Australian and Palestinian legal groups have jointly made a formal request to the Australian Federal Police (AFP) to investigate Israel’s President, Isaac Herzog on allegations that Herzog engaged in conduct that amounted to the offences of incitement to genocide and advocating genocide under the Commonwealth Criminal Code. The request is timely in light of Herzog’s expected imminent visit to Australia.
The groups argue that Head of State immunity should not be applied to allegations of international crimes, particularly where the allegations concern breaches of peremptory norms of international law from which no derogation is permitted, such as the crime of genocide or the incitement of it. The groups also argue that in any event, claims of immunity, does not prevent the AFP from undertaking preliminary investigative steps.
The allegations arise from the latest report of the UN Commission of Inquiry which concluded on reasonable grounds that statements made by Herzog in October 2023 — including remarks asserting that “an entire nation” bore responsibility for the 7 October attacks — constituted direct and public incitement to commit genocide, violating the Genocide Convention. This also follows the orders of the International Court of Justice that Israel take all measures within its power to prevent and punish direct and public incitement to commit genocide in relation to Palestinians in Gaza.
Under Australian law, incitement and advocacy of genocide are criminal offences. These offences do not require genocide to have occurred, apply to conduct committed outside Australia, and are not limited by the nationality of the accused or victims.
Rawan Arraf, Executive Director at the Australian Centre for International Justice, said:
"At a time when the Federal Government is criminalising hate speech, a person who is alleged to have incited hate to commit the ultimate crime - genocide, must not be allowed to enter Australian territory without facing accountability for these serious allegations. There is a compelling basis for the AFP to commence an investigation."
"No person, a head of state or otherwise should be immune from facing accountability for such serious and credible allegations. Australia has binding obligations under the Genocide Convention and the Rome Statute to investigate and prosecute serious international crimes. Where credible international findings indicate incitement to genocide and where domestic accountability has not occurred, Australia has both the legal authority and responsibility to act."
"By allowing Herzog to enter Australia without an AFP investigation of the crimes being alleged against him, the Australian Government is not only showing a blatant disregard for its international legal obligations but also its own domestic law, as these are offences against the Commonwealth of Australia, and Australia should be prosecuting conduct that amounts to incitement to genocide and advocating genocide."
Shawan Jabarin, General Director of Al-Haq said:
"Israel's destruction of the Palestinian people continues. Over 71,551 Palestinians have been killed and 171,372 injured, including 466 Palestinians killed during the so-called "ceasefire" in Gaza. Genocide does not happen in a vacuum. Racial hatred is incited and permitted to propagate with impunity, to the point of mass killing and annihilation."
"When President Herzog announced that there are no uninvolved civilians in Gaza and that “It's an entire nation out there that is responsible”, he approved as Head of State with intent, the mass killing of all Palestinians in Gaza. 20,000 children were killed over 23 months ––1,000 babies killed before their first birthday. Even the IVF clinic was bombed destroying 4,000 human embryos and the hope of future life. We call on Australia to arrest, investigate and prosecute President Herzog for genocide, and incitement to genocide.”