Opinion | International Criminal Court threatened: Courageous prosecutor upholds global justice

By Grenville Cross

On Feb 12, 2021, the British barrister Karim Khan KC was elected as prosecutor of the International Criminal Court (ICC), at the 19th session of the Assembly of States Parties to the Rome Statute, in New York. He has an impressive pedigree and was sworn into office on June 16, 2021.

Khan had previously served as a UN Assistant Secretary-General. He was the first special adviser and head of the United Nations Investigative Team to promote accountability for crimes committed by Da'esh/ISIL in Iraq (UNITAD) between 2018 and 2021. UNITAD was established by the UN Security Council in 2017 to promote accountability efforts for genocide, crimes against humanity, and war crimes committed by Da'esh/ISIL. His UNITAD experience will have proved invaluable at the ICC.

Khan also has extensive experience as a prosecutor, victim's counsel and defense lawyer in domestic and international criminal tribunals, including not only the ICC but also the International Tribunal for Rwanda, the International Tribunal for the Former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Special Court for Sierra Leone. He has also represented victims of human rights violations in Africa and Asia and is a worldwide ambassador of the African Bar Association. In the UK, he is a bencher of Lincoln's Inn and was appointed a recorder of the Crown Court (part-time judge) in 2018.

The ICC is fortunate to have retained Khan's services, particularly at a time when human survival counts for little in so many places. His position, however, can be precarious, as his predecessor, Fatou Bensouda, found out in 2020 when the then-US president, Donald Trump, imposed sanctions on her (and her family) as punishment for investigating whether US personnel had committed war crimes in Afghanistan. In 2023, moreover, the Russian president, Vladimir Putin, approved an arrest warrant for Khan over his investigations into the situation in Ukraine (earlier, when Khan had issued an arrest warrant against Putin, the US was ecstatic and had no qualms over his jurisdiction to do so).

The ICC was established under United Nations auspices by the Rome Statute in 2002, and the States Parties to the Statute currently number 124, including the United Kingdom. Its mandate (Art.5) is to prosecute genocide, crimes against humanity, war crimes and the crime of aggression, but only in circumstances in which the perpetrators will not otherwise face justice. It describes itself as being on "a global fight to end impunity, and, through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again".

Given his mandate, it is unsurprising that Khan has become involved in the Gaza conflict. The Israeli Defense Forces (IDF) have killed over 34,000 civilians since they invaded Gaza, mostly women and children. On Feb 12, he told Reuters he was "deeply concerned" over the situation in Rafah, and "the risks to civilians are profound". He said the ICC was "actively investigating any crimes allegedly committed in Gaza," and that those responsible "will be held accountable".

Khan insisted the ICC had jurisdiction over any war crimes committed by the IDF in Gaza, as well as by Hamas in Israel. This was because, although Israel, like the US, has not signed the Rome Statute, Palestine has, becoming the ICC's 123rd member on April 1, 2015. The ICC is empowered to exercise jurisdiction if a nonmember state commits war crimes on the territory of one of its States Parties, such being the situation in Gaza.

On March 11, The Guardian reported that Khan had decided to "accelerate" the ICC's investigation into alleged war crimes in the Palestinian territories. He had appointed Andrew Cayley, formerly the UK's chief military prosecutor, to oversee the investigation. It seems, therefore, that Khan means business, which has not pleased some people in the US, which is funding Israel's war machine.

Karine Jean-Pierre, the spokesman of US President Joe Biden, said, "We do not support it" (the ICC investigation). She added, "We don't believe that they have the jurisdiction," which was incorrect (as anybody who has read the Rome Statute can attest). What she meant was that the US wanted, at all costs, to protect Israel's prime minister, Benjamin Netanyahu, its proxy in the Middle East.

After all, if the ICC pursues Netanyahu for war crimes and crimes against humanity, his enablers in the US could be next, as aiders and abettors. Little wonder Jean-Pierre claimed a lack of jurisdiction (just as Trump did in 2020).

Not surprisingly, Netanyahu is also running scared. He announced that if the ICC were to go after him and his underlings for what they have done in Gaza, it "would be an outrage of historic proportions". He sounded for all the world like a cornered fugitive who realizes that justice is fast approaching.

Khan is a man of courage and integrity, and, like Bensouda before him, will not be deflected from doing his duty by US threats. Indeed, he embodies the adage "When the going gets tough, the tough get going

However, in the US, fortunately for Netanyahu, the traditional way of dealing with situations it dislikes is bluster, threats and bullyboy tactics, and the ICC is no exception.

On April 24, 2024, 12 US senators wrote to Khan. They told him that if he issued international arrest warrants against Netanyahu and his cronies, it would "result in severe sanctions against you and your institution". The issuing of warrants would be interpreted as not only "a threat to Israel's sovereignty, but to the sovereignty of the United States". Their vile rant concluded with the words, "You have been warned."

In all common law jurisdictions, threats of this sort are treated as an attempt to pervert the course of public justice. However, the signatories, who included lawyers, believe that might is right, and that they can ride roughshod over legal norms. The next thing you know they will be claiming that the US is the leader of the "free world" and upholds the "international rules-based order".

One of the signatories was none other than US Senator Marco Rubio, who is well-known in Hong Kong. He tried to con the Nobel Peace Prize Committee into giving an award to the rabble-rousers Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang, despite their criminal convictions for violence (he was given short shrift). He also signed the demand for 29 of the city's judges (including British nationals) to be sanctioned for having adjudicated upon national security cases, which was a contemptible assault on the rule of law for which he should be held accountable (if not in a court of law, then by his electorate).

Given Rubio's involvement, it was no surprise that the letter was also used to malign China (despite its efforts to de-escalate the situation in Gaza). It complained that Khan, although he was targeting Netanyahu, had failed to issue an arrest warrant against "the genocidal General Secretary of the People's Republic of China (sic), or any other Chinese officials". It appeared not to have occurred to the authors that Khan had no evidence to justify pursuing anybody in China and that their demented fantasies belonged in cloud cuckoo land.

Before writing to Khan, Rubio and his co-signatories also failed to factor in a highly relevant consideration. Khan is a man of courage and integrity, and, like Bensouda before him, will not be deflected from doing his duty by US threats. Indeed, he embodies the adage "When the going gets tough, the tough get going."

On April 30, Khan called for an end to the intimidation of the ICC, pointing out that the threats could amount to an offense against the "administration of justice" by the court. The Rome Statute prohibits threats against the court and its officials, meaning that Rubio's letter may be prosecutable. Khan called for all attempts to impede, intimidate or improperly influence the Court's officials to cease immediately.

Although, as Khan explained, his office sought to "engage constructively with all stakeholders whenever such dialogue is consistent with its mandate under the Rome Statute", there were limits. Its independence and impartiality were undermined "when individuals threaten to retaliate against the Court or against Court personnel should the Office, in fulfillment of its mandate, make decisions about investigations or cases falling within its jurisdiction".

If, therefore, those who threatened Khan imagined they were dealing with a shrinking violet, they could not have been more mistaken. In the highest prosecutorial traditions, he will not be deflected from his duty to investigate crime and bring criminals to justice, even if they have powerful friends. Global justice is safe in hands like these.

It is, however, very strange that the UK foreign secretary, Lord (David) Cameron, has not sprung to Khan's defense. Not only is Khan a British national, but the UK is an ICC signatory. The same phenomenon was observed last year when the US Congress threatened British judges working in Hong Kong with sanctions, and nothing was heard from Cameron's predecessor, James Cleverly. If Khan is brave enough to stand up to the US, there is no reason why Cameron should not be inspired by his example.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.