Australia backs ICC’s role but says ‘no equivalence’ between Israel and Hamas

The federal government has insisted there is no moral equivalence between Israel and Hamas while backing the International Criminal Court’s role upholding international law after the court’s top prosecutor sensationally requested arrest warrants for Israel’s prime minister and defence chief as well as three Hamas leaders for alleged war crimes.

In a notable divergence from US President Joe Biden, who blasted the requested warrants for Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, Prime Minister Anthony Albanese sidestepped questions about the issue on Tuesday, which prompted Opposition Leader Peter Dutton to accuse him of “selling out Australia” by failing to back Israel.

Prime Minister Anthony Albanese’s comments on the ICC’s warrants differed from those of US President Joe Biden.Credit: Edwina Pickles

If the international court were to find Netanyahu, Gallant or the Hamas leaders guilty of war crimes, they would not be allowed into Australia, as the government is a signatory to the Rome Statute – the treaty that established the court.

A Department of Foreign Affairs and Trade spokesperson, responding on behalf of Foreign Affairs Minister Penny Wong, said: “Australia respects the ICC and the important role it has in upholding international law.

“The decision on whether to issue arrest warrants is a matter for the court in the independent exercise of its functions.

“It is not appropriate to comment on matters before the court.”

The department spokesperson continued: “There is no equivalence between Israel and Hamas. Hamas is a terrorist organisation.

“It is proscribed as such in Australia ... Any country under attack by Hamas would defend itself. And in defending itself, every country is bound by the same fundamental rules. Israel must comply with international humanitarian law.”

The international court’s chief prosecutor, Karim Khan, said on Monday he believed Netanyahu, Gallant and Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh bore criminal responsibility for war crimes against civilians in the Gaza Strip and Israel.

Khan alleged Netanyahu used starvation as a method of warfare, intentionally directed attacks against a civilian population and wilfully caused great suffering.

Sinwar, Hamas’s leader in Gaza, faces allegations of responsibility for extermination and murder, as well as the taking of hostages, torture, rape, other acts of sexual violence and cruel treatment.

Khan’s request has gone to a pre-trial chamber, which will decide whether to issue arrest warrants.

Asked about Khan’s allegations at a press conference in Parramatta on Tuesday, Albanese said: “I don’t comment on court processes in Australia, let alone court processes globally to which Australia is not a party.”

Regarding the Middle East, he said that it was important to condemn Hamas’ October 7 attack on Israel that sparked the conflict and focus on the release of Israeli hostages, a humanitarian ceasefire and increased humanitarian aid for the people of Gaza.

‘The international rule of law [should be] applied fairly … to draw an equivalence between Israel and Hamas I think is repugnant.’

Opposition Leader Peter Dutton

“We’ve said that every life matters, whether it be Israeli or Palestinian, and we’ve called for progress towards a two-state solution,” he said.

Albanese’s comments differed from those of Biden, who called the prosecutor’s effort to arrest Netanyahu and Gallant outrageous.

“Whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas,” Biden said.

An estimated 1200 people were killed and 250 taken hostage when Hamas militants stormed into Israeli towns on October 7.

The war has killed at least 35,000 Palestinians, according to Gaza’s Health Ministry, which does not distinguish between combatants and civilians. About 80 per cent of the population of 2.3 million Palestinians has been displaced within the territory.

Dutton on Tuesday backed Biden’s stance, saying Khan’s allegations were antisemitic.

“[Albanese is] not showing leadership in relation to antisemitism and he’s tarnishing and damaging our international relationships with like-minded nations when he’s not strong enough to stand up alongside President Biden ... it’s an abomination, the ICC, and it needs to be ceased, this action is antisemitic,” Dutton said in Melbourne.

“We need to make sure the international rule of law is applied fairly and not on a political basis and to draw an equivalence between Israel and Hamas I think is repugnant.”

Energy Minister Chris Bowen, whose western Sydney electorate has a large Muslim population, criticised Dutton’s comments as irresponsible.

“I respect the International Criminal Court and … the work they do. International law must be respected and, of course, [it] was not respected by Hamas. Israel must respect international law,” he said on Sky.

“I heard ... Peter Dutton’s comments which were, in and of themselves, highly irresponsible by Peter Dutton to drag this through a domestic political debate ... international law must always be observed and nobody gets a free pass for that.”

The allegations of war crimes have received mixed reactions from key representative groups, with the Australia Palestine Advocacy Network welcoming Khan’s application while the Executive Council of Australian Jewry condemned the allegations.

The council’s co-chief executive, Alex Ryvchin, said Khan’s allegations were “a dangerous politicisation of the ICC” and “obliterates the moral and legal distinction between terrorists and democratic states”.

“When an ally comes under a mendacious political attack such as this, it needs its friends in the international community to stand with it,” he said.

“President Biden demonstrated true friendship and we expect no less of our government.”

Australia Palestine Advocacy Network president Nasser Mashni said the application had been “a long time coming” and urged Australia to align with the court’s application and use its voice to “end the genocide and ensure justice is done”.

Liberal senator Dave Sharma, who served as Australia’s ambassador to Israel, blasted the application, saying: “The moral equivalence being practised here is sickening and preposterous. This decision completely undermines the seriousness and credibility of the International Criminal Court.”

Greens foreign affairs spokesman Jordon Steele-John said: “The findings of the ICC prosecutor have reinforced what so many in our community already knew: there have been serious and sustained breaches of international law in Israel’s genocide in Gaza and Hamas’ attacks on civilians on October 7th and the treatment of hostages since.

“Australia must immediately sanction Netanyahu and his war cabinet, stop arms exports to Israel and expel the ambassador until Israel fully complies with the orders of the ICJ [International Court of Justice] and investigations by the ICC.”

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