New Hague prosecutor up against geopolitical headwinds and ‘culture of fear’

In his characteristically persuasive application for the job of prosecutor at the International Criminal Court (ICC), Karim Khan left no doubt that even after a stellar legal career as a QC and a UN assistant secretary-general, this would still be his job of a lifetime.

“There should be no better place in the world than this for a lawyer committed to international justice,” he wrote of the global court-of-last-resort set up 20 years ago to try the most heinous crimes human beings have shown themselves capable of committing.

Khan will test that idealism when he takes over on Wednesday as the ICC's third prosecutor, at the helm of a court at loggerheads with the US over Afghanistan and Israel, reviled by the African Union as a pawn of western "colonialism", and slated by Vladimir Putin's Russia as "one-sided and inefficient".

That’s to give the merest flavour of the ICC’s geopolitical ecosystem and the well-rehearsed challenges any one of which the new British prosecutor may encounter on his first day in the “corner office” at the Alexanderkazerne, appropriately enough a former military barracks in The Hague.

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The court, of course, has its supporters – the 123 countries that signed the Rome Statute that provides its foundation. Even so, those nations most vocal in public are frequently slowest to put their hands in their pockets to fund its modest annual budget of less than €150 million.

Amnesty International has accused such countries – among them Britain, Canada, France, Germany and Spain – of hypocrisy.

It has warned that the division of the court always most vulnerable to constrained budgets is the Office of the Prosecutor, and specifically its capacity to open the costly new investigations on which the court’s credibility ultimately rests.

Opinio Juris, a well-known legal blog – no stranger to the new boss – has described the unseemly annual battle for funding above zero growth as “the financial strangulation of the court” and consequently the single greatest threat to its capacity to carry out its mandate.

Internal problems

Inside the ICC’s imposing €200 million headquarters, the picture facing Khan is little better.

The task before him was summed up in an uncompromising report last year overseen by one of the court's most fervent supporters, former South African judge Richard Goldstone, which concluded that it appeared to "suffer internally from distrust ... and a culture of fear".

Most damning of all, the report described an environment in which some judges allegedly felt able to act as bullies – and staff felt powerless to respond.

So, as longtime ICC watcher Liz Evenson of Human Rights Watch puts it diplomatically, the new prosecutor begins work "at a moment when the court is needed more than ever and faces both internal performance shortcomings and external pressure about its role".

Despite being British, Muslim and of Pakistani origin – he describes Pakistan’s first foreign minister, Muhammad Zafarullah Khan, later president of the International Court of Justice, as his “adopted grandfather” – Khan (50), a QC since 2011, is every inch the legal insider.

He was born in Edinburgh and called to the Bar of England and Wales in 1992. He recalled recently how, at the time, members of a panel interviewing him for a pupillage openly discussed whether he looked more Pakistani than English and the implications this might have for his career.

He became a crown prosecutor in 1993 but “had a yearning for human rights law” that led him first to the International Criminal Tribunal for the Former Yugoslavia, then the International Criminal Tribunal for Rwanda – “formative years” that set him on course for the prize he’s about to grasp.

IRA bombings

In his first case as defence counsel before the Yugoslavia tribunal he was led, auspiciously as it happens, by Michael Mansfield QC, who later represented those wrongly convicted of the IRA's Guildford and Birmingham pub bombings.

He has defended a number of high-profile clients, notably the former president of Liberia, Charles Taylor, who failed to appear on the opening day of his case before the Special Court for Sierra Leone – although he did send a letter firing Khan and his entire legal team.

He appeared at the ICC for Kenya's deputy president William Ruto, charged with crimes against humanity during post-election violence in 2007. The case ended in a mistrial because of "a troubling incidence of witness interference and intolerable political meddling".

He also appeared as lead counsel for Saif al-Islam Gadafy, son of the late Libyan dictator, who’s still wanted on an ICC arrest warrant but hasn’t been seen since 2019.

“Crossing the floor” to prosecute, anticipates Khan, will not be a problem. In fact, as few know better, it will probably be the least of his problems.

Having taken the prosecutor's job in a bruising contest – in which Irish judge Fergal Gaynor ran a creditable second – Khan is philosophical: "We are all simply custodians ... trying to build something that will outlast us."

Taking on perhaps the most unenviable yet most worthwhile job in the international legal world, that is a frame of mind he might do well to cultivate.