Recently, the International Criminal Court (ICC) rejected Israel’s challenge to jurisdiction and issued arrest warrants for the country’s Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The charges against Netanyahu and Gallant are for crimes against humanity and war crimes alleged to have been committed between October 8, 2023, and May 20, 2024. The current chief prosecutor, Karim Khan, submitted his request for these arrest warrants to a three-judge panel of the ICC — a pre-trial chamber (PTC) responsible for screening accusations to assess whether, based on the evidence presented by the OTP, there are reasonable grounds to believe the alleged crimes had been committed, in violation of the ICC Statute.

“Reasonable grounds to believe” is a standard of proof in international law generally analogous to probable cause in the US. A very low threshold is needed to justify allowing an accusation to proceed to the trial stage: good reason to believe that a crime has been committed. As with a Grand Jury in US criminal practice, the bar a prosecutor must overcome to satisfy this standard is relatively low, and the assessment is based on a one-sided presentation of evidence by the prosecutor. It is challenging to agree on what lawyers mean when discussing reasonableness; still, fundamentally, it means that some evidence supports the allegation and that allowing the charge to progress to trial would not be considered unreasonable due to a complete absence of proof.

A crime against humanity is a severe violation of international law that involves a widespread or systematic attack on a civilian population. These crimes can be committed during times of war or peace, and can include murder, extermination, enslavement, deportation, torture, sexual or gender-based violence, persecution, and enforced disappearance. Crimes against humanity can occur during peacetime, while war crimes are limited to wartime. Unlike the crime of genocide, crimes against humanity are not necessarily targeted at a specific national, ethnic, racial, or religious group. Still, they are defined in the Rome Statute of the International Criminal Court.

On October 7, 2023, Hamas terrorists crossed into southern Israel and killed 1200 Israeli citizens. On October 8, 2023, the Israeli government passed Resolution 941, which extended the application of the special home front situation initially declared by the minister of defense. On the same day, the Israeli cabinet confirmed a state of war effective 6:00 a.m. on October 8, 2023. Israel began bombing the Gaza Strip on October 13, 2023, and began ground operations in Gaza on October 27, 2023.

The prosecutor sought a time frame for crimes between October 8, 2023, and May 20, 2024. Framing the crime in this period suggests Khan believed a crime against humanity had occurred 5 days before Israel had fired a single shot into Gaza. When a crime occurs, it can be uncertain, and using this broad time range might be intended to capture all the actions under review. Alternatively, it may represent a form of hindsight bias. Khan believes a crime has occurred. His belief predates supporting evidence. As a further complication to Khan’s investigation, the Israeli civil rights group known as Shurat HaDin has called Attorney General Merrick Garland to review Amal Clooney’s actions regarding her work with the ICC in this investigation. Shurat HaDin claims Clooney may have violated the American Service-Members’ Protection Act.

To its credit, the PTC did invite states, organizations, and individuals to file amicus curiae briefs on issues related to Khan’s application – an apparent effort to gain additional perspectives than those presented by the OTP. While some of these submissions argued against moving forward, most supported Mr. Khan’s effort. And, because of the low evidentiary threshold, the PTC ultimately concluded that it was reasonable to conclude Israeli leaders have acted with the intent to starve, kill, and cause widespread suffering to Palestinian civilians and that Israel is either unable or unwilling to credibly investigate and potentially prosecute those responsible for these policies. All this results from creating a court intended to end impunity for serious violations of international law. However, whether this action aligns with this aspiration is debatable.

On July 1, 2002, the Rome Statute for an International Criminal Court came into force. The treaty established the first permanent, internationally constituted court to try individuals who would otherwise escape accountability for genocide, war crimes, and crimes against humanity. The United States was a prominent protagonist for this new court, and President Bill Clinton signed the Rome Statute on behalf of the United States on December 31, 2000. However, contrary to US efforts, the treaty that ultimately emerged vested the ICC prosecutor with virtually unlimited discretion to bring cases even against individuals who had been tried and acquitted by credible and legitimate process.

Citing these concerns with the court’s jurisdiction and the prospect of American citizens being compelled to appear before the court, the Bush Administration announced on May 6, 2002, that the US would “unsign” over the issue of unreasonable encroachment on US sovereignty. The functional US judicial system could adjudicate the crimes the ICC intended to consider. Indeed, Article 17 of the Rome Statute requires the ICC not to proceed if a State is capable and interested in investigating and prosecuting allegations of crimes. However, how this foundational principle of the tribunal would be implemented was entrusted mainly to the OTP.

The ICC has acknowledged Israel has a judicial system capable of punishing Israeli citizens accused of war crimes. On March 22, 2011, the Israeli judicial system sentenced former president of Israel Moshe Katsav to 7 years in prison for two counts of rape and obstruction of justice. In May 2015, former Israeli Prime Minister Ehud Olmert was convicted by an Israeli court of breach of trust and bribery. Israel has been willing to convict not only a President and a Prime Minister but also Knesset ministers, Knesset members, Chief Rabbis, and Mayors. Lest anyone wonder if the Israeli public does not hold politicians accountable: they only need to observe anti-government protests in the streets of Tel Aviv and Jerusalem on any given weekend.

No serious sovereign nation should endorse what is happening before the court now: the manifestation of the exact type of prosecutorial overreach the US was so concerned about. Prosecutors like Karim Khan have enormous discretionary power. They can determine which cases should be brought before the court, who to charge, what evidence to consider, and what evidence to ignore. In this case, this power also involved what experts to assemble to provide advice on how to proceed, which, interestingly, was a group that did not include any experienced military experts. These prosecutors decide what punishment to pursue, and political beliefs may impact these decisions.

Perhaps most importantly, the ICC prosecutor is entrusted with assessing the legitimacy and credibility of State accountability mechanisms and efforts. Sadly, in this instance, that assessment was unjustifiably dismissive, leading to what is, at best, a premature invocation of the Court’s jurisdiction over individuals who are subject to this jurisdiction not because their State chose to join the treaty, but because a dubious decision to treat Palestine as a State Party to the treaty with the accordant consequence that any alleged crime on Palestinian national territory is within the Court’s jurisdiction. In short, this is a tower constructed on a house of international legal cards. The world deserves more, and the States that have rejected the legitimacy of this effort see that quite clearly.

To date, 16 countries have indicated they will comply with their treaty obligation to support the ICC by arresting and turning over for trial these individuals if the opportunity arises. The US, Argentina, Hungary, France, Greece, and Israel have said they do not support this move and will do nothing to facilitate these cases. While Australia, Germany, and the United Kingdom continue to express concerns about the ICC arrest warrants, Canada indicated its willingness to enforce them.

Canada’s position on this is particularly noteworthy. It is clear from the reaction of other treaty parties to the ICC that cooperation with the Prosecutor need not be automatic. Each State should carefully assess the credibility of this highly charged effort. Perhaps this is just another reflection of the fact that Justin Trudeau currently leads a weak and unpopular minority government and sees this as an opportunity to pander to his progressive base. Perhaps Trudeau is positioning himself for some future position with the UN or some other international organization that has been quick to condemn Israel for its campaign of self-defense. Whatever the explanation, this is no virtuous effort to uphold international law.

Israel can and will hold accountable any of its citizens who commit a crime. This process may be complex and proceed too slowly for Prosecutor Khan and the ICC. No matter. Democratic countries with a functioning judiciary need no assistance to pursue justice, particularly from a body that has shown itself incapable of even managing the conduct of its prosecutor. If Prosecutor Khan and the ICC habitually override democratic governments with active and functioning judiciaries, the consequence may be ICC irrelevance.