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Vol 62 No 3

Published 4th February 2021


Activists question appointment of Briton as new prosecutor at beleaguered court

Defence lawyer for Kenya's Deputy President Ruto in the aborted political killings trial gets top post at the ICC

The appointment of Karim Khan as new prosecutor of the International Criminal Court on 12 February has been commended by the British and Kenyan governments but condemned by African activists who accuse him of bias against civil society.

Khan, a British Queen's Counsel barrister, won with 72 votes to Ireland's Fergal Gaynor's 42. Attempts among the 123 member countries of the court to reach a consensus on the candidates failed last week, so a secret ballot to choose between four short-listed candidates followed. 

Neither Khan nor Gaynor nor the other two front-runners had run a substantial international organisation before. A damning independent report in September lambasted the ICC for a dysfunctional bureaucracy and lack of leadership. Khan is due to take over the prosecutor's post on 1 July. As prosecutor, he will determine the court's agenda and which cases it takes.

Under fire for its failed cases and claims of political bias since its launching in 2002, the ICC is far from establishing a credible record for prosecuting genocide, crimes against humanity and war crimes, its core mandate. It has won just five cases so far.

Khan's tenure could prove critical for the court's future with signs that he has secured heavy backing from Europe and some African states such as Kenya. Colleagues in London praise Khan's legal acumen but activists accuse him of a disparaging attitude towards civil society. 

Those criticisms ballooned when he was defence lawyer for William Ruto, now Kenya's Deputy President, on trial at the ICC charged with crimes against humanity after the post-election violence in 2007.

Eventually, the ICC declared a mistrial citing 'witness interference and intolerable political meddling' by Kenyan officials. The court charged three Kenyans with witness-tampering in the case but made no criticism of Khan's conduct.

There has been speculation that Ruto's political foes in Kenya are plotting to have the ICC reopen the case against him. Should it do so, Khan would have to recuse himself from the case. 

Beyond the judicial role, Khan will face mounting political pressure over the court's choice of cases. It is said to be planning investigations of abuses by US troops in Afghanistan, Israeli forces in Palestine, and Russian soldiers in Eastern Ukraine. There are also reports that the court may open an investigation into China's treatment of the Uighur minority in Xiangxing province (AC Vol 61 No 24, The Hague’s unexpected guest & Vol 61 No 12, Affairs of state and of the heart).



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