Attorney-General Mark Dreyfus has the power to ignore ICC warrants for Israeli leaders: expert
The Attorney-General has refused to answer questions over whether he would exercise his powers to ignore the International Criminal Court’s arrest warrants against Israeli leaders.
Mark Dreyfus has the power to decide whether Australia chooses to ignore the International Criminal Court’s warrants against Israeli leaders, a leading international law expert says, as Penny Wong dodged questions on whether Prime Minister Benjamin Netanyahu would be arrested should he enter the country.
It comes as the nation’s peak Jewish body condemns the “politicisation” of the ICC in issuing the arrest warrants against the Israeli leader and former defence minister Yoav Gallant, in a new policy document demanding Australia not co-operate with the “unfounded and irresponsible” decision.
A leading barrister has criticised the ICC for displaying an “obvious bias” in pressing the warrants, saying they “ought never to have been issued”.
The ICC on Friday made the unprecedented move that means its 124 member nations, including Australia, are obliged to arrest the Israeli leader if he visits.
University of Wollongong law professor Gregory Rose, who used to work in the legal branch of the Department of Foreign Affairs, told The Australian domestic legislation gave the Attorney-General power to ignore the warrant because of competing obligations between the Rome Statute and the Vienna Convention.
“There’s an obligation to the ICC under the Rome Statute but there are other obligations under customary international law and other international conventions which compete,” he said.
“What has Australia done in its domestic legislation? It’s implemented the International Criminal Court Act in the Criminal Code, similar to what has been done in other countries. Under the Australian legislation … the Attorney-General has the discretion not to co-operate and not to execute an arrest where there are conflicting international obligations.”
The Attorney-General on Tuesday ignored questions from The Australian on whether he would exercise this discretion. A government spokesperson said: “It’s not appropriate to speculate on hypotheticals around individual cases.”
The Executive Council of the Australian Jewry at an annual general meeting at the weekend passed a unanimous vote in favour of a policy criticising the ICC decision for its “manifest bias” in “singling out the … Jewish nation’s leaders in a way that no other democratic nation’s leaders are pursued”.
“The ICC chief prosecutor cancelled a fact-finding trip to Israel by his staff before issuing the request for the arrest warrants, thereby denying Israel the opportunity to respond or provide any explanation, an opportunity which the prosecutor has afforded to other states in respect of which allegations have been made in connection with other conflicts, thereby demonstrating bias,” the policy reads.
“The ICC has taken no action against any parties within aggressor states conducting armed attacks against Israel, nor against many others responsible for much larger-scale conflicts, deaths and suffering, including those in Afghanistan, Iraq and Syria, despite the fact that certain states involved in those conflicts are within the ICC’s jurisdiction.”
The policy says Israel is a “democracy exercising its inherent right to self-defence under international law against state-sponsored terrorist attacks, the perpetrators of which have openly threatened to repeat such attacks again and again”.
“The armed attack against Israel that was planned and initiated by Hamas and its supporters on 7 October, 2023, was a violation of the Laws of Armed Conflict, and these laws continue to be violated by Hamas and its supporters who have: deliberately targeted Israeli civilians who were murdered, tortured, raped, mutilated and abducted; deliberately used civilians in Gaza as human shields and civilians structures as bases of military and terrorist operations; and prevented all outside contact and humanitarian access to the hostages,” the document reads.
The Australian understands Jewish leaders in every state and territory were present at the ECAJ meeting to vote through the policy, including, for the first time, a member from the Northern Territory.
The ECAJ policy document urges that the Australian government “not extend any co-operation in executing these unfounded and irresponsible arrest warrants”.
It also says the ECAJ “expresses its deep concern that in the above circumstances, the Australian government has failed to question, let alone criticise or condemn, the ICC decision”.
The Foreign Minister on Tuesday refused to answer questions from the Greens on whether Australia would arrest Mr Netanyahu “if he dares set foot on this land”.
Greens senator Mehreen Faruqi accused Senator Wong of using “weasel words” when describing the government’s approach, but the Foreign Minister said Australia as a middle power “has an interest in international law and the international legal framework being observed”.
“And that is why we have taken the position we have in relation to what has happened in Gaza,” she said. “It is consistent with Australia’s position in the South China Sea.”
Barrister and UNSW adjunct professor David Knoll said there was “obvious bias” in the ICC’s decision. “If the Australian government wishes to focus on the quality of the legal process that the ICC has adopted in order to assure themselves that these warrants were soundly based and properly issued, it would not take much to identify that they were not soundly based and ought never to have been issued,” he said.
“The Prime Minister and the Foreign Minister could easily satisfy themselves that the proper legal processes were not followed, that there’s obvious bias, and that in those circumstances, we should not extend the hand of co-operation to the ICC on these arrest warrants.”
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