ICC — haunting challenges before new prosecutor
A British-Pakistani barrister Karim Khan took over as the International Criminal Court’s top prosecutor on Wednesday with a pledge to improve its track record by taking only its strongest cases to trial.
In February, he had won the votes of 72 out of 123 countries, while having his nine-year term started on June 16. He replaced Prosecutor Fatou Bensouda of Ghana.
It is no surprise that more than 120 countries elected Khan as the next Prosecutor of the International Criminal Court, which remains so far as one of the toughest jobs in international law because The Hague-based tribunal seeks justice for the world’s worst atrocities — war crimes, crimes against humanity, and genocide.
His predecessor, Fatou Bensoudain for the last several years had sought to broaden its reach beyond its early all — African focus including Afghanistan, Palestine which is a party to the Rome Statute and Georgia.
The Rome Statute — the founding treaty of the International Criminal Court— is nowadays regarded by many as the most important treaty since the adoption of the Charter of the United Nations in San Francisco in October 1945.
The Rome Statute, which established the first permanent International Criminal Court in the history of mankind, entered into force on 1 July 2002 with 66 ratifications.
Today, nine years later, the Rome Statute has 116 States Parties The Rome Statute contains a comprehensive codification of genocide, crimes against humanity, war crimes and of the crime of aggression.
This comprehensive codification is based – and this is significant if not revolutionary – on the free and voluntary consent of the international community. The Hague-based Court prosecutes these crimes if and when national criminal systems fail.
The principle of complementarity, as provided for in particular in Article 17 of the Rome Statute, is the decisive basis of the entire ICC system.
The court has eighteen judges, each from a different member country and elected by the member states.
It requires its members that the judiciary must include representatives of each of the United Nations’ five regions.
Judges and prosecutors are elected to non-renewable nine-year terms. Accordingly, the President and two Vice Presidents of the Court are elected from among the judges.
Over the years, The International Criminal Court (ICC — the intended centrepiece of a global system of justice for the most serious international crimes— has had serious problems. Some of these have been caused by poor judicial decisions.
Others resulted from policy missteps, including inadequate investigations and a prosecutorial docket disproportionate in size to staffing.
Other difficulties have stemmed from insufficient funding and a lack of robust diplomatic support for the ICC by its States Parties.
This second set of obstacles has been exacerbated by the Court’s performance shortcomings.
Finally, but unsurprisingly, the ICC has faced intense opposition from the United States, particularly under the Trump Administration.
In order to understand Prosecutor’s specific challenges, it is important to respect the legal architecture adopted by the Rome Statute—thereby providing and systematically distinguishing the different players and the three substantial activities that should be exclusively performed by the OTP.
Firstly, like no other previous prosecutor in the world, neither national, nor international, the ICC Prosecutor has the independent and exclusive authority to propose where and when the Court should intervene; the OTP is ‘the gatekeeper’of the entire Rome Statute connecting the national system with the Chambers of the Court.
Secondly, as in some national jurisdictions and in the ad hoc international tribunals for the former Yugoslavia and Rwanda, the ICC Prosecutor must conduct the investigations.
Thirdly, like any national prosecutor, the OTP has to litigate before the Chambers of the Court.
The Prosecutor’s autonomy to direct the OTP’s “orchestra” is almost absolute regarding the decisions to conduct preliminary examinations and to trigger or not the Court jurisdiction. It is still broad during the investigation phase where the Office will identify the suspects.
But it is very limited during the court proceedings, and the Judges have the exclusive authority to decide on the issuance of arrest warrants and the individual responsibility of the defendants’’.
In February 2021, the ICC’s Pre-Trial Chamber (PTC) decided that the ICC has jurisdiction to investigate allegations of international crimes in the Occupied Palestinian Territories (Gaza and the West Bank, including East Jerusalem).
Based on the Palestinian Authority’s self-referral to the Court, it is now open to the Prosecutor to open a formal investigation into the situation in Palestine.
The PTC also ruled that the ICC was not able to pronounce on whether Palestine had achieved “statehood” in international law.
It was enough for the ICC to establish that the Palestinian Authority had acceded to the Rome Statute and that the ICC, therefore, had jurisdiction over the territories concerned, considering Palestine’s status as an ‘Observer State’ at the UN.
The new ICC Prosecutor will work in a completely different environment. After more than 18 years, the Rome Statute is part of the international landscape, the Court’s existence is no longer at risk.
What remains up for debate, however, is its relevance, and more broadly, the relevance of international law to manage violence and protect individuals in the 21st century. A challenge for Karim Khan is to continue to navigate this investigation in light of US opposition.
While new US President Joe Biden’s Administration has signalled a better relationship with the Court and indicated that the sanctions will be “thoroughly reviewed”, the sanctions on the current Prosecutor remain in place.
Moreover, the implementation of the OTP Strategic Plan 2019-2021—based on broad spectrum six goals will be ensured through the development and application of practical action plans. The link between this strategic plan and the budget proposal 2020 has been made.
The monitoring of the implementation of the plan will be integrated into the OTP performance dashboard.
The Office will use performance indicators to report to its stakeholders on the progress made and to perform an end-of-cycle evaluation of the plan in advance of the production of the next strategic plan for the 2022-2024 cycle.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.