If the US can sanction international judges, could Australian judges be at risk?

By Terry Dwyer  

The US government’s sanctions against International Criminal Court officials raise serious questions about judicial independence, Australia’s obligations under its own laws, and the potential for geopolitical pressure to affect confidence in the extradition proceedings involving Australian citizen Dan Duggan.

The independence of the judiciary is a cornerstone of democracy. Judges must be able to apply the law without fear, favour or political interference. But what happens when a powerful government demonstrates its willingness to punish judges and prosecutors for decisions taken in the course of their judicial duties?

This is no longer a hypothetical question.

On 20 August 2025, the United States imposed sanctions on two judges and two deputy prosecutors of the International Criminal Court (ICC), adding to sanctions previously imposed on other senior Court officials. Among those personally sanctioned was ICC Deputy Prosecutor Nazhat Shameem Khan, who is now visiting Canberra and Brisbane for discussions with officials across Australia and the Pacific.

The ICC condemned the US measures as a “flagrant attack” on its independent administration of international justice and the rule of law.

The consequences of sanctions can extend beyond the individuals directly targeted, affecting their access to financial services and other essential facilities. But there is an even more troubling consequence: the possibility that other judicial officials may hesitate before making decisions that could provoke retaliation from a powerful state.

As ICC Judge Nicolas Guillou has warned:

“The greatest risk of sanctions is not to those who have already been sanctioned, but to the hundreds of people who will not take the decision they need to take because they are afraid.”

That warning should resonate well beyond The Hague.

Could Australian judges be at risk?

The presence in Australia of a senior ICC official who has herself been sanctioned by the United States brings this issue into sharp focus.

If Washington is prepared to sanction international judges and prosecutors over their judicial work, what message does that send to judges elsewhere – including Australia – who may have to make decisions affecting American interests?

There is no suggestion that any Australian judge has been threatened or that any judge has allowed external pressure to influence a decision. But the danger of political intimidation is not confined to explicit threats against an individual. The demonstrated willingness of a powerful government to impose punitive measures can itself create a climate in which others fear the consequences of acting independently.

Could this climate of intimidation create a perception of risk for Australian judges considering a case in which US interests are directly involved?

And what assurance can Australians have that the wider geopolitical environment will have no bearing, directly or indirectly, on public confidence in the extradition proceedings involving Australian citizen Dan Duggan?

These are legitimate questions about the integrity of our judicial institutions, not allegations against individual judges.

Duggan has been detained in Australia since October 2022 in connection with a US extradition request. His case raises important questions about the application of Australian law, the protection of an Australian citizen’s rights and the relationship between our legal obligations and those of a powerful strategic ally.

The merits of his case must be determined by the law and evidence. But the public must also have confidence that the process is entirely independent of political pressure.

Australian law expressly addresses reprisals against ICC officials

There is a further dimension to this issue that the Australian government cannot simply ignore.

Section 268.111 of the Criminal Code Act 1995 (Cth) specifically criminalises reprisals against officials of the International Criminal Court. It provides that a person commits an offence by causing or threatening to cause detriment to an ICC official because of something that official has done, where the relevant statutory conditions are met. The provision also addresses reprisals against one ICC official because of the actions of another. The maximum penalty is five years’ imprisonment.

Australia has therefore enacted legislation recognising the seriousness of reprisals against officials performing their duties for the ICC.

Yet the United States has imposed sanctions on ICC judges and prosecutors over their work connected with Court proceedings.

The contradiction is stark: Australia has legislated against certain reprisals targeting international judicial officials, while its closest strategic ally has imposed punitive measures on such officials for their judicial work.

Whether the particular US sanctions satisfy every element of an offence under section 268.111, including its jurisdictional requirements, requires proper legal examination. The imposition of sanctions alone does not establish that a criminal offence has occurred.

Nevertheless, the Australian government should explain how it interprets and applies this legislation in circumstances such as these. If conduct by a foreign state raises questions under Australian criminal law, those questions should be examined according to the law rather than set aside because of diplomatic sensitivities.

The rule of law cannot mean one thing when dealing with a powerful ally and another when dealing with everyone else and that especially applies to Dan Duggan.

International law cannot be optional

The issue also goes to Australia’s international standing.

In support of Australia’s bid for a seat on the United Nations Security Council, Prime Minister Anthony Albanese has stated:

“Australia wants to ensure that international law is not optional.”

That is an important principle. But it must be demonstrated through consistent action, not simply diplomatic statements.

Australia has an interest in defending the independence of international judicial institutions and ensuring that officials can perform their duties without fear of retaliation. It also has a responsibility to protect confidence in the independence of its own courts.

The US sanctions raise questions that extend beyond the ICC itself. If judges and prosecutors can be subjected to punitive measures for carrying out lawful judicial functions, the potential chilling effect reaches every institution whose decisions may conflict with the interests of a powerful government.

The Coalition for the International Criminal Court’s report, Criminalising Accountability: The US lawfare against the international justice system, published on 23 April 2026, examines the wider implications of US measures against international justice institutions. These developments deserve serious attention in Australia, particularly when our government is publicly advocating respect for international law.

The test for Australia’s institutions

The Australian judiciary must be able to determine Dan Duggan’s case solely on the law and especially his Citizenship, instead, the AG has deferred his Citizenship status to the US instead of protecting this Australian citizen they have favoured the Pontious Pilot approach because of the political influence of the country seeking his extradition, our dangerous ally.

That is not a demand for any particular outcome. It is a demand for an independent process.

The Commonwealth government should also make clear that Australia’s commitment to judicial independence applies regardless of the identity or power of the country involved. That includes taking seriously the implications of sanctions against international judicial officials and ensuring that Australia’s own laws are properly considered.

Public confidence in the courts depends not only on judges being independent, but also on the public having good reason to believe that they are independent. Where international events create a reasonable concern about the possibility of external pressure, transparency and clear institutional safeguards become all the more important.

For Dan Duggan, the stakes are personal. For Australia, the stakes are institutional. The question is whether our commitment to the rule of law will withstand the pressures that arise when the interests of a powerful ally are involved.

Australia cannot credibly insist that international law is not optional while treating threats to judicial independence as someone else’s problem.

If the United States is prepared to sanction judges of the International Criminal Court, what steps is Australia taking to ensure that its own judges can decide cases involving US interests without fear of political or economic retaliation?

It is a question the Australian government should answer, and one the Australian public is entitled to ask.