitment, training, soliciting funds, and even support or association, may face up to 25 years imprisonment. The multifaceted nature of Hamas, including notionally associated charities, such as orphanages, medical clinics, youth associations, and educational institutions, means that the crime of association is extremely problematic. This is further complicated by the fact that since seizing power in what some analysts see as a pre-emptive countercoup against Fatah in 2007, Hamas has been the de facto government of Gaza, even if it is not recognised by much of the international community.

In practice, it is hard to see how such a ruling could be enforceable in any consistent fashion. As such, it will only make life more difficult for the two million Palestinians in the Gaza Strip, 75 percent of whom are refugees, and who have been subject to a crippling blockade since the Hamas-backed list won free and fair elections in 2006. The proposed designation of the entirety of Hamas ignores the pervasiveness of government’s role in the everyday lives of their constituents.

Hamas runs all public services: the bureaucracy, the schools, the hospitals, the firefighters, the civilian police, all the way down to the street sweepers and garbage collectors. According to the UN Office of Coordination of Humanitarian Affairs, the public sector – that is, the Hamas-led government and the Palestinian Authority – account for 37 percent of Gaza’s workforce, not to mention the amount of the population who are dependent on their salaries. Are these individuals or anyone who supports them potentially guilty of terrorism-related offences? Are individuals reliant on the social services provided by the governing authorities guilty of association?

As de facto rulers, Hamas coordinates with international humanitarian agencies and charities. How much will this complicate their efforts to alleviate the humanitarian crisis in Gaza, with 80 percent of Gazans relying on humanitarian assistance to survive? The cost and disruption that can be caused by accusations of funding terrorism are clear from cases such as the UK-based charities Islamic Relief Worldwide and Interpal. The expansion of lawfare tactics in the US against charities supporting Palestinians shows the potentially deleterious effect of expanding the terrorism label to cover all of Hamas.

Given the small, tightly knit, and interconnected nature of Palestinian society, the decision will inevitably have knock-on effects for Palestinians in the West Bank, Israel, and the diaspora. Such notional connections with individuals or organisations associated with Hamas – whether genuine, apparent, or potentially confected – will be extremely difficult, if not impossible, to disentangle in any clear-cut manner. Australia’s relations with Palestinians in general will be extremely compromised if Hamas and the internationally backed Fatah-led Palestinian Authority eventually reconcile.

If applied consistently, moreover, it may also impact Australia’s foreign relations. Qatar, for instance, periodically injects large amounts of cash to enable the Hamas government to function. Hamas has also received support from Iran and Turkey, among others.

It appears that the practicalities and potential unintended consequences of designating the entirety of Hamas as a terrorist organisation have not been thought through. The previous composition of the witnesses to the parliamentary committee hardly inspires confidence in this process. The parliamentary committee appears to recognise this, as it now taking new submissions until 13 May to be reconsidered by the new composition of government following the upcoming elections.

The designation of the entirety of Hamas as a terrorist organisation will have negligible practical effects in terms of counterterrorism as Hamas does not operate in Australia. It will also potentially criminalise the lives of two million Palestinians who happen to live under Hamas rule, leading to their further isolation and exacerbation of the dire humanitarian situation in the Gaza Strip. What Gazans need is not the blacklisting of their government but increased humanitarian support and the lifting of the almost two decades’ old blockade.

Dr Tristan Dunning is an Associate Professor of Political Science and Public Administration at the American University of Afghanistan and an honorary research fellow at the University of Queensland. He is the author of Hamas, Jihad and Popular Legitimacy: Reinterpreting Resistance in Palestine (2016) and the editor of Palestine: Past and Present (2019). Tristan has published in the peer-reviewed academic journals Critical Terrorism Studies, Terrorism and Political Violence, and Small Wars and Insurgencies, as well as numerous media outlets. His research examines armed non-state actors and governance in Middle East.

Dr Jeroen Gunning is Visiting Professor of Middle East Politics and Conflict Studies at Aarhus University and the London School of Economics. He has held positions at King’s College London, Durham University, Aberystwyth University and the University of Oxford. His research focuses on political contestation in the Middle East, with a specific focus on the interplay between social movements, religion, electoral politics, repression, violence and structural change. His publications include Hamas in Politics: Democracy, Religion, Violence (Hurst/CUP 2007/2008) and, with Ilan Baron, Why Occupy a Square? People, Protests and Movements in the Egyptian Revolution (Hurst/OUP 2013/14). 

This article is published under a Creative Commons Licence and may be republished with attribution.