[This article expands upon an earlier one co-authored with Hasmik Egian, “Is ICC Prosecutor Karim Khan Fit for Purpose?” published in PassBlue. The author would like to acknowledge Egian’s contribution to the arguments developed below.]
International Criminal Court (ICC) Prosecutor Karim Khan’s conduct regarding “The Situation in Palestine” constitutes a political scandal that requires his immediate recusal and additional measures to remove him from office. An examination of the relevant background leaves no room for alternative conclusions.
Israel has not ratified the Rome Statute, which governs the operations and procedures of the ICC, and is not a State Party (i.e. member state) of the Court, the global tribunal established in 2002 to hold accountable perpetrators of war crimes, crimes of aggression, crimes against humanity, and genocide.
Although Israel initially supported proposals that resulted in the establishment of the ICC, it got cold feet when it became apparent that the Rome Statute, which identifies the crimes subject to ICC prosecution, would also apply to its own officials. If duly applied these could see the entirety of Israel’s ruling elite, and quite a few subordinates, permanently reside in The Hague, where the ICC is based and maintains prison facilities.
Of specific concern to Israel was that the Rome Statute, in Article 8.2.(b).(viii), defines as a “war crime” the “transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the occupied territory within or outside this territory”. This closely reflects Article 49 of the IV Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War, which defines such activities as a “grave breach” of the Convention, its equivalent of a war crime. Other articles, such as 7.1.(j) which defines “apartheid” as “a crime against humanity”, more recently became a subject of significant concern, particular after the longstanding judgement of Palestinians on this matter came to be endorsed by leading Israeli and international human rights organizations, including Human Rights Watch, Amnesty International, and B’Tselem, and has been making inroads in Western political debates.
The ICC is only empowered to prosecute individuals, not states. The conduct of states is separately adjudicated by the International Court of Justice (ICJ), also known as the world court, and similarly based in The Hague.
The Office of the ICC Prosecutor can conduct investigations into individuals accused of violations of the Rome Statute, potentially resulting in charges, only if a case is referred to it by the United Nations Security Council (UNSC), requested by at least one State Party to the ICC member, or initiated by the Prosecutor. In the latter case the Prosecutor is also required to obtain authorization to proceed by a panel of ICC judges known as the “pre-trial chamber”.
Given that the US, which like Israel refused to join the ICC, has the power of veto at the Security Council, and that Palestine was until 2015 not a member of the Court, Israel was not particularly concerned that the ICC Prosecutor would independently seek to initiate an investigation of its conduct. For years it sufficed with periodic tirades dismissing, demonizing, and delegitimizing the Court, along with demands that the Prosecutor indict any number of its adversaries.
That began to change in 2015 when Palestine, which has the status of Permanent Observer State at the UN, was admitted to the ICC and permitted to formally ratify the Rome Statute.
The Palestinian leadership had for many years stalled on this and other initiatives promoting the application of international law to the Palestinians. It for example failed to follow up on the 2004 ICJ Advisory Opinion on the West Bank Wall that ruled overwhelmingly in the Palestinians’ favor, and helped bury the 2009 Goldstone Report that accused both Israel and Palestinian organizations of serious crimes.
In doing so the Palestine Liberation Organization (PLO) under Mahmoud Abbas was not acting to avoid potential prosecutions of Palestinians, particularly since those accused in the Goldstone Report were its rivals. Rather, this reflected the longstanding campaign by Israel and the West, and the United States in particular, to prevent the Palestinians from seeking the protections of international law, and particularly remedy for their grievances from international legal institutions like the ICJ and ICC in particular.
Additionally, Hamas, whose members are the most likely to be prosecuted if the ICC investigations concludes with indictments of Palestinians, in fact advocated for Palestine’s accession to the ICC, in both word and writing. It did so in writing, because Hamas propaganda had been denouncing Abbas for promoting Palestine’s ICC application at a snail’s, accusing him of bowing to Israeli and Western intimidation. Abbas responded by insisting that Hamas and Islamic Jihad sign a document supporting the application before it was submitted, so that he could not later be accused of joining the Court in order to have his rivals extradited to The Hague. When Palestine finally did become an ICC State Party, Palestinians from across the political spectrum welcomed the development as an important milestone, and as might be expected stated that they were content to see all alleged violations of the Rome Statute committed in Palestine investigated by the ICC.
Hamas’s criticisms of Abbas may have been propaganda, but they were also accurate. Israel along with its US and European allies had from the outset made unambiguously clear their opposition to Palestine joining the ICC and seeking an investigation of Israeli crimes. The Europeans, who unlike the US and Israel have ratified the Rome Statute, were in a particular pickle. As a European diplomat stated at the time: “We don’t want the Palestinians to put us in a position where we have to choose between our commitment to international law and our commitment to Israel”. In other words, they didn’t want the smoke and mirrors at the heart of their rules-based international order, in which international law only applies to everyone else, unnecessarily exposed.
When efforts to prevent Palestine’s ICC accession failed, Israel in particular went berserk. It began withholding Palestinian taxes it collected on the Palestinian Authority’s behalf and was legally obliged to transfer to the Palestinian treasury, imposed a variety of restrictions on Palestinian officials, and threatened to severely punish the PA in multiple additional ways. The US also made its displeasure clear, but directed the brunt of its retaliatory measures directly at the ICC. Washington at one point imposed sanctions on Khan’s predecessor, Fatou Bensouda, that are normally reserved for designated criminals. It was Washington’s way of informing the ICC it had no right to investigate either Israel’s crimes against the Palestinians or US conduct in Afghanistan. In 2002 the US had already adopted legislation known as The Hague Invasion Act, which authorizes the US military to invade The Netherlands, a fellow NATO member, and free any US citizen in ICC custody. It remained to be clarified how Nato’s collective defense provisions would operate if such a scenario came to pass.
The Europeans, duplicitous as ever, kept confirming their support for the ICC while submitting vacuous legal arguments to the Court insisting it had no jurisdiction over Palestine. In doing so they came rather close to endorsing Israel’s position on the illegitimacy of the ICC. The Dutch government for its part indicated it could not support Palestinian recourse to the ICC because, as the Court’s host state, it was obliged to observe strict neutrality in such matters. Yet several years later it demonstratively awarded the ICC several million Euro to support its investigation of Russian conduct in Ukraine, an initiative it repeatedly and publicly endorsed.
In the event, the Palestinians in 2015 submitted an application to the Office of the ICC Prosecutor to investigate ongoing violations of the Rome Statute committed since 2014 in the Palestinian territories occupied by Israel in 1967. The Court wasted years adjudicating matters of jurisdiction and competence, before finally confirming, in 2021, that it had a mandate to conduct an investigation.
Which brings us back to the scandal known as Karim Khan. A British citizen, his candidacy for ICC Prosecutor was energetically supported by the UK government. It was also championed by the US and Israel, two non-member states opposed to the very existence of the Court. In 2021, Khan narrowly won election to a nine-year term. Some expressed the forlorn hope that Khan would prioritize efforts to revive the ICC’s stature and reputation, which by the time he took office was being widely derided as the “International Caucasian Court” and “International Criminal Court for Africa” on account of the cases it chose – and chose not to – investigate and prosecute. It was in protest at such biases that South Africa in 2015 announced its intention to withdraw from the Court, and initiated legislation to this effect that was abandoned only this year.
In practice, Khan wasted no time aligning his agenda with that of those who supported his electoral campaign. Almost immediately upon assuming office, he informed the UN Security Council that he would prioritize only those cases referred to him by the Council, meaning that other files would be put to rest. The ICC Palestine investigation, such as it was, effectively ceased to exist.
Yet when Russia invaded Ukraine in 2022, which the UNSC could not have referred to the ICC without the consent of Moscow because it is a permanent member of the Council with veto power over its decisions, Khan rapidly reversed course on his previous commitments. It took him only a week to pop up in Kiev, where he announced that an investigation was immediately commencing. Little over a year later, he indicted none other than Russian President Vladimir Putin and demanded his extradition to The Hague. Throughout this period, the ICC’s Palestine investigation remained on ice.
There was considerably less spring in Khan’s step when the latest crisis in the Middle East erupted on 7 October. It was only at the very end of that month that he took the trouble to visit the region. Not Palestine or Israel, but Egypt. Claiming he had been prevented from entering the Gaza Strip yet offering no evidence he had either sought Egyptian permission to do so or been denied, he spoke to the assembled media in Cairo. In his remarks, he delivered a lengthy and impassioned denunciation of the 7 October Palestinian attacks, announced his availability to work with the Israeli authorities to prosecute those responsible for violations of the Rome Statute on that day, but also pointedly refrained from any reference to Israeli war crimes, which his predecessor Bensouda had already in 2019 stated were being committed in the context of her effort to launch an investigation of the Situation in Palestine.
Khan’s message to Israel, in sharp contrast to his condemnations of Palestinians attacks, was of a more general nature: that it had clear obligations under international law and would be held accountable for (unspecified) violations. While this discrepancy would not have been acceptable even on 6 October in view of what was already known about Israeli conduct in the West Bank and Gaza Strip since 2014, he was speaking almost a month after Israel launched the most intensive bombing campaign in the history of the Middle East, killing thousands of civilians and razing entire neighborhoods to the ground.
Khan further, and disingenuously, claimed that in 2021 he had established the “first dedicated team to investigate the Palestine situation”. Even though this team has in contrast to that sent to investigate Russian conduct in Ukraine never been referenced, sighted, or heard from, Khan on 3 December stated he would “further intensify” its efforts.
The above notwithstanding, Khan’s excursion to Egypt qualifies as an exercise in decorum compared to his subsequent foray to the region, undertaken to Israel in early December in coordination with its government which, it needs to be emphasized again, has rejected the legitimacy of the ICC, launched extensive campaigns of vilification to delegitimize the Court, and has consistently obstructed its efforts and those of other international commissions to investigate Israeli conduct vis-à-vis the Palestinians.
Khan initially, and disingenuously, described his visit as an “unofficial” one. Such missions by ICC prosecutors do not exist, unless their objective is lounge on a beach during a private holiday. More seriously, it became apparent that Khan had accepted Israel’s rejection of a visit by him to the Gaza Strip, and done so as a condition for meeting with Israeli families who had lost loved ones on 7 October. In an effort to conceal and whitewash this sordid arrangement, Khan at the end of his visit took a short trip to Ramallah to meet with PA President Abbas. Furious at his subservience to Israel’s agenda, Palestinian human rights organizations invited to meet with him unanimously refused to do so, and publicly denounced his visit.
Yet the most problematic aspect of Khan’s visit was the statement he delivered at its conclusion. While claiming his trip was “not investigatory in nature”, he nevertheless allowed himself to proclaim, as a matter of settled fact, that the attacks of 7 October “represent some of the most serious international crimes that shock the conscience of humanity”, and for good measure denounced Hamas as a “terror organization”. In this particular context the problem with Khan’s statement was not the abandonment of any pretense at impartiality; had he condemned Israel and its crimes against the Palestinians with similar polemics and conviction, this would in fact have multiplied rather than limited the damage inflicted. This is for the simple reason that the ICC investigation, if it indeed exists, is still in its initial stages, yet the prosecutor has already announced its conclusions in a press conference.
In the event Khan did have a very different take on Israel’s conduct. Addressing the slaughter of thousands of children and razing of entire neighborhoods to the ground, he went no further than to assert that “credible allegations of crimes” that may – or may not – have been committed, should be “the subject of timely, independent, examination and investigation”. With respect to Israel prohibiting the entry of food, water, medicine, and fuel to the Gaza Strip, a legal assessment of which arguably requires no investigation, Khan went no further than demanding that the provision of these essentials of life be guaranteed and “must not be diverted or misused by Hamas.” Additionally leaving entirely unmentioned the numerous and patently genocidal statements by Israeli leaders that might have helped him connect the dots Khan, like other Western politicians, took the easy way out and instead of condemning the conduct of the Israeli state denounced the violence of its settlers, as if these form an independent vigilante force and one that is held to account by the Israeli judiciary.
The reason Khan tread so lightly also reflects what appears to be the most disturbing element of his agenda. Pursuant to the Rome Statute, the ICC can only prosecute cases where national authorities have demonstrably failed to ensure accountability. In this context, every examination of Israel’s judicial system with respect to violations of Palestinian rights has concluded that this judiciary is manifestly failing to do so, and primarily serves to provide legal cover for such violations and/or exonerate perpetrators. Yet in his remarks Khan emphasized that he stands “ready to engage with relevant national authorities [i.e. Israel] in line with the principle of complementarity at the heart of the Rome Statute”. In other words, it is entirely conceivable that Khan will focus his efforts on the prosecution of Palestinian violations, and allow those by Israel to be adjudicated by Israeli court. In both cases with predictable results.
Indisputable, Khan is not fit for purpose. If he fails to recuse himself from the Palestine investigation, and is not removed from the Office of the Prosecutor, his tenure may prove to be the final nail in the coffin of the ICC’s legitimacy.