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Challenges Ahead of the New International Criminal Court

Karim Khan, the UK lawyer with ۲۷ years of practice in International Law, who was appointed by the international criminal court (ICC) as the new prosecutor of the court on February ۱۲ for a ۹ year term, will start his work on June ۱۶, ۲۰۲۱, as the third prosecutor of the ICC.
June 2021
Mohammad Nik-Khah

Karim Khan, the UK lawyer with 27 years of practice in International Law, who was appointed by the international criminal court (ICC) as the new prosecutor of the court on February 12 for a 9 year term, will start his work on June 16, 2021, as the third prosecutor of the ICC. This UK lawyer who owes his fame more to the guidance of the Special Research Group of the UN on Isis crimes in Iraq, managed , in a hidden election, to defeat the other three candidates who competed to substitute Fatou Bensouda, this court’s chief prosecutor, and substitute her. Bringing up cases based on war crimes against American troops in Afghanistan and Israeli officials at the court could be a tough test for the new prosecutor and the ICC. 

 Karim Khan, the UK lawyer with 27 years of practice in International Law, who was appointed by the international criminal court as the new prosecutor of the court on February 12 for a 9 year term, will start his work on June 16, 2021, as the third prosecutor of the ICC. This UK lawyer who owes his fame more to the guidance of the Special Research Group of the UN on Isis crimes in Iraq, managed , in a hidden election, to defeat the other three candidates who competed to substitute Fatou Bensouda, this court’s chief prosecutor, and substitute her.

This Pakistani-originated lawyer has already in his professional experience, in addition to giving advice to the UK queen, presence at the ICC as defense lawyer in cases related to Kenya, Sudan, and Libya. He, also has undertaken investigation into many criminal cases, including investigating the Seif al-Islam Gaddafi case, son of Muammar Gaddafi, former Libyan leader. This lawyer specializes in human rights and as well has led the UN Special Research Group for investigating Isis crimes in Iraq.

Formerly Karim Khan has practiced in the ICC as legal advisor in a number of cases, including the former Yugoslavian case. This UK lawyer has defended William Ruto, Kenyan vice-president in the ICC. Also he has had responsibility for defending Charles Tylor, former Liberian president, at the Sierra Leone special court and for investigation into Rafiq Hariri assassination case, former Lebanese prime minister, in 2005.

He is well recognized and known in Africa and in his last experience as advisor to the UN general secretary in Iraq tried to hold the inter-religion talks, at which he did not manage to participate due to engagement in his new post. After months of negotiations and lobbying between the Hague and New York , he was elected in last February. Although at first he exited the primary stages of the elections, in the second round, he obtained 72 votes out of the 123 votes, and while the amount of votes showed that he was not as popular as the former prosecutors, that is Luis Moreno and Fatou Bensouda , however, he managed to outnumber his rivals from Ireland, Italy, and Spain, especially with help from African member states, including most of the 33 members which had signed the Rome Statute, and enter the Hague international criminal court.

Apart from the behind the doors election of him, the African states and figures played a prominent role in introducing and electing him. Mr.Adama Dieng from Senegal ( special advisor of the UN for prevention of genocide, and citizen of a country that was the first country to join the court) persuaded him to become a candidate for this post. Dieng also sent a recommendation to the UK royal court in order for the UK authorities not to prevent him from participating in the court’s elections due to his work at the UK royal court. Also during the electoral campaign he coached him and obtained the support of most African states for his candidacy. Also when the related committee’s electoral campaign omitted his name from the list of nominees , due to Dieng’s mediation, several African countries( including the Ivory Coast, Liberia and Kenya) asked for the inclusion of the short list of nominees offered by Africa and Mr.Karim Khan was eventually included in the shortlist as the agreed upon nominee by the African group , and consequently all African countries supported his election, Morris, then being at odds against the UK over the Chagos Archipelago,  being the sole country to oppose him. Therefore, Karim Khan managed to obtain more votes in the election of the chief prosecutor and defeat his three other rivals and take the Hague’s office for a 9 year term.

Karim Khan, after a tense period of relations between the ICC and the US and Israel , and after months of lobbying between New York and the Hague, will formally substitute Ms.Fatou Bensouda, who has been sanctioned by the US, for her controversial research into the commitment of “war crimes” by the US troops in Afghanistan and by the Israeli officials in the occupied lands.

At present, 123 countries are member to the ICC, which was established in 2002 to investigate gross crimes, including “genocide”, “crime against humanity” and “war crimes”. The court is the first permanent international court that was established to prosecute persons that have responsibility in highest crimes, including crimes against humanity and war crimes. The idea of establishing an international court for prosecuting heads of states and senior officials for committing war crimes and genocide dates back to the post-world war II years in the 1950s, but it was not seriously pursued until the 1990s and the violent events after the European and African civil wars. In 1998 and following several years of international talks, the UN’s general assembly approved the “ Rome Regulations for Establishment of the International Criminal Court”, or the “Rome Agreement” with the majority of votes at the UN’ General Assembly and recommended the member states to sign them. So far, the court has undertaken 25 major cases, some of which having more than one suspect. The court’s judges have so far decided on 6 cases and convicted 9 persons and one person has been acquitted of all charges. The majority of the cases examined belong to Africa, and the court has so far investugated the genocide cases in Uganda, Congo, Central Africa , the Darfur War in Sudan, and the Kenya genocide and preferred charges against 14 persons.

The US, Russia, China, and Israel are among the countries that have refrained from joining the court. The most important reason for these countries not to join the court’s statute is concerns about the UNSC’s intervention that has been inserted in the articles 13 and 16 of the court’s statute. Also, non-immunity of the high-ranking officials of the states for committing crimes during their tenure is another reason for their reluctance. Of course, this non-membership will not help the governments to avoid political pressure and escape the jurisdiction of the court. Because almost 90% of the substantive regulations of the court have turned into jus cogens rules in the international law by entrance into the realm of customary law; therefore America and Israel, due to their opened war crimes cases in Afghanistan and Palestine in the last few years, have severely pressured the court, and especially its African prosecutor, Ms.Fatou Bensouda of Gambia, and eventually Donald Trump, former US president, put Bensouda in the US sanctions list. Although this policy of sanctions and pressure was imposed more during the Trump era and Biden’s administration has tried to improve relations with the court and, to accelerate the resignation of the court’s prosecutor, and has apparently lifted the unilateral sanctions against her, Blinken, US foreign minister’s long and unconventional statement regarding his country’s positions towards the court and its new prosecutor has again brought up all previous ambiguities, concerns and threats regarding this country’s tough reaction to the court’s entrance into the case of its troops and Israel’s authorities in the form of ostensibly peaceful words.

Mr.Karim Khan begins his new responsibility while with diligent pursuance of Ms.Bensouda , even during her last working days as chief prosecutor and based on 5 years of research, last week the court confirmed its jurisdiction to investigate Israel’s war crimes in the occupied lands in 2014, a matter that incited Israel’s anger and Israel’s authorities tried to influence the process of election of the new prosecutor with US help or at least see this substitution for the future of their relations with the ICC as fortunate, and perhaps for this reason,  the Israeli media portrayed the substitution of Bensouda with Karim Khan as a result of the Israeli’s officials pressure on the court. Therefore, one of Karim Khan’s first decisions to be made  is whether to fully investigate war crimes in the occupied lands, and this is while he in his new capacity must at the same time pursue the US troops “war crimes” in Afghanistan , a thing that the US strongly opposes and these two cases are a tough test and challenge for him and the ICC; because America and Israel are against the ICC’s investigation into the possibility of war crimes and crime against humanity in Afghanistan and Palestine.

Ms. Bensouda, current ICC’s prosecutor first in 2016 charged the US troops as well as the CIA operatives with violence and torture of the Afghan prisoners and asked for opening a probe into the case. In a statement, in 2017, she declared that there was a solid and substantive basis for “war crimes” and “ crime against humanity” committed by the American troops in Afghanistan in 2003. The possibility even includes the afghan government and the Taliban. Although the US is not a member of the ICC, the case for possibility of commitment of “war crimes” of the US troops in Afghanistan will be one of Karim Khan’s sensitive cases. Investigating this case could lead to the finding of the role of American troops in Afghanistan.

The Afghan officials, in the past, have repeatedly negotiated with the ICC’s prosecutors, but eventually agreed to the commencement of probing war crimes and crime against humanity in Afghanistan at the revision court of the ICC in March of 2020. The claim is more related to the crimes of the US troops committed against at least 61 Afghan prisoners. Last September, Trump’s administration sanctioned Ms.Bensouda and other ICC officials. Biden, the new US president, lifted the sanctions in this year’s April. Consequently in March 2020, after Kabul, under the US pressure,   asked the ICC’s prosecutor for postponing the probe, the court , based on the Rome Statute, saw its mission as investigating and prosecuting the gravest crimes of the world , which although, according to the symmetric jurisdiction clause which has been approved and embedded in the court’s statute, this judgment does not substitute the judgments made in each country’s judgments, but in case these courts are not in practice capable of carrying out their duties, the ICC sees this duty vertical and enters the case. However, the ICC has not rejected horizontal jurisdiction and declared the court has this possibility at its disposal to get informed of the process through which the Afghan authorities want to try the war crimes perpetrators or intend to do so.

Karim Khan takes the helm of the court while his predecessor has recently confirmed the court’s jurisdiction over investigating the Palestinian lands. Based on the court’s decision, the Palestinian lands occupied in 1967 include the West Bank, east Jerusalem included, and the Gaza strip. This decision was issued after the Palestinians repeatedly sued Israeli crimes and asked for investigation of the registered reports and establishment of justice in the case of the victims of the Israeli crimes. While the Palestinian Authority’s foreign ministry has hailed the court’s decision, but the Israeli prime minister has said that the ICC had proved that it was a political institute not a judicial one. He also called the court’s decision pure anti-Semitic. According to the UNSC’s resolution, the 1967 borders are Palestinian borders and building settlements or Israeli activity in these lands is illegal and illegitimate. Also the ICC, on January 15, 2015, declared that it had started primary investigation of Israeli crimes against Palestinians. The court, also, on March 18 of this year, gave Israel a 30 day deadline to object to the charges made against it. Within the framework of this investigation, the court will probe three main issues, the Israeli-Hamas war in 2014, Tel Aviv’s activities in building Jewish settlements in the Palestinian lands, and Israel’s intervention in the “big return” rallies in the Gaza Strip.

Although his appointment as the court’s new prosecutor and as substitute for Ms.Bensouda was hailed by Israel and a number of Israeli authorities, experts and analysts welcomed his appointment and tried to attract his attention to address the Isis crimes  and Yazidi rights and human rights which the court has been investigating in the past years, and expressed hope that he will shift Bensouda’s course for prosecuting Israel in the case of crimes against the Palestinians and by escaping forward said they were not any longer concerned about immediate threats for their arrest in foreign countries. However, it seems they are still mistrustful of the behavior and positions of the new prosecutor; especially that Israel has again declared that it will not cooperate with the ICC in the process of investigating the Palestinians’ conditions and even it was said in the Israeli media that Bensouda’s resignation had happened under Israeli pressure.

In September 2016, in the Hague’s report on the priorities and election of the cases for investigating crimes, it was officially declared that from then on the Hague’s court would investigate the environmental crimes as “crime against humanity”. These cases include destruction of the Environment, unfair exploitation of natural resources and illegal occupation of lands along other cases, which the ICC’s prosecution of their perpetrators, especially heads of states whose positions do not create any kind of immunity against the ICC, could create new challenges for the new prosecutor.  Of the most predictable cases in this regard that could be opened are the case of the populist Brazilian president for his failure and crimes in the destruction of the Amazon forests or investigating and prosecuting the agents involved in the spread of the Covid-19 virus or a variety of other failures and gross environmental crimes such as green-gas emissions, leak of radioactive materials or even  interference in the world health order or the issue of dust and waste of water and soil resources which can bring on irreparable environmental consequences, all of which could be causes of concern for their perpetrators and create new challenges during Karim Khan’s tenure. This is while beside efforts made in recent years by the US and Israel to undermine the court, the old criticisms of the court’s statute being too vague and wide, and even beyond the customary law, and not criminalization of use of nuclear arms or weapons of mass destruction have been more bold.

However, what is clear is that Karim Khan’s mission is tough and challenging , whether for him and for the ICC, or for the member states and the countries that have approved its statute but have not joined it, or even for the countries that have not even approved its statute, or for the US and Israel that have seen cases brought up against their military forces and high ranking officials, or for the perpetrators of the crimes and violators of the international Jus cogens regulations or for the victims of these crimes. Generally, for the importance of unbiased justice, what occurs at this court will greatly influence what will happen in the present and future of the international relations, institutes and organizations.

  Mohammad Nik Khah, Senior Expert of African Studies       

    (The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)            

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