21 May Delivering the ICC Vision Through Deeds not Words: An Interview with Karim Khan QC
[Shehzad Charania is the interim Director General and Head of the Attorney General’s Office in London.]
On 12 February 2021, Karim Khan QC was elected Prosecutor of the International Criminal Court. His nine-year term will begin on 16 June 2021. Khan has had a stellar career as an international criminal lawyer, and is currently the Special Adviser and Head of the UN Investigative Team to Promote Accountability for genocide, crimes against humanity and war crimes committed by ISIL (Da’esh) in Iraq (UNITAD). A few weeks ago, Shehzad interviewed Khan in front a virtual audience of government lawyers and officials. It was a fascinating discussion, touching on Khan’s early career to his views on his upcoming appointment. You can find some of Shehzad’s other interviews with leading figures in international justice here and here.
I begin by asking Khan about the man he calls his adopted grandfather. Khan never knew his maternal or paternal grandfathers but was like a grandson to Sir Mohammed Zafarullah Khan, Pakistan’s first Foreign Minister, President of the UN General Assembly and latterly President of the International Court of Justice. He was also a lawyer who studied at King’s College London and an Honorary Bencher of Lincoln’s Inn. Khan talks about Sir Mohammed’s influence as being pivotal to him pursuing a career in law, following in his footsteps at both Kings and Lincoln’s Inn. Karim would stay with Sir Mohammed in Pakistan and while Sir Mohammed was living in London and Khan in Yorkshire, they would correspond every week. But it is Sir Mohammed’s humanity which has stayed with Karim. “He was an exceptionally good human being in every sense of the word. He donated much of his income and wealth to charities to further educational causes in Pakistan and those disadvantaged elsewhere, while unassumingly and casually recalling conversations with high-ranking political figures such as Winston Churchill, or as a guest of JKF in the White House, or Nancy Astor at Cliveden.”
Khan was called to the Bar in 1992. “The profession was very different back then,” he says. He recalls applying for a pupillage where, in the middle of the interview, the panel, without regard to Khan’s presence in the room, began discussing whether Khan looked more Pakistani or English. Their parting advice to him was that “someone like you” might benefit from changing his name to “Smith”. He remembers leaving the interview feeling sad and a bit shocked. Eventually, Khan joined the Crown Prosecution Service and later the Law Commission. “I learnt a lot there, but I also had a yearning for human rights law,” he says, revealing that he spent much of his spare time working on human rights issues for the Ahmadiyya community, a Muslim movement much persecuted in Pakistan.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) and then the International Criminal Tribunal for Rwanda (ICTR) were therefore natural next steps. He spent three years working for the Office of the Prosecutor in those Tribunals. “Those were formative years, but I left at the right time,” he says. “It was important that I developed my skills.” He joined the leading criminal set 2 Hare Court in 2000 before moving to Temple Garden Chambers a decade ago. Karim’s first case at the ICTY as defence counsel was in the case of Limaj, where he was led by Michael Mansfield QC. Eventually, Khan began to receive more high-profile instructions. “I’ve been very fortunate,” he says, “but at the same time, it helps that I’m not a ‘typical Brit’.” Khan explains that when the former Head of the Civil Service in Kenya Ambassador Francis Muthaura asked him to act as his lead counsel, Muthaura said that he had picked Khan from a list of prominent counsel in part because he was a member of the English bar but also because of his Muslim name and Pakistani heritage. In Muthaura’s mind, Khan would combine the professionalism and training of the English Bar with the cultural understanding that a more diverse background would offer.
I mention all the well-known defendants he has represented – former Deputy Prime Minister of Kosovo Fatmir Limaj, former President of Liberia Charles Taylor, current Deputy President of Kenya William Ruto, and Saif al-Islam Gaddafi, to name but a few. I ask whether there is anyone he would choose not to represent as a defence lawyer. Khan is clear that although the “cab rank rule” which applies to members of the English Bar does not apply internationally, he would still generally seek to follow the principle. “I don’t see any difference between prosecuting a case and representing a defendant.” He notes that at the English Bar and in many Commonwealth countries, criminal barristers will routinely appear for both prosecution and defence. “It keeps one grounded and prevents corrosive traits such as thinking that defence counsel is the devil incarnate or that as a prosecutor you are doing ‘God’s work’.”
I ask him about his work representing victims. Khan admits he was initially sceptical of the concept of legal representation for victims, something which is not a feature of the common law system. But he was soon converted. “I was lucky enough to represent victims in the Duch case at the Extraordinary Chambers in the Courts of Cambodia. After one particular administrative hearing, some of the victims as well as their younger family members came up and embraced me with tears in their eyes. I also see first-hand the impact of the work of UNITAD on victims of Daesh crimes, and I saw it too in Sierra Leone in a pro bono case I worked on fighting for accountability against crimes committed by ECOMOG [the Economic Community of West African States Monitoring Group]. These victims were women who had been raped, and said that they had felt marginalised and invisible because no-one from the state authorities, or the Special Court for Sierra Leone or Truth and Reconciliation Commission had spoken to them or taken their statements. So through these experiences, I now fully appreciate the value of victims representation. But it is important that the process is managed so it doesn’t lead to delayed trials or huge costs that bring the purpose into question.”
We move onto the ICC. Why did he want the job of Chief Prosecutor? “The Court is an institution which matters. In establishing the Court, those present in Rome invoked the holocaust, the killing fields of Cambodia, and the genocide in the former Yugoslavia and Rwanda. Yet the institution perhaps faces more questions today than in 2002 when it was established. Hopes have been heightened, but expectations have not been met. But we cannot squander this opportunity we have of a permanent court to bring about accountability for international crimes. There is a great responsibility on those who work at the Court to create a worthy institution, and I want to be part of building a team capable of realising the aims of the Rome Statute, to build on what the Court has achieved so far, but also to drive reform where this is necessary.”
I note that as an ICC defence lawyer, and even though he has not practised at the ICC for five years, Khan has still represented more defendants than any other lawyer. Yet, I suggest, ‘crossing the floor’ will represent a challenge for Khan because in defending his clients, he has had cause to criticise the investigations and conduct of the very office he will now be heading up, for example in the Ruto case where he said in his opening statement that there should be an inquiry into how the OTP saw fit to bring the case to the courtroom. I ask how against this backdrop he will be able to build relationships with lawyers he has been so critical of in the past. Khan does not think this will be a problem, noting that it is essential to speak directly, and that this is “part and parcel of courtroom advocacy” but that “what is said in the courtroom stays in the courtroom”. “I worked in the Ruto case with a colleague who had previously been a senior ICC prosecutor with responsibility for the Darfur situation, and who is now lead counsel to the Gambian Truth, Reconciliation and Reparations Commission. And currently one of the lead OTP investigators in the Kenya situation is part of my team in Iraq. There are wonderful people in the OTP. The situation will need both professionalism and realism. Most of all, we will need a team spirit. I can’t do this alone. Some staff will perhaps see my appointment as a natural time to move on, others may be somewhat resistant to any change, and I am sure others are really look forward to embracing new ideas. But in the end, we are simply custodians, with a responsibility to discharge our functions, not to win a popularity contest but to build something that will outlast us.”
We talk about the situations he will be inheriting, most notably Afghanistan, Palestine, Georgia and Ukraine. Khan recalls the view of Richard Goldstone, former Chief Prosecutor of the Yugoslavia and Rwanda tribunals, that to understand international law it is essential to appreciate the role of politics. But Khan is clear that in the end he is an officer of the Court, and the Rome Statute places complementarity, not primacy of jurisdiction, at the core of the ICC’s mandate. “It is important to be realistic about what the Court can achieve,” he says. “Expectations have been raised because of the number of preliminary examinations around the world. But we need to be candid with States and with victims about the limit of the Court’s resources and how they will be prioritised. Dealing with atrocity crimes requires creative solutions. There are many ways to seek to end impunity beyond the ICC, including sharing the burden with national and regional mechanisms.”
I press on this point about how Khan intends to prioritise given limited funds but at the same time an extensive mandate with many expectant stakeholders. Khan notes that the ICC is not unique in having finite resources, and that no organisation, domestic or international, gets all the money it wants to do everything it could. “The worst scenario would be trying to do it all and ending up doing nothing,” he says. “That would disappoint victims and also erode the credibility of international criminal justice in the eyes of the public. People will question the very existence of the Court. The ICC must make a real impact, not be seen as a paper tiger or vanity project. To have impact, you need to prioritise against the greatest need, taking into account the gravity of the crimes committed and the jurisdictional issues in play. The Office of the Prosecutor (OTP) cannot act like an NGO nor as a university, only producing long interesting academic or policy papers which shine a light on atrocities but with no real ability to take action against those crimes. It must make an impact and make inroads in terms of accountability.”
I note that the Court has limited jurisdiction because it has 123 members which doesn’t include some of the world’s most powerful states. Does he see expanding the Court’s membership as a priority? “It would be nice to have more States Parties, but we have to prove the concept more fully first,” he says. “This means a Court which adds value and offers practical solutions to problems. But predictability and operating within the jurisdiction of the Rome Statute are key to encouraging new States to sign up. States will then understand better that it is in their national interest to join the Court as a common way to deliver accountability. The rule of law, respect for international mechanisms, and a commitment to ending impunity will lead to more stability and greater investment for states themselves. This is the vision we have to sell, which we can only do through deeds, not words.”
I ask Khan about his commitment to a diverse workforce within the OTP, noting that he has previously committed to an all-female shortlist for the role of Deputy Prosecutor. Khan is passionate about this subject. “Equality, diversity and inclusion, including in particular gender balance within the OTP are critically important. You need look no further than the finding of the Independent Expert Review (IER) that there appears to be an unacceptable “culture of fear” within the Court, and particularly the OTP, accentuated by a lack of gender balance particularly at senior levels. In Iraq, it has been so important for me that I hire people from all communities, and almost half my team is comprised of women including half of the senior leadership. This is categorically not a tick box exercise. It is critical to the success of the mission. When you are dealing with communities which are marginalised and disenfranchised, you need even more to have a team of people who look and sound like them, people they can relate to and easily trust. Similarly, at the ICC it will not be possible to conduct cases effectively without people who understand intimately the history, culture, politics and complexities of situation countries. At the same time, we must deal with the cultural issues that the IER has identified, because the OTP cannot succeed in its mission without a unified, happy, inclusive workforce, where staff feel empowered and trusted. The tone must be set at the top of the office. As a leader, you have to live your values, and then build your culture. As I said in my letter to the Search Committee for the Prosecutor, there should be no better place to work than the ICC. That is the ultimate destination.”
Khan’s reference to the Search Committee prompts me to ask him about one particular comment they made following his interview, namely that Khan was “a charismatic and articulate communicator who is well aware of his achievements.” “I don’t think it was a compliment,” he says, laughing. “They clearly thought I was arrogant and probably wondered how I had the temerity to apply. But I did apply because I thought I could do the role. If the Search Committee thought this was arrogance, then I’m guilty as charged. I can smile about it now, but it’s important that those who sit on such panels receive proper training, including in unconscious bias. But I also made it clear to the Search Committee, and I always say this, that any success I’ve enjoyed in my career I’ve done as part of a team. The larger the case or complex the mission, the bigger and more important the work of the team has been.”
I end by asking how he will judge at the end of his tenure whether he has been successful. “I will want to assure myself that I have given the role my all, and that I have left behind an office which is more able and confident, part of an important institution and broader movement advocating for law over war. I want to leave the next Prosecutor with a foundation upon which to take the Court to even greater heights. But in the end, this will be for others to judge.”