Israeli President Isaac Herzog will be protected from arrest and other legal proceedings under head of state immunity provisions during his visit to Australia, federal police have confirmed.
From Sunday, Herzog will make a five-day visit on invitation from the federal government to meet with federal leaders and survivors of the Bondi terror attack, with a Jewish group praising the visit as "an essential part of the healing process".
But others argue it would not be a unifying moment, as Israel faces accusations of genocide in Gaza — which it has repeatedly denied.
A growing number of voices opposed to Herzog's visit, including independent MP Sophie Scamps, have pointed to a United Nations-linked report published in September as a reason they say Herzog is divisive.
Greens Senator Mehreen Faruqi has said the report is grounds for Herzog to be arrested "when he sets foot in the country".
UN inquiry report names Herzog
A United Nations Independent International Commission of Inquiry (COI), which does not speak on behalf of the UN as a whole and has been sharply criticised by Israel, concluded in September that Israel is committing genocide in Gaza.
The commission also said Herzog, Israeli Prime Minister Benjamin Netanyahu and former Israeli defence minister Yoav Gallant had "incited the commission of genocide" in their speeches and statements.
Israel is separately defending a genocide case at the International Court of Justice (ICJ), which has ordered provisional measures but has yet to issue a final ruling.
Israel has repeatedly denied committing genocide in Gaza, saying it has the right to defend itself.
It "categorically" rejected the COI's findings as "distorted and false", while Netanyahu has described the ICJ case as "outrageous" and said Israel has an "unwavering commitment" to international law.
The COI cited comments made by Herzog at a press briefing after Hamas' 7 October 2023 attack on southern Israel, which triggered the Hamas-Israel war.
In the days after, Herzog said: "It's an entire nation out there that is responsible."
The commission said that while the remarks were not a literal call for genocide, they could reasonably be interpreted, in the context of Israel's military response, as incitement to target Palestinians in Gaza as a group.
Herzog has vehemently denied allegations that his remarks amount to incitement, saying they were taken out of context.
Calls for investigation into Herzog's rhetoric
The progressive Jewish Council of Australia, the Australian National Imams Council (ANIC) and the Hind Rajab Foundation last week wrote to the Australian Federal Police, Home Affairs Minister Tony Burke and Attorney-General Michelle Rowland asking for a criminal investigation to be launched into Herzog's rhetoric, which they allege amounted to incitement.
Some Jewish organisations in Australia, including the Australia/Israel Jewish Affairs Council (AIJAC), have argued that the comments have been taken out of context, and that Herzog later in the same briefing clarified that Israel abides by international law.
In 2024, Herzog clarified his comments and said "innocent civilians are not considered targets in any way whatsoever".
On Thursday, Greens senator David Shoebridge asked Australian Federal Police (AFP) officials during a parliamentary hearing whether the agency had begun an investigation under Australia's war crimes and genocide criminal provisions.
The AFP said it has sought independent legal advice about how to handle the president of Israel's upcoming visit to Australia.
AFP official Hilda Sirec said as an incumbent head of state, Herzog had full immunity from Australian criminal and civil jurisdiction under customary international law.
"And those immunities include protection from arrest, detention, legal proceedings, personal or property search and service of court documents," she added.
When pressed on whether an investigation had been launched, the AFP said it had no active investigations.
"We know the International Criminal Court (ICC) are best placed to carry out such an investigation," AFP assistant commissioner Stephen Nutt said.
Shoebridge asked whether immunity protections extended to war crimes and genocide.
"Is that your legal position that immunity applies to those most heinous offences?" Shoebridge asked.
"That is our understanding of the operation of law. It includes serious international crimes, including genocide," Nutt replied.
Prime Minister Anthony Albanese is among those backing the visit, along with the Zionist Federation of Australia, the Executive Council of Australian Jewry, AIJAC and others.
"The visit comes at a particularly important time for Australia's Jewish community following the tragic events at Bondi and the surge of antisemitism across the country, offering a powerful message of solidarity and support," AIJAC executive director Colin Rubenstein said in a statement.
Foreign Minister Penny Wong said it was important for all to remember why the government had listened to the request of the Jewish community.
"President Herzog is being invited to Australia to honour the victims of Bondi and to be with and provide support to Australia’s Jewish community," she said.
Chris Sidoti, Australia's former human rights commissioner, who was one of the commissioners of the UN COI report, said Australia should withdraw the invitation to Herzog.
"If he does arrive, there are arguments that in law he should be arrested," Sidoti told SBS News.
Sidoti said the UN COI recommended that he be investigated by the ICC, and if the evidence collected by the court warranted it, that Herzog be prosecuted.
"We came to the decision that he personally was responsible for incitement to genocide.
"It's not necessary for that crime, for anyone to act upon the incitement. The incitement itself is enough."
Pro-Palestinian rally organisers Palestinian Action Group (PAG) have called for nationwide protests opposing the visit, and say they will push ahead in Sydney despite NSW police extending a controversial curb on demonstrations, accusing authorities and the state government of attempting to "silence opposition".
Discomfort with Herzog's visit has come from within Labor, with three state MPs planning to march against the visit on Monday. Former federal Labor minister Ed Husic says he's "obviously very uncomfortable about this visit".
Independent MP Andrew Wilkie is refusing to be in the same room as the president.
"I don't have a plan to attend the parliament next week at the time that the president might be in the chamber," he said.
On Thursday, a 19-year-old man was charged with making an online threat to Herzog, and was ordered not to approach or contact the Israeli president.
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