More than 120 countries elected British lawyer Karim Khan as the next prosecutor of the International Criminal Court (ICC), one of the toughest jobs in international law because the tribunal seeks justice for the world’s worst atrocities – war crimes, crimes against humanity, and genocide.
Khan, 50, who led a United Nations probe into atrocities by the ISIL (ISIS) group, won on a second round of voting at the UN in New York on Friday with support from 72 nations, 10 more than the 62 needed
His election on the second secret ballot by the 123 parties to the Rome Statute that established the court ends a drawn-out and divisive process to replace Fatou Bensouda when her nine-year term expires in June.
Khan, who has specialised in international criminal law and international human rights law, was widely seen as the favourite to get the job. But neither he nor any of the other candidates garnered enough support to be appointed by consensus, prompting Friday’s election in the UN General Assembly Hall.
Although this is an independent legal position, Bays said, everything about the ICC “ends up being politically charged”.
“A number of his early decisions are bound to be controversial, whichever course he takes.”
Following Khan, Fergal Gaynor of Ireland was second with 42 votes followed by Spain’s Carlos Castresana Fernandez with five votes and Francesco Lo Voi of Italy with three votes. One member did not vote.
Khan, who has the rank of a UN assistant secretary-general, has also worked as a prosecutor at the tribunal prosecuting war crimes in former Yugoslavia and crimes against humanity and genocide in Rwanda.
He is no stranger to the ICC, having acted as a defence lawyer for Kenyan Deputy President William Ruto and persuading judges to throw out prosecution charges against his client. Gaynor acted as a legal representative for victims in the Ruto case, which focused on post-election violence.
Khan also served as counsel for Saif al-Islam Gaddafi, the son of the late Libyan leader Muammar Gaddafi, who is still being sought by the ICC on charges of crimes against humanity.
“Karim Khan’s election as prosecutor is occurring at a time when the ICC is needed more than ever but has faced significant challenges and pressure on its role,” said Richard Dicker, international justice director at Human Rights Watch.
“We will be looking to Mr Khan to address shortcomings in the court’s performance while demonstrating firm independence in seeking to hold even the most powerful rights abusers to account.”
While the Security Council has used its power under the Rome Statute to refer conflicts in Sudan’s western Darfur region and in Libya to the ICC, calls for the UN’s most powerful body to refer Syria, and more recently Myanmar, to the tribunal have failed.
‘An existential threat’
In the last several years, Bensouda had sought to broaden its reach beyond its early all-African focus including Afghanistan, Palestine, which is a party to the Rome Statute, and Georgia.
The ICC is needed more than ever, Dicker said, “because of the proliferation of these horrific crimes”, but the court had faced “an existential threat” from former US President Donald Trump’s administration.
It slapped sanctions on Bensouda and one of her top aides last year for continuing to investigate war crimes allegations against Americans, although the court was often criticised in the past for its focus on African crimes.
Last week, ICC judges angered Israel by saying the court’s jurisdiction extends to territories occupied by Israel in the 1967 war, potentially clearing the way for the prosecutor to open an investigation into Israeli military actions and the country’s construction of illegal Jewish settlements in the occupied West Bank and annexed East Jerusalem.
While Palestinian rights groups welcomed the move, Israeli Prime Minister Benjamin Netanyahu called the decision a “perversion of justice”.
The selection process for the prosecutor and the alleged failure by the ICC’s Assembly of States Parties to conduct stringent background checks on the candidates to ensure they met the requirement of “high moral character” has drawn criticism from civil society groups that work with the court.
A diplomat who spoke on condition of anonymity to discuss details of closed meetings said the fact that many of the meetings to discuss possible successors to Bensouda took place virtually made it difficult for member nations to discuss concerns during informal “corridor” meetings.