The Australian government’s cautious response to the international criminal court prosecutor’s pursuit of the leaders of Israel and Hamas has drawn a furious reaction from the Coalition and News Corp.
But how does this compare with the Australian government’s response to previous ICC investigations? Where does Australia stand on the ICC’s jurisdiction to investigate crimes on Palestinian territory? And what happens next?
Who would be covered by the arrest warrants?
The ICC’s chief prosecutor, Karim Khan KC, has applied for warrants for the arrest of five people in connection with events in Gaza and Israel since Hamas’s 7 October attacks.
Khan said he had “reasonable grounds to believe” three Hamas leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – bore criminal responsibility for war crimes and crimes against humanity, including extermination, murder, taking hostages, rape and sexual violence, torture and cruel treatment.
In addition, Khan said he had “reasonable grounds to believe” the Israeli prime minister, Benjamin Netanyahu, and the Israeli defence minister, Yoav Gallant, bore criminal responsibility for war crimes and crimes against humanity during the ensuing conflict, including “starvation of civilians as a method of warfare”, intentionally directing attacks against a civilian population, and “extermination and/or murder … including in the context of deaths caused by starvation”.
Netanyahu, Gallant and Hamas have rejected the allegations. Israel’s ambassador to Australia, Amir Maimon, told the National Press Club on 25 October his country was acting in “full compliance” with international law.
How has the Australian government responded?
The prime minister, Anthony Albanese, told reporters on Tuesday he would not comment on “court processes globally [to] which Australia is not a party”.
Later in the day, the Department of Foreign Affairs and Trade outlined the government’s formal position, saying it “notes” Khan’s request and Australia “respects the ICC and the important role it has in upholding international law”.
Dfat reiterated the general principle that “there is no equivalence between Israel and Hamas” and renewed calls for the immediate release of hostages. It added: “Any country under attack by Hamas would defend itself. And in defending itself, every country is bound by the same fundamental rules. Israel must comply with international humanitarian law.”
Chris Bowen, a cabinet minister, put it more bluntly on Sky News: “International law must always be observed and nobody gets a free pass from that.”
How does this compare with how Australia responded in the past?
In early 2022, Khan opened an investigation into the situation in Ukraine after Australia joined about 40 countries in making a referral to his office.
In March 2023, when the ICC issued arrest warrants for the Russian president, Vladimir Putin, and Russia’s commissioner for children’s rights, Maria Alekseyevna Lvova-Belova, Australia “welcomed” the court’s decision as “an important step towards justice for Ukraine and its people”, according to ministerial talking points.
After South Africa applied to the international court of justice (ICJ) alleging Israel was breaching the genocide convention, the foreign minister, Penny Wong, said: “Our support for the ICJ and respect for its independence does not mean we accept the premise of South Africa’s case.” The ICC prosecutes individuals whereas the ICJ considers disputes between states.
What has been the criticism of Australia’s position?
The opposition leader, Peter Dutton, said the government had “squibbed” its response and should join the US in direct condemnation of the warrant requests. “It’s an abomination and it needs to be ceased. This action is antisemitic,” Dutton said.
He said he was “very open” to the option of Australia cutting ties with the ICC, but the government should first “put pressure on the ICC to make sure that they reverse this terrible decision”.
This line of attack has been amplified by News Corp commentators. The Australian newspaper’s foreign editor, Greg Sheridan, said it was “a day of shame for Australia”, which need not “be the slaves of the judgments and prejudices of UN-related international bodies”.
On Sky News on Tuesday night, Chris Kenny said Australia’s response was “pathetic”, while Peta Credlin condemned “gutlessness in a hard hat” (a reference to Albanese’s building site press conference).
Appearing on Kenny’s program, the Liberal MP Andrew Wallace said without evidence: “The Labor party of Australia are backing Hamas over Israel.”
What do legal experts say?
Donald Rothwell, a professor of international law at the Australian National University, said Australia “does not have a role to play in commenting on the actions of the ICC prosecutor and the work of the office of the prosecutor in seeking any particular arrest warrants”.
He said Australia would be mindful of article 70 of the Rome Statute setting up the ICC which criminalises “impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties”.
Weighing in on the Hamas/Israel “false equivalence” issue, Rothwell said the Rome Statute “does not make a distinction between a ‘defender’ and an ‘aggressor’ when it comes to war crimes and crimes against humanity”. He said: “International humanitarian law and the enforcement mechanisms under international criminal law apply to all sides to a conflict irrespective of the rights or wrongs as to how they initially resorted to the use of armed force, including those that assert a right of self-defence.”
Douglas Guilfoyle, professor of law and international security at the University of New South Wales Canberra, wrote on the Articles of War blog: “The point of international humanitarian and international criminal law is not to prevent states defending themselves, but to insist that they do it within the limits set by law.”
Does Australia accept the ICC’s jurisdiction?
Under the Morrison government, Australia disputed the right of “any so-called ‘State of Palestine’ to accede to the Rome Statute” and argued the ICC did not have jurisdiction to investigate war crimes in the territory.
But the pre-trial chamber decided in February 2021 “that the Court’s territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”.
Dfat has not clarified whether the Albanese government maintains the previous position on jurisdiction, saying after recent Senate estimates hearings: “Australia will not pre-empt ongoing prosecutorial and judicial processes in this matter.”
What happens next?
The application now goes to one of the ICC’s pre-trial chambers to be decided by a panel of three judges. The arrest warrants could be approved in whole or in part or rejected.
If the warrants were approved, the 124 parties to the Rome Statute – including Australia – would be obliged to arrest the targeted individuals should they enter their territory.
“The United States, Russia, China, and much of central and south-east Asia are not parties,” Guilfoyle said. “Still, while living as an international fugitive might not make a notable difference to the life of a Hamas military leader, one can scarcely imagine a politician as used to the global stage as prime minister Netanyahu relishing the prospect.”
US politicians are threatening sanctions against ICC officials. When the Trump administration imposed sanctions on ICC officials in 2020, Wong said the Labor opposition “objects” to the US sanctions and argued the ICC’s work was “vital to upholding international law and the multilateral rules-based order”.
