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Karim Khan: From Ruto’s and Charles Taylor’s defender to ICC prosecutor

By Morris Kiruga
Posted on Thursday, 18 February 2021 17:49

Kenya's Deputy President William Ruto (C) smiles as he sits in the courtroom before his trial at the International Criminal Court (ICC) in The Hague 10 September 2013. To the left is defence counsel Karim Khan. REUTERS/Michael Kooren

British lawyer Karim Ahmad Khan, who represented Kenya’s deputy president William Ruto at the International Criminal Court (ICC), will take over from current ICC prosecutor Fatou Bensouda in June.

The election of the 51-year-old lawyer on 12 February settled the process of finding the Hague-based court’s third prosecutor, which begun in 2019 and dragged through 2020 and early 2021 as the assembly of state parties failed to agree on a candidate by consensus.

Both Bensouda, a Gambian who had previously served as the court’s deputy prosecutor since 2004, and her predecessor, Argentine lawyer Louis Moreno Ocampo, were elected by consensus. Khan was instead elected via secret ballot, after intense lobbying from both the United Kingdom and Kenya, according to the Guardian.

No consensus

The lack of consensus around Khan until the final vote, where he got 72 votes – 10 more than what he would have needed to win – was partially due to his extensive work as an international criminal lawyer.

Several East African NGOs lobbied against his election, focusing primarily on the Kenya cases, where he was lead counsel for Francis Muthaura, then head of the civil service and prominent powerbroker in President Mwai Kibaki’s government, and later deputy president Ruto.

The NGOs accused him of contributing to the “deliberately tormented climate of political hostility” against the the ICC. As lead counsel for Ruto, Khan gave several media interviews and made a brief speech at a political rally held after the cases ended in a mistrial in 2016.

“He joined the bandwagon of those who were vilifying civil society, who were seeking justice, and those who were re-traumatising victims,” Njonjo Mue, a Kenyan human rights activist and lawyer, wrote in an op-ed.

Self-defence

In the lead up to the February 2021 vote, Khan defended himself in an open letter addressing the gravest of the charges the civil society bodies made against him, concerning his silence on the December 2014 disappearance and murder of a defence witness named Meshack Yebei.

“The responsibility to physically protect, relocate or support witnesses does not fall upon an individual counsel under the Rome Statute regime,” he wrote in the letter to the non-profit organisation Journalists for Justice (JfJ).

He explained that he had made contact with Kenya’s criminal investigations department, but “ it was for the ICC-VWU [ICC’s Victims and Witness Unit] and not Counsel, to follow up with the Government of Kenya.”

Since he was admitted to the bar in 1992, Khan has represented many prominent Africans facing international criminal charges. In addition to Kenya’s deputy president, his long list of former clients includes:

  • Charles Taylor (Liberia)
  • Abdallah Banda (Darfur, Sudan)
  • Bahar Garda (Darfur, Sudan)
  • Saleh Jamus (Darfur, Sudan)
  • Said Al-Islam Gadaffi (Libya)
  • Jean-Pierre Bemba (Democratic Republic of Congo/Central African Republic)

Conflicts of interest

As the ICC’s prosecutor until June 2030, Khan will have to navigate the complications of being unable to prosecute some cases related to previous work, including investigations into witness tampering and intimidation in the collapsed Kenya cases.

He will also navigate, like his predecessors, the political questions of the court’s focus on the African continent. All the cases brought to trial since the court’s inception have been of Africans, and of the 13 ongoing situations and/or investigations, only three – Bangladesh/Myanmar, Georgia and Afghanistan – are not African.

Days before Khan’s election, the court said it had jurisdiction over crimes committed in Palestine, opening another political front that will pit Khan’s office against Israel, and its key allies.

The Afghanistan investigations – which began in early 2020 and led the US administration of Donald Trump to place current prosecutor Bensouda and another top ICC official under economic and visa sanctions – could also make or break Khan’s credibility.

In his open letter to the Journalists for Justice organisation (JfJ), Khan said that he has “thick skin and that resilience” necessary to do his job. But the prosecutor’s job at the ICC is both a political and legal role, as both his predecessors found out.