On Friday, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) voted 82-13, with 15 abstentions, to remove Karim Khan from his position as Prosecutor of the ICC. Khan was removed for sexual misconduct against a junior staff member in his immediate office (see details here) and his dismissal is effective immediately (Rule 31 of the ICC Rules of Procedure and Evidence). Mr. Khan’s lawyers have pledged to challenge the outcome “through all available legal mechanisms,” though neither the Rome Statute nor any of the other governing ICC legal texts provides any avenue to do so.
The vote by the states to remove Mr. Khan was decisive and based on an extensive and lengthy investigation. That said, the episode has exposed deep problems within the Court’s internal governance structure and fractured its various constituencies, all amid the most challenging period in the Court’s existence. If the Court is going to fulfil its mission of justice for victims and survivors of the gravest crimes, much hard work lies ahead.
Moving Beyond the ASP Vote
The process leading to Mr. Khan’s removal became highly politicized and contested. Some of Mr. Khan’s supporters claimed or clearly suggested, without evidence, that the sexual misconduct allegations were an Israeli-sponsored fabrication, concocted to destroy Mr. Khan for seeking an arrest warrant for Israeli Prime Minister, Benjamin Netanyahu. Others, by portraying Mr. Khan as someone uniquely prepared to fight for justice in Gaza, suggested that states were seeking to remove Mr. Khan because he brought warrants in the Palestine case. Putting aside the fact that these warrants were approved by three ICC judges and remain in place, there is no evidence that the ultimate outcome was driven by the cases brought by Mr. Khan. At a different moment in time, such a narrative may not have taken hold. Yet it landed in a context where, not only is the Israeli government opposing the Court’s arrest warrants against its officials, but the United States is seeking to dismantle the Court entirely. The result is that for some, the internal workplace complaint by a junior staff member was conflated with attacks on the Court by states.
In the end though, states focused on the actual allegations against Mr. Khan – which were serious and well-grounded – and concluded that he could no longer lead the Office of the Prosecutor. The overwhelming vote of the states should now be given respect and accepted. Here, Palestine’s Mission to The Netherlands provides a strong, early example of a measured and appropriate response, stating: “The vote by the Assembly of States Parties to remove the Prosecutor was not a political proxy vote on any Situation before the ICC, an assessment on prosecutorial strategy, or a broad institutional referendum. It was a statutory vote based on the Rome Statute.” This is exactly the approach that will be essential for the Court to move past this period and resume work on its core mission.
The Work Ahead for the ICC and International Community
First, states must concretize the process for adjudicating allegations of misconduct, especially against senior court officials. At the end of the day, the allegations against Mr. Khan were thoroughly investigated, he and his lawyers were given more than ample opportunities to challenge the evidence, and the states voted to remove him following the process set forth in Article 46 of the Rome Statute. That is what is required, and it was done. Yet, the process was not clearly set out from the beginning, and procedures were improvised mid-course. Further, the court failed to communicate clearly on the processes at each step of the way. These shortcomings created opportunities for Mr. Khan and his supporters to try to turn the tables and claim that he was being victimized by the process and further that the procedural missteps could only be explained by a nefarious political campaign. This defense strategy caused real and lasting harm, both to the complainant as an individual, and to the Court as an institution. In light of this experience, states should urgently appoint a committee to clarify, strengthen, and streamline the process for reporting, investigating, and deciding on such complaints.
Second, and relatedly, this episode underscores the significant work still to be done to improve workplace culture at the court. Before Mr. Khan was elected, the states commissioned a group of experts to review the workings of the court, and that body concluded that bullying and sexual harassment were significant problems within the Office of the Prosecutor. In his campaign for prosecutor and after being elected, Mr. Khan pledged to address these problems and to enforce a policy of zero tolerance, stating at his swearing in, “This office should be the best place in the world for anybody who believes in the rule of law, human rights, international relations to work, and you have a right to work in a harassment-free working environment.” To be sure, Mr. Khan took steps within the Office to address these issues, but he did not go far enough and his own behavior on multiple levels undermined the effort. Changing workplace culture is tough. It starts from the top and requires sustained commitment from the entire leadership of the Office.
Third, Mr. Khan’s removal now requires the election of a new Prosecutor. The statement of the ASP on Mr. Khan’s removal says that the Deputy Prosecutors will continue to run the Office, but the Court will need to start the process of electing a new Prosecutor without significant delay. Given what has just unfolded, it will be important to ensure that the new Prosecutor is unimpeachably a person of “high moral character,” as required by the Statute. Moreover, in addition to ensuring that any prospective candidate would be highly competent as a prosecutor in a complex geopolitical environment, states would be wise to consider whether candidates have the skills and temperament to establish and maintain a strong and healthy working environment inside the Office.
Further, the election of a new prosecutor is an opportunity for the states to take stock. Since Mr. Khan was elected, the Office has brought arrest warrants against Vladimir Putin and other senior Russian officials in the Ukraine case and against Benjamin Netanyahu and Yoav Gallant in the Palestine case (as well as Hamas leaders who have since been killed). Rodrigo Duterte, the former President of the Philippines, has been surrendered to the court and trial is set to start in November. Four states (Mali, Niger, Burkino Faso, and now Venezuela) have announced their intention to leave the court, and the United States has imposed severe sanctions on the then-Prosecutor, Deputy Prosecutors, and eight judges, and announced a campaign to dismantle the court. Around the world, states are turning away from international institutions and solutions, creating a challenging environment for the ICC, which is dependent on state cooperation to conduct its work.
In other words, both the ICC and the world have changed dramatically since Mr. Khan became prosecutor four years ago. These new realities require the states to face many difficult questions as they choose a new Prosecutor, but the overarching one is simple: How can the ICC keep the flame of international justice burning through these difficult times? In the coming weeks and months, we and others will debate visions for the future of the Court. But in truth, the Court always has, and always will face political pressure by those states who seek impunity for their nationals or others. It is also true that the Court always has, and always will, rely on other states to support the pursuit of accountability in the face of these pressures. To bend the arc in favor of justice, the Court needs states who support its mission to redouble their efforts to assist the Court. This means funding it, cooperating in its investigations, executing its warrants, and speaking out in favor of the rule of law. The next Prosecutor will shape the future direction of the court in these challenging years ahead, but it is not something that person can do alone.
