Australia, Elbit, and the Law: Complicity, Accountability, and the Erosion of International Legal Norms

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Introduction

In April 2024, Australian aid worker Zomi Frankcom and six of her colleagues were killed by an Israeli drone strike in Gaza. Evidence later emerged that the drone was manufactured by Israeli weapons giant Elbit Systems which is long known for its close operational links with the Israeli Defence Forces (IDF). Less than a year later, documents obtained under freedom of information (FOI) laws reveal that the Australian government, contrary to repeated denials, directly approved and vetted Elbit's involvement in a $900 million defence contract. These revelations raise pressing legal and ethical questions under international law, particularly regarding complicity in war crimes and the duties of states under the Arms Trade Treaty and customary international humanitarian law.

Factual Background

In February 2023, Elbit Systems was awarded a $900 million subcontract by South Korean defence manufacturer Hanwha to supply weaponised turrets for Australia’s $7 billion “Redback” infantry fighting vehicle program. Public outrage followed as Elbit's products had been linked to operations in Gaza widely condemned as war crimes, including the drone strike that killed Frankcom.

Despite the gravity of these links, Defence Industry Minister Pat Conroy and Defence Minister Richard Marles repeatedly claimed in Parliament and to the public that the Commonwealth was not party to the Hanwha-Elbit agreement. Conroy even accused critics of “lying” when they suggested otherwise.

However, documents now released under FOI contradict these statements. They reveal that:

  • The Commonwealth undertook a cost investigation of Elbit’s turret proposal in August 2023;

  • The Department of Defence provided oversight and approval at several stages of Elbit’s involvement;

  • The government directly signed off on the subcontractor’s participation.

These actions amount to far more than passive awareness—they constitute direct, active engagement.

Legal Framework: Complicity and Arms Transfer Obligations

Under international law, Australia may now face potential liability for aiding and abetting internationally wrongful acts if it can be shown that:

  1. Elbit's weapons systems are being used in the commission of war crimes or crimes against humanity;

  2. Australia knew or should have known this when approving the deal; and

  3. Australia’s actions had a material effect on Elbit’s ability to participate in these acts.

This is consistent with Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts, which prohibits knowingly assisting another state in committing internationally wrongful acts. Furthermore, the Arms Trade Treaty (ATT) - to which Australia is a State Party -explicitly requires States to deny arms transfers if there is an “overriding risk” that the weapons would be used to commit or facilitate serious violations of international humanitarian law or international human rights law.

The deliberate killing of humanitarian workers, particularly when they are clearly marked, as World Central Kitchen staff were, is a grave breach of the Geneva Conventions. If the drone used in that strike was indeed manufactured by Elbit, and if Australia facilitated Elbit's ability to produce or export such systems, Australia risks being seen as complicit in a breach of Common Article 1 of the Geneva Conventions, which requires all High Contracting Parties to “respect and ensure respect” for international humanitarian law.

Parliamentary Accountability and the Rule of Law

Ministerial statements made in Parliament are not merely political speech; they carry legal significance. Deliberate misrepresentation to Parliament may amount to a breach of ministerial codes of conduct, and, in extreme cases, may engage the principle of ministerial responsibility for misleading the legislature.

In this instance, ministers not only obfuscated the Commonwealth's role but dismissed questions raised by Members of Parliament as falsehoods. When FOI disclosures later vindicated those very questions, the silence from ministers was deafening. This raises concerns about transparency, accountability, and the erosion of democratic oversight in matters of defence procurement, particularly when those procurements may implicate international crimes.

Broader Implications: Erosion of Norms and Legal Cynicism

This episode is emblematic of a broader erosion of good faith adherence to international legal norms. States - including liberal democracies like Australia - continue to affirm their commitment to the “rules-based international order” while simultaneously facilitating arms transfers to actors credibly accused of war crimes. The gap between rhetoric and conduct breeds legal cynicism, both domestically and internationally.

It also highlights the selectivity with which international law is invoked. While Australia has rightly condemned Russian atrocities in Ukraine and supported ICC investigations there, its engagement with Elbit, and evasiveness about that engagement, suggests a troubling double standard. International law cannot function if it is treated as optional or weaponised for strategic convenience.

Conclusion: Toward Accountability

International law does not prohibit all military procurement. Nor does it forbid states from entering into contracts with foreign defence manufacturers. But where those companies are credibly implicated in the commission of war crimes, especially in relation to an ongoing genocide or ethnic cleansing campaign,  states must exercise due diligence, ensure compliance with international obligations, and avoid any action that could be construed as facilitating atrocity crimes.

At minimum, the Australian government must:

  1. Suspend the Elbit contract pending independent legal review;

  2. Establish a parliamentary inquiry into ministerial statements and procurement oversight;

  3. Reaffirm Australia’s commitment to the Arms Trade Treaty and Geneva Conventions through binding domestic implementation and policy reform.

Anything less risks reducing the international legal order to hollow formalism and implicating Australia in future atrocity crimes, not as a bystander, but as a participant.

References:

  • UN General Assembly, Articles on the Responsibility of States for Internationally Wrongful Acts (2001)

  • Arms Trade Treaty (2013), Article 7

  • Geneva Conventions (1949), Common Article 1

  • FOI documents obtained by Crikey, July 2025

  • Statements by Ministers Pat Conroy and Richard Marles, Hansard, June–August 2024

  • Amnesty International & Human Rights Watch briefings on Elbit Systems and Gaza

  • ICRC Customary International Law Database

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