Barbara Kay: It’s time to get rid of the International Criminal Court

The International Criminal Court (ICC) was founded in 2002. Strict adherence to international protocols and law is not its strong suit, and its activities have accordingly been roiled by controversy, not least with regard to its steep operating costs and its frequently shaky jurisdictional presumptions. Thanks to the alleged sexual and political hubris of its now-former chief prosecutor, the ICC is presently mired in a serious crisis that may lead to its collapse, an outcome devoutly hoped for by its many critics.

The ICC is often confused with the International Court of Justice (ICJ), founded in 1945, but they have distinct purposes and mandates. The ICJ acts as a platform for resolving conflicts between sovereign states. Relying heavily on established principles of international law, the ICJ adopts a politically neutral line of legal inquiry. For example, the ICJ is hearing South Africa’s case alleging that Israel has violated the Genocide Convention, but — contrary to popular opinion — it has not ruled that genocide has occurred.

By contrast, the ICC investigates and prosecutes individuals — referred to it by states, suggested by the UN Security Council, or chosen by the prosecutor’s office  — such as political or military leaders, deemed to have committed war crimes, genocide and other crimes against humanity. A decade after its conception, militant antizionist entities sought to launder their virulent hatred of Israel via ICC rulings. The non-existent “State of Palestine,” for example, voted into the UN as a non-member “observer state” in 2012, referred alleged Israeli crimes to the ICC in 2018, despite the fact that there is no actual “State of Palestine” and Israel is not an ICC member state.

Last week, international criminal lawyer Karim Khan was expelled as ICC’s Chief Prosecutor (a post he first assumed in June 2021) by its 125 member states following allegations of serial sexual misconduct against a junior ICC staffer which she says began in 2023. (Khan’s two predecessors have faced their own allegations of misconduct.)

The incriminating back story and timeline to what has become a wider political scandal is amplified in a July 25 Times of Israel article by international human rights lawyer Anne Bayefsky, titled “Karim Khan is gone. The ICC’s antisemitism remains.”

Khan first learned on May 2, 2024 that his staffer’s sexual-misconduct allegations would be reported to the ICC’s oversight body. On May 20, Khan cancelled a fact-finding trip to Israel regarding alleged “war crimes.” Instead, he announced on CNN that he was filing arrest warrant applications against Prime Minister Benjamin Netanyahu and Yoav Gallant, former defence minister, for war crimes and crimes against humanity perpetrated in the war against Hamas in Gaza following the October 7 attacks.

It was an odd decision from any logical perspective. Khan had to know the cancellation of his trip coinciding with both the warrants announcement and the sexual-misconduct allegation exposure would open the ICC to credible suspicion of motive. Nevertheless, the requests were approved by the ICC’s Pre-Trial Chamber, with warrants against Netanyahu and Gallant, as well as three Hamas leaders, officially issued in November 2024.

Khan’s ICC career is kaput, but an investigative deep dive published in April by The Wall Street Journal, titled “Qatar and the ICC Prosecutor,” provides evidence that Khan’s troubles may be far from over, and that Qatar should be enduring some troubles of its own on this file. The WSJ’s investigation was inspired by a November 2025 report in The Guardian about Qatar-linked intelligence operations conducted by two private firms, Highgate and Elicius, hired to find information that might cast shade on Khan’s sex assault victim. A witness statement alleged the Qatari government promised to “look after” Khan if he set his prosecutorial sights on Netanyahu. The statement, with supporting audio recordings, was submitted to the U.S. Federal Bureau of Investigation, and was said to be familiar to several members of Congress.

The WSJ says the private intelligence operation allegedly sought to target both Tom Lynch, the ICC official who first reported the sex assault allegation against Khan, and the late Senator Lindsey Graham. The witness testified that an Elicius source claimed — without evidence — that Israel’s Mossad believed Khan was a Qatari agent. In the recording, an intelligence operation’s manager is heard to say, “I spoke to the client (Karim Khan) about it,” and “they weren’t surprised that it had leaked that they were wrapping their arms about him.” Further: “It’s all in the context of issuing the warrant. That’s basically the deal. (Khan) was like, ‘I want to issue the warrant, but I’m terrified to do it.’ And they said, ‘if you do it, then we’ll look after you.’”

Asked if the support came from an individual sheikh or from the Qatari state, the intelligence operation’s manager reportedly said, “No, it’s the state.” Khan’s lawyers vigorously rejected the witness’s testimony and the Qatari embassy reiterated a previous statement that the allegations were “unfounded.”

The recordings also appear to expose the private intelligence team’s desperate but flailing attempts to find Jewish connections to Khan’s Muslim accuser. One dashed hope is recorded in the words that the victim “didn’t have a Jewish grandmother.” Someone raises the question of whether she might have had a secret Israeli passport. In another recorded session, a researcher claims the victim’s husband once worked for a company with a kosher-food subsidiary. That would mean “there’ll be a rabbi associated with it,” which “could be good cover employment.”

A theory arose that the victim was being manipulated by a handler, so researchers were tasked with establishing “any ties between Thomas Lynch and Israel/Jewish heritage.” The only tie they discovered was a friendly relationship with robustly pro-Israel (but non-Jewish) Lindsey Graham. “Thin gruel,” comments one investigator. None of the intel firms’ straw-grasping led to a convincing, or indeed any, scapegoat. The whole hail-Mary exercise was a fiasco.

Finally, with regard to the fact that Khan included three Hamas leaders in his warrant requests, nobody should take the gesture as a sign of political neutrality. Quite the contrary. The WSJ editorial correctly observes that it speaks directly to the ICC’s original sin, a mindset that sees moral equivalency between state armies and terrorists: “It was always egregious to indict Israel’s Prime Minister and Defense Minister for the country’s defensive war, which Hamas began. What the Nuremberg tribunal rejected after World War II — the argument that the democratic defender’s bomber pilots were equivalent to the totalitarian aggressor’s death squads — Mr. Khan endorsed by seeking to prosecute both Hamas and Israeli leaders.”

Liam Ferguson wrote in these pages this week, the ICC is “an unserious institution that’s wholly incapable of fulfilling its role of prosecuting the most heinous of international crimes.” He was right, but too kind. Incompetence is the least of its problems.

National Post

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