DP Ruto's lawyer Karim Khan elected chief prosecutor at ICC

Karim Khan

British lawyer Karim Khan.

Photo credit: File | Nation Media Group

British lawyer Karim Khan has been elected the new prosecutor of the International Criminal Court, replacing Gambian Fatou Bensouda.

Mr Khan garnered 72 votes in the second round of voting, defeating Irishman Fergal Gaynor who scored 42 votes.

The race had involvedan all-European contest and the four final contestants included Spain’s Carlos Castresana Fernández, and Italy’s Francesco Lo Voi. Khan had won in the first round with 59 votes but they were insufficient With 123 of the 124 member states voting, the race went to round 2.

Mr Khan will become the first European Prosecutor for the ICC in its 20-year history. But he banked on his extensive contacts in Africa and Asia to lobby for the seat.

A veteran lawyer 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 up charges of crimes against humanity relating to the 2008 post-election violence.

Deputy President William Ruto speaks with his defence team led by Karim Khan at the International Criminal Court in The Hague September 10, 2013. 

Photo credit: File

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 Ruto’s 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.

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

Yet Khan, 50, 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 had vied for the position. Richard Roy of Canada, France’s Brigitte Raynaud and Francesco Lo Voi of Italy were the other candidates competing against Mr Khan in the initial list..

Deputy President William Ruto ICC Karim Khan

Deputy President William Ruto (left) accompanied by his wife Rachel, is welcomed by lawyer Karim Khan to the International Criminal Court (ICC) at The Hague at a past Status Conference. 

Photo credit: File | DPPS

The ICC’s rules do not restrict candidates to come from the member states and the Assembly of State Parties, the body comprising of representatives of member states, said it did not encourage formal nominations or campaigns for candidates. Which is why there have 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, perhaps reflecting the controversies the ICC has found itself in the recent past under Fatou Bensouda.

Under the Gambian, the Court has ran 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 since been blacklisted from stepping on US soil even though the President of the Assembly of State Parties O-Gon Kwon rejected Washington stance. O-Gon, the South Korean has now been replaced by Argentina’s Silvia Fernández de Gurmendi.

The ICC, with 124 member states, is not a UN organ, but can receive a case referred to it by the UN Security Council, especially if it. With jurisdiction to pursue suspects in both member and non-member states, it has however often run into political hurdles in the past. The election on Thursday was held at the UN headquatres in New York.

“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.

“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 did propose though that there has to be an important partnership with member states if at all the 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 that included

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.

Khan may just land in predecessor’s 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.