Among supporters of justice for the victims of international crimes, it may be an unpopular opinion to second-guess the hero of the moment, International Criminal Court Prosecutor Karim Khan.
This week, Mr Khan announced his bombshell application to seek warrants for the arrest of Israel’s Prime Minister, Benjamin Netanyahu, and Defence Minister Yoav Gallant for enacting policies of mass starvation against civilians in Gaza, among other alleged atrocities. He also seeks the arrest of three leaders of the Palestinian militant group Hamas.
But there is reason to believe the Israeli charges will result in no legal justice for Palestinian victims at all, perhaps even by design.
On the face of things, Mr Khan’s prosecution is as noble as he is tough. The video of his read-out of the charges – “murder”, “extermination”, “starvation”, as he stares resolutely into the camera – will haunt Mr Netanyahu’s and Mr Gallant’s legacies forever.
A closer reading of Mr Khan’s time in the Office of the Prosecutor (OTP), however, suggests his prosecutions are motivated more by political aims than the prospect of a conviction. That is the common theme that resolves what might otherwise appear to be glaring inconsistencies in his words and actions since he took office, in June 2021.
Mr Khan’s prosecutorial career at the ICC was launched on the implicit basis that he was unlikely ever to display the kind of boldness the world saw in his Palestine-Israel announcement video. He was, his detractors at the time said, the West’s candidate for the job, and the evidence for that came quickly in the way he handled the Court’s Afghanistan investigation.
The year before Mr Khan’s appointment, his predecessor Fatou Bensouda opened an investigation into Afghanistan that covered international crimes committed by all parties to the conflict there since 2003, when Afghanistan signed the ICC’s founding document, the Rome Statute. “All parties” includes personnel from the US, Nato, the Afghan republic government, the Taliban and the terrorist group ISIS-K.
It was – and remains – the only time the ICC has probed crimes committed by US forces, which allegedly included extrajudicial killings and torture. Ms Bensouda came under immense pressure; she and even her family were sanctioned by the US government. Mr Khan’s recent decision to prosecute Israeli leaders has brought him threats of similar American sanctions.
When Ms Bensouda’s term was coming to an end and it was time for the court’s member states – which includes many Nato countries and other US allies – to elect a new prosecutor, Mr Khan was not initially on the shortlist. He emerged after rumours of considerable lobbying from western governments who were looking for someone who could be more “pragmatic” and “realistic” in the way they approached the job.
In April 2021, two months after Mr Khan was chosen, the American Society of International Law published a report authored by former top US State Department lawyers on how Washington could improve its relationship with the Court. It could also be read – and indeed was, by many – as full of hints on how the Court could improve its relationship with Washington.
The report notes the following about Karim Khan: “The new prosecutor may be more willing to revisit past decisions with a fresh eye if provided with persuasive arguments or compelling evidence of the wisdom of reconsidering ... prior approaches.”
One of the “persuasive arguments” the report cites is that of former US legal adviser John Bellinger, who said: “There is no possibility that any US official will ever be arrested and prosecuted in The Hague … The likelihood of prosecutions is zero.”
In other words, was it really worthy of the time of a new prosecutor trying to prove himself to charge Americans whom he had virtually no prospect of apprehending? After all, the Rome Statute does not allow conviction in absentia.
Election-year Karim Khan seemed to agree with that assessment. He soon “deprioritised” the US and its allies in the Afghanistan investigation he inherited from Ms Bensouda, and focused entirely instead on prosecuting the Taliban and ISIS-K.
It is hard to overstate the psychological impact this decision has had on Afghan victims. As Shaharzad Akbar, former chair of the Afghan Independent Human Rights Commission, put it: “This decision reinforces the perception that these institutions set up in the West and by the West are just instruments for the West’s political agenda.”
In my conversations with Afghan civilians and members of the Taliban, they have echoed that sentiment strongly. The Taliban, who now rule Afghanistan, reject the ICC’s mandate on what they claim are religious grounds. But the Court’s perceived partiality has diminished the chances that they, as the de-facto inheritor of Afghanistan’s signature on the Rome Statute, might ever co-operate with international tribunals.
Mr Khan did not frame his decision at the time as a pragmatic one – that would have been surprising, and disrespectful to the victims of western and Afghan republic forces’ crimes. Instead, his stated rationale was that “the worst crimes” were committed by the Taliban and ISIS-K.
But contrast that with his statements this week when he was accused of drawing an equivalence between Israel and Hamas. Mr Khan told CNN that the Prosecutor’s mandate is not concerned with which perpetrator is worse – only with the equal rights of all victims to see justice.
The absence of that principled stand on behalf of Afghan victims could lead one to reasonably conclude that Mr Khan is indeed every bit the pragmatist Washington pegged him for, but what the US didn’t count on was that his pragmatism cuts both ways and in line with his – not victims’ – interests. Election-year Karim Khan could afford to deprioritise crimes that – compared to what is happening in Gaza today – few around the world seemed to care about. But in 2024 Karim Khan has a chance to make history by being the first Prosecutor to take on the leader of a “western-style democracy”.
Nonetheless, boldness does not in itself secure a conviction. It is more likely to do the opposite. If Mr Khan wants to see an Israeli who is found guilty of committing war crimes in handcuffs, he might have better luck prosecuting an active-duty military officer first. When he joined the OTP, long before the Gaza war began, a full dossier from the Court’s pre-existing Palestine investigation was sitting on his desk, which he could have used to get warrants for lower-level perpetrators, and those would have had a much higher chance of being enforced.
They still do; Mr Netanyahu’s chances of ever appearing in the dock over Gaza are about as high as George W Bush’s over Afghanistan. And observers of international criminal trials will note that in the most successful ones – the tribunal for the former Yugoslavia being a good example – prosecutors start lower down the conviction ladder and work their way up.
There is a long-standing trope in legal dramas of the prosecutor who wants to make a name for themselves by going after the most prominent person they can, rather than lower-level suspects more easily tied to the crime. Ironically, when Mr Khan was a defence lawyer arguing cases before the ICC nearly a decade ago, he heavily implied the Prosecutor at the time, Luis Moreno Ocampo, was one such character.
Today, it is Mr Khan whose track record shows a string of probably unenforceable warrants that are extremely unlikely to lead to trial (Russian President Vladimir Putin being another example). This indicates, as someone who used to work in the OTP put it to me, that “Mr Khan is a symbolic prosecutor rather than a realistic one – exactly the opposite of what he campaigned for [to get the job]”.
To be fair to Mr Khan, there is an argument to be made that he is working in the service of a broader conception of international justice, one that prioritises symbolism, and says that convictions are not as important as using the Court's moral weight to change the political winds against those who commit crimes. But that interpretation is cynical in its own way. The court is not merely a creative tool for political advocacy.
To suggest that convictions should be subordinate to political aims is to suggest that the Court's entire proceedings are largely meant to be theatre. Arrest warrants have huge symbolic value, and they have their own hard political value, too. But at the end of the day, they are an instrument for something more concrete: an actual arrest. If ICC suspects are never arrested, then the court's credibility diminishes, and there isn't much moral weight to throw around anyway.
So Mr Khan can be credited with making history for the Palestinian cause. He will be perceived by many as having shown more courage to take on the Netanyahu government than most hand-wringing politicians ever have. But for the very real victims of war crimes – from Afghanistan to Ukraine to Palestine – the prosecutor’s courage only counts insofar as it gets a conviction.
