What next for the International Criminal Court after ouster of its prosecutor?

The downfall of the prosecutor is being weaponised by critics of the International Criminal Court to de-stabilise it further in an hour of acute need for international justice.

On 24 July, states parties to the treaty establishing the Court voted by absolute majority to oust the prosecutor, British barrister Karim Khan, after allegations against him of sexual misconduct in office came to a head.

Khan's dismissal was made pursuant to Article 46 of the Rome Statute of the ICC providing for removal of certain senior postholders found to have "committed serious misconduct or a serious breach of his or her duties". It follows an investigation by the UN's internal oversight body into claims of coercive sexual behaviour against a junior female colleague and pressure on her not to pursue a complaint. A second female staffer came forward with similar allegations dating back to her time working for Khan as an intern. Khan strenuously denies the allegations.

The UN Office of Internal Oversight Services (OIOS), following an investigation of the facts, reportedly found that there was evidence supporting the allegations, and the matter was passed to a panel of judicial experts convened to advise the Bureau of the Assembly of States Parties (ASP) of the ICC. The panel reportedly found that the findings "do not establish misconduct or breach of duty under the relevant framework" which involved measuring the evidence against the standard of proof of beyond reasonable doubt. The reports are all confidential but there has been extensive leaking to the press. Such is the level of controversy on points of process (see below) that the President of the ASP felt a need to issue a statement justifying Khan's ouster and affirming that responsibility "for making determinations on the allegations" lies with the Bureau.

Now the "matter is closed" according to the President of the ASP, but Khan has indicated through his legal team that he will "challenge the lawfulness and fairness of the decision through all available legal mechanisms". This might include litigation before the Administrative Tribunal of the International Labour Organisation which has jurisdiction over employment disputes at the ICC.

In the meantime, the fallout from the case has been immense.

The staff member at the heart of the case broke her silence ahead of the ASP's dismissal decision to describe her personal distress and fears for her career. Despite her identity being shielded in the public domain hitherto, she suffered astonishing intrusion including, reportedly, a private intelligence operation.

The ASP has been criticised for lapses of procedural fairness. Article 112(4) of the Rome Statute vests responsibility for handling investigations of wrongdoing of elected ICC officials in a subsidiary body of the ASP known as the Independent Oversight Mechanism (IOM). But in this case, the IOM determined that "no investigation was necessary" after the woman concerned declined to make a complaint. The ASP then decided to ask an "external investigator" to step in and the matter was transferred to the OIOS. The President of the ASP publicly justified this "in order to ensure a fully independent, impartial and fair process" following a "victim-centred approach", but the application of new rules to a live case has been criticised by some legal commentators.

How the ICC responds to internal allegations of sexual abuse and ensures due process in such cases is self-evidently critical to both its credibility and legitimacy given its core function to try "the most serious crimes of international concern" (Article 1 of the Rome Statute) including sexual violence committed in the context of atrocity crimes.

The stakes of the case are even higher due to its coincidence with an escalating US-led campaign against the Court. Indeed, her concern that it would be exploited by the Court's opponents is said to be one reason why the main woman concerned was so reluctant to bring a complaint. Israel seized on the case to discredit Khan's successful efforts to secure ICC arrest warrants for its prime minister Benjamin Netanyahu and former defence minister Yoav Gallant (Khan also sought arrest warrants for three Hamas leaders all of whom are now dead), with Netanyahu claiming that Khan's move was an elaborate attempt to "divert attention" from his own misconduct. Khan's legal team has, in turn, voiced suspicion that there was a "political" motivation for his dismissal. Before he applied for arrest warrants for Netanyahu and Gallant, a dozen US senators wrote a threatening letter to Khan: "Target Israel and we will target you". Subsequently, Khan and ten other ICC officials (including eight judges) were personally sanctioned by the US. Now the US has announced a new "whole of government" campaign to dismantle the ICC as a threat to American sovereignty. Citing a request to it from the US, Chad recently became the fifth state (alongside Burkina Faso, Mali, Niger and Venezuela) to announce its plans to withdraw from the Rome Statute.

This is the torrid context in which the Court needs to recover its footing in the aftermath of Khan's removal. The following steps would help to stabilise the Court and enable it to deliver the important treaty-based responsibilities entrusted to it by states:

1. The ASP should move swiftly to initiate a merit-based process to select a new prosecutor for the Court, drawing on lessons learned  from the previous appointment process, including to boost clarity and transparency and ensure a diverse pool of candidates. Given the fraught context, it will be especially important to minimise politicisation and guard against interference by hostile states that are non-parties to the Rome Statute (e.g. Israel, Russia and the US). Especially careful vetting will be required to ensure the criterion of "high moral character" is met. High personal resilience will also be essential.

2. The Office of the Prosecutor needs support in the meantime, including from the ASP, to progress the 13 investigations and additional preliminary investigation it has underway currently. In Khan's absence, the Office has been jointly led by two deputy prosecutors, Nazhat Shameem Khan and Mame Mandiaye Niang. It is important to note that arrest warrants issued at Khan's request by the Pre-Trial Chamber remain valid. States must take all steps within their power to effect arrest warrants issued by the ICC so that trials can proceed.

3. Further internal reforms are needed to improve protections for ICC staff against workplace harassment and abuse, including strengthened whistleblowing and other complaint processes, efforts to improve workplace culture and a drive to ensure more gender equality in senior positions (as recommended in an independent expert review of the Court in 2020).

4. States parties should step up their individual and collective efforts to protect the ICC. This could take the form of increased political support, both publicly and diplomatically, for the Court and for those individuals sanctioned by the US, scenario-planning for the risk of US sanctions against the ICC itself as an institution, and diplomatic efforts to avoid further withdrawals from the Court. Now would also be a good time for states to step up financial support, including via contributions to the Court's trust fund for victims. Legal options also exist, for example use of the EU blocking statute to counteract the sanctions, as requested by the President of the ICC.

It is tragic that as this storm of institutional difficulties for the ICC has intensified, focus has slipped away from those accused of perpetrating international crimes and survivors for whom the Court often represents the last hope for justice. These are the people for whom the Court was created. For many years I led one of the largest torture rehabilitation centres in the world and I saw every day how survivors looked up to the Court and dreamed that one day those responsible for their torture would be held accountable by it. They will not easily relinquish that hope. And they will look to everyone with agency in this situation to rescue it.

Author

Sonya Sceats, Director and Chief Executive Officer, BIICL