The International Criminal Court (ICC) suffered a severe blow this Friday, one not seen in a long time. The Assembly of the 125 States Parties to this body, which prosecutes those most responsible for committing international crimes when their national courts do not, decided in New York to dismiss its chief prosecutor, Karim Khan. An assistant had accused him of inappropriate sexual conduct, something Khan has always denied. The decision, unprecedented in the ICC’s 24 years of activity, comes amid a full-blown assault by the United States government against the organization.
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The vote, as reported by Reuters, citing two anonymous sources, was 82 votes in favor out of 125 members. It comes at a time of great tension due to sanctions imposed by the United States against eight judges and three prosecutors of this court, and the publication of an article on July 13 by US Secretary of State, Marco Rubio, in which he proposed to “dismantle the ICC, brick by brick, if necessary.”
Khan, a 56-year-old British jurist who has served as a lawyer and prosecutor throughout his career, was suspended from his duties in early June. A month earlier, he had requested leave following the opening of investigations. The figure of the ICC chief prosecutor is associated, in a way, with that of the guardian of international justice, a kind of symbolic power that an accusation of sexual harassment like the one examined can shatter, turning the court into a target for its opponents.
Last week, after remaining anonymous for the past two years, the complainant, a woman who asked to be identified only as Sarah, offered her version of events during an interview with the US television network CNN. Sarah is a Malaysian lawyer who studied law in the United Kingdom and the Netherlands, and who won a scholarship position at the ICC. Married with one child, after a few years, and following a selection process, she became Khan’s assistant, according to an investigation by the Dutch newspaper NRC. In the interview, she described “a progression of attempts” that culminated in a physical assault. “There’s no way something is consensual when there’s such a power imbalance,” she said. And then she added: “What I think a lot of people don’t understand is that Mr. Khan wasn’t just my boss; he was everyone’s boss.”
The facts were first studied by the ICC’s Independent Oversight Mechanism, which determined that the evidence gathered indicated that non-consensual sexual contact took place. Prosecutor Khan’s lawyers maintained, on the contrary, that he never engaged in prohibited conduct. Once this initial report was received, the ICC referred it to three highly respected judges from different countries to assess it from a legal standpoint. Unanimously, they concluded that with the revealed material at hand, there was insufficient evidence to support the conclusion that misconduct had been established “beyond a reasonable doubt.” The latter is the demanding criterion used in criminal cases as the standard for evidence. In contrast, the civil law criterion, which operates on the basis of a balance of probabilities, was applied by the Oversight Mechanism.
Khan’s temporary resignation last June coincided with the ICC’s difficulties in carrying out its work due to sanctions against its staff following the arrest warrant issued by the judges — at the request of the Prosecutor’s Office — against Israeli Prime Minister Benjamin Netanyahu and his former Defense Minister Yoav Gallant. The document also included three Hamas leaders who are now presumed dead. Eight judges and the three prosecutors, including Khan, have problems managing their daily lives because the veto affects their credit cards and any reservations or travel they intend to make. The veto includes all those who collaborate with the court.
Khan’s case has dragged on for two years, and the decision comes at a crucial moment for this court, which is under enormous pressure from the United States, despite not being one of its members. Washington considers that the ICC infringes on its sovereignty, and does not recognize its competence to judge US citizens who have committed genocide, war crimes and crimes against humanity, or the crime of armed aggression, outside its borders. Marco Rubio, US Secretary of State, graphically described it on July 13 by saying that “working hand in hand with every ally with whom we can join forces, we will dismantle the ICC brick by brick, if necessary,” in an article published by the Wall Street Journal.
The ICC has had three prosecutors since 2002: the Argentine Luis Moreno Ocampo (from 2003 to 2012), the Gambian Fatou Bensouda (as deputy between 2004 and 2012, and as chief until 2021) and Karim Khan. The first two faced accusations of various kinds. Moreno Ocampo, for alleged inappropriate sexual conduct, the subject of internal investigations with no public result. Bensouda’s previous work as prosecutor in Gambia during the dictatorship of Yahya Jammeh (1994-2017) was analyzed by the Gambian Truth, Reconciliation and Reparations Commission. Bensouda insisted that she was unaware of torture, disappearances or illegal detentions, and that it was a campaign to discredit her.
If those most responsible for the worst crimes are not immune and can be prosecuted by the ICC Prosecutor’s Office. “Does the position of prosecutor encourage misconduct, or are those with an inclination to such conduct more likely to hold the position?” asks researcher Lucy Gaynor, from the University of Amsterdam and the NIOD Institute for War, Holocaust and Genocide Studies, in an article published on the independent website Justice Info.
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