Australia engaged Trump administration over ICC sanctions

Senior Australian officials held talks with the Trump administration to raise concerns over US sanctions against the International Criminal Court, with new documents revealing fears Australians could be affected.

According to briefing materials prepared by the Department of Foreign Affairs and Trade (DFAT) and obtained by Crikey under Freedom of Information (FOI) laws, the sanctions “may potentially impact Australians working in, and with, the ICC” — and officials have contacted those Australians.

Donald Trump signed an executive order in February in retaliation against the ICC’s decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu, and former defence minister, Yoav Gallant, for war crimes and crimes against humanity in Gaza.

To see “the leader of the free world” leading the charge against the ICC is “thoroughly demoralising” to staff inside the organisation, said Tim McCormack, an Australian who until last year was a special adviser to the ICC prosecutor.

Donald Rothwell, a professor of international law at the Australian National University, added: “If these sanctions were to continue over a long period of time, it could really be quite damaging to the ongoing work of the court.”

The number of Australians who work at the ICC is estimated to be between 10 and 20. A spokesperson for the court said it has more than 900 staff members from about 100 countries, but declined to specify how many are Australian.

One of the DFAT documents from February stated: “We will engage with the Trump Administration on … the impact of ICC sanctions on Australians.”

A spokesperson for DFAT confirmed to Crikey: “Australia has engaged directly with the United States on this issue, including at senior levels.”

A ‘really anxious’ time

Trump’s executive order in February flagged the blocking of US assets and “the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members”.

The ICC’s chief prosecutor, Karim Khan (who has temporarily stepped down pending the outcome of a sexual misconduct investigation against him), is the primary target of the sanctions, but the executive order also paved the way for the Trump administration to add extra names to the list in future.

Australian ICC employees could be directly affected if added to the sanctions list in a second wave. Alternatively, Secretary of State Marco Rubio has the power to make a determination that Australians have “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality”.

McCormack, a professor of international law at the University of Tasmania, served as a special adviser on war crimes to the ICC prosecutor for almost 15 years, ending in 2024.

He said Australian nationals who work inside the court “would be really anxious about the implications for them personally”, although he believed the greatest concerns would be for US nationals.

“I’ve spoken to a few of my colleagues at the court, some of them American, who have actually resigned from their positions in the court to be able to go back to the US to avoid criminal prosecution,” he told Crikey.

“It’s very concerning for nationals of all countries who are working in the ICC and especially those in the office of the prosecutor, because the prosecutor is the only person named as an object of the sanctions to date.

“Everyone who works there has to be thinking about: what does this mean for me, and what is the nature of my professional support to the prosecutor himself and to his office? And if other names are added to the sanctions list, individual employees will need to ask themselves: how do I minimise the chances of me being caught up in providing support for those named by the Trump administration?”

‘Troubling lack of resolve’

The documents obtained by Crikey show a flurry of emails within DFAT early in the life of the second Trump administration relating to the plans to hit the ICC with sanctions — and whether to sign a joint statement with other countries objecting to attacks on the court.

An adviser to Foreign Affairs Minister Penny Wong asked DFAT on February 4 to “please keep us updated as to the list of signatories and timing of the joint statement” and to draft some “TPs” (talking points) for potential use if journalists asked about it.

In an email on February 5, a senior DFAT official noted that the deadline for countries to sign the joint statement had been extended.

Another email on February 6 outlined “some updates on the proposed ICC sanctions statement”, but most of the email was blanked out because the FOI team claimed releasing the information would harm Australia’s foreign relations and reveal confidential details communicated by foreign governments.

Ultimately, 79 countries, including Canada, France, Germany and the UK, signed the open letter saying the sanctions “increase the risk of impunity for the most serious crimes and threaten to erode the international rule of law”. Australia was a notable omission.

The acting executive director of the Australian Centre for International Justice, Lara Khider, said Australia’s refusal to sign signalled “a troubling lack of resolve”.

Dr Melanie O’Brien, an associate professor of international law at the University of Western Australia and president of the International Association of Genocide Scholars, also said she found it “alarming that Australia did not sign that statement”.

O’Brien characterised this as part of a broader pattern of the Albanese government being “very low key in its responses” to Trump. She said the sanctions were “just another example of how Trump’s regime does not respect the rule of law, even in their own country, but also overseas”.

UNSW Canberra international law Professor Douglas Guilfoyle said Australia “might take the view that quiet representations to the US are more likely to gain some traction than megaphone diplomacy”.

Other experts speculated that Labor had made a political calculation not to fuel a preelection domestic political contest over the ICC, as then opposition leader Peter Dutton had already slammed the Israeli arrest warrants and had even floated Australia quitting the body.

‘Deleterious’ impact on ICC’s work

McCormack warned of “all sorts of ways in which these sanctions have an incredibly constraining, deleterious impact”.

For example, the ICC might find it more difficult to access satellite imagery to aid with its evidence-gathering process, as many of the corporations offering access to such imagery were US-owned or US-linked. Access to Khan’s own ICC email account was reportedly cut off by Microsoft.

Guilfoyle said other potentially captured activities could include American artificial intelligence tools being used to help filter raw evidence.

That was because the executive order prevented any American individuals or corporations from assisting, sponsoring or providing financial, material or technological support in cases where the country of a national being investigated (such as Israel) does not consent to the investigation.

“So to the extent that the court relies on the cooperation of third parties to support its investigation or help it with access or evidence collection, all of that’s potentially in jeopardy,” Guilfoyle said.

DFAT’s response

Crikey asked DFAT why Australia decided against joining that statement and which sentences were objectionable. The DFAT spokesperson did not give a specific reason but said: “The Australian government has made multiple statements on our support for the International Criminal Court, and we continue to publicly reiterate that support.”

McCormack said he was disappointed the government had not signed the statement in February but hoped in the wake of its election victory “they’ll be a little bit bolder”.

Australia, he said, had “a major role to play” as one of the 125 ICC member states that now “hold the future of the institution in their hands”.

“The question in my mind is whether they’re going to be prepared to fight for the institution in the face of this withering opposition from the US or not.”