Public Letter from the Australia-Israel Allies Caucus to the Prosecutor of the International Criminal Court
We the undersigned write in relation to ongoing reports that the International Criminal Court (“ICC”) is considering the issue of arrest warrants against the Prime Minister of Israel and a number of other Israeli political and military leaders. It is our hope that these reports are inaccurate.
Any such action would not–by any reasonable standard–meet the threshold required under Articles 7 and 8 of the Rome Statute, and would be inconsistent with actions taken, or not taken, by the ICC. The ongoing participation and support for the ICC, by western liberal democracies like Australia, is founded on the assumption that the rule of law will be applied consistently.
We note and support the ICC’s decision to issue arrest warrants for President Vladimir Putin and others, after 43 nations, including Australia, referred Russia’s unlawful and immoral invasion of Ukraine to the ICC. The unprovoked attack on a member state of the UN, with the ongoing and deliberate targeting of civilians and civilian infrastructure, widespread and documented torture, unlawful detention, and forced removal of children, clearly meets the threshold for ICC action and has no defence under International Humanitarian Law. We believe in the power and duty of liberal democracies to stand up, speak up and step up when the world confronts grave atrocities and global insecurity.
We also note that while the statehood of Palestine remains a point of global legal contention, the ICC has seen fit to afford them the status of a Member State. As such, Palestinian leaders ought to be held accountable for war crimes where their intentional actions meet the relevant thresholds. In the last 8 months alone, we have seen Hamas terrorists breach Articles 7 and 8 of the Rome Statute in full view of the world - with video footage, public boasting, and overwhelming evidence. We have observed the taking of hostages, unlawful confinement, the extensive destruction and appropriation of property without military justification, torture and inhuman treatment, the use of rape and sexual violence as a weapon of war, and the wilful killing of 1,200 Israeli women, children, and men in the October 7 massacre, in the worst massacre against the Jewish people since 1945. The ICC, however, has yet to issue an arrest warrant for any Palestinian leader or even announce an intention to so do.
Similarly, we note that the ICC has not issued arrest warrants for Iranian leaders, including its Supreme Leader, Ayatollah Ali Khamenei, despite their public commitment to the destruction of a member state of the UN, and their overt role in facilitating the unlawful actions of Hamas, Hezbollah, the Houthi rebels, and the Russian Federation.
At the same time, the ICC has not issued an arrest warrant for Chinese President Xi Jinping for the genocide of the Uyghur people in China. This is a regime which has forcibly imprisoned over 449,000 Uyghurs, Tibetans and ethnic minorities in internment camps in Xinjiang, as at April 2024. Here they are subjected to torture, forced medical experimentation, mass birth control and sterilisation, forced labor, sexual violence, and starvation.
Finally, we note that when nations responded to the call of the UN Security Council to disrupt and dismantle the Islamic State terror group, the ICC did not respond. This is despite the very large civilian death toll and destruction in the Battle of Mosul, to take down a group which perpetrated barbaric torture, rape and sexual violence, the enslavement of women and children, and systematic murder. In fact, the International Committee of the Red Cross currently use the Battle for Mosul as a case study in the application of International Humanitarian Law. Amnesty International, who are quoted in that work, attribute responsibility for the high numbers of civilian deaths to the terrorist group who used civilians as human shields, not to the air and ground forces which had a legitimate mission to destroy the military capability of the terrorist group.
In stark contrast, when the State of Israel, guided by the International Law of Armed Conflict and its obligations to both national self-defence and good global citizenship, takes legitimate and proportionate measures in the immediate and long-term defence of its people, it is accused of war crimes. Like the destruction of the military capability of ISIS, Israel has acted with the support of western liberal democracies who share a desire to dismantle the Hamas terror network. Since the October 7 massacre, Hamas have stated their intent to repeat their attacks as soon as they have capability. That is an intent laid out in their Charter, and demonstrated over many years of terror, incitement, and political violence, in an attempt to eliminate the State of Israel and the Jewish people. No cease-fire which leaves Hamas in power with military capability can lead to peace for Palestinians or Israelis.
As in the battle for Mosul, it is devastating to see civilian lives lost in the ongoing armed conflict. Despite intense propaganda from the international Palestinian solidarity movement, Israel’s actions cannot be considered a deliberate, widespread or systematic attack targeting Palestinian civilians, or a large-scale commission of such crimes - the threshold required under Articles 7 and 8 of the Rome Statute. Furthermore, Israel’s adherence to International Humanitarian Law when combatting Hamas has been independently assessed by a High-Level International Military Group which found that Israel has met, and often exceeded, those obligations, at great cost to their own soldiers and citizens.
A growing number of Australians are deeply concerned that the institutions which underpin the global rules-based order, such as the UN and the ICC, appear to be inconsistent in their application of international law. This is of particular concern when authoritarian regimes, known to be serial abusers of human rights, seek to use these mechanisms to apply different standards, forcing actions which isolate democratic nations like Israel, whose internal political and judicial checks and balances are exercised by their citizens on a regular basis.
As such, an arrest warrant for the democratically elected leaders of the only democracy in the Middle East–or its military leaders–for actions which fundamentally constitute national self-defence would be a grievous mistake. The decision would come as a slap in the face to those liberal democracies whose commitment to peacebuilding, prosperity, and the dignity of all people undergirds the international system. To target Israel in such a political attack would be an assault on the essential tenets of international order and on the global democratic alliance of which Australia is part. It would be an attack on the sovereignty of Israel, and therefore a threat to Australia’s own sovereignty, security and standing.
We request your urgent clarification as to the veracity of the aforementioned reports of pending ICC action against Israel’s leaders.
