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The African trajectory of Karim Khan, the ICC’s new chief prosecutor

By Marième Soumaré
Posted on Thursday, 3 June 2021 19:46

Karim Khan at a press conference on the confirmation of Darfur rebel Bahr Idriss Abu Garda’s charges hearing at the ICC in The Hague. REUTERS/Michael Kooren

Britain’s Karim Khan, the International Criminal Court’s new chief prosecutor, will take office on 16 June. While he is well-known and liked on the continent, he does have some detractors.

For a year, Karim Khan travelled around Iraq, gathering evidence and testimonies that could one day be used against leaders of the Islamic State (IS) group. Last March, as Pope Francis was preparing to walk through the ruins of Mosul, that IS had once claimed as its stronghold, the British lawyer of Pakistani origin, who was a special adviser to UN Secretary-General Antonio Guterres, announced the launch of an interfaith dialogue across the country.

However, he did not end up participating in it. At the beginning of May, after submitting his last report to Guterres, Khan left his ultra-secure residence in Baghdad. He was heading for The Hague, where he will be sworn in on 16 June as the new chief prosecutor of the ICC.

‘Africa’s candidate’

He was elected last February, after many months of negotiations and discreet lobbying between The Hague and New York. Although he was initially excluded from the selection process, the specialist in international criminal law won 72 votes out of 123 in the second round, thus proving that he was not as popular as his predecessors: Luis Moreno Ocampo and Fatou Bensouda. However, he was able to count on support from Africa, which makes up the ICC’s largest regional group of state parties.

Majority of the 33 countries on the continent that ratified the Rome Statute – the treaty that established the ICC – supported the British candidate. Furthermore, it was Senegal’s Adama Dieng (UN Special Adviser on the Prevention of Genocide, and a citizen of the very first country to join the court) who convinced him to run for the position. Dieng also wrote Khan a letter of recommendation, which he submitted to the court, coached and supported him during his campaign.

He’s not afraid to displease in order to do that. He’s not afraid to make enemies.”

When Khan’s candidacy was eliminated from the selection process, several countries on the continent (including Côte d’Ivoire, Liberia and Kenya) called for the shortlist to be expanded. Eventually, Khan was shortlisted as a consensus candidate by the African Group. Only Mauritius, which was engaged in a dispute with the UK over the Chagos Archipelago at the time, opposed his candidacy.

Khan was reluctant to run, as he knew that the job comes with a lot of responsibilities. The ICC – which has been criticised, deemed illegitimate and threatened by the world’s major powers –  is struggling to deliver on the promises of justice and equality, on which it was founded. The court and the prosecutor’s office are also facing serious governance problems, and Khan feels that nine years is a long time. “He needed to know what he was getting into before he made his decision,” says one of his close friends.

The lawyer knows that he has several cards to play to win the states parties’ support. Khan, who is charismatic and an outstanding speaker, is well known in the ‘small’ world of international criminal law. “He was the person with the best profile, the right man for the job,” says Dieng. Like many, Dieng speaks highly of his protégé’s professionalism, “leadership” and strong personality. “His knowledge of the legal system and his expertise in international criminal law rank him among the best,” says an ICC lawyer.

“He is one of us”

Above all, Khan is known in many African countries. In addition to Dieng, he is close to several big names in international criminal justice on the continent. He met some of them when he was a legal advisor in the office of the prosecutor at the International Criminal Tribunal for Rwanda (ICTR), such as Gambia’s Hassan Jallow and the late Cameroonian Bernard Muna.

Khan also ended up building strong relationships with his peers, particularly African ones, when he worked as a defence lawyer at the ICC and was president of the association of lawyers who sit at the court. In 2018, he became a global ambassador for the African Bar Association.

In a court often accused of dispensing ‘white justice’, his humility works in his favour. “He is a man who is not bothered by protocol and who can talk to anyone,” says Cameroonian lawyer Charles Taku, who is also used to international courts. “The vestiges of colonialism still hang over our heads. But we have confidence in Karim: he is one of us.”

“He may be European, but there is something not quite Western about him. When he has a relationship with you, he takes the time to maintain it. And that, culturally, is very important,” says the delegate of a West African representation in New York.

Khan – the son of a dermatologist and a nurse who, in the 1980s, went abroad once a year as a volunteer to treat people in remote areas of Pakistan, India and Gambia – is not the typical European prosecutor one might have expected. However, he is undeniably British: his mother is British, he spent his childhood in the UK, he attended the prestigious King’s College London and has a British accent. He has been an advisor to Her Royal Highness Queen Elizabeth II since 2011.

But Karim Khan Asad Ahmad is Pakistani from his father’s side. He even taught Islamic law. Khan knows what it means to be a ‘minority’ as he was called a ‘white boy’ in Islamabad, a ‘Paki’ on the streets of London and was a Muslim child in a Catholic school. He also knows what ‘persecution’ feels like as he was a member of the Ahmadi community, a branch of Islam that was born in Punjab and targeted by discrimination and violence in Pakistan.

A divisive figure

Is this where his commitment and strength of character come from? Determined and ambitious, he is also one of the most vocal candidates demanding reform within the ICC. “We cannot hide from the truth and risk continuing to make empty promises,” he told member states on 10 December.

“I am not here to promise this number of convictions or the opening of investigations,” he said, calling for more rigorous case selection. He knows that the successive failures of the prosecutor’s office, starting with Côte d’Ivoire’s former president Laurent Gbagbo’s acquittal, have further tarnished the court’s image.

“I am not sure that people understand how much things will change at the ICC. With him, the rupture is assured,” says Alain Werner. This close friend of Khan worked with him as counsel for the civil parties in the trial of ‘Douch’, the Khmer Rouge regime’s chief torturer in Cambodia.

The Swiss lawyer describes him as a “powerful” man, a “war machine” and a workaholic. “He inherited one of the most difficult jobs in the world, but he has a real desire to make a positive impact,” said Warner. “He’s not afraid to displease in order to do that. He’s not afraid to make enemies.”

During his 28-year career, Khan has certainly made both friends and enemies. Two separate episodes capture this strong character. The first took place in The Hague, on the first day of Liberia’s former president Charles Taylor’s trial before Sierra Leone’s Special Court, on 4 June 2007. The accused was absent and Khan, despite the rulings of the judge – who accused him of flirting with contempt of court – refused to represent his client and left the courtroom. The trial did not resume until six months later, with new lawyers.

“The defence was sorely lacking in resources for a case of such magnitude,” says a source close to the case today. “In the end, this stunt allowed Taylor to benefit from a better defence, even though he was finally sentenced [to 50 years in prison, on 30 May 2012].”

The Kenyan episode

The second episode involves one of the ICC’s most emblematic trials, that of Kenya’s Deputy President William Ruto. Prosecuted for crimes against humanity, he was defended by Khan and his trial ended in 2016 with a dismissal. This case was marked by accusations of witness tampering.

According to George Kegoro, then chair of Kenya’s Human Rights Commission, there is no doubt that Khan is “part of the problem.” “Kenyan leaders have demonised civil society and used Karim Khan to direct their attacks,” he said.

“Karim Khan’s stance, which consisted of violently criticising those he considered to be opponents of his client, may have played a role in creating a political climate hostile to the court,” some 20 African NGOs said last January, in an attempt to block his candidacy. “The role that Karim Khan played in this case makes him a totally unsuitable candidate for the post,” said Kegoro.

Another source close to the case said: “The real issue is the witness tampering that Ruto is suspected of. Did Karim Khan, as a defence lawyer, have access to certain information?” Many international organisations are wondering the same thing. Some have also asked if Khan is capable of defending victims, as he has often been on the side of the defence. Some of his most notable past clients include Taylor of course, as well as the DRC’s Jean-Pierre Bemba, Libya’s Seïf el-Islam Khadafi and several rebel leaders in Darfur.

But those close to him also point to his charitable work in Africa. For instance, on behalf of the victims of a Xaverian priest who was accused of rape in Sierra Leone as well as of crimes committed during the country’s civil war.

He also represented the Kipsigi and Talai communities in Kenya, when they sought reparations for the injustices that they had suffered during the colonial period. Khan was also Cameroon’s Félix Agbor-Bala Nkongho’s lawyer when he was facing the death penalty before a military court in Yaoundé for accusing the army of abuses committed in the Anglophone zone.

Khan’s arrival in The Hague is bound to shake up an administration that is often described as ‘sclerotic’. Here too, he risks making both friends and enemies. But the practising Muslim does not care, as he likes to say “the only friend you need is God.”

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