Donald Trump has declared war on international justice by the dictatorial device of an executive order. He has sanctioned the international criminal court. This empowers him to seize any funds belonging to the court or its judges or employees and to ban them from entering the US. He issued a similar sanction, during his previous presidency, but it was overturned by Joe Biden before court challenges to it could be heard. This time it will prevent ICC leaders from entering New York to report to the UN and will end cooperation to provide evidence to ICC prosecutors for action against Russian commanders. The greatest beneficiary of Trump’s sanction will be Vladimir Putin.
Australia is one of the 125 state members of the ICC but, inexplicably, it has not yet spoken out against Trump’s puerile initiative. Seventy-nine state members immediately did so, with allies including the UK, Germany and France describing their support for the court’s independence, impartiality and integrity as “unwavering”. They warned that Trump’s decision might imperil the confidentiality and safety of victims of the crimes being investigated.
Australia should speak out in similar terms. Our judges and our lawyers played a vital part in the Tokyo trials after the second world war, and Australia made a significant contribution to the trials of war criminals in the Balkans and Sierra Leone, and has fully supported the ICC up to this point. Trump’s hostility provides no reason to withdraw from a court which has so much work still to do in Myanmar, Sudan, the Congo and elsewhere, since 20 armed and lethal conflicts continue, in the world, at present.
There are some voices loud in the Murdoch press, demanding vengeance on the ICC for issuing an arrest warrant for Benjamin Netanyahu, and this was given by Trump as the reason for his action. This does not necessarily mean that Netanyahu will be incarcerated – like the Kenyan president a few years ago, he will be granted bail. He will have a fair trial, be able to hire the best lawyers, entitled to have the charges thrown out and to have all defence rights in an independent and impartial court where the prosecution will have to prove the charges it brings, beyond reasonable doubt.
These allegations cry out to be heard. Using starvation as a tactic of war, if there is sufficient evidence, demands an answer. So does the question of whether indiscriminate bombing (it has killed 45,000 civilians so far, almost half of them children) is a proportionate response to the obscene Hamas attack on 7 October 2023. That attack provided a right to self-defence and to free the hostages but not a licence to kill tens of thousands Gazan citizens, mainly children, by way of indiscriminate bombing of residential areas.
Yet Trump’s thinking is shared by millions of Republicans who do not believe that Israel can do any wrong, or that Americans and Israelis should ever be brought to justice in an international court. This “exceptionalist” approach began with Senator Jesse Helms, who promoted the puerile “Hague Invasion” Act, (the American Service-Members’ Protection Act), which is still in force, authorising the president to use military force against the ICC and against the Netherlands should the ICC detain a US official or military personnel.
The ICC is not alone. Trump has pulled out of the World Health Organizatin and the Paris climate accords, and his disbandment of USAid is acknowledged as a catastrophe for humanitarian assistance. His contempt for law extends to the law of the US, with his blatantly unconstitutional executive order to deny citizenship rights to many immigrant children “born in the USA”. As for his pardoning of criminals guilty of serious assaults on the police in the January 6 insurrection, perhaps a journalist could ask our own former police officer Peter Dutton how that sits with him.
Trump’s attack on the ICC is designed to intimidate and stop it from working against war criminals. But the most damage it will do is to the standing of Americans in general, tarred with the brush of this felon that their fellow citizens have elected to be their president. US international lawyers played a leading role in Nuremberg and beyond, envisioning and building the ICC, but no one bothers to take notice of them now.
US diplomats cannot be trusted, and heaven knows what dodgy contributor to his campaign Trump will appoint as his ambassador to Australia. Some readers may be old enough to remember “Mr Ed”, the friend of “LBJ”, widely likened to television’s talking horse. At the end of the day Trump is a problem for Americans – but Australia must speak up with its other allies to express unwavering support of international justice.
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Geoffrey Robertson AO KC is the author of Crimes Against Humanity, the Struggle for Global Justice, the next edition of which is published by Penguin this month
