The Australian government has flatly rejected Peter Dutton’s claim that it was consulted by the international criminal court regarding the pursuit of Israeli leaders over their conduct of the war in Gaza.
The opposition leader has repeatedly urged the government to publicly condemn what Dutton has called the ICC prosecutor’s “terrible decision” to apply for arrest warrants for the Israeli prime minister, Benjamin Netanyahu, and th defence minister, Yoav Gallant.
But Dutton has also gone further by claiming that the Albanese government turned down an opportunity to give feedback to the ICC when “Australia was consulted in relation to this matter”.
“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 that they were against this measure,” Dutton told reporters on Tuesday.
“Instead, they sat on the sideline and had nothing to say about it at all.”
But a spokesperson for the Department of Foreign Affairs and Trade said: “The Australian government has not been consulted by the ICC on this matter.
“It is not ICC practice for the ICC prosecutor to consult with all states parties prior to making an application for arrest warrants.”
Douglas Guilfoyle, a professor of law and international security at the University of New South Wales Canberra, said the department’s response was “exactly what I would expect”.
“It would be absurd if before seeking warrants the prosecutor had to consult with 124 ICC parties, and it would not be compatible with prosecutorial independence,” Guilfoyle said.
“It is hard to know what to make of Mr Dutton’s remark, unless he intended to suggest Australia should have written the prosecutor a threatening letter as 12 US senators have done.”
A source close to Dutton, when pressed to substantiate the consultation claim, said: “He is saying that the Australian government, the prime minister had the opportunity to make representations – to be heard – instead of just remaining silent essentially.”
Guardian Australia asked Dutton’s office whether it could provide further details or whether the opposition leader now accepted his remarks were misleading but it declined to comment.
The assistant minister for foreign affairs, Tim Watts, said Dutton was “always looking for a fight”.
“He makes things up just so he can have a fight about them,” Watts said.
The ICC prosecutor, Karim Khan KC, disclosed last year that he was investigating Hamas’s 7 October attacks and Israel’s response, culminating in last week’s announcement accusing Hamas and Israeli leaders of war crimes and crimes against humanity.
Spurred by unconfirmed media reports in April, conservative politicians in the US and Australia wrote to Khan to urge him not to pursue the Netanyahu government.
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Twelve US Republican senators wrote on 24 April to warn of “severe sanctions against you and your institution” if the ICC pursued Israeli leaders. “Target Israel and we will target you,” they wrote.
About two weeks later Andrew Wallace, the chair of the Australia-Israel Allies Caucus, was joined by 24 other Coalition MPs and senators in urging the ICC not to “target Israel in such a political attack”.
The court’s pre-trial chamber has yet to make a decision on the arrest warrant application but Dutton said Australia should consider withdrawing from the ICC.
The communications minister, Michelle Rowland, told Sky News on Sunday the Australian government respected the ICC’s independence and would not “give running hypotheticals on what may or may not happen”.
In a newly published policy brief, the Zionist Federation of Australia said the proposed prosecutions should “profoundly concern Australia” because the Israeli high court was already investigating the levels of humanitarian aid entering Gaza.
The federation said the ICC was risking “its credibility as an impartial actor and non-interventionist court of last resort”.
Under the Rome Statute setting up the ICC, a case is inadmissible if it is already being investigated or prosecuted domestically, “unless the state is unwilling or unable genuinely to carry out the investigation or prosecution”.
Donald Rothwell, a professor of international law at the Australian National University, said Khan may have assessed a number of factors, including that Israel had “a very mixed record of prosecuting members of its armed forces for war crimes” and had “not prosecuted any political leaders for war crimes or crimes against humanity”.
Rothwell said the Israeli government had repeatedly expressed the view that its military operations were fully consistent with international humanitarian law, except for concessions made after the fatal attack on a World Central Kitchen convoy.
He added that the assessment about unwillingness or inability to genuinely investigate was “also applicable to Palestine” and “the case of the three Hamas leaders who are being sought”.
Netanyahu has labelled the claims against him and Gallant as a “travesty of justice” that hampered Israel’s right to self-defence while Hamas has also criticised Khan’s allegations against its leaders.
