By Alan Kessel, June 3, 2026
There was a time, not long ago, when the International Criminal Court (ICC) stood as one of the most hopeful expressions of global justice. It was built on a simple but demanding premise: that the gravest crimes known to law would be met not with impunity, but with accountability grounded in legal principle. Canada was among the architects of that vision. In 1998 I headed the Canadian delegation that negotiated the creation of the International Criminal Court. We invested in the idea that international law could constrain power, not merely reflect it.
That is why the Court’s current trajectory is so concerning – not because it has taken on difficult cases, but because of how it has chosen to proceed.
The concern is not abstract. It arises most sharply in the context of the Court’s recent engagement with the Gaza conflict, one of the most legally and politically complex situations the ICC has ever confronted. In that context, the prosecutor, Karim Khan, pursued allegations of war crimes and crimes against humanity against both Israeli officials and Hamas leaders, culminating in the issuance of arrest warrants in November 2024 against Benjamin Netanyahu and Yoav Gallant, alongside senior Hamas figures.
It is against that backdrop that a more fundamental issue comes into focus.
The present controversy traces back to a foundational legal question: whether the Court has jurisdiction at all. Israel is not a party to the Rome Statute, and it has consistently argued that the ICC lacks authority over its nationals. Under the Rome Statute system, the Court’s jurisdiction is not unlimited. Ordinarily, it depends on either the territorial state or the nationality state being a party to the statute, or on a specific referral by the United Nations Security Council acting under Chapter VII of the UN Charter. That is how situations such as Darfur and Libya came before the Court, despite those states not being parties to the statute.
No such Security Council referral exists in the Israel–Gaza context.
The Court has instead relied on the highly contested proposition that “Palestine,” as recognized for purposes of accession to the Rome Statute, may confer territorial jurisdiction upon the Court over conduct occurring in Gaza, the West Bank, and East Jerusalem. Israel rejects that proposition entirely, arguing that the Palestinian Authority does not possess the attributes of sovereign statehood necessary to delegate criminal jurisdiction under international law, particularly in light of the Oslo Accords, which expressly reserve criminal jurisdiction over Israelis to Israel.
There is also the principle of complementarity, one of the central safeguards built into the Rome Statute system. The ICC’s founders never intended it to replace functioning national legal systems. Its jurisdiction is meant to be complementary to them, operating only where a state is genuinely unwilling or unable to investigate or prosecute Rome Statute crimes itself. Israel has long maintained that its judiciary, military justice system, and investigative mechanisms are robust and independent, and therefore that ICC intervention is legally unwarranted. Whether one agrees with that position or not, it is not a marginal argument. It goes directly to the limits of the Court’s authority.
These issues are not peripheral – they are determinative. Without jurisdiction, there is no lawful basis for investigation or prosecution.
Yet, rather than resolving these foundational questions at the outset, the prosecutor proceeded while leaving them unsettled. In effect, he asked the Court to allow the investigative and prosecutorial process to move forward, with jurisdiction to be addressed later. The Pre-Trial Chamber accepted that sequencing, permitting momentum to build before the legal foundation had been firmly established.
Only later did the International Criminal Court Appeals Chamber intervene. In April 2025, it held that this approach was legally flawed. Jurisdiction is not a secondary matter to be deferred; it is the threshold question that conditions everything that follows. By postponing it, the Court had put process ahead of principle.
By then, however, the consequences of that sequencing were already evident. Arrest warrants of historic significance had been issued on a legal footing that was, at best, incomplete and, at worst, defective. That is not a technical problem. It goes directly to the legitimacy of the Court’s actions.
These legal concerns might have been manageable on their own. But they are now compounded by issues that strike even closer to the Court’s institutional core.
Reporting in The Wall Street Journal detailed serious allegations of sexual misconduct against Prosecutor Khan. Those allegations remain under investigation, but they raise unavoidable questions about judgment, accountability, and leadership at a critical moment for the Court. According to that reporting, the complainant has alleged that she was cautioned against pursuing or disclosing her complaint on the grounds that doing so could jeopardize the prosecutor’s then-intended indictments against Benjamin Netanyahu and Yoav Gallant. If accurate, that assertion is deeply troubling – not only because of the alleged misconduct itself, but because it suggests the invocation of ongoing prosecutorial decisions as a shield against personal accountability.
More recent reporting has gone further, alleging that Khan may have engaged with officials connected to Qatar regarding the advancement of the indictments against Israeli leaders. These reports are contested and must be treated with appropriate caution. But if they were to be substantiated, they would point to a deeply troubling erosion of prosecutorial independence, the very principle that underpins the Court’s claim to legitimacy.
Taken together, the picture is a difficult one. A prosecutor proceeding before jurisdiction is resolved. A Pre-Trial Chamber allowing that course. An Appeals Chamber later correcting it, but not nullifying the arrest warrants. Serious allegations of personal misconduct. And now, reports, unproven but consequential, of possible external political alignment.
This is not how the Court was meant to function.
For Canada, this is not simply another international dispute. We were among those who helped design the Rome Statute system. We believed the ICC would exemplify disciplined legal reasoning, particularly in the most politically sensitive cases. That meant addressing jurisdiction at the outset, not as an afterthought. It meant ensuring that prosecutorial decisions were insulated from any appearance of political influence. And it meant holding the institution itself to the same standards it seeks to enforce globally.
What is at stake is not only the outcome of any single case, but the credibility of the Court as an institution.
Restoring credibility requires a return to first principles: jurisdiction first, process second; accountability within the institution; and independence that is not only real, but seen to be real.
The Court can still recover its footing. But doing so will require discipline, transparency, and a renewed commitment to the legal foundations on which it was built.
Those of us who believed in that project are watching, not in anger, but in concern, and with the hope that the Court can still live up to the promise it once so clearly embodied.
Alan Kessel served in the roles of assistant deputy minister for legal affairs and legal adviser at Global Affairs Canada. He headed the Canadian delegation that negotiated the creation of the International Criminal Court. He is now a senior fellow at the Macdonald-Laurier Institute.
