By Millicent Zighe
Like his candidacy for the position of Prosecutor of the International Criminal Court, Karim Khan’s subsequent election has continued to elicit both support and opposition from members of civil society organisations and human rights lawyers.
Speaking to Journalists For Justice, lawyer Chief Charles Taku defended Khan’s role in the Kenya cases when he represented Deputy President William Ruto after the 2007/2008 post –election violence, insisting that the British-Pakistani lawyer had conducted himself professionally in that suit and in all the other matters in which he had been involved.
He dismissed concerns that Khan’s election could affect the Kenya cases, which, although terminated because of witnesses tampering and insufficient evidence, could be reopened if new evidence emerges.
“Khan and the runner-up, Fergal Gaynor, participated in the Kenya cases in different roles. During the interview process by civil society organisations (CSOs), the two pledged to recuse themselves from the decision on the cases if elected. Khan will do just that. This pledge extended to all the other cases in which they were engaged,” said Taku, who represents former Lord’s Resistance Army commander Dominic Ongwen at the ICC.
He acknowledged that Khan will likely face opposition from several countries, but said this was expected, and had happened even with his predecessor, Fatou Bensouda. To counter such opposition, Taku suggested that Khan set up mechanisms to encourage increased state cooperation in investigations and prosecutions.
“He should make a relentless effort to calm the anxieties and distrust of states parties and non- states parties, which have rightly or wrongly accused the court of abusing its mandate in order to attain political objectives. He should maintain total independence and seek accountability for crimes coming within the jurisdiction of the court. He should strive to change the negative perceptions the court has suffered in the past few years by re-engaging with states parties, non-states parties, CSOs, and other stakeholders to attain the founding objectives of the court,” the lawyer proposed.
Gladwell Otieno, founder and Executive Director of Africa Centre for Open Governance (AfriCOG), one of the 22 anglophone CSOs that opposed Khan’s candidacy, does not agree.
“Khan will have to combat the perception that his appointment will negatively impact the hope of re-opening either of the two Kenya cases during his tenure, even if the necessary evidence was found. The Kenya cases were extremely important for the ICC in terms of setting a precedent for dealing with lack of state cooperation and the widespread evidence of what presiding Judge Chile Eboe-Osuji called a ‘troubling incidence of witness interference and intolerable political meddling’,” said Otieno.
She added: “Mr Khan has said that he will recuse himself from the Gicheru case and other similar Kenya cases. It is a shame that the states parties do not appear to have been concerned that the ICC Prosecutor would have to recuse himself from such important cases – an untidy and unsatisfactory outcome for such a critical election. His over-enthusiastic embrace of his client’s and the Kenya government’s political vendetta against the ICC, going far beyond the trenchant defence of his client’s interests in court, was a further point of concern.”
Otieno said AfriCOG and several other CSOs had written a second letter to the Assembly of States Parties (ASP) Bureau requesting that the elections be postponed to pave the way for thorough vetting of candidates, but their calls were ignored. She criticized the ASP for failing to establish a transparent process that would allow complaints and concerns to be fairly and effectively clarified.
“We believe that the failure to respond to civil society’s calls to ensure that the selection of the ICC Prosecutor was conducted in a fair, objective, and transparent manner will necessarily have repercussions on the legitimacy of both the ICC and Karim Khan as ICC Prosecutor in carrying out his mandate. After a process that seems to have stressed political expediency over a fair, transparent, and merit-based process, establishing trust with critical stakeholders will be an uphill battle for the court and the new Prosecutor,” said Otieno.
George Kegoro, the Executive Director of the Open Society Initiative for East Africa (OSIEA), is of the same view. In a Twitter post, he termed Khan’s election “an act of subversion that represents a major reversal of the agenda for international justice”.
But Mark Kersten, a consultant at Wayamo Foundation, thinks Khan will bring “commonsense, fearlessness, and a deep understanding of the political and legal landscape” to the court. He acknowledged that in the wake of the scepticism with which his election has been received, the new Prosecutor will have to go the extra mile to convince his critics that he is the right person for the job.
Reed Brody, counsel and spokesperson for Human Rights Watch (HRW) in Brussels, is of a different view. He believes the ICC needs someone like Khan, whom he said had the reputation of being “tough-minded”. He said this would come in useful, as he will need to stand up to bullies, perpetrators of atrocity crimes, and the powerful states that shield them.
“Hopefully he can inject his can-do attitude into the Prosecutor’s Office, which in 18 years has only managed to convict five local African warlords. He brings a litigator’s fighting temperament to a court that has often seemed to punch below its weight, for having been there in almost every post-conflict situation in the world, he knows that 90% of what is happening in international justice is happening away from The Hague, but that the ICC is the centrepiece of that architecture, and that what happens or doesn’t happen at the ICC determines in good part national and regional justice efforts,” said Brody.
Khan is set to take over from Bensouda in June 2021. Among his first tasks will be deciding how to proceed with investigations into war crimes alleged to have been committed in the Gaza Strip and the West Bank, including East Jerusalem.
Khan will also face the daunting task of deciding the next steps of the investigation into war crimes committed in Afghanistan and Eastern Europe. Last year, the administration of United States President Donald Trump sanctioned Bensouda over the inquiry. Although newly elected President Joe Biden has promised to review the sanctions, it remains unclear whether his government will cooperate with the court.
Khan was elected the new ICC Prosecutor on February 13 this year after garnering 72 votes from the 123 states parties to the Rome Statute ahead of Gaynor from Ireland with 42, Spain’s Carlos Castresana with five votes, and Francesco Lo Voi of Italy with three votes.