What ICC Arrest Warrants Tell Us About Dualism in Australia
17.01.2025
On 21 November 2024, the International Criminal Court (ICC) issued an arrest warrant against the Israeli Prime Minister, Benjamin Netanyahu, and former Defence Minister, Yoav Gallant. The judges found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility for the war crime of starvation as a method of warfare, and the crimes against humanity of murder, persecution, and other inhumane acts.
After this announcement, one question that attracted attention was: ‘Will they be arrested if they step foot into Australia?’ There are several legal issues associated with this question, which are not the subject of this post. Rather, this post uses Australia’s legal framework for ICC arrest warrants and requests for arrest and surrender to highlight how the constitutional principle of dualism works, how it gives flexibility to nation-states and how issues about compliance with international law can still arise.
Dualism in Australia
Australia inherited from the United Kingdom (UK) a dualist legal system. In its purest form, this involves a separation between international and domestic legal orders. This is most clearly seen in the case of international treaties and conventions, which do not automatically have domestic effect from mere ratification. Instead, international law can only be incorporated into domestic law by legislation. The UK Supreme Court, in R (SC) v Secretary of State for Work and Pensions [2022] AC 223, described dualism as a ‘fundamental principle of our constitutional law’ and that it is a ‘necessary corollary of Parliamentary sovereignty’. It is more likely that dualism in Australia is justified based on the primacy of the role of Parliament for law-making in the Australian Constitution.
One consequence of dualism is that there can be a mismatch between a nation’s domestic and international obligations. It is possible for Australia to accept treaty obligations on the international plane with the consequence that a failure to comply with them could result in remedies from international courts. But, unless the obligation itself is incorporated in an Act of Parliament, there is no mechanism for enforcement of the treaty obligations by judicial review in a domestic court. Even where Parliament seeks to incorporate a treaty, there is no obligation that it incorporates its terms identically or in full. Parliament has a choice to enact only some of a treaty’s obligations, or to qualify the obligations it enacts. This is subject to the limitation that a law can only be characterised as a law for ‘external affairs’ in s 51(xxix) of the Australian Constitution if there is ‘reasonable proportionality between the law and the purpose of discharging the obligation under the convention’ (Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1). The test is whether the law is ‘reasonably capable of being considered appropriate and adapted’ to implementing the treaty (Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416).
The Rome Statute and Australia
The Rome Statute of the International Criminal Court was adopted on 17 July 1998. It sought to ‘establish an independent permanent International Criminal Court ... with jurisdiction over the most serious crimes of concern to the international community as a whole’ (Preamble to Rome Statute). This Court would bring together the body of law that had gradually emerged from Nuremberg, Tokyo and ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. Thus, the enactment of the Rome Statute ‘represents the pinnacle of the institutionalization and universalization of measures for the enforcement of international humanitarian law’ (Cassese 2002).
Australia decided to ratify the Rome Statute in 2002. However, to allay fears about the impact of the Rome Statute on Australia’s sovereignty, as was expressed in some submissions to the Joint Standing Committee on Treaties, the Australian Government took several steps to assert its own position (for more details, see Triggs 2003). One of those steps was to pass the International Criminal Court Act 2002 (Cth) (ICC Act) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth). The latter inserted Division 268 of the Criminal Code Act 1995 (Cth) to create new criminal offences that were equivalent to the crimes of genocide, crimes against humanity and war crimes set out in the Rome Statute. These new offences interact with the principle that the ICC is a ‘forum of last resort’ — that is, the ICC may only act where there are no other means in domestic law to investigate and prosecute for the same crimes. By enacting equivalent crimes, Australia asserted the right to not surrender a person to the ICC until it had been given a full opportunity to investigate or prosecute any alleged crimes.
More relevantly, Australia asserted in its ratification that no person could be arrested on a warrant issued by the ICC or surrendered to the ICC by Australia without the consent of the Commonwealth Attorney-General. Although declarations are commonly used by states to explain its understanding of the provisions or to qualify the obligations imposed on them, they, unlike reservations, have no legal effect whatsoever and do not affect the substantive obligations imposed on ratifying state parties as a matter of international law (see Collins 2009).
The Procedure with Arrest Warrants in the ICC and Australia
The Rome Statute and the ICC Act together create a multi-step procedure for arrest warrants issued by the ICC after an investigation has been initiated but before conviction. The below does not seek to exhaustively explain every step but to highlight some of the procedural steps and formalities by both the ICC and the Australian Government.
Before a case proceeds to trial, all legal issues are resolved in the ICC’s Pre-Trial Chamber, which is the division of the ICC responsible for supervising the investigatory process and prosecutorial activities. Article 58(1) of the Rome Statute provides that the Pre-Trial Chamber must issue a warrant for arrest on the application of the ICC Prosecutor (currently, Karim Khan KC) if it is satisfied that there are reasonable grounds to believe that a person has committed a crime within the jurisdiction of the ICC and the arrest appears necessary for the person to appear at trial, to not obstruct or endanger the investigation or court proceedings, or to prevent the continuing commission of the crime.
Once an arrest warrant is issued, the Pre-Trial Chamber may then request the provisional arrest, or arrest or surrender of the person (Article 58(5)). Under Article 89(1), where a request to arrest or surrender is made, ‘States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.’
After a request by the ICC has been received, the Commonwealth Attorney-General can make a written ‘Notice of receipt of request for arrest and surrender’ (s 20 notice), which must be accompanied by a copy of the ICC warrant (ICC Act s 20(1); International Criminal Court Regulations 2008 (Cth) (ICC Regulations) Form 1) . However, s 22 of the ICC Act uses prohibitive language (‘must not’) to prevent the Attorney-General from issuing a s 20 notice unless he or she ‘has, in his or her absolute discretion, signed a certificate that it is appropriate’ to issue the notice (s 22 certificate).
It can be observed that the statutory language in s 22 confers a very wide discretion on the Attorney-General. For example, it may be permissible for the Attorney-General to decide it is not appropriate to issue a s 20 notice because Australia has not had a full opportunity to investigate or prosecute the alleged crimes, even if this contradicted a conclusion reached by the Pre-Trial Chamber (see ICC Act s 3(2)). Despite the breadth of the discretion, it could be argued that it is nonetheless subject to implied constraints, such that any certificate would be void if, for example, the Attorney-General was induced by a bribe.
Next, under s 20(3), a person can make an ‘Application for arrest warrant’ (ICC Regulations Form 3) to a magistrate on behalf of the ICC, which must be accompanied by the s 20 notice. The term ‘magistrate’ is taken to include a Magistrate of a State or Territory court (or Judge of the Local Court of Northern Territory) (Acts Interpretation Act 1901 (Cth) s 16C). A magistrate ‘must issue the warrant’ for the person’s arrest (s 20(3)). The mandatory language (‘must’) appears to suggest that the magistrate has no discretion, if they are satisfied that the formalities of an application have been met. A warrant from a magistrate is directed to all police officers (which is defined in ICC Act s 4 to include members of the Australian Federal Police and State police forces) and authorises them to arrest the person and bring them before a magistrate.
Reflections
The legal framework by which an ICC warrant is given effect in Australia is a useful, discrete and topical prism to consider the constitutional principles that govern the relationship between the domestic and international legal orders in a dualist system. It is also useful to compare Australia’s approach with that of the UK, which is also a party to the Rome Statute.
First, obligations at international law are only incorporated into domestic law by legislative action. Australia, as a State Party to the Rome Statute, is required to comply with an ICC request for arrest and cooperate fully with the ICC’s investigation and prosecution (Articles 86 and 89). Thus, where the ICC has requested a State Party to arrest and surrender a person, the State Party is under an obligation at international law to facilitate and perform the arrest if that person is within their territory. However, without legislation, an ICC arrest warrant or request for arrest has no domestic legal effect in Australia. The ICC Act provides a legislative mechanism to give effect to ICC requests by enabling one to obtain a domestic arrest warrant whose terms correspond with an ICC warrant.
Secondly, because enacting legislation is a domestic act through a legislature, nations can deploy different mechanisms, decide they do not wish to fully accept all aspects of a treaty, and add qualifications and limitations. Here it is useful to consider the UK’s approach. Under s 2 of the International Criminal Court Act 2001 (UK), a Secretary of State who receives a request from the ICC to arrest and surrender a person ‘shall’ transmit the request to an ‘appropriate judicial officer’ (defined in s 26(1) as a District Judge designated by the Lady Chief Justice). If the judicial officer is satisfied that the warrant accompanying the Secretary of State’s request is issued by the ICC, he or she ‘shall endorse the warrant for execution in the United Kingdom’ (s 2(3)). The mandatory language of ‘shall’ suggests that the Secretary of State and judicial officer exercise no personal discretion when transmitting and endorsing the ICC warrant. Neither the Secretary of State nor the judicial officer is empowered to certify the appropriateness of the ICC warrant being executed across the UK. It is possible that, if the Secretary of State fails to transmit the ICC warrant to an appropriate judicial officer (or unreasonably delays this act), a British court could, subject to discretionary factors, grant a mandatory order (the statutory equivalent to a writ of mandamus) if a person with sufficient interest brings a judicial review proceeding.
Two points of contrast are evident between Australia and the UK. First, the precise mechanisms used to respond to a request for arrest from the ICC differ. Whilst they may practically have the same effect, an appropriate judicial officer in the UK endorses an ICC arrest warrant whilst a magistrate in Australia issues a separate corresponding domestic warrant. Secondly, the Australian Attorney-General has a discretion in the steps towards obtaining a domestic warrant, unlike the mandatory obligation of the UK Secretary of State. The conferral of this gatekeeper role on the Attorney-General was adopted as a means of protecting the primacy of its domestic judicial system but has the potential to politicise the process (Collins 2009). The Attorney-General can be held politically accountable to Parliament for certificates he or she issues. Thirdly, the legal framework affects the availability of internal judicial review mechanisms. Unlike the UK, an Australian court cannot issue a writ of mandamus to compel the Attorney-General to issue a s 20 notice or s 22 certificate because neither section imposes a legally enforceable duty to issue a notice or certificate. At its highest, an Australian court could potentially compel the Attorney-General to consider whether to issue the notice or certificate if he or she had refused to give it any consideration (cf Clyne v A-G (Cth) (No 2) (1984) 2 FCR 515). These points of contrast shows that dualism can give flexibility in the process of incorporating a treaty into domestic law to decide the obligations they accept based on the idiosyncratic and unique dynamics of that nation.
Lastly, it may be possible that, despite an attempt by Parliament to incorporate a treaty, that the domestic and international obligations do not align. Consider the example that the Pre-Trial Chamber has issued an arrest warrant and requested Australia to arrest a person. And, upon receiving the request, the Attorney-General declines to issue a s 22 certificate. Without such a certificate, no domestic arrest warrant can be issued. In this circumstance, even though Australia is under an obligation at international law to comply with the request, there is no power or obligation at domestic law to arrest the person pursuant to an ICC arrest warrant.
Conclusion
Returning to the Netanyahu and Gallant arrest warrants, the Minister for Foreign Affairs, Senator Penny Wong, stated in the Senate that ‘Australia will act consistently with our obligations under international law and our approach will be informed by international law, not by politics’. This, however, should not be taken as an indication that, if a formal request under Article 89 is made, the Attorney-General would issue a s 22 certificate and s 20 notice. Scholars have noted that there may be other issues at international law, including whether Netanyahu has ‘head of state immunity’.
Australia could also assert, consistent with the declaration it made when ratifying the Rome Statute, that it wishes to conduct its own investigation about Netanyahu and Gallant for an offence under Division 268 of the Criminal Code before arresting and surrendering them to the ICC. As Division 268 offences for crimes against humanity and war crimes can extend to conduct and a result of conduct that occurs outside Australia (Criminal Code ss 15.4 and 268.117(1)), Australia may assert that it has the capability to investigate whether the two accused individuals have committed domestic offences for war crimes and crimes against humanity. The existence of an ongoing investigation could be a basis for the Attorney-General deciding not to issue a s 22 certificate until all potential domestic processes are exhausted. Waiting for an investigation, and any criminal proceedings stemming from it, to conclude has the potential to considerably delay any domestic warrant being issued by a magistrate.
It is clear that Australia does have a domestic legal framework that can execute an arrest warrant if Netanyahu or Gallant come to Australia. Whether it does in a particular case involves answering more questions.
Dane Luo is the Farthing Scholar in Administrative Law at Pembroke College in the University of Oxford and is a graduate of the University of Sydney. He recently made a joint presentation about dualism in administrative law doctrine at the “International Law in the UK: A Troubled Relationship?” conference hosted by the University of Worcester in November 2024.
Suggested citation: Dane Luo, ‘What ICC Arrest Warrants Tell Us About Dualism in Australia’ (17 January 2025) <https://www.auspublaw.org/blog/2025/01/what-icc-arrest-warrants-tell-us-about-dualism-in-australia>