New Hague prosecutor facing geopolitical headwinds and “culture of fear”

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In his typically convincing candidacy for the post of Prosecutor at the International Criminal Court (ICC), Karim Khan left no doubt that even after a successful legal career as QC and Deputy Secretary General of the UN, it would be still its work of a lifetime.

“There shouldn’t be a better place in the world than this for a lawyer engaged in international justice,” he wrote of the world court of last resort created 20 years ago to try the victims. most heinous crimes of which human beings have shown themselves capable. to engage.

Khan will put that idealism to the test when he takes office on Wednesday as the ICC’s third prosecutor, leading a daggers-drawn tribunal with the United States on Afghanistan and Israel, vilified by the African Union as a pawn of Western “colonialism” and designated by Vladimir Putin’s Russia as “one-sided and ineffective”.

This is to give an overview of the geopolitical ecosystem of the ICC and the well-established challenges that the new British prosecutor may face on his first day in the “corner office” of the Alexanderkazerne, rightly a former military barracks in The Hague. .

The court, of course, has its supporters – the 123 countries that have signed the Rome Statute that forms its basis. Even so, the countries that are loudest in public are often the slowest to put their hands in their pockets to finance its modest annual budget of less than 150 million euros.

Amnesty International has accused these countries – including Britain, Canada, France, Germany and Spain – of hypocrisy.

He warned that the division of the court still most vulnerable to budget constraints is the prosecutor’s office, and in particular its ability to initiate costly new investigations on which the court’s credibility ultimately rests.

Opinio Juris, a well-known legal blog – no stranger to the new boss – described the unseemly annual battle for above zero growth funding as “the court’s financial stranglehold” and therefore the greatest threat to its capacity. to carry out its mission. mandate.

Internal issues

Inside the imposing 200 million euro headquarters of the ICC, the situation vis-à-vis Khan is not much better.

The task at hand was summed up last year in an uncompromising report overseen by one of the tribunal’s most ardent supporters, former South African judge Richard Goldstone, who concluded that he appeared to be “in pain in internal mistrust … and a culture of fear ”. .

More damning than anything, the report described an environment in which some judges felt able to act like bullies – and staff felt powerless to respond.

So, as Liz Evenson, a longtime ICC Human Rights Watch observer, puts it diplomatically, the new prosecutor begins his work “at a time when the court is more necessary than ever and faces both performance shortfalls. internal and external pressures on its role ”.

Although he is British, Muslim and of Pakistani descent – he describes Pakistani Prime Minister for Foreign Affairs, Muhammad Zafarullah Khan, future President of the International Court of Justice, as his “adoptive grandfather” – Khan (50 ), QC since 2011, is every inch the legal insider.

He was born in Edinburgh and was called to the Bar of England and Wales in 1992. He recalled recently how, at the time, members of a panel interviewing him for a pupil openly said whether he sounded more Pakistani than English and the implications that might have for his career.

He became a Crown Prosecutor in 1993 but “had a burning desire for human rights law” which led him first to the International Criminal Tribunal for the Former Yugoslavia, then to the International Criminal Tribunal for the Former Yugoslavia. Rwanda – “formative years” that put him on the path to the prize he’s about to grab.

IRA bombings

In his first case as defense attorney in the Yugoslav court, he was led, under auspices, by Michael Mansfield QC, who went on to represent those wrongly convicted of the IRA bombings. in Guildford and Birmingham.

He has defended a number of high profile clients, including former Liberian President Charles Taylor, who did not appear on the day his case opened before the Special Court for Sierra Leone – although he sent a letter terminating Khan and his entire legal team.

He appeared before the ICC for Kenyan Vice President William Ruto, charged with crimes against humanity during post-election violence in 2007. The case ended in a case called off due to ” disturbing interference from witnesses and intolerable political interference ”.

He also appeared as lead counsel for Saif al-Islam Gadafy, son of the late Libyan dictator, who is still wanted under an ICC arrest warrant but has not been seen since 2019.

“Crossing the floor” to continue, Khan anticipates, will not be a problem. In fact, as few know better, this will probably be the least of his problems.

After serving as prosecutor in a bruising competition – in which Irish judge Fergal Gaynor finished second – Khan is philosophical: “We are all just keepers… trying to build something that will survive us.

Accepting perhaps the most unenviable but the most valuable job in the international legal world is a mindset he would do well to cultivate.



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