The International Criminal Court in The Hague. Picture: Oliver De La Haye/Adobe Stock
Last month, US Republican lawmakers renewed calls to sanction officials of the International Criminal Court (ICC) in retaliation for the arrest warrants it issued against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant.
In contrast, Australian Foreign Minister Penny Wong reiterated the need to respect the “independence of the ICC and its important role in upholding international law”.
These divergent responses highlight a core problem with Australia’s current approach to sanctions, which is the topic of an ongoing Senate inquiry.
Shadow Foreign Affairs Minister Simon Birmingham initiated the review to seek ways to better align Australia’s sanctions with those of allies like the US.
Instead, the review should be an opportunity to reset this flawed principle of alignment in favour of an approach grounded in core principles of international law.
Australia’s history of sanctions
Sanctions are official measures that prohibit trade and economic relations with particular states or individuals for a range of reasons. These can include to pressure a state to change its behaviour, enforce international norms or isolate individuals for unlawful behaviour.
Australia’s sanctions regime is made up of two categories:
- sanctions that implement decisions of the UN Security Council
- “autonomous” sanctions that Australia applies unilaterally.
Historically, Australian sanctions have at times preceded Security Council action. In the mid-1960s, Australia followed the United Kingdom in sanctioning the white supremacist rule in Rhodesia (now Zimbabwe) before the council adopted sanctions.
Australia also sanctioned apartheid-era South Africa in the mid-1980s in the absence of Security Council action – and in the face of initial opposition from the UK and US.
Since 2011, Australian legislation grants the foreign minister broad discretionary powers to impose unilateral sanctions on other countries. This system has recently been expanded to include sanctions of individuals engaged in corruption and serious abuses of human rights.
Australia now imposes a range of sanctions autonomously, including travel bans and freezing of financial assets. This includes sanctions on the political and military leaders of Myanmar, Zimbabwe and Russia.
In practice, Australia has a policy of aligning its nominally “autonomous” sanctions decision-making with its so-called like-minded partners, such as the US.
For example, Australia has so far decided not to unilaterally impose sanctions on Israel’s political and military leadership. This is despite sustained civil society pressure and a historic ruling of the International Court of Justice.
Foreign Minister Penny Wong defended the decision on the basis that “going it alone gets us nowhere”.
When Australia applies sanctions, we coordinate with partners. That’s what makes them effective.
Dangers of a ‘like-minded partners’ approach
Yet, this rhetorical appeal to alignment with “like-minded partners” fails to recognise the dangers of such an approach.
For one, it risks drawing Australia further into the geostrategic competition between the US and China, in which sanctions are fast becoming a central tool. The US is increasingly using sanctions to punish China (and other adversaries) or stymie their development, while blocking attempts to sanction its friends, notably Israel.
The US is overwhelmingly the world’s biggest user of unilateral sanctions. Between 2001-21, it increased its sanctions designations by a stunning 933%.
The proliferation of US sanctions has only intensified since then. In 2023, the US added a total of 2,500 entities and individuals to its “Specially Designated Nationals and Blocked Persons” list. This is a significant increase from its annual average of 815 people in previous years.
Australia lacks the resources to adequately investigate this volume of sanctions designations. In practice, alignment often amounts to simply copying sanctions from the US, UK or European Union.
The commitment to aligning sanctions with those of allies also puts Australia at odds with some of our neighbours. Many Asian countries view US unilateral sanctions as unlawful coercion that infringes on their sovereign rights.
In April, diplomats from 32 states, including China, India, Indonesia, Malaysia, and Vietnam, supported a motion in the UN Human Rights Council that urged states to refrain from imposing unilateral sanctions in ways that are not consistent with international law. It said:
they are contrary to the [UN] Charter and norms and principles governing peaceful relations among states.
The UN General Assembly has also passed numerous resolutions criticising the imposition of certain unilateral sanctions. This shows the US reliance on sanctions is the global outlier.
This is perhaps clearest regarding the US embargo of Cuba, in place since 1960. Last month, the UN General Assembly passed a resolution renewing its long-standing call for the US to lift the embargo. It got near-unanimous support, with 187 states, including Australia, voting in favour. Only two states, the US and Israel, voted against. One abstained (Moldova).
What Trump is likely to do
While Trump has recently claimed he would like to use sanctions “as little as possible”, this is doubtful given his previous record.
The first Trump administration made economic sanctions its “foreign-policy weapon of choice”.
In addition to imposing sanctions against China, Iran and Venezuela (among others), the administration also sanctioned ICC officials for investigating US military personnel for alleged war crimes in Afghanistan.
Trump’s pick to be his new secretary of state, Marco Rubio, is a sanctions hawk. Following the Biden administration’s ending of ICC sanctions, he co-sponsored a bill in Congress to impose new sanctions on ICC employees and their families if they investigated the US or Israel.
Rubio has also made clear his opposition to sanctioning Israeli nationals. When the Biden administration sanctioned an Israeli entity and individual for “extremist settler violence” in the occupied West Bank, Rubio accused Secretary of State Antony Blinken of acting “to undercut our ally, Israel”.
Given this, we can assume the new Trump administration will revoke these sanctions against Israelis. We can also anticipate there will be pressure on Australia to remove the already limited sanctions it has imposed on a handful of Israeli settlers, to realign Australia’s approach with that of the new US administration.
A new approach
We recently co-authored a submission to the Senate inquiry that recalled Australia’s history of supporting anti-apartheid sanctions.
And we recommended that Australian sanctions law and decision-making be reoriented towards recognising core principles of international law, including the right of all people to self-determination.
This could be done through “a trigger mechanism” that automatically implements sanctions in accordance with decisions of the International Court of Justice concerning serious violations and abuses of human rights.
As the Trump administration potentially gears up to strengthen sanctions against perceived enemies while exempting friends, Australia should consider a different path.
Sara Dehm, Senior Lecturer, International Migration and Refugee Law, University of Technology Sydney and Jessica Whyte, Scientia Associate Professor of Philosophy and ARC Future Fellow, UNSW Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.