Australia shouldn’t leave the ICC because it’s anti-Israel, but because we can’t trust its rigour

Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant. Picture: Abir Sultan/AFP

It might have been wise for Penny Wong to have done a little more checking before declaring her respect for the independence of the International Criminal Court.

If that had happened, the Foreign Minister might have realised the ICC’s arrest warrants against the Prime Minister of Israel and that country’s former defence minister are as smelly as an old boot.

To use a technical term: they stink.

The flaws in the warrants against Benjamin Netanyahu and Yoav Gallant are so clear that no self-respecting nation could possibly enforce them.

That means we face a choice: the cleanest option is to recognise that the ICC is now compromised, biased and unworthy of the trust Australia placed in this organisation in 1998 when John Howard’s government signed its founding document.

Australia should withdraw from the ICC not because of our support for a beleaguered democracy, but because our trust in the rigour of this multinational court has been betrayed.

Its credibility has been shot to pieces by its own departure from accepted standards of rigour and impartiality.

Foreign Minister Penny Wong. Picture: NewsWire/Martin Ollman

Before seeking to judge the elected leaders of a democratic state – particularly one that has been attacked by terrorists – the ICC should have ensured its own processes were beyond reproach.

They are not.

These arrest warrants have been issued in circumstances that have been criticised as procedurally flawed and possibly linked to unresolved accusations of sexual harassment that are confronting the court’s chief prosecutor.

That prosecutor is Karim Khan, a British litigator who has been at the ICC since 2021 and who issued these warrants after surrounding himself with an advisory panel on the Gaza war that features critics of Israel.

The bias of this advisory panel is a matter of public record. It was pointed out in June by Eugene Kontorovich, a professor of law at George Mason University’s Antonin Scalia Law School in Arlington, Virginia.

Writing in The Wall Street Journal he noted that one of Khan’s advisers, Kevin Jon Heller, had tweeted about Donald Trump and Netanyahu in 2020: “Two criminals, conspiring to commit criminal acts against Palestine.”

Another of Khan’s advisers is Britain’s Baroness Helena Kennedy, who in 2020 called for sanctions against Israel.

Adviser Danny Friedman wrote in November last year that some of Israel’s actions constituted war crimes.

The International Criminal Court building. Picture: AFP

After taking their advice, Khan announced in May he was moving ahead with a request for arrest warrants.

But he did so while his staff were still preparing for a week of meetings with Israeli officials that had been organised to give the Israelis an opportunity to provide an explanation for their country’s conduct during the Gaza war.

In Australian terms, this entire process looks like a blatant example of bias, prejudice and a denial of procedural fairness.

Khan is no babe in the woods. He is an experienced lawyer and would have been aware that his advisers had anti-Israel views before he asked them to help him decide whether to pursue Netanyahu and Gallant.

It was bad enough that the advisory panel was biased. But by announcing he would seek arrest warrants before hearing what the Israelis had to say at those talks, Khan provided compelling evidence of his own bias.

The decision to seek the warrants was clearly rushed. Khan has denied this was linked to the fact that accusations he had engaged in sexual harassment began to circulate about the same time.

Just this month, the ICC’s governing body brought in outside investigators to examine the accusations against him.

Chris Merritt is vice-president of the Rule of Law Institute of Australia