On Monday, the prosecutor of the International Criminal Court, Karim Khan, announced he would be filing applications for arrest warrants for both the leaders of Hamas, a designated terrorist organization, and the leaders of Israel, a democratic nation defending itself against that very same terrorist group. The short statement he wrote to justify the decision was stunning in its failures. It was wrong on the merits, the process, the facts, and the law.

First, the merits. The ICC accused Israel of violating several specific provisions of the Rome Statute but neglected to quote the full statutory language, likely because in each and every instance, the law as written gives lie to his claims. 

For example, in his first charge, Khan noted that Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant are accused of the “starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the Statute.” This would be the first time that starvation has ever been charged as a crime, and for good reason: It is an extraordinarily hard crime to commit. 

What the Rome Statute actually says is that the crime consists of “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions” (emphasis added). It is a specific intent crime, which means that even if the prosecutor could prove that Israel’s actions starved civilians (he can’t because everyone knows that Hamas is the one that steals and hordes the aid) he would also have to prove that aside from pursuing any other lawful objectives — including for instance, its stated objective of attempting to force Hamas combatants to surrender — Israel also intended to starve the civilian population as a method of warfare. 

The ICC may actually feel that Israel could have done more to get aid in faster, or done a better job sneaking food past the Hamas lookouts who stole it. But to claim that aside from fighting Hamas, they were also intentionally starving civilians is more than just preposterous — it is a baseless and outright blood libel.

Also important: Under the Geneva Conventions, a sieging party does not have to allow in aid when it will be diverted by the enemy, or when it will result in their gaining a definite advantage, both of which are inarguably true regarding Hamas. 

Each of the seven charges Khan levels fails for similar reasons — both on the shockingly absurd and patently antisemitic grounds, as well as the boring but important technical bases you would expect an international lawyer to be a little more familiar with.

Next, the process: Israel, like the United States, is not a party to the Rome Statute and has not accepted the ICC’s jurisdiction. The only way the court can exercise jurisdiction in disputed areas of the West Bank and Gaza pursuant to the Palestinians’ request is if the court considers Palestine to be a “state” and is willing to decide on its borders, i.e. which parts of the “territory” belong to that nonexistent state, in flagrant violation of the norms of international law. 

In another non-flattering first, Khan’s decision will make Israel the first and only non-ICC member state ever to be investigated at the behest of a nonstate member. 

Third, the prosecutor is wrong on the facts. For example, the actual numbers show that during the war, more food trucks have entered Gaza than prior to the war — an average increase of more than 50% per day. Khan offers no evidence that a single person has died from starvation, let alone from a policy of starvation. 

Even using the numbers from Hamas’s Ministry of Health, the claim is only that as of April, there have been 32 deaths attributed to malnutrition or dehydration. Accusing Israel of not doing enough to stop malnutrition when Hamas is a) sitting on a trove of supplies, b) stealing the aid that comes in, c) providing false casualty numbers, d) bombing the main humanitarian crossing at Kerem Shalom, and e) doing so as part of a well-established lawfare tactic is nothing short of insane.

Fourth, even if one were to ignore all the problems of jurisdiction, process, merits, and facts, Khan is still simply wrong on the law of the ICC itself. Under the principle of complementarity, the ICC is supposed to be an exceptional court of last resort, the only exception being when a state is “unwilling or unable genuinely to carry out the investigation or prosecution.” 

As Khan himself has recently noted, “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.” Not only does Israel have an independent judiciary famous for ruling against its own rulers, but there are dozens of active investigations into actions taken since Oct. 7. Khan does not have to like it, but Article 17 of the Rome Statute makes it clear that matters of admissibility are preconditions to the exercise of the international court’s jurisdiction, not mere factors to be considered at the ICC’s discretion.

So what do you call it when someone ignores facts, law, processes, and merits to try and morally equate the Jewish state with the terrorists who are trying to destroy it? There is a word for that, and it is not pretty. 

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What should the U.S. do? Recognize that Israel is just the canary in the coal mine of this illegitimate court and that such a nakedly political move deserves a political response. Congress should pass the Illegitimate Court Counteraction Act to sanction the officials who investigate or prosecute the U.S. and its allies who do not accept the jurisdiction of the ICC. And it should do so now, instead of waiting for the ICC to try and come after America again, like it did in the case of Afghanistan.

In the meantime, the U.S. and every other law-abiding country should continue to protest this unjust and unlawful action, and if they have any hope of restoring the legitimacy of the ICC, pray that the judges of the ICC’s Pre-Trial Chamber throw out Khan’s request like the trash that it is. 

Mark Goldfeder is a former law professor and director of the National Jewish Advocacy Center. Follow @markgoldfeder on X.