ICC Prosecutor Karim Khan's bias risks exonerating Israel of genocide in Gaza

During his recent visit to the Palestinian territories, Karim Khan, the Prosecutor of the International Criminal Court (ICC) was snubbed by Palestinian human rights group after Khan chose to exclusively meet with Israeli victims and survivors of the Hamas attack on October 7, neglecting the Palestinian side. The organizations criticized Khan for staying mum despite calls from various countries, NGOs, and even leading experts in Holocaust studies, as well as UN experts who urged him to speak out and warn Israel against potentially committing genocide against the Palestinian population.

This raises the question: Can Karim Khan be trusted to deliver justice?

Since he took over as the ICC Prosecutor in June 2021, Khan has been brushing off requests to meet with Palestinian victims of Israeli actions and their legal representatives. Instead, he's had brief, superficial meetings with a handful of Palestinian families in the West Bank at the Palestinian Authority's presidency office, including a meeting with Mahmoud Abbas.

Before and after his trip to Israel, neither Khan nor the court's investigators bothered to reach out to survivors of the Israeli attacks in Gaza who had been evacuated to Cairo for treatment. In stark contrast to his consistent disregard for Palestinian victims, Khan was eager to welcome Israeli victims during a meeting at the ICC headquarters in The Hague in November. After that, he rushed off to Israel to meet more victims and condemn the crimes attributed to Hamas, asserting that they have no connection to Islam.

Khan's clear bias towards Israel strongly suggests he aims to clear Israel of war crimes charges while actively seeking to convict Hamas of them. This strategy is grounded in the court's complementarity principle which could give Israel a get out of court card.

Indeed, in a recent op-ed in The Guardian on November 10th, Khan abandoned the crucial presumption of innocence, a cornerstone of fair trials that presumes a person innocent until proven guilty. He embraced Israeli claims and misinformation regarding Hamas's alleged crimes, including burning and raping Israelis, asserting, "We can't live in a world where executions, burnings, rapes, and killings are normalized or even celebrated."

Khan didn't shy away from passing judgment either, taking the October 7th operation out of its context of resistance against settler-colonialism and framing it as terrorism in the name of Islam. He said, "These are the most un-Islamic acts and cannot be committed in the name of a religion that signifies peace." Khan committed to holding those responsible for organizing and executing the operation accountable. He expressed readiness to collaborate with Israeli authorities and the families of victims in Israel to ensure justice for the victims of Hamas's alleged crimes.

Absolving Israel of genocide?

After his trip to Israel, Khan's office released a statement labelling Hamas as a terrorist organization and condemning their use of hostages as 'human shields'. Khan said he visited Kibbutz Beeri, Kfar Azza, and the Nova Music Festival site in Re’im. He said he witnessed what he called "calculated cruelty," portraying it as one of the most dangerous international crimes that shake humanity's conscience.

This term is particularly grave because "calculated" implies intent and planning for an international crime. According to the Rome Statute, the foundational document of the International Criminal Court, and the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the element of intent to commit a crime aiming to wholly or partially destroy a specific group is what sets the crime of genocide apart from other international crimes prosecuted by the International Criminal Court—like crimes against humanity, war crimes, and the crime of aggression.

In simpler terms, instead of looking into Israel's openly declared plan to eliminate Palestinians and its actions in Gaza since October 7th, Khan might be contemplating charging Hamas with committing genocide against Israelis instead. If so, this would align with the Israeli narrative painting them as victims of "Nazi-like Hamas" aiming to destroy Israel.

Anything is possible with Karim Khan, the third Prosecutor of ICC, and arguably the most biased in favour of the West and Israel. It's evident that Hamas will likely face serious charges under his watch, while Israel may escape prosecution for its crimes.

To be sure, Khan's speeches have hinted at the complementarity principle, providing a comfortable escape for Israel from international justice and its selective prosecutions, as described by Dr. Azmi Bishara as "courts dedicated to the defeated."

ICC and Western impunity

In his article in The Guardian, Khan praised the Israeli institutions that are effectively carrying out genocide, claiming that Israel has a professional and well-trained army, generals, and a system aimed at ensuring compliance with international humanitarian law. He asserted that Israel has lawyers providing advice on targeting decisions during military operations who understand their obligations and the consequences of their actions.

Following his visit to Israel, Khan alleged without irony that Israel has a robust system aimed at ensuring compliance with international humanitarian law. He expressed readiness to work with relevant national authorities in line with the core principle of complementarity.

The complementarity principle prohibits the ICC from looking into crimes falling under its jurisdiction when national authorities and their judicial bodies are capable of prosecuting their citizens and willing to do so. The Rome Statute also prohibits double jeopardy, meaning the trial for the same crime twice.

Looking at Khan's recent movements, it becomes evident that he is steering the case toward what was termed the "worst-case scenario" in a study published by the Arab Center for Research and Policy Studies on July 28, 2021, titled "The Reality of the International Criminal Court and the Prospects for Investigating Crimes Related to the Palestinian Issue."

Indeed, the Palestinian Authority's consent to the prosecution of individuals from Hamas and other Palestinian factions by the ICC opens the door for potential charges later. This leaves the leaders of Hamas today at the mercy of Khan's authority in proseucting the most condemnable crimes, particularly during the October 7th operation, and to issue arrest warrants against all or some of them.

As for Israel, its citizens will probably never face the ICC under Karim Khan, on the pretext that it's not a party to the Rome Statute and has a competent judiciary to ensure justice for its citizens, especially since Tel Aviv has previously subjected some of its officers and soldiers to non-credible trials.

The potential outcome of such a scenario for the Palestinian cause in the ICC might come as a shock to those aspiring to achieve justice for the Palestinians. But only those who lack awareness or refuse to acknowledge that international justice is subject to a power dynamic controlled by Western nations and the Western system established in the aftermath of World War II should be shocked.

Karim Khan: Unreliable prosecutor?

The Rome Statute grants the Security Council two political authorities that supersede all powers of the court and its non-independent judiciary: the authority to refer cases deemed threatening to international peace and security; and the authority to suspend investigations and prosecutions or in other cases, postponing them.

But what makes achieving justice for Palestinians nearly impossible today, more than ever, is Karim Khan's ascent to the position of Prosecutor in the only court authorized to prosecute perpetrators of international crimes, including genocide. The danger Khan poses to any international justice institution, especially those aiming to deliver justice to Palestinians, lies in his own history.

Indeed, Khan has been accused of a lack of commitment to the values of justice and of bias, for example in defending African alleged war criminals.

Moreover, Khan's is aligned with the Western rejection of any investigation into Israel's crimes. Recall that former British Prime Minister Boris Johnson reassured Israel about Khan's nomination for the position of Prosecutor General, claiming he would "fix the International Criminal Court," and that his country would oppose the court's investigation into crimes committed in Palestine.

Finally, Khan's ideological view of Islamist movements could arguably prejudice his interaction with Hamas.

Khan was the head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by ISIS (UNITAD), which aimed to draw parallels between the crimes of ISIS and Nazism, with Khan advocating for their appearance before a court resembling the Nuremberg Trials. One fears that with Khan occupying the position of Prosecutor General of the ICC, his ideological narratives about Islamism and his stance on Hamas as just a "terrorist group" rather than a resistance movement could encourage him to blur the line between Hamas and the likes of ISIS, thus adopting the Israeli and Western narratives on October 7.

Dr. Aicha el Basri is a Moroccan author and journalist. She is former spokeswoman for the African Union and the United Nations Mission in Darfur, and recipient of the 2015 American Ridenhour Prize for Truth-Telling.

This is an edited translation from our Arabic edition. To read the original article click here. 

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