On Friday, the Assembly of States Parties of the International Criminal Court (ICC) voted 82 to13, with 15 abstentions, to remove Karim Khan from his position as prosecutor. Khan was removed based on unfounded claims of sexual misconduct against a junior staff member in his office. Mr Khan’s lawyers pledged to challenge the outcome “through all available legal mechanisms”, though neither the Rome Statute nor any of the other governing ICC legal texts provides any avenue to do so.
The vote to remove Mr Khan has exposed deep problems within the court’s internal governance structure and fractured its various constituencies, all amid the most challenging period in its existence. If the court is going to fulfil its mission of justice for victims and survivors of the gravest crimes, much hard work lies ahead.
The process leading to Mr Khan’s removal became highly politicised and contested. We believe the sexual misconduct allegations were an Israeli-sponsored fabrication, concocted to destroy Mr Khan for seeking an arrest warrant for Israeli Prime Minister, Benjamin Netanyahu and his determination to fight for justice in Gaza, and for bringing the warrants in the Palestine case.
The Israeli government opposed the court’s arrest warrants against its officials, and the United States government is even seeking to dismantle the court entirely because of this.
Mr Khan’s removal now requires the election of a new prosecutor. The court has announced that the deputy prosecutors will continue to run the office, but it will need to start the process of electing a new prosecutor without significant delay. Given what has just unfolded, it will be important to ensure that the new prosecutor is unimpeachably a person of high moral character, as required by the statute. Moreover, in addition to ensuring that any prospective candidate would be highly competent as a prosecutor in a complex geopolitical environment, states would be wise to consider whether candidates have the skills and temperament to establish and maintain a strong and healthy working environment inside the office.
The election of a new prosecutor is an opportunity for the states to take stock. Since Mr Khan was elected, his office has brought arrest warrants against Vladimir Putin and other senior Russian officials in the Ukraine case and against Benjamin Netanyahu and Yoav Gallant in the Palestine case. Rodrigo Duterte, the former President of the Philippines, has been surrendered to the court and trial is set to start in November. Three states in our sub-region – Mali, Niger, Burkina Faso – and now Venezuela) have announced their intention to leave the court, and the United States has imposed severe sanctions on the then-Prosecutor, Deputy Prosecutors, and eight judges, and announced a campaign to dismantle the court. Around the world, states are turning away from international institutions and solutions, creating a challenging environment for the ICC, which is dependent on state cooperation to conduct its work.
These new realities require The Gambia and other member states to face many difficult questions as they choose a new prosecutor, but the overarching one is simple: How can the ICC keep the flame of international justice burning through these difficult times? In the coming weeks and months. The truth is, the court always has, and always will face political pressure by those states who seek impunity for their nationals or others. It is also true that the court always has, and always will, rely on other states to support the pursuit of accountability in the face of these pressures. To bend the arc in favour of justice, the court needs states who support its mission to redouble their efforts to assist the court. This means funding it, cooperating in its investigations, executing its warrants, and speaking out in favour of the rule of law.
Though neither the UN, the court nor the government would tell us how The Gambia voted on Friday in deciding the fate of Karim Khan, he was regarded as a “friend” of The Gambia and cultivated personal and professional ties with many Gambians and states and non-state actors and visited the country. We wish him well and let him take heart in the eternal wisdom of the poet William Cullen Bryant: “Truth, crushed to earth, shall rise again”.
