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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.
