Ever since the October 7 2023 Hamas terrorist attack on Israel, the Albanese government has consistently said Australia respects Israel’s right to defend itself, but how it does so matters.
To an international lawyer, those words are code for simultaneously exercising the right of self defence and respecting international humanitarian law. In effect, remaining compliant with the laws of war.
Now, with the International Criminal Court’s issuing of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, Australia and other like-minded states face a dilemma.
In July, Australia, Canada and New Zealand issued a joint statement that said, in part:
Israel must listen to the concerns of the international community. The protection of civilians is paramount and a requirement under international humanitarian law. Palestinian civilians cannot be made to pay the price of defeating Hamas.
Since the arrest warrants were issued last week, Canada, a number of European countries and others have made clear they would arrest Netanyahu if he steps foot in their countries. Will Australia and New Zealand now follow suit?
International courts and the Gaza war
Over the past year, there has been an increasing focus on the legality of Israel’s actions in Gaza and its impact on the Palestinian population.
This was first highlighted by the case brought by South Africa in the International Court of Justice (ICJ) in late December alleging Israel was responsible for genocide against the people of Gaza.
This was followed by the ICJ’s separate advisory opinion in July saying that Israel’s continued occupation of the Palestinian territories violated international law and its presence there should end “as rapidly as possible”.
Then, last week, the International Criminal Court (ICC) issued the arrest warrants for Netanyahu and Gallant for alleged war crimes and crimes against humanity arising from their roles as political leaders in the prosecution of the Gaza war.
The ICC’s prosecutor, Karim Khan, had also been seeking arrest warrants for three Hamas leaders. Two have been killed in recent months, while the third, Mohammed Al-Masri, more commonly known as Mohammed Deif, is also believed to be dead. The ICC nonetheless issued a warrant against him, too.
The jurisdiction of the ICC over the Gaza war, however, is not clear cut because Israel is not a party to the Rome Statute. This is the treaty that established the court and gave it the remit to investigate war crimes and crimes against humanity.
The court’s jurisdiction in its Israel and Gaza investigations is therefore founded on Palestine having become a party to the statute in 2015. That was a matter of legal, diplomatic and political controversy because Palestine is not universally recognised as a state.
The Rome Statute also gives the court jurisdiction over alleged crimes committed in countries that are not members of the ICC. The UN Security Council can refer these actions to the court for investigation, though given the split between the United States, Russia and China on the Security Council, it’s unlikely they’d find agreement on Israel.
The legality of the arrest warrants
The ICC’s arrest warrants have raised two other substantive legal matters that states will likely take into account when deciding how to respond.
First, the ICC was designed as a “court of last resort” in relation to allegations of war crimes and crimes against humanity.
This means it gives deference to national war crimes investigations and prosecutions. So, there is a possibility the Netanyahu and Gallant arrest warrants could be paused if Israel starts its own investigations.
Israel’s military has an internal agency that investigates alleged violations of international rules of conduct. However, human rights groups have accused the military of a lack of transparency and will to investigate its own soldiers. And there is no evidence Israeli political leaders are under investigation for their actions during the war.
The second issue is that international law recognises the principle of “head of state immunity”, which means a leader of a country is immune from arrest for alleged crimes.
This principle, however, does not apply under the Rome Statute. And because Israel is not a party to the ICC, Netanyahu arguably still enjoys immunity under customary international law.
Whether this immunity applies to certain international crimes, such as war crimes and crimes against humanity, has become increasingly contested.
This was tested in the late 1990s when Chilean dictator Augusto Pinochet was arrested in the United Kingdom on a warrant issued by a Spanish judge for alleged torture committed against Spanish citizens in Chile. Pinochet claimed immunity as a former head of state. British courts rejected his claim, though he was never extradited to face trial.
After the ICC issued an arrest warrant against Vladimir Putin for his actions in the Ukraine war, Western states have given little weight to this principle.
South Africa’s genocide case
While the recent focus has been on the ICC’s actions, the ICJ has also been reviewing the legality of Israel’s conduct in Gaza.
The ICC is a criminal court that seeks to hold individuals accountable for alleged crimes, while the ICJ is focused on the responsibility of states for breaches of international law.
South Africa’s case against Israel has already been before the ICJ an unprecedented four times since January. Three sets of provisional measures have been issued against Israel based on what the court says is a “plausible” case of genocide.
This case, however, remains in the early stages and has many years to run. There is a very high legal bar to clear to conclusively prove Israel has committed genocide. Much will turn on evidence of genocidal intent.
Israel’s supporters now face a choice
These legal processes highlight how important international law has become in seeking to hold Israel and its leaders (in addition to Hamas) to account for their actions.
And this, in turn, has placed Australia, New Zealand and like-minded countries that have historically been strong friends and supporters of Israel in a diplomatic and political quandary.
There is an historical and strong bipartisan position in Australia that supports the rules-based, international order founded after the second world war. The ICJ and ICC are at the core of this international order. Australia also has a judge that sits on the ICJ, and has strongly supported the ICC’s pursuit of Putin over Russia’s war in Ukraine.
As a middle power, Australia’s global interests are deeply embedded in this international order. As difficult as it has been for Australia to see Israel and its leader placed under the international legal spotlight, failing to support these processes and their outcomes risks further undoing the international order.
Donald Rothwell receives funding from Australian Research Council.
