When a president or a prime minister loses an election there’s usually an obvious alternative lined up and ready for action. ‘Succession’ politics can be complex and have been debated by historians for many centuries; the International Criminal Court’s current parlous state makes it ripe for such speculation. Following prosecutor Karim Khan's official ouster by the ICC members states on July 24 for alleged sexual misconduct, the future is not clear and the mechanisms employed to engineer this outcome beg the paraphrased question; is there fundamentally “something rotten in the kingdom of The Hague”?
“The dismissal of Karim Khan as the ICC prosecutor is perhaps the most significant event in the 24-year-long institutional history of the ICC,” says Sergey Vasiliev, professor of international law at Open University in the Netherlands, “and the greatest setback to the Court's efforts to pursue justice in situations implicating major powers and their allies not party to the Court, including the US, Israel, and Russia.”
The backdrop, he says, is “US sanctions against ICC senior officials and its campaign to dismantle the institution, as well as the Israeli government's long-term interference and its most recent efforts to exert influence on States Parties to oust Khan”. Vasiliev finds himself “truly worried about the future of the Court and whether States Parties will be willing and able genuinely to protect its independence and ensure its recovery after this 'decapitation’,“ as he calls it.
The issues which have bubbled up and continue to face the court centre around those that were debated widely during the interminable process to investigate Khan’s alleged wrong-doing. They include internal and governance failures, external pressure and managing perceptions. And choosing a prosecutor.
Governance failures
The states’ own Independent Expert Review in 2020 made public long known problems in the operations and atmosphere within the Office of the Prosecutor. While Khan appointed experts and said he would fix it, this alleged sexual misconduct combined with fears from staff of being criticised for whistleblowing to internal investigative mechanisms, showed that the problems still exist. States managed to organise a special session to remove Khan, but have been lax in implementing identified, needed rules governing the employment of elected principals.
“The ICC clearly needs a better procedure for addressing allegations of workplace misconduct,” agrees Kenneth Roth, former head of the NGO Human Rights Watch. He finds fault with the investigation which “didn't make clear factual findings [and had] the effect of protecting senior officials”. Now it’s a matter of “building trust again,” says Ezequiel Jimenez Martinez, a legal expert on ICC governance issues, including electing at the next ICC Assembly of States Parties (ASP) meeting in December a new bureau. “I would expect Finland, Japan, Kenya to go out - from both camps [who opposed or supported Khan’s removal] – to do a proper cleanse of those who have managed this process, for the sake of moving on.” He also expects the new bureau to commission a review which would likely be confidential “because there were suspicious movements of states” while the ASP bureau was deciding how to consider Khan’s case. “We know now that Israel did a campaign, apparently, in the last few weeks. That's not okay. We really need to know what happened there procedurally, and if there were departures from the rules”.
More broadly, this year the court is making its first use of a proper vetting system for judges, as the new roster of six will be elected in December. The assessment of ‘high moral character’ is still to be more than a box-tick exercise. Will states step up on their governance functions? Each year at successive ASPs, filling the full roster of sub-committees with states willing to take on the heavy governance requirements looks painful. Only at the last regular ASP did the bureau dare to suggest a session discussing state non-cooperation after Mongolia (an ICC member state) welcomed Russian president Vladimir Putin (an ICC suspect at large), and Italy (also an ICC member state) let a Libyan strong man return home despite the court’s request for transfer. States’ commitments to this institution are under scrutiny.
US sanctions
Over the last year the United States has turned up the thumbscrews on the court, vowing just a few days ago to destroy the institution “brick by brick”. Already 11 judges and members of prosecution are under US sanctions. From Washington there may be a wait and see attitude: will incoming elected judges and prosecutor distance themselves from previous decisions? If that does not happen, they might individually sanction them or sanction the institution as a whole. States have been working behind the scenes in The Hague on mechanisms to enable the show to be kept on the road. “I hope they actually adopt some real resolutions with teeth about how to protect themselves against the US,” says Jimenez, “calling for blocking statutes, calling for the Netherlands to do a special law protecting their interests and the ICC headquarters. The new president of the ASP needs to be doing this. But I'm not so hopeful because that's very political and very confrontational, and diplomats are not known for that.”
Meanwhile, in the US, individuals and groups have taken a judicial approach and chipped away at every comma in the Executive Orders to limit their effects. But in a dollar-denominated financial world, the likelihood that the court would have to find a very different way to function is very real. And so far, ICC-supporting public statements have been limited, partly because the Trump administration plays hardball, and national interests ‘trump’ pro-justice rhetoric in many capitals.
Palestine as the ultimate test
The biggest issue perception-wise is how the Palestine file will be handled. Not only because this is the US danger zone, but because the court has long stood prey to the critique that it applied its legal analyses with double-standards, hedging on decisions that would bring it into conflict with the western hegemony supporting and funding the court and instead focused on weaker states – Africa – and charging political enemies of those in power.
“What happens with this investigation now becomes – and this is the unintended consequence of this process – the ultimate test of the court,” says Jimenez. “Of course, Israel will cite Khan's misconduct to try to discredit the charges against Netanyahu and Gallant, but that is a specious argument,” says Roth. “The charges are the work of a team of prosecutors, not just Khan, and they were upheld by three judges in the ICC pretrial chamber. If Netanyahu and Gallant want to challenge them, they should show up in The Hague (the way former Kenyan president Uhuru Kenyatta did), not lob propaganda from afar.”
Khan’s supporters and Khan himself have made much of his providing a proper budget line for Palestine in comparison to his predecessors’ Luis Moreno Ocampo slow-walking and Fatou Bensouda’s requests for clarification. They also point to his request for two of the court’s most significant arrest warrants; against Israel’s current prime minister Benjamin Netanyahu and former defence minister Yoav Gallant for crimes against humanity and war crimes in connection with the alleged starvation of the Gazan population following the Hamas killings on October 7 2023 and hostage taking. Since Khan’s very public CNN-utilising announcement of his request for warrants, subsequently approved by three pre-trial judges, based on the evidence provided by Khan’s office, the court has closed the door for similar prosecutorial grandstanding or buck-passing; no arrest warrant requests are now public. So assessing whether indeed further arrest warrants have been requested and potentially issued against high Israeli officials whose role in alleged war crimes such as occupation and crimes against humanity such as apartheid is impossible to know for sure.
“Large segments of the public are now concerned, not without reason, that States Parties might (s)elect a fourth prosecutor who will abandon the Palestine investigation and seek to withdraw the Netanyahu and Gallant arrest warrants, acting under pressure and/or in a misguided effort to 'salvage' the Court. If this happens, it will be a debacle of epic proportions that would effectively spell the end of the ICC and discredit the idea of international criminal justice for years to come,” says Vasiliev.
The budget request for the Office of the Prosecutor no longer provides budget lines according to each investigation. The Palestine situation has been managed directly from the prosecutor’s office since 2022 along with Ukraine, and is led by a “D1-level” assigned trial lawyer reporting directly to the prosecutor with a “strengthened unified team”. With costs subsumed into the total budget for the immediate Office of the Prosecutor, it makes concrete analysis of what the Office is doing also impossible. But “If the budget is flat, it shows me that it's going to go into hibernation,” says Jimenez.
The successor
Choosing a successor for the prosecutor's job will not be a slam dunk. “It's essential that the next prosecutor be chosen quickly. That may speak to elevating one of the deputies,” says Roth, referring to Khan’s two deputy prosecutors who’ve been in charge since Kahn took a leave of absence more than a year ago. “It is also essential that member states resist applying any litmus test to exempt certain investigations or targets. There should be nothing like Khan's quick closure of the ICC investigation into Bush-era torture in Afghanistan or his slow-walking of the investigation of Israeli officials until Israel's genocidal response to October 7 made that approach untenable.” After three “failed elections,” says Jimenez “this next election matters a lot, because everybody's going to be judging you if you have high moral character”.
There may be an opportunity to elect a new prosecutor quickly for a limited term - four years - to see out the rest of Khan’s 9-year tenure. But officially a process is stipulated requiring nominations and public scrutiny. “According to the rules, they need 3 months’ notice, or nominations,” says Jimenez. The role the deputy prosecutors played during the Khan saga may be questioned, whether they knew about the alleged sexual misconduct, what they heard, whether they did anything, how they protected their staff during the investigation, and what actions they undertook to enable the office to deal with alleged sexual misconduct. These are all questions in need of answers. There are also those who were candidates last time round, who went through the process – does that mean it could be truncated to enable a swift choice?
Splits and lack of trust
The world of accountability-supporting NGOs and national war crimes investigators is deeply split by what has been going on during the last eighteen months. Vasiliev notes that “it has become virtually impossible to say anything about the process and the performance of the ASP in this case without being falsely and offensively labelled as someone who tolerates sexual violence, as if calls for compliance with the rule of law and the upholding of the Court's independence amounted to that”. He continues: “The questions surrounding the legality, credibility, and legitimacy of what happened will persist – unless and until they are satisfactorily resolved. This uncertainty will continue to cast a shadow over the Court, eating away at its perceived authority and independence – a highly precarious situation for the Court to be in after the past two gruesome years.”
“The public has not seen the evidentiary record of serious misconduct and breach of duty by Khan – other than through leaked information the reliability of which cannot be independently verified, and recent media interviews with Khan and ‘Sarah’,” his alleged victim, “which will also lead people to reach different credibility assessments. It is well-nigh impossible for outsiders to pass judgment on the substance of the allegations. This is why it was so important for the public to know the applicable procedures and receive adequate and timely updates about the investigation and the key stages in the decision-making process, in order to have confidence in them. Unfortunately, these expectations have not been met, and this is the responsibility of the Court's governance organ.”
“The almost total secrecy, combined with selective leaks, has worked to reaffirm the critique that the process was not just overly complex and lengthy, but also Kafkaesque, opaque, and unfair. Against the backdrop of sustained Israeli efforts to influence the process, this is bound to fuel further speculation,” Vasiliev says.
(Not so) Happy anniversary
“The statement by the ASP President after the final vote provides some clarifications, but it is too summary and does not do justice to the compelling need for transparency, even on a post hoc basis. The States Parties will need to undertake a lessons-learned exercise to evaluate any mistakes made and identify which interpretations and practices must be rejected as such and which could qualify as valid precedents for the future. There isn’t too much hope that States will draw any conclusions or act on them consistently: in ICC governance, there's a tendency to see every crisis in isolation while devising and adapting ad hoc procedures to resolve it on the go. Now, too, States appear to have operated under the belief that Khan's case is unique and will never be repeated, reducing the need to reflect critically on what they could have done better,” he concludes.
“Are we ready to move on? I think we should move on, but I'm not sure some are ready to move on so quickly,” says Jimenez.
Khan’s lawyers have threatened further legal action. They continue to hark on the point that the ambassadors did not vote to establish his guilt or innocence but rather voted only to remove him. Which they argue is a political vote. But “there's no formal appeal,” notes Jimenez. “The ASP doesn't have an appellate body. It's a political decision. The next level of appeal is to International Labour Office Administrative Tribunal (ILOAT). In their jurisprudence, there are possibilities of reinstatement. But those were on more human resource workplace issues, and not on a political decision. That will take many months, if not years, to settle.” With costs attached.
In short, this saga will continue. The ICC was long an aspiration. It's about to acknowledge a quarter century since its inception in Rome, and commentators are using terms like “precarious”, “challenging”. The court and its supporters will need to take stock of the parlous state it is in, bruised by a nasty internal process and battered by its enemies.
