Ruto’s ICC lawyer Karim Khan in race for top job at The Hague

British lawyer Karim Khan is among nine candidates in a race to become the new prosecutor of the International Criminal Court (ICC) when member states make the decision on Monday next week.

Khan, a veteran lawyer who has appeared in several international tribunals, is remembered in Kenya for representing Deputy President William Ruto and former Head of Public Service Francis Muthaura when they faced charges of crimes against humanity relating to the 2008 post-election violence.

The charges against Mr Muthaura (in a case in which President Uhuru Kenyatta had also been indicted) were dropped in March 2013, after a sole witness that tied him to the crimes recanted, while DP Ruto’s case was terminated in 2016, following claims of insufficient evidence.

Khan also represented Bahar Idriss Abu Garda, a Sudanese rebel initially indicted by the ICC for war crimes in Darfur. The Court declined to confirm his charges in February 2010.

Rwanda tribunal

Khan had earlier served as legal adviser at the Office of the Prosecutor at the International Criminal Tribunal for Rwanda (ICTR) until 2000, and later was defence lawyer for former Liberian leader Charles Taylor at the Special Court for Sierra Leone (SCSL).

Khan, 50, is currently the head of the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL.

He will now be seeking to change his shoes.

In the race to replace Gambian Fatou Bensouda, Morris Anyah of Nigeria, Susan Okalany of Uganda, Carlos Castresana Fernandez of Spain, Fergal Gaynor of Ireland and Robert Petit of Canada are competing for the position. Richard Roy of Canada, France’s Brigitte Raynaud and Francesco Lo Voi of Italy are the other candidates competing against Mr Khan.

Ms Okalanyi and Ms Raynaud are the only female contenders.

A veteran of the Ugandan prosecution, Okalanyi, was influential in seeing through the prosecution of Al-Shabaab members who bombed an entertainment spot in Kampala, killing 74 football fans who were watching a World Cup match. In May 2016, the attack’s mastermind Ahmed Luyima and four others were handed life sentences.

ICC’s rules

The ICC’s rules do not restrict candidates to being exclusively from the member States. The Assembly of States Parties — the body comprising of representatives of member states — said it did not encourage formal nominations or campaigns for candidates, which is why there has been only quiet lobbying as countries seek consensus on a particular candidate.

When the vacancy was announced in November 2019, just about 55 candidates from across the world showed interest.

Non-member states

Under Bensouda, the Court has run into brick walls trying to prosecute cases from non-member states US and Israel — accused of atrocities in Afghanistan and Palestine, respectively.

Bensouda and her entire team have been blacklisted from stepping on US soil even though the President of the Assembly of State Parties, O-Gon Kwon, rejected Washington’s stance.

The ICC, with 124-member States, is not a UN organ but can receive a case referred to it by the UN Security Council. Although it has jurisdiction to pursue suspects in both member and non-member states, it has often run into political hurdles in the past.

“I think the real issues on the relationship between the UN Security Council and the ICC can be, as far as possible, be in some kind of harmony,” Khan told a public hearing on his application, chaired by the ASP president recently.

Questionable evidence

“And I think that requires constant outreach, constant communication, but also building the credibility of the OTP (Office of the Prosecutor),” he told the panel, promising to end the culture of relying on questionable evidence, which he said created suspicions against the ICC.

During the fourth session of hearings, all candidates did admit the jurisdiction of the court may need to be developed based on various scenarios witnessed in its 19-year history.

“The next prosecutor must not be driven by political pressure,” argued Gaynor, the Irish lawyer who represented victims of post-election violence in the Kenyatta case. He proposed though that there has to be an important partnership with member states if at all the ICC prosecutor is to access evidence.

The list of candidates was expanded from the initial four after the ASP changed to ensure “every effort shall be made to elect the prosecutor by consensus”.

It allowed Mr Khan back in the race after he missed out on the shortlist.

Candidates, besides being lawyers of experience in either civil, criminal or other matters, were required to be vetted for their backgrounds and later sign confirmations of no criminal past or present proceedings against them.

Nominations

Member states have since been asked to nominate two of the eight candidates and submit the names to the Committee on the Election of the Prosecutor, through their regional focal groups.

Nominations and consultations are supposed to end on February 5, after which the ASP will decide whether consensus has been reached.

In total, 89 candidates of whom 63 were male and 26 female applied.

If he wins, Khan may just land in his predecessors’ hot seats where they dealt with accusations of bias against Africa, interference with the US justice system after the court began investigations in alleged atrocities committed by American soldiers in Afghanistan and whether Palestine, a non-State, can have legal authority to have Israeli military chiefs prosecuted at the court.