Defending the ICC is about defending Sovereignty

Posted on August 12, 2026 by Mark Kersten

A version of the following article was originally published in the Globe and Mail, and relates to the implications of Canada‘s decision to allow ICC suspect Benjamin Netanyahu to travel through its airspace. However, Canada was not alone. As covered in some depth here, other states and ICC members – including Greece, Italy, and France – have permitted Netanyahu to fly over their territories. The argument below, therefore, is applicable to all of these states and indeed all ICC member states concerned about their own territorial integrity as well as that of their allies.

Netayahu’s flight path in December 2025, just months after avoiding European airspace (Image: itamilradar)

With its sovereignty coming under consistent threat from the United States, Ottawa should take every opportunity it gets to articulate – to Canadians and others – that we are a proud and sovereign state. That includes the way we engage with international organizations, such as the International Criminal Court (ICC). On that scale, however, the Canadian government is signalling that Canada’s sovereignty is up for negotiation. If we don’t want our sovereignty to be trampled on, we have to stand up for it. 

In November 2024, the ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, charging him (as well as Defence Minister Yoav Gallant and three since-deceased Hamas leaders) with war crimes and crimes against humanity over the war in Gaza. The warrant was based on a painstakingly careful investigation, a review of the evidence against Netanyahu (including by world-renowned judge and Holocaust survivor Theodor Meron), and the approval of ICC judges. As a member-state of the Court, would Canada enforce the warrant? Then-Prime Minister Justin Trudeau saidCanada would “abide” by the Court’s decision. A year later, Prime Minister Mark Carney doubled down, telling Bloomberg journalist Mishal Husain twice that Netanyahu would be arrested if he came to Canada.

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Posted in Benjamin Netanyahu, Canada, France, Greenland, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Israel, Italy, Palestine, Palestine and the ICC, State Sovereignty, United Nations, United States | Tagged , | Leave a comment

If the ICC dies, it won’t be Trump that kills it, but the indifference of the Court’s supposed backers

Posted on August 10, 2026 by Mark Kersten
U.S. Secretary of State, Marco Rubio (Photo: Joe Raedle/Getty)

The International Criminal Court is once again under attack from the United States. The reason behind the Trump administration’s efforts to dismantle the institution is simple: an insistence that they enjoy wholesale impunity. In numerous contexts, including the Caribbean, Venezuela, Palestine, Afghanistan, and El Salvador, there are credible allegations of international crimes committed by U.S. citizens. If the U.S. wasn’t exposed to accountability for its atrocities, it wouldn’t be seeking to destroy the Court. 

Now, will the ICC’s backers please stand up?

American aggression towards the ICC is nothing new. The U.S. has been seeking to subvert the work of the ICC since before the Court was even a fixture of the global arena. Since the bygone era of President George W. Bush, Republicans in particular have been obsessed with the Court and its operations. From John Bolton to Mike Pompeo to now Secretary of State Marco Rubio, Republican officials have been fixated with the ICC even though it has never actually issued a warrant for any American citizen. 

Ironically, the efforts of U.S. officials to condemn the ICC have bestowed prestige and legitimacy upon the institution. To those across the globe who believe that the ICC is feckless in the name of American imperial ambitions, tantrums from successive Republican administrations is a powerful antidote. In a nutshell, the greater Washington’s hysteria over the ICC, the more powerful and persuasive the Court appears to those who believe the U.S. is not above the law.

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Posted in Assembly of States Parties, ICC Sanctions, International Criminal Court (ICC), International Criminal Justice, United States | Leave a comment

New Article: Crimes Against Migrants as Crimes Against All of Us: The Relevance of International Criminal Law to Migrant Control

Posted on August 6, 2026 by Mark Kersten
Hoping To Survive, by painter Razieh Gholami, from Afghanistan (2019)

Dear readers,

I wanted to share a new academic article that I wrote with you, on a topic I know is close to the hearts and minds of many: the atrocities and human rights violations faced by refugees and migrants around the world. The article is entitled Crimes Against Migrants as Crimes Against All of Us: The Relevance of International Criminal Law to Migrant Control and has been published by the Canadian Journal of Human Rights.

The article draws on a great deal of literature on the topic and hopefully makes it own contribution to thinking around how atrocities against migrants should be understood and addressed as crimes against humanity. With the forthcoming, landmark case of Khaled Mohamed Ali El Hishri before the International Criminal Court, including in relation to abuses against refugees in Libya, I join others in hoping that the subject gets renewed judicial attention, that abuses against migrants (including by Western states) end, and that, ultimately, the rights of victims are vindicated.

What follows below is the introduction the article. A full copy can be found here.

Every year for the past decade, thousands of migrants have crowded onto dinghies along the Libyan shoreline. From there, they push off and attempt what thousands before them have failed to do: traverse the Mediterranean and land safely in Europe. Some make it. Many perish. Many are caught or “rescued” by the Libyan Coast Guard, herded onto ships by armed guards and returned to the North African country. There, they are dumped into squalid, makeshift warehouses-turned- detention centers where they are exposed to risks of sexual violence, persecution, human trafficking and torture.The migrants have no legal rights in Libya and they do not end up there because Libya wants them. But when collecting migrants from the sea and bringing them back to shore, Libyan authorities are not working for themselves; their masters are in Rome and Brussels. The Libyan Coast Guard acts as an extension of European border control in international waters, hundreds of kilometers from the nearest European state. The border is no longer where it seems. 

Almost 8,000 kilometers away from Libya, the border between Myanmar and Bangladesh has been the flashpoint of other atrocities. Seeking to ethnically cleanse Myanmar of the minority Muslim Rohingya population, Burmese authorities forcibly displaced some 700,000 Rohingya into Bangladesh. The border was a critical feature of these atrocities: the Burmese authorities wanted to ethnically cleanse Myanmar of the minority Muslim population, believing that they belonged “elsewhere”. Pushing them across the border into Bangladesh was therefore a driving motivation of the Burmese authorities. At the same time, the border played a critical role in (ongoing) attempts to address the atrocities committed against the Rohingya by the International Criminal Court (ICC). While Myanmar is not a member-state of the ICC, Bangladesh is. In 2019, judges at the ICC accepted arguments that the forcible displacement of the Rohingya was a crime that originated in Myanmar but was completed in Bangladesh, a continuous crime that “spilled” across the border and into territory where the Court had jurisdiction. The ICC prosecutor was therefore granted jurisdiction to open an investigation into international crimes committed against the Rohingya.

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Posted in Academic Articles / Books, Canada, Crimes against humanity, Immigration, International Criminal Court (ICC), Libya, Refugees, United States | Tagged , | Leave a comment

To Sudan, from Kenya: The case for prosecuting RSF atrocities in the courts of a regional neighbour

Posted on August 3, 2026 by Mark Kersten

The following article was written by Mikel Delagrange, Senior International Legal Advisor at the Wayamo Foundation and Mark Kersten, Senior Consultant at the Wayamo Foundation and the founder of Justice in Conflict

 Sudanese soldiers from the Rapid Support Forces in the East Nile province (Photo: AP)

Experts call it the worst humanitarian crisis currently facing the world. Still, no accountability for mass atrocities has been delivered.

More people than the combined populations of Ireland and Switzerland have been forced to flee their homes and communities. But no one has been held to account.

Despite reports of massacres leaving pools of blood that could be seen from space, the perpetrators still roam free.

What will it take for the people of Sudan, faced with a relentless stream of war crimes, crimes against humanity and genocidal violence, to finally see the architects of this violence held to account? 

The answer could very well lie not at any international court or tribunal, but in a regional neighbour: Kenya. In June of this year, a criminal complaint was filed in Nairobi by Legal Action Worldwide and the African Center for Justice and Peace Studies on behalf of twelve victims of atrocities committed by the Rapid Support Forces (RSF) in Sudan. The victims alleged that the RSF unlawfully detained, tortured, and raped them – and murdered their family members. These are crimes against humanity and war crimes, and the victims are demanding that Kenyan authorities investigate and prosecute the RSF fighters responsible. It is now up to Kenya’s governing authorities to decide if they will open an investigation and, in doing so, contribute to justice for the people of Sudan. We hope that they will.

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Posted in Darfur, Kenya, Sudan, Universal Jurisdiction, Wayamo Foundation, William Ruto | Tagged , | 3 Comments

Obligations, up in the Air? Are ICC member-states obligated to arrest Netanyahu when he enters their airspace?

Posted on July 29, 2026 by Mark Kersten
Netanyahu’s recent flight path

In late July, Israeli Prime Minister Benjamin Netanyahu travelled to the White House with a mission: get America to continue its war against Iran and to support him in his forthcoming election campaign. On his way to Washington, the aircraft carrying Netanyahu, the Wing of Zion, flew over multiple member-states of the International Criminal Court (ICC): Greece, Italy, France, and Canada. It was not the first time in recent months that the Israeli leader had entered the airspace of these states. But as late as September 2025, Netanyahu had been forced to take a more circuitous route to the U.S. What hasn’t changed over that time the ICC arrest warrant Netanyahu faces. 

Do states have an obligation to enforce warrants in the air above them? The European states that allowed Netanyahu to cross their airspace have thus far been silent on their reasoning. According to Canadian officials responding to reports that Netanyahu’s flight over two Canadian provinces, however, “Canada does not currently link its overflight policy to law enforcement objectives except where an imminent security risk is present. This policy is regularly reviewed.” 

This would suggest that states have an obligation to arrest ICC suspects only when they are boots-on the-ground, physically on their land and not if they’re at sea or in the airspace above them. As a matter of law, though, is there really such a carve out?

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Posted in Benjamin Netanyahu, Canada, France, Greece, ICC Prosecutor, International Criminal Court (ICC), International Law, Italy, Mark Carney, State Sovereignty | Tagged , , , , | 1 Comment

Under pressure from Washington, states are withdrawing from the ICC: Time for a Membership Drive?

Posted on July 27, 2026 by Mark Kersten
The International Criminal Court (Photo: Mark Kersten)

It has been barely two weeks since U.S. Secretary of State Marco Rubio announced Washington’s intention to “dismantle” the International Criminal Court “brick by brick”, and now two states have announced their withdrawal from the Court. Both Venezuela and Chad have claimed that their decisions were the result of the ICC’s alleged biases. In reality, American pressure drove each to please (or appease) the Trump administration, with both Caracas and N’Djamena being pushed in recent days to leave the Court. Not surprisingly, their decisions were celebrated in the Trump administration, which is encouraging “all members of the ICC to withdraw from the Rome Statute.” 

The situation facing the ICC will get worse before it gets better. The withdrawals of Venezuela and Chad will be followed by others. To save the institution, those states that still believe in the Court’s mission should meet America’s campaign for ICC withdrawals by organizing a coherent and comprehensive membership drive aimed at getting states to join the Court.

The Trump government knows that it cannot destroy the ICC alone. If it could, it would have done so long ago. It needs other states to join its cause. A logical prong in its efforts to destroy the ICC is thus to push member-states to leave the Court. The way for the ICC to survive is to directly counter this campaign by ensuring that its membership remains robust. But it cannot do this alone. It needs the help of its members.

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Posted in Chad, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, International Law, United States, Venezuela | Tagged | 3 Comments

Karim Khan is removed as ICC Prosecutor. What now?

Posted on July 25, 2026 by Mark Kersten
Karim Khan speaks at the Assembly of States Parties in 2022

Member-states of the International Criminal Court (ICC) have voted to oust chief Prosecutor Karim Khan. The British lawyer has faced serious allegations of sexual misconduct by a member of his staff and was also a lightning rod for criticism from some quarters over his prosecutorial decisions, none more so that his investigation into the situation in Gaza. With Khan gone, what happens now to this beleaguered institution?

First, some clarifications. There has been a great deal of misinformation spread by certain media outlets and states about the allegations that Khan faces. This much is clear: the allegations against the now former chief Prosecutor had nothing to do with his decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant over war crimes and crimes against humanity committed in Gaza. Khan’s accuser herself has made that repeatedly clear and spoke about how she hesitated to come forward with her allegations because of how it would be weaponized by those seeking to discredit the ICC over its investigation into atrocities in Gaza. She has also said: “I fully and entirely support the court’s investigations.”

At the same time, there is no credible evidence that the allegations against Khan are part of a conspiracy orchestrated by Israel or the United States to oust him. When the accusations of sexual harassment were first made, some – including in the Court –assumed it must have been part of a plot against the institution organized by politically-motivated actors. But that does not appear to be the case.

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Posted in International Criminal Court (ICC), International Criminal Justice, Israel, Karim Khan, Palestine, United States | 4 Comments

The Business of War Crimes: Western states warn companies they can be held accountable for West Bank atrocities

Posted on June 15, 2026 by Mark Kersten
New houses being constructed at the Israeli settlement of Eldad, south of Bethlehem in the West Bank, in 2019 (Photo: Garry Walsh/Trócaire.

In late May, nine Western leaders issued a statement regarding the situation in the West Bank. It was largely a repeat of past condemnations of settler violence and Israeli moves to displace Palestinians and establish new illegal settlements, including the so-called E1 plan. But one aspect of their statement was novel: a direct warning to businesses to avoid complicity in West Bank atrocities. This emphasis on corporate responsibility for international crimes, including war crimes and crimes against humanity, is much needed and welcome. Without addressing the profit-motivated aspects of atrocities, accountability is incomplete.

In recent months, the states behind the May statement have had their patience with Tel Aviv run thin. Five of the nine have recognized Palestine as state. Some have done so with the intention of thwarting Israel from erasing Palestine and any two-state solution. But few if any have pointed to the contributions of businesses to the ongoing occupation of Palestinian territories and the relentless effort to forcibly displace Palestinians from their homes and communities. Until now. 

The statement by the leaders declared that: 

“Businesses should not bid for construction tenders for E1 or other settlement developments. They should be aware of legal and reputational consequences of participating in settlement construction including the risk of involving themselves in serious breaches of international law.”

The signatory states have thus issued a warning: those who run companies involved in operations in the illegally occupied West Bank could face prosecution for their involvement in serious breaches of international law, namely war crimes and crimes against humanity. Their position is in line with the Nuremberg legacy, the post-WWII trials of industrial leaders, and the understanding that mass atrocities are never committed without corporate sponsorship.

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Canada cannot tackle repression in the country by deporting perpetrators back to oppress others: Linking transnational repression in Canada to rights violations and atrocities committed abroad

Posted on May 5, 2026 by Mark Kersten

Dear JiC readers: I had the privilege of testifying this week at the Canadian House of Commons’ Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development. The topic was Transnational Repression (TNR). In my testimony, I emphasized the links between atrocities and human rights violations in source countries with transnational repression in Canada. Understanding those links, I argued, is necessary to devise policies that hold perpetrators accountable in meaningful ways – and not simply rely on quick-fixes and immigrations remedies like deportations. I also testified to emerging threats of TNR, including that which is emanating from the United States. For those interested, you can find the recording of my testimony here, and the text of it below. Thank you, as always for your readership!

Thank you, Mr. Chair.

As transnational repression, or TNR, continues to grow, it is critical to remind ourselves: transnational repression is not waged against abstract entities or states, but against people and communities.  Canada’s response must therefore be grounded in human rights.

With my time, I will emphasize three points and conclude with recommendations.

First, TNR in Canada is inextricably linked to human rights violations committed in source countries.

Second, understanding these links means tackling both, by holding perpetrators accountable. 

Third, the threats of TNR are growing and include states that Canada considers allies.

TNR is not separate from repression in source countries. It’s an extension of it. Those who call out and push back on atrocities – in Iran, Russia, China, India, etc. – are targets for repression here.

How Ottawa responds must appreciate that it is those who dream of human rights in their homelands that face the nightmare of transnational repression in Canada.Given the springtime, consider the following analogy. 

If Canada continues to focus only on how repression is expressed on Canadian soil, it will be cutting dandelion flowers while leaving the roots intact. Worse, current Canadian policies might even allow the weedy world of repression to flourish.

I have studied the presence of Iranian regime figures in Canada and what responses are available to authorities. And like others, I was dismayed to see some MPs calling for Iranian regime figures to be deported back to Iran.

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Posted in Canada, Canadian War Crimes Program, Crimes against humanity, Genocide, Iran, Transnational Repression, U.S. Immigration and Customs Enforcement (ICE) | Tagged , , , , | Leave a comment

Options for justice in Iran: The need to preserve evidence and plan for accountability

Posted on April 28, 2026 by Mark Kersten
Demonstrates in London in 2022 (Photo: Koca Vehbi/ Shutterstock)

It is not an exaggeration to say that Iranian civilians have been subjected to atrocities by every party involved in the conflict in Iran: the Iranian regime, U.S. forces, and the Israeli military. Iranians deserve better than the stream of war crimes and crimes against humanity committed by a government hell-bent on repressing its population and states that view their country as the latest theatre for their illegal and senseless wars. The plight of Iranians demands accountability. But what options exist? In what follows, I canvass avenues for justice, emphasizing which ones are available and should be prioritized.

The International Criminal Court 

A common, knee-jerk reaction to reports of atrocities is to call on the International Criminal Court (ICC). Unfortunately, the ICC cannot act in the interests of justice for Iranians. While Tehran has reportedly forwarded evidence of atrocities committed by others to the ICC, Iran is not a member-state and isn’t likely to expose itself – or its legion of perpetrators – to the Court’s scrutiny by accepting its jurisdiction over Iranian territory. At the same, the United States and Israel are not members of the ICC either, so their citizens cannot be investigated for any atrocities committed in Iran.

In short, the ICC is currently a non-starter. But its absence from the accountability equation does not mean that nothing can be done. Far from it. States can act to achieve accountability for Iran in the absence of the ICC. And they must.

Universal Jurisdiction

Iranian regime figures – including those responsible for atrocities – regularly travel abroad. This creates an opportunity to hold them to account under the principle of universal jurisdiction, which allows states to investigate and prosecute perpetrators of international crimes even when they are committed by foreign agents and against foreign citizens. There is even some precedence for this when it comes to Iran.

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Posted in ICC Prosecutor, International Criminal Court (ICC), Iran, Israel, Middle East, Palestine, United States, Universal Jurisdiction | 1 Comment