Article co-authored with John Spencer, chair of urban warfare studies at the Modern War Institute (MWI) at West Point.

According to reports, Karim Khan, chief prosecutor of the International Criminal Court, is widely expected to issue several arrest warrants in the coming days. 

These warrants will not be against Ayatollah Khamenei, leader of the world’s foremost state sponsor of terror, Iran, or Syrian President Bashar Assad, who has presided over the massacre of more than 500,000 civilians in Syria over the last 12 years. 

No, instead Khan is planning to indict Israeli leaders, including Prime Minister Benjamin Netanyahu and IDF Chief of Staff Herzi Halevi, for the crime of defending the Jewish state against Hamas, who committed the worst mass slaughter of Jews since the Holocaust. 

While Khan’s decision will no doubt be applauded by the pro-Hamas mobs at Harvard Yard and the Columbia Quad, this will be an unconscionable and unprecedented misuse of the law, upending the very framework upon which the international legal order is based. 

The ICC was established in 2002 as “a court of last resort,” with the primary goal of ending impunity for those accused of the most heinous of crimes, including war crimes, crimes against humanity and genocide.  

It was never intended to be applied in the Orwellian circumstances of prosecuting Israeli leaders as they defend the Jewish state against the murderers and rapists of Hamas and seek to bring back hostages held captive by the terror group in Gaza. 

The IDF has gone to unprecedented lengths, not seen in the history of modern warfare, to abide by the laws of war and avoid harm to civilians, even when doing so has put the IDF’s own soldiers at risk. This has included warning of impending attacks and creating safe corridors for civilians to evacuate through. They have done this while continuing to facilitate the provision of humanitarian aid and supplies, including more than 25,000 aid trucks to date, notwithstanding Hamas continuing to intercept and syphon much of this aid. 

As White House national security spokesman John Kirby has emphasized in the last two weeks, “we’ve not seen any indication they [Israelis] have violated International humanitarian law.” In response to the accusation that Israel is committing genocide, Kirby emphatically replied, “Absolutely not. There is no evidence.” 

As a court of last resort, the ICC is governed by the principle of complementarity, meaning the ICC may assert jurisdiction only in circumstances where a national legal system fails to act, or to do so in a genuine manner. 

Even Karim Khan has stated, during a visit to Israel after the October massacre, that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” This should have automatically precluded even entertaining the idea to exercise jurisdiction — how quickly must have Khan forgotten his own words? 

Not only is there absolutely no legal basis to issue arrest warrants against Israeli leaders, doing so now would only reward Hamas and unleash a further firestorm of antisemitism.