Many peo­ple may be won­der­ing how the Inter­na­tion­al Crim­i­nal Court (ICC) can have juris­dic­tion over Israeli polit­i­cal lead­ers when Israel is not a par­ty to the Rome Statute, the treaty under which the ICC is con­sti­tut­ed.  The answer is that the ICC acquired juris­dic­tion as the result of its much-crit­i­cised deci­sion in 2021 (by a 2:1 split vote), which upheld the claim of “Pales­tine” to be regard­ed as a State par­ty to the Rome Statute. The ICC stat­ed that it made that deci­sion irre­spec­tive of whether or not “Pales­tine” can prop­er­ly be regard­ed as a State for gen­er­al legal pur­pos­es.    

As a con­se­quence of the 2021 deci­sion, the ICC’s ter­ri­to­r­i­al juris­dic­tion extends to “the ter­ri­to­ries occu­pied by Israel since 1967, name­ly Gaza and the West Bank, includ­ing East Jerusalem”.  Inter­na­tion­al crimes alleged­ly com­mit­ted in those ter­ri­to­ries can there­fore be inves­ti­gat­ed and pros­e­cut­ed by the ICC.  The rel­e­vant his­to­ry is suc­cinct­ly sum­marised here: https://www.icc-cpi.int/victims/state-palestine  

The ICC Pros­e­cu­tor has rec­om­mend­ed and request­ed that arrest war­rants be issued and charges laid against Israeli Prime Min­is­ter Ben­jamin Netanyahu and Defence Min­is­ter Yoav Gal­lant, and three Hamas lead­ers, but that is a request which the pre-Tri­al Cham­ber of the ICC will now have to deter­mine.  No arrest war­rants have been issued at this stage. 

If arrest war­rants are issued by order of the pre-Tri­al Cham­ber, then those who are named in the arrest war­rants will no longer be able to trav­el to Aus­tralia, or any of the 124 coun­tries which are par­ties to the Rome Statute, with­out those coun­tries being under a legal oblig­a­tion to arrest them and hand them over to the ICC.  They would still be free to trav­el direct­ly to and from coun­tries which are not par­ties to the Rome Statute, includ­ing the US, Rus­sia and Chi­na. 

The rec­om­men­da­tion made by the ICC Pros­e­cu­tor has been wide­ly con­demned. This is the first time an ICC Pros­e­cu­tor has request­ed the ICC to arrest and pros­e­cute the polit­i­cal lead­ers of a demo­c­ra­t­ic coun­try engaged in a war of self-defence.  If the pre-Tri­al Cham­ber agrees to the request, it will set a prece­dent that may well paral­yse demo­c­ra­t­i­cal­ly-elect­ed gov­ern­ments every­where in defend­ing their coun­tries against future armed attacks by ter­ror­ist organ­i­sa­tions, and oth­ers.   

It will also mean that respect­ed, inde­pen­dent courts of demo­c­ra­t­ic coun­tries, includ­ing those of Aus­tralia, will not be trust­ed to act fair­ly and impar­tial­ly in pros­e­cut­ing inter­na­tion­al crimes com­mit­ted by their own country’s polit­i­cal and mil­i­tary lead­ers.  Instead the mat­ter will be dealt with by the ICC whose own stan­dards of fair­ness and impar­tial­i­ty are now com­ing under ques­tion in the light of the ICC’s high­ly polit­i­cal con­duct con­cern­ing Israel.    

The prosecutor’s request thus appears to vio­late one of the basic prin­ci­ples under which the ICC was estab­lished, name­ly the prin­ci­ple of com­ple­men­tar­i­ty. Under the Rome Statute, the ICC may only pros­e­cute Israeli offi­cials if the Israeli domes­tic legal sys­tem refus­es to pros­e­cute them or is inca­pable of pros­e­cut­ing impar­tial­ly.  The Israeli jus­tice sys­tem has demon­strat­ed repeat­ed­ly that it will not shrink from pros­e­cut­ing and con­vict­ing any­one for crim­i­nal con­duct, includ­ing Israeli Pres­i­dents and Prime Min­is­ters. 

For crit­ics of the ICC pros­e­cu­tor, the most odi­ous aspect of his rec­om­men­da­tion is the false moral equiv­a­lence which it draws between Israel – with its vibrant lib­er­al democ­ra­cy, robust legal sys­tem, and an impar­tial and inde­pen­dent judi­cia­ry – and Hamas, a loath­some ter­ror­ist organ­i­sa­tion whose acts of rape, tor­ture, muti­la­tion and butch­ery of Israeli women, chil­dren and whole fam­i­lies, and use of Pales­tin­ian civil­ians as human shields, have become the hall­mark of evil in our time. 

Pres­i­dent Biden has called this false com­par­i­son “out­ra­geous”, a con­dem­na­tion echoed by Oppo­si­tion Leader Peter Dut­ton and Australia’s longest serv­ing For­eign Min­is­ter, Alexan­der Down­er.  Australia’s Prime Min­is­ter should do like­wise.