International law is clear: Inviting Isaac Herzog to Australia is complicity in genocide

The Australian government risks prosecution over Israeli President's visit, writes Melissa O'Donnell

Melissa O’Donnell is an international human rights lawyer, research fellow at the International Institute for Social Studies of Erasmus University, and former Research Advisor to the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, Francesca Albanese. Opinions expressed are those of the author alone.

Australia is about to welcome the President of Israel, Isaac Herzog, to its shores. Amnesty Australia, among others, has called for an investigation into Herzog’s role in the ongoing Gaza genocide, focusing particularly on his incitement to genocide in October 2023, his egregious invocation against the Palestinian people at large and his signing of bombs destined to be dropped on the entrapped population of Gaza.

Israeli President Isaac Herzog signing an artillery shell slated to be fired into Gaza in December 2023.

Incitement to genocide is an international crime of the highest order, triggering Australia’s international obligations to investigate and prosecute.

But Herzog’s role is much more insidious than these specific words and actions. His visit is a continuation of his function throughout this genocide. And this invitation directly embroils Australia in these crimes.

The Presidency of Israel is largely a ceremonial role. Except for some very limited powers, the President has no executive function and is therefore not in a position of command responsibility that is often key to establishing individual criminal responsibility for genocide.

Herzog’s ceremonial function, though, should not be underestimated. Since October 2023, Herzog has engaged in at least 11 diplomatic visits, including to the United Arab Emirates, Germany, the Baltic states and the United States; almost the same number as the Israeli Foreign Minister. This has included representing Israel at significant international fora, including the World Economic Forum twice, and the United Nations Climate Change Conference (COP28).

Business, it would seem, as usual.

By contrast, Israeli Prime Minister Benjamin Netanyahu has only visited the United States and Hungary since October 2023, as his direct responsibility is clearer and many countries have pledged to honour the arrest warrant issued against Netanyahu by the International Criminal Court in 2024. The President travels where the Prime Minister cannot.

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Normalisation of Israel’s atrocities has been key to its settler-colonial enterprise, and its capacity to persist in such enduring and heinous conduct for more than seven decades. As global outrage has deepened against the most recent genocidal onslaught, the diplomatic arena has become a key site of Israel’s public relations strategy.

In her most recent report, the UN Special Rapporteur on the occupied Palestinian territory, Francesca Albanese, set out her legal finding that, without diplomatic cover from other states, Israel would not have been able to commit this genocide. States like Australia, Canada and New Zealand were specifically identified for the way their diplomacy at key moments actually served to dissipate rising global pressure, effectively buying more time for Israel’s genocidal military strategy.

Such was this diplomatic conduct that it was assessed for complicity in genocide, rather than how it was generally portrayed: as a welcome political objection to Israeli conduct. Australia’s invitation of the Israeli President at this moment must be added to the dossier of its complicity. If Germany can be forced by Nicaragua to answer for its conduct vis-à-vis Israel before the International Court of Justice (ICJ), so too could Australia, if any other state were so inclined.

It also means the diplomatic actions of the Israeli President must face scrutiny. Herzog may not have command responsibility for military strategy in Gaza, but far lesser actions, including the presence and moral support of authority figures, have been found to meet the criminal threshold for complicity by international tribunals. When the Israeli President is normalising and corralling support for Israeli actions, surely his criminal culpability includes aiding and abetting the crime of genocide? What then of Australia’s actions in formally receiving him?

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There is also a more structural concern than Herzog’s individual criminal responsibility. The institution of the Presidency is a core component of Israel’s state apparatus that has committed this genocide: the fourth branch of Israeli government.

To date, the ICJ has adjudicated just two cases of genocide, concerning Bosnia and Croatia. To make its findings, the Court relied heavily on the plethora of judgments from the International Criminal Tribunal for Yugoslavia against individual Serbian leaders. In the case of the Gaza genocide, the Court will not have such a body of prosecutions to draw from. Without individual convictions, how then will the Court approach assessment of Israel’s responsibility?

In an earlier report, Albanese found that, as a state that claims to be a liberal democracy, bound by the rule of law with all the checks and balances that entails, all of Israel’s conduct must be considered. Individual guilt does not need to be identified before the crime can be attributed to the state. Instead, the conduct of all Israeli state actors must be looked at cumulatively to formulate evidence of the intent and actions of a genocide.

This means serious questions must be asked about the relationship between this Presidential visit and Israel’s ability to commit this genocide. This visit is functioning to re-legitimise and normalise Israel in the face of massive public dissent. It is also validating the cynical link that Netanyahu and others have made to the horrific Bondi attacks to silence that dissent which, if persistent, may just bring accountability. And Australia, far from its appearance of mourning a horrific crime, is again colluding in that.

This visit is part of the crime itself and should form part of the body of evidence before international courts. If not, what atrocious conduct are we normalising?

Then again, maybe this is just a continuum of Australia’s national settler-colonial identity, which celebrates the colonialisation of this country, while First Nations deaths in custody and child removals rise ever higher.

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