Dear Foreign Minister Wong,
We write to you regarding threats aimed at undermining the International Criminal Court (ICC). On May 20, the ICC prosecutor, Karim Khan, applied to the court’s judges for arrest warrants against three Hamas leaders (Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri – more commonly known as Deif – and Ismail Haniyeh) and two senior Israeli officials (Benjamin Netanyahu and Yoav Gallant) for alleged crimes committed since October 7, 2023, in relation to his ongoing Palestine investigation.
We urge Australia, as an ICC member committed to a rules-based international order, to protect the court’s independence and publicly condemn efforts to intimidate or interfere with the court’s work, its officials, and those cooperating with the institution. Australia should also robustly support the ICC’s efforts to advance justice for grave international crimes committed in the context of hostilities in Israel and Palestine. We took note of the media reporting of your government’s statement that “the decision on whether to issue arrest warrants is a matter for the court in the independent exercise of its functions.” We also look for your public support for arrest warrants the court may issue, commit to working to ensure the execution of such warrants, and press Palestinian and Israeli authorities to cooperate with the court.
On April 24, 12 US senators wrote to Khan, threatening to end all US support to the ICC, sanction the institution and its officials, and bar the prosecutor and court staff from entering the United States if steps were taken to pursue warrants against Israeli officials. US congress members have also introduced legislation aimed at imposing sanctions on ICC officials. The speaker of the House of Representatives has called on the Biden administration to “immediately and unequivocally demand that the ICC stand down and the US should use every available tool to prevent such an abomination.”
Meanwhile, there have been reports that the Israeli government was seeking support from ICC member countries and other governments in opposing the Office of the Prosecutor’s ongoing Palestine investigation. Israeli Prime Minister Benjamin Netanyahu has also publicly denounced the ICC and called on governments to thwart the court’s efforts to scrutinise Israeli actions. In response to these attacks, the Prosecutor’s Office issued a statement on May 3 noting the court’s jurisdiction over offenses against the administration of justice and “insist[ing] that all attempts to impede, intimidate, or improperly influence its officials cease immediately.”
The presidency of the ICC's governing body, the Assembly of States Parties (ASP), has called for respect for the court’s independence in the wake of these latest threats. This is not the first time the ICC has faced politicised opposition. As you know, the former US administration abused its sanctions regime against the prosecutor’s predecessor in a bid to undermine or deter investigations that could implicate US or Israeli nationals. At the time, 67 countries, including Australia, the ASP President, and nongovernmental organisations spoke out for the court. Similarly, member countries, including Australia, and the ASP presidency publicly condemned attacks against the court following its issuance of an arrest warrant for Russian president Vladmir Putin as part of the prosecutor’s ongoing Ukraine investigation. In 2023, Russia issued arrest warrants against Khan and six of the court’s judges. Russian lawmakers have also enacted a law criminalising cooperation with the ICC.
The ICC plays an essential role as a court of last resort to deliver justice to victims of the world’s worst crimes. ICC members like Australia have a responsibility to protect the court’s impartiality and independence across all situations on its docket. In this respect, we urge you to consider taking up measures outlined in a “toolkit” endorsed by the ASP to address threats against the court, including through the use of joint public statements and bilateral political dialogue.
Regrettably, many ICC members were initially silent on the importance of pursuing accountability and justice before the court for both Israeli and Palestinian victims, who have faced a wall of impunity for decades. This has led to perceptions of double standards, putting the ICC’s legitimacy at risk. It is crucial that the ICC can investigate and prosecute grave international crimes across all situations. We urge you to make clear that your government stands with those who seek justice for atrocity crimes, not those who threaten and harass the prosecutors and judges who aim to bring war criminals to justice.
Again, we ask that your government urgently defend the court against attempts aimed at obstructing the course of justice. Whether the ICC can meaningfully and effectively deliver on its mandate will largely depend on the will of the international community and ICC member countries like Australia to support impartial and independent justice no matter where the abuses are committed and by whom.
Thank you for your attention to this important issue. We remain available to discuss this matter further.
Sincerely,
Daniela Gavshon
Australia Director
Human Rights Watch
CC:
Ambassador for Human Rights, Department of Foreign Affairs and Trade
Middle East Branch, Department of Foreign Affairs and Trade
International Law Branch, Department of Foreign Affairs and Trade
