Seventeenth session of the International Criminal Court's Assembly of States Parties in The Hague, Netherlands, December 2018.  © 2018 Syd Boyd/Coalition for the International Criminal Court

(New York) – The International Criminal Court’s member countries elected Karim Khan as prosecutor after an unprecedented vote, Human Rights Watch said today. The vote on February 12, 2021 at the United Nations headquarters in New York followed a contentious process that initially tried to reach a decision through consensus.

Khan, a UK national, was a legal adviser in the prosecutor’s office at the International Criminal Tribunals for the former Yugoslavia and Rwanda. He also served as defense counsel on various cases at the ICC, the Yugoslav tribunal, and the Special Court for Sierra Leone. He is currently the head of the UN Security Council-mandated investigation of crimes committed by the Islamic State (ISIS) in Iraq.

“Karim Khan’s election as prosecutor is occurring at a time when the ICC is needed more than ever but has faced significant challenges and pressure on its role,” said Richard Dicker, international justice director at Human Rights Watch. “We will be looking to Khan to address shortcomings in the court’s performance, while demonstrating firm independence in seeking to hold even the most powerful rights abusers to account.”

Khan’s term will begin in June 2021. He should improve the prosecution’s performance in court and grapple with its sizable workload in light of the failure of some ICC member countries to recognize the need for additional resources, Human Rights Watch said. Ongoing follow-up to the independent expert review of the court’s operations will serve as one important framework. With his election, Khan should work with the outgoing prosecutor, Fatou Bensouda, during the transition period to ensure that the review’s recommendations receive careful scrutiny.

The election process was marred by reports of governments lobbying for candidates and the absence of a professional vetting process to assess candidates’ “high moral character,” one of the requirements for the office set out in the Rome Statute, the court’s founding document. The recently completed independent expert review of the court pointed to the need for significant improvement to remedy a culture of fear and distrust at the court, including to address accounts of bullying and harassment.

The
Committee on the Election of the Prosecutor directed a specialized ICC section to independently vet all the candidates it longlisted with regard to the “high moral character” requirement. But it noted that this fell short of a comprehensive approach. Human Rights Watch and other organizations said that member countries should put in place a robust vetting process for this election.

In recent weeks, information about candidates’ qualifications circulated in social and mainstream media, but without a process to receive and assess any complaints of misconduct. As member countries move forward with a planned examination to strengthen the election process, they should prioritize establishing a mechanism to ensure professional handling of vetting for future elections of ICC officials, Human Rights Watch said.

The election follows a period of intense pressure by the previous US administration, which imposed asset freezes and entry bans on the current ICC prosecutor and another senior official in a bid to thwart investigations that could scrutinize conduct by US and Israeli nationals. The administration of President Joe Biden, while indicating that it might resume cooperation with the ICC in “exceptional cases,” has yet to rescind the executive order underpinning the sanctions. Following a pretrial chamber decision on February 5 confirming the court’s jurisdiction in the situation of Palestine, the Biden administration indicated its displeasure with the decision.

ICC member countries created a
new system to guide the election, the third in the court’s history. This included creating a Committee on the Election of the Prosecutor, assisted by a panel of independent experts, to assess applications, establish and interview a longlist of candidates, and produce a shortlist of candidates. Dissatisfaction among some member countries with the shortlist, however, led to its expansion to include additional candidates in November from among those longlisted by the committee and a delay in the election, initially scheduled for December.

The February 12 election resulted from four rounds of consultations on the expanded list of candidates among member countries, aimed at reaching the decision by consensus, rather than voting. In the absence of a consensus, member countries convened a vote. In addition to Khan, three other candidates were nominated as candidates for the election.  

“With Karim Khan stepping into this crucial leadership role, we expect him to rise to the challenge,” Dicker said. “Addressing the obstacles he faces is the only way to build support among all the court’s stakeholders for his mandate and the ICC as a whole.”