Photo Source: United Nations
by Nikhil Samuel
August 3rd, 2021
The rise of an ICC chief prosecutor who has levied serious criticisms against the court's past policies calls into question the future of the ICC and International Criminal Law. Karim Khan's demonstrated recognition of the court's fixation on Africa, coupled with his commitments to peacebuilding in the Middle East, indicates that the geographic focus of the court may drastically change and with it the concept of international criminal law as we know it. This piece examines the factors that may lead to such a revolutionary shift.
The events of February 12, 2021, may very well revolutionize the future of international criminal law. British Lawyer Karim Khan was elected to succeed Fatou Bensouda as the chief prosecutor of the International Criminal Court (ICC). The election was the first of its kind in ICC history, resulting in 72 votes for Khan and surpassing the 62 vote threshold needed. This result faced minor opposition from Spanish and Mauritian officials, signaling the delicate, politicized nature of the process. However, these qualms concerning the failure of other candidates would only be the beginning of Karim Khan's scrutiny by the international community.
In the earlier years of his extensive legal career, Khan worked as a prosecutor in ICC tribunals, prosecuting war crimes in the former Yugoslavia and Rwanda. He was later appointed by United Nations (U.N.) Secretary-General Antonio Guterres to serve as the head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Daesh/ISIL (UNITAD). During his tenure as head, Khan made substantial progress, establishing the UNITAD Sexual and Gender-Based Crimes and Crimes against Children Unit (SGBCCU) and the UNITAD Office of Witness Protection. Despite these significant accomplishments, he has drawn criticism from skeptics who argue that Khan’s appointment is counterintuitive to the ICC’s mission of pursuing international justice. Such critics cite his past defense of African human rights violators—namely, former vice president of Kenya William Ruto.
The following will examine whether the appointment of a chief prosecutor who has demonstrated cooperation with indicted African leaders indicates a potential for a shift in the ICC's geopolitical agenda.
An Unofficial Africa Strategy
Since its inception in 2002 with the adoption of the Rome Statute, the ICC's primary challenge has been to achieve the international community’s acceptance of court jurisdiction. The strategy for achieving acceptance has been to secure as many convictions as possible, mostly targeting African leaders. The ICC's posture has been historically rebuked by major powers like the United States, Russia, and China. By targeting African leaders whose convictions are not costly to the aforementioned powers, the ICC can slowly increase its legitimacy. This strategy is reflected by the list of individuals publicly indicted by the ICC—all forty-four of them hailing from African nations.
The above map displays which nations are party to the Rome Statute and those which have either not ratified or are non-signatories.
Source: Council on Foreign Relations
The ICC's fixation on Africa can be traced to the early years of its first chief prosecutor, Luis Moreno Ocampo. During Ocampo's tenure, the ICC would indict its first fugitive, the notorious Joseph Kony of Uganda, leader of The Lord's Resistance Army (LRA). A warrant for Kony’s arrest was issued and he was subsequently indicted on two counts of crimes against humanity, murder, enslavement, and eight war crimes. Though Kony remained free for the rest of his life, the success of the ICC in prosecuting Kony and several other LRA leaders supports the notion that by prosecuting unpopular figures in Africa, the ICC could efficiently maximize convictions.
The case which most clearly demonstrates the confidence of the ICC in its Africa strategy is the pursuit of Sudanese president Omar Al-Bashir. While the ICC had previously targeted politicians, this would be the first instance in which a head of state would face indictment. Bashir's indictment on five counts of crimes against humanity and two counts of war crimes, was a result of the Moreno-led investigation into the genocide in Darfur. The ICC would later issue an arrest warrant for Bashir, but because Sudan was not a signatory of the Rome statute, the arrest warrant was rendered invalid. However, the U.N. Security Council would refer Sudan to the ICC, subsequently granting the ICC jurisdiction in Sudan. Even upon the referral, the ICC would still struggle to arrest the dictator. Bashir traveled freely throughout Africa and the Arab world, where local authorities in each country he visited refused to arrest him. The ICC was pushed to consider the interception of Bashir's presidential aircraft while in international airspace, a plan supported by the French military, but which never materialized. Though the ICC arrest warrant for Omar Bashir was ignored, the process of issuing the warrant and attempting to enforce it revealed that the ICC had gained the support of the United Nations and the West in enforcing its rulings.
Omar Al Bashir appearing in court in Khartoum on corruption charges.
Source: Al Jazeera
This was a clear indication that its Africa strategy gave the court sufficient legitimacy in the international community to the point where the pursuit of a head of state would be supported by leading international actors. While the Africa strategy had initially secured the role of the ICC as a critical international legal authority, the court would face scrutiny from African nations and analysts for its perceived targeting of African nations. The second chief prosecutor, Fatou Bensouda of the Gambia, continued Moreno's strategy of targeting Africa, but would make attempts to broaden the court's horizons towards the end of her career.
Bensouda's attempts to shift the ICC's focus by opening major investigations challenging global powers would face vehement rejection. She would first attempt to open an investigation into whether or not the United States was guilty of war crimes in Afghanistan, a move that would result in the revocation of her visa by the state department. Later, the ICC would face international condemnation when Bensouda opened an investigation into alleged war crimes that took place in the Palestinian territories. Israeli authorities and the U.S. department maintained that because Israel is not a signatory to the Rome Statute, the ICC has no jurisdiction to investigate the alleged war crimes. Hence, the attempted ICC shift from targeting easy prey in Africa to more powerful actors has been extremely unsuccessful and detrimental to the legitimacy of the ICC's authority.
While Moreno Ocampo and Bensouda both maintained a steady rate of indictments and investigations over their respective tenures, a mere five resulted in convictions. The ascension of Khan calls into question whether he will be capable of upholding the legitimacy of the court's authority while increasing the number of convictions. Perhaps the more prevalent question is whether the eventual ascension of Khan as chief prosecutor will signal a continued shift in the ICC's focus out of Africa. Khan has certainly demonstrated a relative stance of non-interference when it comes to the role of the ICC in Africa, exemplified by Khan's role as a legal defender for William Ruto before the ICC.
Khan served as legal defender for former Kenyan VP, William Ruto.
Source: The New York Times
In 2012, as part of the court's investigation into Kenya's post-election ethnic violence, the ICC indicted and charged Kenyan Vice President William Ruto with three counts of crimes against humanity (murder, forcible transfer of population, and persecution.) Karim Khan served as chief counsel for William Ruto. While this is not sufficient evidence to accuse Khan of turning a blind eye to atrocities in Africa, his personal statements are grounds for speculation. Ruto's case would eventually be dropped due to a lack of witnesses. This move was welcomed by Kenya's ruling party, and celebrated with a rally that Khan participated in. In an interview, Khan boldly argued that the ICC decision to prosecute Ruto was a politically charged attempt to impose regime change and "install leaders amenable to outside interests." The insinuation that the court uses convictions as a tool to impose outside influence on African nations is a serious one to levy and is highly indicative of Khan's disapproval with the ICC's track record in Africa.
Khan's past accomplishments coupled with his apparent criticism for ICC policy in Africa raise the following question: Is the ascension of a chief prosecutor who deems the ICC's formative fixation on Africa as flawed indicative that future ICC investigations may discontinue targeting African nations?
Khan's Criminal Court
Khan’s appointment as chief prosecutor coincided with the most recent escalation in Gaza, which lasted from May 10-20, has left 9 Israeli and 116 Palestinian civilians dead. Both Hamas and Israel face accusations of war crimes. This escalation saw mass condemnation by the international community and United Nations. Given the gravity of this conflict, it is reasonable to assume that Khan may face extreme pressure and feel the prerogative to continue Bensouda's probe into Gaza.
Further, Khan may be eager to use his new role to further his progress in Middle Eastern peace-building. The powers and privileges of chief prosecutor grant him sufficient means to build upon his previous accomplishments in the region. Further, a shift in the ICC’s geographic focus would make Khan something of a pioneer, redirecting the efforts of the court and using established legitimacy to uphold justice in a region where great powers have much at stake.
Though Bensouda's Investigation was initially met with staunch criticism, the occurrence of a recent escalation could certainly dissuade Khan from discontinuing the probe. If Khan decides to continue Bensouda's unfinished work at this critical juncture, he may very well find himself committing a significant portion of his tenure to the investigation. By taking on the conflict in Gaza and potentially securing the indictment of Hamas leadership or even Israeli military officials, Khan will have effectively broken the ICC trend of fixation on Africa.
There is merit in the argument that a recent conflict in the Middle East coupled with a demonstrated lack of faith in historic strategies is not indicative of a sudden alteration in the way that the ICC prioritizes investigations. Cases are initiated by any state which is party to the Rome Statute, referral by the Security Council, or if the chief prosecutor elects to investigate an issue. The first two criteria do not limit the jurisdiction of the ICC to a continent.
As for the third, Khan's main criticism of the ICC stemmed from the perception that the it was working to impose regime change. Hence, his criticism of the ICC's indictment of Ruto can be interpreted in a broader sense as an argument that targeting elected officials in Africa resembles an inappropriate regime change effort. There is no indication that Khan disapproves of the ICC's targeting of non-state actors and insurgents who constituted the majority of the ICC's initial indictments.
Though the argument against a significant ICC withdrawal from Africa upon the appointment of Khan is compelling, as is the force of the international community, eager to cast blame and pursue justice in the aftermath of the recent Gaza escalation. For Khan to not prioritize the Gaza probe and submit to the pressure of its critics (especially given his apparent disapproval for the use of the ICC as a political tool) would be extremely inconsistent.
Lastly, the entirety of these arguments is based on observation and consideration of past events. Khan's term has only just commenced. The validation of either argument awaits the substantial action by Khan. Only then can concerns about potential disregard for Africa or an expectation for a broader global focus be confirmed. While investigations in Africa are ongoing and human rights violations continue to occur on a drastic scale across the continent, the situation in Gaza, coupled with the myriad of issues outside of Africa, also merit further investigation by the International Criminal Court.
In conclusion, this essay serves to alert its readers that should the above hypothesis manifest, the concept of trans-national justice and the role of international law in foreign policy will be forever altered.
Acknowledgements: I would like to thank Andrew Ma and Elad Raymond for their unwavering support. Andrew’s deep understanding of the complexities of International Law coupled with Elad’s thoughtful insights on effectively conveying my ideas made this piece possible.
About the Author: Hailing from New Haven, Connecticut, Nikhil is currently a sophomore at George Washington University's Elliott School and hopes to pursue a concentration in Security Policy. His interests include International law, and Middle Eastern and South Asian Politics. In his free time, he enjoys a good podcast.
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