By Dominic Giannini in Canberra
Australia would be forced to arrest Israel’s prime minister and former defence minister on charges of war crimes under an international court ruling that’s splitting the global community.
The International Criminal Court (ICC) found there were reasonable grounds that Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant bore criminal responsibility for alleged war crimes.
This includes allegations of using starvation as a method of warfare and attacks intentionally directed against civilians in Gaza.
An arrest warrant was also issued for Hamas’ military wing commander Mohammed Diab Ibrahim Al-Masri for crimes against humanity and war crimes of murder, extermination, torture and rape.
The warrants are not a finding of guilt.
Foreign Minister Penny Wong defended the court’s independence while the coalition called on the federal government to follow the United States in rejecting the court’s jurisdiction.
The chances of Mr Netanyahu visiting Australia are remote but the country’s obligations as a member of the court under the Rome Statute are legally binding, international law expert Don Rothwell said.
The US position needs to be viewed on the basis that it is not a member, while Australia was, Professor Rothwell told AAP.
The issue of jurisdiction had already been decided when the court found it had the power to investigate alleged crimes in Palestinian territories, with Palestine being a member of the court, he said.
“Israel is not a party but the evidence is overwhelming that crimes have been alleged to be committed in the territory of Palestine – territorial jurisdiction is clearly met,” Prof Rothwell added.
The international law expert said that until now the court had very strong bipartisan support in Australia, and any deterioration in that support could damage the country’s international reputation.
Political leaders can’t selectively apply legal rulings, Prof Rothwell said, pointing to widespread support for a warrant issued against Russian President Vladimir Putin following his invasion of Ukraine.
Human rights groups defended the criminal court’s decision, with Amnesty International saying the “wheels of justice have finally caught up with those who are alleged to be responsible for war crimes and crimes against humanity”.
The warrants signalled the end of impunity of human rights abuses in Israel and Palestine, Secretary General Agnes Callamard said.
The Jewish Council of Australia called for Australia to sanction Israel, with executive officer Max Kaiser adding the foreign minister needed to clearly articulate that Australia would commit to enforcing the warrants.
The Zionist Federation of Australia condemned the warrants, saying the court had failed to recognise Israel was fighting against terrorists in a war it didn’t start.
“This morally bankrupt decision by the ICC undermines justice by targeting the leaders of a democratic nation defending itself against terrorism,” President Jeremy Leibler said.
The criminal court should be working with states and their legal systems to address the issue, “not seeking to supplant them”, Nationals senator Bridget McKenzie said.
While it’s true that the court is a last resort to domestic legal systems, there was no evidence of Israeli investigations into senior military commanders and political leaders over the allegations, Prof Rothwell said.
Earlier arrest warrants for the leader of Hamas in Gaza and the former head of its political bureau were withdrawn following confirmation of their deaths.
The official death toll in Gaza has eclipsed 44,000, according to the local health ministry, with tens of thousands more missing or believed to be buried under rubble.
Israel’s war in Gaza was sparked by listed terror group Hamas’ attack on October 7, 2023, that killed 1200 people and resulted in 250 hostages being taken, according to Israel’s tallies.
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