On Friday, July 24, the 125 member states of the International Criminal Court will gather at United Nations headquarters in Manhattan and hold a secret ballot on whether their own chief prosecutor is fit to keep his job.
They are doing it here. On American soil. Under the protection of the NYPD.
The same court that claims authority to prosecute American servicemen, and that has sought the arrest of Israel’s elected leaders, is coming to our city because it cannot sort out its own house in its own building.
Washington has noticed. On Monday, Secretary of State Marco Rubio announced a whole-of-government campaign to take the court apart. Sovereign states over globalism, he wrote in the Wall Street Journal. Brick by brick, if necessary.
In Europe, horror. In America and Israel, relief.
But the real story is not that Washington finally swung back. It is that the ICC spent two decades turning itself from a court of last resort into a political weapon, and aimed it at the only countries with functioning courts of their own.
We were warned. In 2002, Congress passed the American Service-Members’ Protection Act, mocked ever since as the Hague Invasion Act, authorizing the president to use all means necessary to get Americans out of ICC custody.
European commentators called it paranoid. Twenty-four years later, it reads like a memo that arrived early.
The court has repeatedly claimed authority over citizens of countries that never signed its treaty. It opened a file on American personnel over Afghanistan and refuses to close it. It sought arrest warrants against Israel’s prime minister and defense minister, though Israel never ratified the Rome Statute either.
If a court can try the citizens of nations that never consented to it, consent means nothing. And if consent means nothing, neither does sovereignty.
Nowhere has the politics been more naked than in the court’s treatment of Israel.
On Oct. 7, 2023, Hamas carried out the largest massacre of Jews since the Holocaust. Men, women, children, and Holocaust survivors were murdered, raped, burned alive, and dragged into tunnels.
Karim Khan came to Israel. Israel is not a member of his court. He came anyway. He met the victims. He heard the testimony. He walked through the burned houses.
The hostage families believed him.
Then they watched him seek arrest warrants against Israel’s elected leaders while their children were still underground in Gaza.
I have spent 23 years sitting with people on the worst day of their lives. I have rarely seen a betrayal land that hard. My organization sued Khan over it, on behalf of Oct. 7, 2023 victims. We are still in that fight.
Which is why what happened next should trouble you even if you have no sympathy for the man.
Khan has been suspended over sexual misconduct allegations he denies and calls a smear. A UN investigation found evidence. A panel of judges appointed by the court’s own executive body reviewed that same evidence and concluded it did not establish misconduct. The executive body overruled its own judges anyway.
Then, according to reporting on the confidential proceedings, it altered the voting rules partway through one named man’s case, lowering the bar required to throw him out.
I have no brief for Karim Khan. I sued him.
But look at what the court just taught us about itself. Handed an inconvenient legal finding, it went around it. Handed an inconvenient rule, it rewrote it.
That is exactly what it does to sovereign states. It simply did it to one of its own, in public, where the rest of us could watch.
The problem was never one prosecutor.
The ICC was built to catch warlords and architects of genocide after Rwanda and the Balkans. The world needed that court. But like every international bureaucracy, it grew. It stopped seeing itself as an instrument of justice and started seeing itself as the arbiter of global morality.
An arbiter of global morality has no natural stopping point, because there is always another country left to judge.
Democracies have courts. Elections. A free press, an appeal, a ballot box. They do not need supervision from prosecutors nobody elected, in a city nobody voted in.
The court’s defenders now answer that no American has ever actually been charged. That this is a panic about a threat that never arrived.
Read that again. Their defense is that the gun has not gone off. They do not deny they are holding it, and they will not put it down.
So on Friday they come to New York, to decide by secret ballot whether the man who wanted to arrest a sitting prime minister is fit for office, under rules that were rewritten last month.
It is the only proceeding the ICC has ever run in which the defendant, the prosecutor, and the court are the same institution. They should pay close attention to how it feels.
NEW YORK’S MAYOR ISN’T THE WORLD POLICE — SOMEONE SHOULD TELL ZOHRAN MAMDANI
They set out to build a court. What they run is a political institution that lost track of the difference between justice and power. Once that distinction goes, legitimacy is not far behind.
The rest of us will be watching from the sidewalk.
Nitsana Darshan-Leitner is an Israeli civil rights attorney and president of the Tel Aviv-based Shurat HaDin Law Center, which has sued ICC prosecutor Karim Khan on behalf of Oct. 7 victims. She is co-author of “Harpoon: Inside the Covert War Against Terrorism’s Money.”