Failing to fulfill ICC warrants is also a failure to defend Canada’s sovereignty

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Mark Kersten is an assistant professor in criminal justice at the University of the Fraser Valley and a senior consultant at the Wayamo Foundation.

With Canada’s 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 point, however, the Canadian government is signalling that our sovereignty is up for negotiation.

In November, 2024, the ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, charging him (as well as then-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 careful investigation, a review of the evidence against Mr. Netanyahu (including by world-renowned judge and Holocaust survivor Theodor Meron), and the approval of ICC judges.

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Then-prime minister Justin Trudeau said Canada, a member-state of the Court, would “abide” by the decision and enforce the warrant. A year later, Prime Minister Mark Carney doubled down, telling Bloomberg twice that Mr. Netanyahu would be arrested if he came to Canada.

That September, the Israeli leader travelled to the United Nations General Assembly in New York. The U.S. is not a member-state of the ICC and so had no legal obligation to arrest or surrender Mr. Netanyahu to the Court. But something curious happened along the way: The aircraft carrying Mr. Netanyahu did not take the most direct route from Tel Aviv to New York. Instead, the plane weaved to evade numerous European states as well as Canada – presumably out of fear that the aircraft might be forced to land and Mr. Netanyahu would be sent to The Hague.

The diverted travel path was a small but important victory for justice and accountability. Mr. Netanyahu made it to New York, but his world had changed. He could not do whatever he wanted. If nothing else, the ICC warrant against him meant that his world had shrunk.

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Since then, Mr. Netanyahu has travelled to the U.S. on three separate occasions. On each, he entered Canadian airspace, travelling over our Atlantic provinces. Ottawa has been mum on whether it allowed this to happen, whether the Israeli government was expressly permitted to travel through Canadian airspace, or how it believes that letting the Israeli leader travel over Canada aligns with our obligations to detain and surrender ICC suspects to the Court.

This, ultimately, is a matter of our sovereignty. Under international law, states exercise sovereignty over their territory, which extends to their land mass, coastal waters and the airspace above them (up to the edge of outer space). Canada has previously – and rightfully – excluded foreign actors from entering the skies above the country. After Russia’s full-scale invasion and war of aggression on Ukraine in February, 2022, Canada immediately closed its airspace to any Russian planes – a defiant act of sovereign prerogative in solidarity with the people of Ukraine.

Late last month, a Global Affairs spokesperson suggested to the CBC that it was up to Israel to decide whether to fly through Canadian airspace, adding that “Global Affairs Canada does not comment on which route a foreign state chooses to take.”

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This is nonsense. It is up to Canada, and Canada alone, to decide who enters our territory.

All of this comes at a time when the Trump administration has been actively seeking to undermine Canada’s sovereignty, relentlessly saying that the U.S. should make us a “51st state”. It also comes at a time when Washington has launched an unprecedented assault on the ICC, a key prong of which is sanctioning the Court’s judges, including Canada’s Kimberly Prost.

This should lead Ottawa to a simple conclusion: defending the ICC today is about defending Canadian sovereignty. Ensuring that our airspace is not breached by suspected atrocity perpetrators – regardless of where they are from – is about protecting our territorial integrity as much as international justice. Standing firm in our conviction that a Court that Canada helped build, as well as its judges, should be protected against unwarranted attacks is not just about international law: it speaks to who we are, what we value, and whether we take our sovereignty seriously. Doing so might not stop bullies, but pulling our punches will only invite more threats to our integrity as a country.

In failing to stand up for the ICC, Canada is failing to stand up for itself. It also risks continuing to, as Mr. Carney denounced in his Davos speech, engage in the “performance of sovereignty while accepting subordination.”