UNITED NATIONS — Member states of the International Criminal Court elected British barrister Karim Khan the next prosecutor of the war crimes tribunal on Friday, ending a drawn-out and divisive process to replace Fatou Bensouda when her 9-year term expires later this year.
Khan, an assistant UN secretary-general, was widely seen as the favorite to get the job. But neither Khan nor any of the other candidates garnered enough support to be appointed by consensus, prompting Friday’s election in the UN General Assembly Hall.
Khan won on the second ballot of the 123 parties to the Rome Statute that established the tribunal. He received 72 votes, ahead of Fergal Gaynor of Ireland with 42 votes, Spain’s Carlos Castresana Fernandez with 5 votes and Francesco Lo Voi of Italy with 3 votes. One member did not vote.
Khan has been leading an investigative team set up to investigate allegations of genocide, crimes against humanity and war crimes committed by the Islamic State group in Iraq.
He is no stranger to the ICC, having acted as a defense lawyer for Kenyan Deputy President William Ruto and persuading judges to throw out prosecution charges against his client.
The ICC prosecutor holds a position that is one of the toughest in international law due to the court’s mandate to prosecute war crimes, crimes against humanity and genocide.
The Trump administration slapped sanctions on Gambian-born Bensouda and one of her top aides last year for continuing to investigate war crimes allegations against Americans, although the court was often criticized in the past for its focus on African crimes.
The Biden administration has signaled a less confrontational line but has not said whether it will drop sanctions against Bensouda, who has attacked the “unacceptable” measures.
The new prosecutor’s first tasks will include deciding the next steps on the probe into war crimes in Afghanistan and the hugely contentious investigation into the 2014 Israel-Palestinian conflict in Gaza.
In a major decision last Friday, a pre-trial chamber of the ICC determined that The Hague has jurisdiction to open a criminal investigation into Israel and the Palestinians for war crimes alleged to have taken place in the West Bank, Gaza Strip and East Jerusalem, paving the way for a full investigation after a five-year preliminary probe opened by Bensouda.
Bensouda indicated in 2019 that a criminal investigation, if approved, would focus on the 2014 Israel-Hamas conflict (Operation Protective Edge), on Israeli settlement policy, and on the Israeli response to Hamas-led protests at the Gaza border from 2018.
Israel and the United States — neither of which are ICC members — have strongly opposed the probe.
Prime Minister Benjamin Netanyahu said of the ruling: “The ICC proved once again that it is a political body and not a judicial institution. The ICC ignores the real war crimes and instead pursues the State of Israel, a state with a strong democratic government that sanctifies the rule of law, and is not a member of the ICC.”
“In this decision,” Netanyahu added, “the ICC violated the right of democracies to defend themselves against terrorism, and played into the hands of those who undermine efforts to expand the circle of peace. We will continue to protect our citizens and soldiers in every way from legal persecution.”
Israel’s Kan public broadcaster reported that Israeli officials supported Khan’s candidacy behind the scenes, and consider him a pragmatist who shies away from politicization.
The selection process and the alleged failure by the ICC’s Assembly of States Parties to conduct stringent background checks on the candidates for prosecutor has drawn criticism from civil society groups that work with the court.
“Although ICC member countries took a number of innovative steps to guide this election process, they did not put in place steps to professionally vet candidates as part of an assessment of ‘high moral character,’ a key requirement under the ICC treaty for the prosecutor,” said Liz Evenson, associate international justice director at Human Rights Watch.
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.
British lawyer and human rights specialist Khan has been a defense lawyer in several ICC cases, including for late Libyan leader Muammar Gaddafi’s son Seif al-Islam.
Khan recently headed a UN special probe into Islamic State group crimes and called for trials like those of Nazi leaders at Nuremberg.
Bensouda has had a mixed record even as she expanded — some analysts say overextended — the court’s reach.
Under her leadership former Ivory Coast president Laurent Gbagbo was cleared of crimes against humanity, while former DR Congo vice-president Jean-Pierre Bemba was acquitted on appeal.
Kenyan President Uhuru Kenyatta also saw charges of crimes against humanity over electoral bloodshed dropped by Bensouda.
But Bensouda has recently secured high-profile convictions against Ugandan child soldier-turned-Lord’s Resistance Army commander Dominic Ongwen and Congolese warlord Bosco “Terminator” Ntaganda.
She has also been credited with improving the prosecutor’s office compared with her predecessor Luis Moreno-Ocampo, whose leadership was described as “autocratic” in a probe ordered by the ICC into the Kenyatta case.
The ICC is the world’s only permanent war crimes court, after years when the only route to justice for atrocities in countries like Rwanda and the former Yugoslavia was separate tribunals.
Hamstrung from the start by the refusal of the United States, Russia and China to join, the court has since faced criticism for having mainly taken on cases from poorer African nations.