Rights and Accountability 6 December 2023
Karim Khan, the chief prosecutor of the International Criminal Court, concluded an unannounced visit to Israel and the occupied West Bank on Sunday.
Instead of boosting hopes for justice for Palestinians at the world’s court of last resort, however, Khan’s trip gives more cause for alarm over his failure to prevent the genocide unfolding in Gaza.
The Palestinian BDS National Committee (BNC) last month accused Khan of complicity in enabling genocide in Gaza by failing to issue arrest warrants or even issue statements aimed at deterring the commission of crimes against humanity.
The BNC, which steers a movement representing a broad spectrum of Palestinian society, called on all states, especially African Union governments, “to push for sacking” Khan during the Assembly of States Parties to the Rome Statute that is currently underway in New York City.
Five ICC member states – Bangladesh, Bolivia, the Comoros, Djibouti and South Africa – referred the situation of Palestine to the court prosecutor in mid-November, upon receipt of which Khan affirmed that his office “is presently conducting an investigation.”Despite his insistence that the investigation in Palestine remains a priority, Khan’s visit and other recent statements will only bolster perceptions of the ICC as a tool of imperialist powers.
Not only has Khan failed to describe Israel’s campaign of extermination in Gaza as a genocide, he appears to be largely focused on the conduct of Hamas and other non-state actors.
On 30 November, the ICC announced that Khan was “visiting Israel at the request and invitation of survivors and the families of victims of the 7 October attacks.”
As noted by three prominent Palestinian human rights groups, that announcement was accompanied by a photo of Khan standing in East Jerusalem, which was annexed by Israel in contravention of international law:
The Israeli newspaper Haaretz reported that the Israeli government, which is hostile to the ICC’s investigation in Palestine and doesn’t recognize its jurisdiction, allowed Khan’s visit because it was initiated by the families of captives held in Gaza.Khan met with family members of the captives and their lawyers in The Hague last month, according to Israeli media. If he did meet with Israeli government officials during his country visit, it wasn’t publicized.
Since Khan began his nine-year term as ICC chief prosecutor in June 2021, Palestinian human rights groups have invited the British barrister to meet with victims and their representatives, to no avail.
This time last year, some 200 organizations based in Palestine and around the globe pressed Khan to not only investigate Israeli crimes, but to deter them by warning Israel of their illegality.The groups also noted Khan’s silence over Israel’s “terror designations” against prominent Palestinian civil society groups which have provided evidence and constructive engagement to the court.
Palestine litmus test
Khan’s actions jeopardize not just the integrity of the ICC’s Palestine investigation, but the reputation and future of the institution itself.
The Palestine investigation – opened in March 2021 by Khan’s predecessor, Fatou Bensouda – is widely viewed as a litmus test for the court’s tattered credibility.
As international law scholars and practitioners Valentina Azarova and Triestino Mariniello put it in 2017, the ICC needs Palestine even more than Palestine needs the ICC.
But as Hasmik Egian and Mouin Rabbani state in an opinion piece asking whether Khan is “fit for purpose,” the prosecutor’s “unprecedented politicization” of the court has “significantly eroded” its credibility when instead he “should be taking serious steps to address its declining legitimacy.”
As those two writers note, Khan stated at the beginning of his term that he would prioritize only cases referred to the court by the UN Security Council, where the US protects Israel with its veto power.Khan apparently made that declaration to reassure “Washington and its allies that the Palestine and Afghanistan files, along with several other investigations, would collect dust in his filing cabinet,” Egian and Rabbani state.
“It was that rare instance in which a senior international official publicly announced his dereliction of duty at the very start of his tenure.”
Khan broke that pledge to prioritize only cases referred to the court by the Security Council when he opened an investigation in Ukraine less than a week after it was invaded by Russia. Khan has since opened a country office in Ukraine, dispatched investigators to the country and issued arrest warrants against Vladimir Putin and his children’s rights commissioner earlier this year – all while maintaining a studious silence on Palestine.
Khan’s zeal for prosecuting alleged Russian war crimes has won support from many in the US government. Washington is not a state party to the Rome Statute and has had a turbulent and mostly belligerent relationship with the ICC, the Trump administration even imposing sanctions on Khan’s predecessor.
Soon after beginning his nine-year term as chief prosecutor in June 2021, Khan announced that he decided to “’deprioritize’’ the investigation into American forces, and focus instead on Afghanistan’s new rulers and the rival Islamic State in Khorasan Province,” as Al Jazeera reported at the time.
Khan was nominated for his post by Britain while Boris Johnson was prime minister. Johnson assured an Israel lobby group in April 2021 that Khan’s appointment “will help serve reform,” adding that “we oppose the ICC’s investigation into war crimes in Palestine.”
Khan’s deference to powerful states is contributing to the “Western-made prevailing climate of impunity,” according to Shawan Jabarin, general director of the Palestinian human rights group Al-Haq, and Ahmed Abofoul, an international lawyer and advocacy officer with the organization.
Jabarin and Abofoul add that the past few months have proved that powerful states “treat the law as a political tool, a wand, by which they can passionately scold their foes but scandalously refuse to use and prevent others from using it on their allies.”
Mouin Rabbani recalls a European diplomat saying, when Palestine joined the ICC: “We don’t want the Palestinians to put us in a position where we have to choose between our commitment to international law and our commitment to Israel.”
“In other words,” Rabbani adds, “they didn’t want to expose the rotten core of their rules-based international order, where the rules only apply to everyone else.”
The rigged nature of the enforcement of international law notwithstanding, Israel still views the ICC as a threat. The fact that it allowed the chief prosecutor to enter the country is a surprise and also perhaps a red flag.
Israel routinely bars entry to UN officials and other human rights investigators and is refusing to renew a visa for Lynn Hastings, the top UN humanitarian aid official for the West Bank and Gaza. The state apparently refused to allow entry to Volker Türk, the UN human rights chief, during his five-day visit to the region in early November.
At the outset of that visit, Türk’s office said that he had “sought access to Israel and the occupied Palestinian territory, including the West Bank and Gaza,” where at least 130 UN employees have been killed since 7 October.
Türk left the region without having visited those areas, all of which are under effective Israeli control.
Whatever the reason, it is significant that Israel allowed entry to Khan while it has denied access to so many others tasked with investigating its crimes.
Khan visits the kibbutzim but not Gaza
The Israeli military slaughtered hundreds of Palestinian civilians in Gaza during Khan’s visit, which coincided with the collapse of a week-long pause in hostilities.
Khan visited the kibbutzim attacked on 7 October but did not visit Gaza during his trip – he hasn’t been to the territory at any point since he began his term in June last year. Khan toured the Egyptian side of Rafah crossing last month before giving a press conference during which he took no questions from reporters in Cairo.
The ICC prosecutor offered no explanation for omitting Gaza from his itinerary. He did say on Sunday that he had “spoken to individuals that have lost families … in the rubble of Gaza.”
In the West Bank, he seemingly only met with a handful of victims at the Palestinian Authority’s offices in Ramallah, leaving some to question whether Israel dictated his itinerary or otherwise prevented him from freely meeting Palestinian victims and their families.Palestinian human rights groups refused to meet with Khan during his visit over his bias towards Israeli victims after ignoring long standing Palestinian complaints.
“I think the way this visit has been handled shows that Mr. Khan is not handling his work in an independent and professional manner,” Ammar Al-Dwaik, director of the Independent Commission for Human Rights, told Reuters.
“During this mission,” Khan stated, “I had a simple message: my office is here to ensure that the protection of the law is felt by all.”
That feeling of protection is surely lacking among Palestinians in Gaza who are enduring apocalyptic violence and siege. And the delivery of Khan’s “simple message” hasn’t gone over well with advocates of Palestinian rights.
Abofoul – the international lawyer with Al-Haq – said that Khan’s “outrageous” statement published at the conclusion of his visit “reveals a distorted understanding of the Rome Statute’s basic principles.”
The Rome Statute is the treaty adopted by states 25 years ago that established the International Criminal Court.
Khan’s statement made on Sunday also reveals a distorted understanding of the settler-colonial context for what he calls “the situation in Palestine.”
As did his recent platitude-filled op-ed in The Guardian in which he obscures the root causes of the crisis in Palestine by referring to “a pandemic of inhumanity” and “a failure to give value to the lives of all people.”
The settler-colonial nature of the unjust situation in Palestine was detailed by Khan’s predecessor Bensouda in her conclusion of a lengthy preliminary investigation that recommended investigations of war crimes by both Israel and Palestinian armed groups, including Hamas.
By contrast, Khan refers to “Hamas and other terror organizations” in his statement and makes no mention of Israel’s military occupation of the West Bank and Gaza Strip.
Abofoul said that the Rome Statute does not recognize “terrorism” as a crime and “legally speaking, this term has no place at the ICC.”
The “terrorist” label has historically been used to delegitimize colonized people’s struggles for self-determination like the one in Palestine, Abofoul noted, adding that “[Khan] used this term once before, in the highly controversial decision to ‘de-prioritize’ US personnel crimes in Afghanistan.”
Meanwhile, for Khan, Israeli civilians are “innocent” but Palestinian civilians receive no such distinction, meaningless under the laws of war, which universally recognizes the protected status of civilians.
Palestinian children – thousands of whom have been killed in Israeli strikes since 7 October – merited no mention in Khan’s statement upon the conclusion of his visit.
Khan’s selective outrage
Though his mission was “not investigative in nature,” according to the court, Khan said that he “witnessed scenes of calculated cruelty” in the Gaza-area kibbutzim attacked on 7 October, as well as the site of the Nova music festival.
“The attacks against innocent Israeli civilians on 7 October represent some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address,” Khan stated.
“In my meeting with the families of the victims of these attacks,” Khan added, “my message was clear: we stand ready to work in partnership with them as part of our ongoing work to hold those responsible to account.”Khan made no such forceful promise to Israel’s victims in Gaza and the West Bank, and made no references to the specific crimes to which they were subjected, or their perpetrators.
The prosecutor instead said that Israel’s response to the 7 October attacks is subject to the laws of armed conflict “and the Israeli military knows the law that must be applied.”He deferred to Israel’s long discredited self-investigation mechanisms, stating that “Israel has trained lawyers who advise commanders and a robust system intended to ensure compliance with international humanitarian law.”
Khan added that “credible allegations of crimes during the current conflict should be the subject of timely, independent examination and investigation.”
The ICC defers to a country’s internal investigations, where they exist, under the principle of complementarity which holds that “states have the first responsibility and right to prosecute international crimes.”
Complementarity will likely be a major sticking point for the court’s investigation in Palestine and Israel’s sham self-investigations could be used by Khan as an excuse to drop war crimes cases against Israeli personnel.
In his statement, Khan also reiterated his earlier statements that civilians in Gaza must have immediate access to humanitarian aid and emphasized his “profound concern” over the increase in settler attacks against Palestinians in the West Bank.The prosecutor didn’t comment on the illegality of the settlements, for which he could have issued arrest warrants the moment he took office.
Israel doesn’t recognize the court’s territorial jurisdiction in the West Bank and Gaza Strip. A pre-trial chamber determined, however, that the State of Palestine acceding to the Rome statute allows the court to exercise territorial jurisdiction in those areas.Because the 7 October attacks were led by Hamas in Gaza, according to Khan, the court has jurisdiction over alleged war crimes that occurred in Israel.
“My message has been clear: this is an active investigation,” Khan said of the Palestine probe in a video recorded in Ramallah on Sunday. “It’s an investigation that is a priority for my office.”
Khan said he “emphasized again that humanitarian assistance must be allowed in at pace, at scale, in Gaza.”
He added that “I was crystal clear that this is the time to comply with the law, it’s already late, but if Israel doesn’t comply now, they shouldn’t complain later.”
Timeliness applies to Khan’s duties as well.
As Egian and Rabbani write, “the damage inflicted by Khan’s purposeful sluggishness is compounded” by the refusal of senior international officials including the UN secretary-general to characterize Israel’s slaughter in Gaza as war crimes.
“Instead, they defer to the judgment of the court or another judicial body on the matter,” Egian and Rabbani add.
“The deflection spares them the political ramifications of calling out Israeli conduct by hiding behind Khan’s office, knowing he has nothing to say on the topic publicly.”
Egian and Rabbani concluded that Khan’s pandering to power has “made him unfit to continue leading the court.”
But it probably explains why the camera-loving barrister got elected in the first place.
