Alexander Downer slams International Criminal Court over ‘outrageous’ arrest move

Former foreign affairs minister Alexander Downer says he would, if still in government, withdraw from the ICC if judges proceed with prosecution against Israeli leaders alongside Hamas terrorists.

Former foreign affairs minister Alexander Downer has lashed the ICC’s decision to issue arrest warrants for Israeli leaders.

Former foreign affairs minister Alexander Downer has accused prosecutor Karim Khan of “destroying” the International Criminal Court in requesting arrest warrants of Israeli leaders alongside those of Hamas terrorists, and says he would, if still in government, withdraw from the court if judges proceed with prosecution.

Mr Downer, who led Australia to joining the ICC under the Howard government, says Mr Khan has drawn a “moral equivalence” between Israel’s functioning democracy and a “terrorist organisation which is determined to destroy and kill the Jewish people and eliminate their country”.

He said the decision to issue the warrants was “so, so wrong” and saying he is “absolutely heartbroken” at what the ICC has become.

Mr Khan requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defence chief Yoav Gallant, along with three Hamas leaders – Yahya Sinwar, Mohammed Deif and Ismail Haniyeh – for crimes against humanity and alleged war crimes on Monday evening.

In a statement, he said that he was seeking warrants against the Israeli leaders for crimes including “wilful killing”, “extermination and/or murder”, and “starvation”.

He said Israel had committed “crimes against humanity” during the war, started by Hamas’s unprecedented October 7 attack, as part “of a widespread and systematic attack against the Palestinian civilian population”.

Khan also said the leaders of Hamas “bear criminal responsibility” for actions committed during the October 7 attack. These included “taking hostages”, “rape and other acts of sexual violence”, and “torture”, he said.

“International law and the laws of armed conflict apply to all,” Khan said. “No foot soldier, no commander, no civilian leader – no one – can act with impunity.”

But Mr Downer told The Australian on Tuesday the decision to issue the warrants and draw parallels between the Israeli government and Hamas leaders is “absolutely outrageous”.

“It’s the moral equivalence between a liberal democracy, with a functioning and effective … legal system, including judicial system, Israel, and a terrorist organisation which is determined to destroy and kill the Jewish people and eliminate their country,” he said.

“To think that there is some moral equivalence between the two, he’s (Khan) done that for political reasons. It makes me sick. It’s so, so wrong. He has singlehandedly destroyed what was in principle in a good idea.”

International Criminal Court prosecutor Karim Khan.

Mr Downer said it was “just monstrous” for Mr Khan to make the allegations against the Israeli government, and called on the Albanese government to “ask questions” of the court about the decision to issue the arrest warrants.

“If I were the minister today, I’d be going to the ICC demanding answers to these questions,” he said.

Mr Downer said he felt personally “let down” by the ICC – which he fought hard for Australia to become signatory to – but said, more than that, Mr Khan had “destroyed” the court.

“You have massively let me down and in the process of doing what you have done, you have destroyed the International Criminal Court. You have just destroyed it,” he said. “Unless this is somehow rectified, I think it’s the end of the International Criminal Court.”

Mr Downer said, if he were still in government, he would “withdraw all together” from the ICC if the judges continue to prosecution, saying he feels “absolutely heartbroken” at Mr Khan’s decision.

“If the judges decided to proceed with the prosecution I would withdraw all together from the statute,” he said. “That’s what I would do … I am absolutely heartbroken about what this guy has done. I think it’s just shocking. I think he has destroyed the international criminal court. It’ll never, and there will never be in a western country any sort of consensus or support for a court like that.”

Mr Downer said he agreed to the ICC in a “burst of idealism”.

“I thought as a concept it was a good idea,” he said.

When the Howard government ratified the Rome Treaty setting up the ICC, Mr Downer said he expected that the safeguards - that the court only deal with cases which a domestic legal system refused to prosecute or was incapable of prosecuting - would “hold out” in a situation such as this.

“Have cases been brought against both Netanyahu and the Defence Minister in the Israeli courts for war crimes? I’m just not aware of it,” he said. “Maybe there is a case, but I would have thought I would have read about it. On what basis are the Israeli courts not able to handle such a claim?”

Anthony Albanese on Tuesday refused to weigh in on the ICC’s bid to issue the war crimes arrest warrants, with Peter Dutton saying the Prime Minister has “squibbed it” and is “selling out Australia” in failing to act.

The Opposition Leader said he backed Joe Biden after the US President labelled the ICC arrest move as “outrageous”.

Opposition Leader Peter Dutton.

“Australia should stand shoulder to shoulder with President Biden. He has shown leadership by standing up against this equivalence, to compare the Israeli Prime Minister to a terrorist organisation leader and to not have some clarity in relation to it, I think is appalling,” Mr Dutton said.

“The Prime Minister squibbed it today when he was asked about this issue. And the Prime Minister had the opportunity at the ICC where Australia was consulted in relation to this matter, they didn’t weigh in and say they were against this measure. Instead, they sat on the sideline and had nothing to say about it at all.

“(Mr Albanese) is not showing leadership in relation to anti-Semitism and he’s tarnishing and damaging our international relationships with like-minded nations when he’s not strong enough to stand up like Joe Biden.

“Either the Prime Minister is not across the detail, or he’s trying to please a domestic audience here for political purposes. Either way, he’s selling out Australia.”