The third Prosecutor of the International Criminal Court (ICC) is the first UK national to take the role.

But Karim Khan QC faces challenges as the Court addresses an independent review, tense political relationships with some states, and significant decisions on the jurisdiction of the Court.

Who is Karim Khan QC?

On 12 February 2021, the International Criminal Court’s Assembly of State Parties elected British barrister Karim Khan as the new Prosecutor for the Court. Khan was the UK’s nomination for the role, and will replace current Prosecutor Fatou Bensouda when her term ends in June 2021.

Under the Rome Statute, the ICC Prosecutor is elected for a single nine-year term.

Karim Khan is currently the United Nations Assistant Secretary-General, serving as Special Adviser and Head of the UN Investigative Team to Promote Accountability for Da’esh/ISIL crimes (UNITAD). Khan is also a Queen’s Council Barrister, with a wealth of experience serving as either prosecution or defence council for several high-profile international criminal cases in numerous international courts and tribunals, including the ICC.

In response to questions from the Coalition for the ICC, Khan indicated that he plans to bring a new leadership approach to the Office of the Prosecutor, and address some of the Office’s previous mistakes and controversies.

Problems during the election process

To elect its third Prosecutor, the ICC adopted a new process by creating the Committee to Elect the Prosecutor (CEP). Although the formal process for states to nominate candidates still applied, the CEP considered applications from potential entrants and shortlisted the most suitable candidates.

While Khan was on the CEP’s long list of candidates for the election, the Committee only shortlisted four choices for states to consider, and Khan was not included.

State parties were not satisfied by this lack of choice, or the apparent lack of experience in some of the shortlisted candidates, and so the process opened back up to long-listed candidates still willing to participate.

While the previous two Prosecutors were elected by consensus, this election had two rounds of voting.

Civil society groups complained about the lack of a proper vetting process during this election, and the apparent inability to properly examine serious allegations levelled at one or more of the candidates. The Justice Initiative said this failed to protect the integrity of the election.

Findings of a “culture of fear”

In September 2020, the final report of an Independent Expert Review of the ICC conducted a thorough assessment of the Court and its operation. In the review, the Office of the Prosecutor faced several criticisms and recommendations.

It highlighted the need for improving the governance and structure of the Court, but also tackling findings of bullying, harassment, and a “culture of fear” within the workforce. The report’s findings represent one of the main challenges for the new Prosecutor going forward, and how he approaches his leadership.

Political issues during the election

The election for Prosecutor was also partly overshadowed by political disagreements among some states.

Reports suggested that Mauritius, for example, used the election as an opportunity to campaign against the UK’s response to recent international rulings that recognised Mauritian sovereignty over the Chagos Islands, which the UK considers British Indian Ocean Territory.

The UK was not technically bound by the decision, and the Government has stated it has no effect on the status of the Islands.

Mauritius highlighted the UK’s alleged disregard for international law to all state parties to the ICC, apparently in an attempt to undermine the UK’s nominated candidate for election as Prosecutor.

Challenges ahead

Decision on jurisdiction over the Occupied Palestinian Territories

In February 2021, the ICC’s Pre-Trial Chamber (PTC) decided that the ICC has jurisdiction to investigate allegations of international crimes in the Occupied Palestinian Territories (Gaza and the West Bank, including East Jerusalem). Based on the Palestinian Authority’s self-referral to the Court, it is now open to the Prosecutor to open a formal investigation into the situation in Palestine.

The PTC also ruled that the ICC was not able to pronounce on whether Palestine had achieved “statehood” in international law. It was enough for the ICC to establish that the Palestinian Authority had acceded to the Rome Statute and that the ICC therefore had jurisdiction over the territories concerned, considering Palestine’s status as an ‘Observer State’ at the UN.

The PTC’s decision was a 2-1 majority. While the dissenting judge also agreed that the ICC could have jurisdiction, based upon Palestinian accession to the Rome Statute, they disagreed over the scope of this jurisdiction and how the majority reached their decision.

Some states have rejected the PTC’s decision, including the US, Germany and Australia. This is because any investigation into this situation could also cover the alleged conduct of Israeli soldiers in the Occupied Territories. Israel is not a member state of the ICC and has not consented to its jurisdiction.

Israel’s Prime Minister, Benjamin Netanyahu, called the decision “pure antisemitism”, while the Israeli Foreign Ministry said: “Israel is not a Party to the ICC and has not consented to its jurisdiction. Only sovereign States can delegate jurisdiction to the Court, and there is not, nor has there ever been, a Palestinian state.”

In response to a parliamentary question on recognising Palestinian statehood, the UK Government recently said: “The UK will recognise a Palestinian state at a time of our choosing, and when it best serves the objective of peace.”

Relationship with the US

The current ICC Prosecutor was targeted with sanctions by Donald Trump’s Administration. This was a response to the Prosecutor opening an investigation into alleged crimes committed in Afghanistan, which could also cover US military operations there. This would bring the activities of US troops under the court’s jurisdiction, even though the US has not ratified the Rome Statute.

A challenge for Karim Khan is to continue to navigate this investigation in light of US opposition. While new US President Joe Biden’s Administration has signalled a better relationship with the Court and indicated that the sanctions will be “thoroughly reviewed”, the sanctions on the current Prosecutor remain in place.

Further Reading

About the author: Patrick Butchard is a Parliamentary Fellow, specialising in international law.

Image: Permanent Premises of the International Criminal Court by United Nations Photo is licensed under CC BY-NC-ND 2.0