International Court, Battered by Critics, Elects Briton as New Prosecutor

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Karim Khan, a veteran of the international legal scene who has worked on both the defense and prosecution sides, will shape the court’s image and effectiveness for years to come.


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Karim Khan is “a charismatic and articulate communicator who is well aware of his achievements,” an appraisal committee said.

Karim Khan is “a charismatic and articulate communicator who is well aware of his achievements,” an appraisal committee said.Credit…Sabah Arar/Agence France-Presse — Getty Images

By Marlise Simons
Feb. 12, 2021

After months of intense lobbying and shifting candidate lists, the member states of the International Criminal Court on Friday chose Karim Khan, a British lawyer, as the tribunal’s next chief prosecutor, a role that will shape the court’s image and effectiveness for years to come.

Mr. Khan, a veteran of the international legal scene who has worked on both the prosecution and defense sides, received 72 votes in a secret ballot after the 123 countries had failed to reach consensus on any of four shortlist contenders. Elected to a nine-year term, he will succeed Fatou Bensouda of Gambia, whose appointment expires at the end of June.

The chief prosecutor holds the most important post at the court, which has been operating since 2002 in The Hague. The top body in international criminal justice, it has 18 judges to carry out its mandate of trying crimes against humanity, war crimes, and crimes of genocide and aggression.

But the prosecutor drives the institution by selecting the cases to pursue, effectively determining what events and which people are targeted by the court.

Although the court has been widely criticized for its slow pace — it has secured just five convictions in its first two decades — competition for the job had been fierce. Diplomats and rights advocates had wrangled for more than six months over candidates, signaling the court’s potentially far-reaching impact if it manages to strengthen its role.

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Mr. Khan’s election “comes at a moment when the court is needed more than ever and faces both internal performance shortcomings and external pressure about its role,” said Elizabeth Evenson of Human Rights Watch.

One central issue that divided member countries is whether they wanted a weak or a strong prosecutor, an idealist or a pragmatist, one who accepts limited and manageable cases or one who dares to address crimes in which major powers may be involved.

Mr. Khan, 50, currently leads a U.N. group investigating war crimes attributed to the Islamic State. He is a familiar figure on the international legal scene in The Hague, where he is known for his trial skills, and has served over the years for both the defense and the prosecution.

The appraisals committee, which vetted candidates for the prosecutor’s job, described Mr. Khan as “a charismatic and articulate communicator who is well aware of his achievements.”

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He became known in The Hague for his high-profile clients, among them Saif el-Qaddafi, son of the Libyan dictator. When Mr. Khan was assigned to act as court-appointed lawyer for Charles Taylor, the former president of Liberia charged with terror, murder, rape and other war crimes, Mr. Taylor fired him, sending Mr. Khan storming out of the court.

“You don’t just get up and waltz out of here,” the irked presiding judge said as Mr. Khan headed for the door. “You’re really verging on contempt.”

Given Mr. Khan’s previous roles as defense counsel “in a number of ongoing cases before the I.C.C.,’’ the chances are “considerable” that he will have to recuse himself from several cases, the committee noted.

Perhaps his most contentious case involved his defense of Vice President William Ruto of Kenya, who was charged with crimes against humanity during postelection violence in 2007. The I.C.C. judges declared a mistrial because of “a troubling incidence of witness interference and intolerable political meddling” by Kenyan officials. Mr. Khan was not accused of any wrongdoing, but the court has charged three Kenyans with “witness tampering” in the case.

Mr. Khan’s predecessors, Ms. Bensouda and Luis Moreno Ocampo, were both appointed by consensus. But this time a number of countries and civil society groups, wanting a more transparent and competitive selection process, set up a special committee to interview candidates.

An initial list of 89 candidates was whittled down to a handful, but the choices drew complaints that only one, Fergal Gaynor, an Irish lawyer, seemed highly qualified. More candidates were added to the list and were required to explain publicly how they would run the prosecutor’s office, a job some have called “mission impossible.”

Straw polls eventually produced two front-runners: Mr. Gaynor and Mr. Khan, both of whom had extensive experience in international courts.

But neither gained enough support to achieve a consensus. As countries asked for more time, Spain put forward Carlos Castresana as its candidate, and Italy at the last minute proposed Francesco Lo Voi, who had not worked in international law but had built a reputation at home for prosecuting complex organized-crime cases.

The vote took place at the United Nations in New York, although the I.C.C. is independent of the U.N.

The appointment of a new prosecutor comes at a time when the court has both expanded its scope and taken on more sensitive cases. But it is also facing a tighter budget as its effectiveness has been widely questioned.

An independent report, commissioned by the assembly of member countries and issued last September, gave a scathing appraisal of the management of the court, citing low morale, bullying of staff and instances of assignments based on favoritism rather than merit.

It further noted that “the court is widely perceived from within as too bureaucratic, too inflexible and lacking in leadership and accountability.’’

Defenders of the court, and Ms. Bensouda herself, have often argued that it has struggled to live up to its mission because of a lack of resources and the failure of many member states to cooperate, most notably by not assisting investigations and not carrying out the court’s arrest warrants.

It has also earned the hostility of major powers, not least the Trump administration, which slapped sanctions on Ms. Bensouda and her team for choosing to investigate possible war crimes by American forces in Afghanistan. The Biden administration has said the sanctions will be “thoroughly reviewed.’’

Similarly, the court is also facing anger from China over reports that it may investigate the treatment of its Uighur minority, hundreds of thousands of whom have been confined on orders of Beijing. Moscow, too, has attacked the court because it may explore possible crimes committed by Russians in eastern Ukraine.

Like the United States, China and Russia are not members of the I.C.C.


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