When the International Criminal Court mobilised its resources against Israel, Australian taxpayers were there to help – chipping in almost $10m to cover the running costs of this deeply politicised institution.
That makes Australia the world’s seventh-largest financial backer of an organisation that has been designed from the start to be biased against Israel.
Australia and the six other dominant financial backers of the ICC together provided almost $147m – or 58 per cent – of the $252m that was levied on 124 member states in 2022.
The court’s annual accounts show Australia’s contribution alone was more than enough to cover its surging bill for travel and hospitality, which hit $6.2m in 2022, up from $3.6m.
While Australia and the six other big backers of the court are all strong adherents to the rule of law, that is not the case with the overwhelming majority of the nations that have signed on to the ICC’s jurisdiction.
This matters because the judges and prosecutors of the ICC are voted in by the countries that have accepted its jurisdiction – regardless of their own records on the rule of law.
The effect is to guarantee that ICC member states with the worst records on the rule of law have at least as much influence on the court as the world’s best performers on this measure.
It is an unfortunate fact of life that when it comes to the rule of law the latest rankings from the World Justice Project show yet again that the laggards are more numerous than the champions.
That means that Venezuela, which is the world’s worst performer on the rule of law rankings, has just as much influence over the ICC as Denmark, which has the best performance on that measure.
The World Justice Project’s rankings covered 101 of the 124 member states of the ICC and the findings provide a depressing insight into the nature of the countries that decide who gets to run things.
While Denmark topped the rankings with a score of 0.9 out of a possible 1.0, the average score for the 101 ICC member states was a miserable 0.578 – just behind the actual result for Botswana.
It should therefore come as no real surprise that there is a growing consensus that the ICC exceeded its jurisdiction when it issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant.
That assessment is shared by Alan Dershowitz of Harvard University; Ramesh Thakur, who is a former assistant secretary-general of the United Nations; and Greg Rose, who is a professor of international law at Wollongong University.
When considering how this happened, it is important to keep in mind that the court’s key officials are elected based on a truly perverse system of equity and inclusion.
The biggest problem is not the requirement for a gender-balanced bench. The real issue is that the key figures at the ICC must include representatives from each of five regions recognised by the United Nations.
As applied by the UN, this is a permanent gerrymander against those parts of the world where the rule of law prevails.
Countries where the rule of law is strongest have been lumped together into one “region” regardless of the fact that they happen to be spread around the globe and have little in common except respect for the principles of justice.
For the purposes of selecting the ICC’s leaders, Australia and New Zealand have been lumped into the same UN “region” as western Europe and North America despite the fact that this region is divided by two oceans.
Those member states where the rule of law is weakest can be found in four regions, which gives them four times more influence when it comes to selecting judges and prosecutors.
The problem, according to Rose, is that the rule of law “does not really apply within the UN”.
“Everything is fudged. Its machinery is not precision rule-of-law machinery,” he told Sky News this week.
“So you have an assembly of state parties that control the court – the appointment of judges, the appointment of the prosecutor. And that is a political body.
“Fifty seven states are members of the Organisation for Islamic Cooperation and in the negotiations for the statute of the court actually shaped it to criminalise Israel retrospectively through a change to the laws of occupation.
“So even before the court was born it was a political instrument.”
So if the ICC has a structural bias against Israel and in favour of those who do not respect the rule of law, Australians need to ask themselves if this is the type of organisation they should be funding.
When Penny Wong was asked in parliament about the warrants against Netanyahu and Gallant, she asserted that Labor’s response to the court would be guided by the law rather than politics.
That suggests the Foreign Minister will need to seek advice on whether the legal experts are right about the jurisdictional flaws at the heart of these warrants.
If they are, and Australia fails to disavow those warrants, that would mean the government has actually decided to be guided by its own assessment of the politics, not the law.
With the pending return to the US presidency of Donald Trump, the politics of dealing with an anti-Israel ICC might also be about to change.
Michael Waltz, the man nominated to be Trump’s national security adviser, has promised a “strong response” to the court’s pursuit of Netanyahu.
Chris Merritt is vice-president of the Rule of Law Institute of Australia.
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