British lawyer Karim Asad Ahmad Khan
Credit: HAIDAR HAMDANI/AFP via Getty Images
A British lawyer is a leading candidate to become the next chief prosecutor of the International Criminal Court, a critical steering role as the body faces what some have described as a crisis of legitimacy.
Karim Khan QC is tipped as the favourite to win an election later this week after a tortuous nomination process in which ICC member states failed to agree on a consensus candidate.
The successor to Fatou Bensouda was supposed to be chosen last year but the 123 signatories to the ICC’s founding treaty were unable to agree on one of the four original names shortlisted, and in November five new candidates were added, including Mr Khan.
The extended list failed to produce an agreement and the court announced on Monday it would hold an election to decide. Mr Khan’s closest competition is said to be Irish lawyer Fergal Gaynor, who topped the selection committee’s initial shortlist.
While observers have described the extended selection process as a “sh*t show” and a “dumpster fire” filled with intrigue, back-room lobbying and accusations of bias, the choice of chief prosecutor is of paramount importance to the young institution.
Whoever is selected will face major challenges that will define whether the body emerges as a serious independent force able to bring justice for the worst crimes or whether it is seen as just another political body.
“Bensouda set the table for the next chief prosecutor with quite a few sharp objects,” said Mark Kersten, an international law expert at the Munk School of Global Affairs at the University of Toronto. “The biggest challenge to whoever is the next chief prosecutor over the next nine years is to figure out how to ensure that those sharp objects cut the right way.”
Ms Bensouda, a Gambian judge who will complete her nine-year term in June, is the ICC’s second chief prosecutor and previously served as deputy prosecutor under the first chief prosecutor Luis Moreno Ocampo.
Established as a court of last resort to try individuals for genocide, war crimes, and crimes against humanity in cases where a state is unwilling or unable to investigate them, under Ms Bensouda’s tenure the ICC has struggled to shake off a reputation for “hunting Africans” while ignoring criminals from powerful states.
But the court has also attracted the ire of those powerful states.
Last year the United States – which is not a Rome Statute signatory – sanctioned Ms Bensouda and one of her top aides for investigating whether American forces committed war crimes in Afghanistan, an unprecedented action by the Trump administration that highlighted the politically fraught nature of the ICC’s role.
On Friday the ICC again attracted controversy by ruling it had jurisdiction over the occupied Palestinian territories, allowing itself to investigate war crimes allegations against Israeli forces in the West Bank and Gaza. Israeli Prime Minister Benjamin Netanyahu rejected the ruling as as "pure anti-Semitism".
More such difficult decisions lie ahead during the tenure of the next chief prosecutor, a period in which the ICC will likely face budget constraints as member states feel the pinch following the coronavirus pandemic.
“Are you going to have a prosecutor who is meek and will kowtow to the West or are you going to get someone who is willing to stand up to major powers and is willing to risk very little cooperation in response?” Mr Kersten asked.
A thankless role, it will be best served by a candidate confident in their abilities.
Mr Khan, 50, was once dismissed as court-appointed defender by former Liberian president Charles Taylor. He is described by his Temple Garden Chambers as a “superb lawyer” who “has appeared in all the international criminal courts set up in the past 20 years.”
An ICC committee appraising the candidates wrote that “Mr Khan is a charismatic and articulate communicator who is well aware of his achievements.”
Others view Mr Khan as a divisive figure. A group of African civil society groups criticised Mr Khan for his conduct during his defence of the deputy president of Kenya William Ruto at the ICC, whose prosecution was dismissed in 2016 for lack of evidence amid accusations of witness tampering.
Mr Khan defended himself publicly in a letter on Sunday, writing that “in almost 30 years as a member of the Bar, my professional conduct and my ethics have never been questioned or criticised by any Judge, in any court, in any jurisdiction.”
Mr Khan is currently head of the United Nations team investigating Islamic State crimes in Iraq, a challenging role not without its own controversies. UNITAD is mandated to help Iraqi courts prosecute Islamic State members but is precluded from investigating atrocities committed by the Iraqi military or militias that fought IS, something rights groups say is one-sided justice.
While Messrs Khan and Gaynor are seen as frontrunners ahead of Spaniard Carlos Castresana Fernández, nominations for the election have been extended until Wednesday.
“Both Khan and Gaynor have traits that could be good for the ICC,” said Mr Kersten. “Both would be willing to stand up to world powers, whether they would end up doing that is another question.”
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