Back

Foreign Minister Penny Wong was right to champion a new declaration for the protection of humanitarian personnel at the United Nations in New York this week. But the initiative will only be effective if it tackles the threat posed by Hamas, Hezbollah and other terrorist groups who use aid workers and other civilians as human shields.


Wong has convened a ministerial group that will develop the declaration in partnership with the UN and non-governmental organisations, and to which all countries will be invited to pledge support. The diversity of the group, which includes Jordan, Indonesia, Sierra Leone, Colombia and Brazil, offers the potential for the declaration to be global in scope, and not targeted at a specific country. Such an approach would echo Canada’s declaration against arbitrary detention, which was universal despite being triggered by Beijing’s hostage diplomacy.


Pulling together working groups and getting things done are the hallmarks of Australian statecraft, as we’ve seen before on issues including countering proliferation and tackling economic coercion.


But the nature of the problem must be correctly identified at the outset—and Wong’s framing remarks on Gaza at the initiative’s launch raise concern that the declaration could become narrowly focused on Israel’s operations. The declaration cannot overlook the illegal tactics deployed by terrorists and some authoritarian countries of embedding forces among populations and using civilians as human shields. These tactics are a key reason why, as Wong has pointed out, 2023 was the deadliest year on record for aid workers and why Gaza is the most dangerous place on earth to be an aid worker.


There is ample evidence of armed groups around the world using civilian infrastructure to store weapons and plan attacks, including using humanitarian premises as cover for operations, which is illegal under international law. Satellite analysis by ASPI’s Nathan Ruser supported the assessment that the deadly explosion at al-Ahli hospital in Gaza in October 2023 was caused by a misfiring terrorist rocket, not an Israeli airstrike.


Terrorists also pose as aid workers. The UN has acknowledged that some employees of its Relief and Works Agency for Palestinian refugees might have been involved in the 7 October 2023 atrocities committed against Israel.


The playbook of Hamas and other terrorist organisations, which includes seizing humanitarian equipment, adds to the risk that aid workers could be targeted by mistake. After the killing by the Israeli military of Australian Zomi Frankcom and six colleagues from World Central Kitchen in Gaza in April, the report by former Chief of the Defence Force, Mark Binskin, noted that the presence of armed security guards in the convoy ‘gave the appearance of the presence of Hamas’ as it was consistent with the group’s approach of hijacking aid missions.


It would be devastatingly counterproductive if, by failing to address such tactics, this declaration gave terrorists a free pass on international law compliance. After all, the likes of Hamas and Hezbollah pose as legitimate political movements and care about their public image, which is the basis of their support. Therefore, we must call them out for war crimes, including the use of human shields, and increase pressure on them to change tactics.


Hamas’s 7 October attack should have illustrated to the world the dangers of tolerating the intolerable: a terrorist entity that controls territory and a population, with the declared intent to destroy its neighbour.


Sadly, a combination of groundless idealism and animosity to the US and Israel continues to prevent the international community taking collective action. Even the evident depravity of Islamic State’s caliphate did not stop Russia blocking a Security Council resolution to authorise the US-led coalition’s use of force against IS in Syria.


All parties to armed conflict, including non-state armed groups, have obligations under international law to facilitate and protect humanitarian activities. That’s why the proposed declaration needs to apply pressure on countries such as Lebanon, Syria and Iran to stop hosting and supporting terrorists, which is essential to protecting civilians and humanitarian work.


International law already obliges parties to an armed conflict to assess a range of legal criteria, including taking precautions and using force in a proportionate and discriminate manner, when targeting enemies hiding amongst human shields. But international law also leaves room for debate about how to distinguish between civilians that have been coerced into functioning as human shields against their will from people who have opted voluntarily to conceal terrorists, in which latter case they might lose some or all rights to protection.


This esoteric legal wrangle has very real implications for military commanders, working under combat conditions, who know that a mistake one way could leave them facing allegations of war crimes, while a mistake in the other direction might give the enemy respite to mount an attack.


The initiative is an opportunity to be ambitious by proposing solutions to these thorny, life-and-death issues. The declaration should condemn the use of human shields and pledge that signatories agree to take collective action against those who force civilians into that role. The declaration should also convene globally respected legal and security experts to chart the outline of a new framework that better clarifies and protects states’ right of self-defence when dealing with enemies using human shields.


In time, the declaration could dovetail with processes led by the UN Secretary-General under Security Council Resolution 2730, developing new, legally binding agreements and protocols specifically focused on tackling the problem of human shields. The Australian Defence Force could then lead the way in incorporating these new frameworks into operational doctrine and assisting other militaries to do the same.


That would be a lasting testament to Wong’s leadership and Australian statecraft. After all, who could object to a declaration against human shields?