PREVIEW
Karim Khan's removal by a two-thirds of member states raises fresh questions about the ICC’s future amid US pressure
The dismissal of the International Criminal Court’s chief prosecutor Karim Khan on 24 July over sexual misconduct charges is the latest crisis facing the Court, just as African countries are seeking to boost their influence in it. Khan, who was nominated to the Court in 2021 by the British government under Prime Minister Boris Johnson, denies wrongdoing, saying he will challenge the removal. His lawyers argue the case was weaponised by opponents of his Gaza war-crimes investigations.
The Assembly of States Parties, the Court’s ultimate authority, now has to elect a successor but the vote is unlikely to conclude before 2027, leaving deputy prosecutors in charge. They will run elections for new judges, in which eight African nominees are standing for six seats, on the ICC bench.
The ICC was already embattled by United States President Donald Trump’s administration which is urging allies to join it in withdrawing from the Rome Statute that established the Hague-based court in 2002.
The military regimes in Burkina Faso, Mali and Niger, making up the Alliance des États du Sahel (AES), announced their withdrawal from the ICC on 30 June, as part of a broader agenda of exiting regional and international organisations. The three states described the ICC as an ‘instrument of neocolonial repression in the hands of imperialism’.
The African Union in January 2017 passed a non-binding resolution to withdraw from the ICC, citing sovereignty concerns, but now Africa has the most judicial representatives on the ICC.
Accusations of the ICC’s anti-African bias are based on most the indictments being launched against African officials or combatants while other states – such as China, Iraq, Iran, Israel, Myanmar, Russia and the United States – hardly figured among the indictee countries. It is possible, as shown in Israel’s case, to indict officials from governments which are not signatories to the ICC. Paradoxically it was Khan, a former critic of the Court, who widened the scope of indictees.
African governments are nominating eight justices out of the 14 nominated internationally to vie for the six posts on the ICC bench due for election in December.
They include Kenya’s Supreme Court Justice Njoki Ndung’u and Ghana’s Evelyn Ankumah, the founder of African Legal Aid. Nairobi has also nominated Judge Phoebe Okowa for a nine-year term on the International Court of Justice (ICJ) that would start next year.
That is a remarkable change from a decade ago, when President William Ruto and his predecessor Uhuru Kenyatta were scathing about the Court. Then they faced indictments – crimes against humanity in Ruto’s case – related to the 1,200 killings and over 300,000 displacements after the 2007 general elections (AC Vol 57 No 11, ICC down but not out).
Then Karim Khan was Ruto’s lawyer and the Court terminated the case against Ruto and co-accused Joshua Sang in April 2016. The judges, said the prosecution hadn’t presented enough evidence, declared a mistrial and highlighted witness interference and political meddling. Their decision left open the possibility of a fresh prosecution.
More widely, some African states are turning towards the Court, with investigations and pending petitions related to the wars in eastern Congo-Kinshasa and Sudan (AC Vol 64 No 13, Hague court probes M23 fighters & Vol 65 No 15, As the civil war threatens the region, the UAE boosts Hemeti’s militia).
Last week, two Ghanaians filed a petition at the ICC demanding an investigation into attacks on foreigners in South Africa, arguing that the violence could amount to crimes against humanity.
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