Lessons from the Karim Khan Affair and Proposals for Reform

[William A. Schabas is Professor of international law at Middlesex University London and Professor emeritus at Leiden University and the University of Galway]

There are important lessons to be learned from the lengthy crisis leading to the 24 July 2026 decision of the Assembly of States Parties to remove Karim Khan as Prosecutor of the International Criminal Court. This article concerns two issues, the procedure for removal and the future operations of the Office of the Prosecutor.

Critics of the process that led to Khan’s removal have noted its improvised nature, describing it as ‘bespoke’, and even suggested that it was ‘unlawful’. The Assembly did not follow the procedure set out in the Rules of Procedure and Evidence. Criticism has focussed on procedural fairness and the alleged violation of Karim Khan’s rights. However, attention should also be directed to the harm that has been done to the Court and the threat to the independence of future Prosecutors.

The International Criminal Court was the first international criminal tribunal where the selection of situations for prosecution was not determined by the political bodies responsible for their creation. At Nuremberg, for example, the four prosecutors were empowered with selecting individual defendants but only to the extent that they were ‘major war criminals of the European Axis’. The Prosecutor of the International Criminal Tribunal for the former Yugoslavia was responsible for selecting the accused. However, jurisdiction was confined to crimes committed on the territory of the former Yugoslavia since 1991. Obviously the design of a permanent court required some mechanism to determine whether situations in the future should be subject to its jurisdiction.

According to the draft statute for the Court, prepared by the International Law Commission in 1994, only States and the Security Council could make a ‘complaint’ that would then result in prosecution. This reflected an understanding that the selection of situations was essentially a political matter, as it had been for ad hoc tribunals, rather than a judicial one. The idea that the Prosecutor might assume this hitherto political function, initiating investigations and also declining to proceed despite referrals by a State or the Security Council, emerged during the work of the Preparatory Committee.

The result in the Rome Statute is a Prosecutor with immensely greater discretionary authority than in any of the predecessor institutions and in the model contemplated by the International Law Commission. No other individual in any international organization has the extraordinary power of the Prosecutor of the International Criminal Court.

In order to ensure independence and impartiality of the Prosecutor, the Statute dictates a lengthy term of nine years and a barrier to re-election. Moreover, the Prosecutor can only be removed, according to article 46 of the Statute, in circumstances of ‘serious misconduct or a serious breach of his or her duties’. The details of the removal process were left to the Rules of Procedure and Evidence. Drafted by the Preparatory Commission, the authors of the detailed provisions were guided by mechanisms of domestic justice systems that are ill-suited to an institution like the ICC.

Previously, removal proceedings were shrouded in secrecy. The latest edition of the Triffterer/Ambos Commentary refers to only one case involving the first Prosecutor. It only came to light because of an application to the Administrative Tribunal of the International Labour Organization taken by a former employee who was wrongfully dismissed. The author of this comment also knows of an unsuccessful attempt to remove a judge but only because he acted as legal counsel to the respondent during the confidential proceedings. Have there been other cases? Who would know?

However, in this most important case of removal in the Court’s history, the Assembly of States Parties decided to innovate. Whether in doing so it breached Karim Khan’s rights may eventually be assessed by the ILO Tribunal. Nevertheless, it is essential that the Assembly address the shortcomings in the Rules of Procedure and Evidence and ensure that for the future the removal procedure is adequately codified so as to better ensure the Prosecutor’s independence and impartiality. It is an urgent matter. This should be done before the new Prosecutor is chosen.

In the case of Karim Khan, it was the Bureau of the Assembly that reached conclusions about the facts of the case relying on an investigation conducted by the UN Office of Internal Oversight Services. The Bureau of the Assembly is composed of Governments. The delegates dutifully follow directions from their capitals. If so instructed, they will vote that the earth is flat and that the sun rises in the west. The Bureau cannot be trusted to make an impartial assessment of evidence in such cases.

The decision adopted by the Assembly declares that the disciplinary proceedings ‘are not related to the conduct of investigations or proceedings before the Court and are without prejudice to the independence of the International Criminal Court’. Not only is it impossible to verify such an assertion, it is also extremely unlikely. Some governments were surely unimpressed with Khan’s inadequate explanations, their assessments confirmed by the compelling interview of Sarah, the alleged victim, by Christiane Amanpour that was broadcase only days before the vote.  But we also know that some of the governments represented in the Bureau of the Assembly were angry about the Netanyahu arrest warrant. Surely this was a factor in their decision on removal.

The Rules of Procedure and Evidence should be amended in such a way as to ensure that the factual conclusions in a disciplinary proceeding where the Prosecutor’s removal is at issue should be made by a judicial body benefitting from guarantees of independence and impartiality. This already appears to be the case, according to Rule 29, for other senior officials, where judges of the Court, not diplomats, make findings of fact.

Only after such a judicial body has concluded that the facts point to ‘serious misconduct or a serious breach of his or her duties’ should the case then proceed to the Assembly of States Parties for a vote on removal in accordance with article 46 of the Statute. In other words, the Assembly may take the essentially political decision to remove the Prosecutor but only after a judicial determination of a disciplinary infraction has been made. In this way, both the rights of the Prosecutor, as an individual, and the independence and impartiality of his or her position, are protected.

The judicial body might be an ad hoc panel composed of former judges of the Court. Other forms could be considered. If the Assembly of States Parties appreciates the need to correct the situation and to remove itself from making determinations of fact, it will find an appropriate solution.

The case of Karim Khan has also shed light on a critical flaw in the structure of the institution. Because the Rome Statute concentrates so much discretionary power in the Prosecutor, when he or she is compromised the integrity of the entire system is threatened. This is too big a job to be entrusted to one person.

It is well-established that the Prosecutors of the Court have been subject to pressure from governments, even those of non-party States. Efforts of Israeli agents, including the head of the Mossad, to threaten Prosecutor Bensouda and members of her family, have been documented by journalists. It is implausible that she was the only Prosecutor to have been subjected to such intrusions. Prosecutor Khan has spoken of threats from British Foreign Minister Khan and American Senator Lindsey Graham.

The Prosecutor inevitably brings to the job personal views, preferences and prejudices explained by the complex personalities of all individuals. As persons sworn to impartiality, the Prosecutors have no doubt attempted in good faith to set these factors aside. But it is unrealistic to expect them to be entirely divorced from their own political, cultural and philosophical DNA. When he was awarded the Hudson medal of the American Society of International Law, Georges Abi-Saab remarked that ‘[h]owever one tries to be objective, he is always objectively somewhat subjective, because one always travels with his own luggage’. The Prosecutor may also have personal weaknesses, manifested in improper conduct while in office, skeletons in the closet from a distant past, as well as fears, some of which may be entirely irrational. Courage is not one of the criteria normally considered when candidates for the job of Prosecutor are being shortlisted. Probably some of them don’t even know how they would react if threatened.

When a government recruits an individual to a position as important and powerful as that of the Court’s Prosecutor, serious background checks are undertaken. But this is not part of the selection process at the International Criminal Court. Candidates for the position are unlikely to alert the selection committee to their vulnerabilities. They may themselves be unaware of them. Some Governments that are aware of problems with a candidate may even choose to keep the information to themselves, all the better to extract concessions from a Prosecutor fearful of exposure.

Very little attention was given to this issue when the Statute of the Court was negotiated. At the Rome Conference there were occasional concerns about a ‘runaway prosecutor’, similar to the one pursuing the American president at the time for his sexual indiscretions. But this was really an objection to the entire notion of an independent prosecutor and not to the concentration of the discretionary authority in the hands of one person rather than several.

The drafters of the Rome Statute addressed the objections to the independent prosecutor with mechanisms subjecting the exercise of discretion to a degree of oversight by three judges of the Pre-trial Chamber. In practice, application of these provisions is a perfunctory exercise. The judges make formal determinations of a technical nature, assessing the admissibility criteria in the Statute. They do not question the political wisdom of the Prosecutor’s choices, nor should they.

As for the power of the Security Council and the States Parties to refer situations to the Court, this also bows to the discretion of the Prosecutor, who can simply decline to proceed with the referral. The Security Council and States Parties may contest such a determination before the Pre-trial Chamber but here too the judges have shown great deference to the Prosecutor. There is a further control left in the hands of the Security Council by article 16. But this necessarily involves the unanimity of its permanent members, an unlikely scenario. A resolution to protect Netanyahu could only avoid the veto if it also sheltered Putin. Or vice versa.         

The independence and impartiality of the Court would be greatly enhanced if decisions to investigate and prosecute were taken by a body composed of several professionals, thereby diluting the impact of the vulnerabilities, weaknesses and biases of an individual, be they innocent or malign, that are merely a fact of life.

The Rome Statute system could quickly be recalibrated in order to address this through amendments to the Rules of Procedure and Evidence. These require a two-thirds majority of the Assembly of States Parties but not ratification by States Parties. Article 42 of the Rome Statute contemplates the election of ‘one or more’ Deputy Prosecutors. Currently there are two of them. The number of deputy prosecutors could be expanded, creating in effect a college of prosecutors composed of the Prosecutor and several deputies.

The Rules of Procedure and Evidence and the Regulations of the Office of the Prosecutor could then provide that major decisions, notably the initiation of investigations, the refusal to proceed with referrals from States Parties and the Security Council, and the selection of suspects for arrest warrant applications, be taken by a majority of the college of prosecutors. A special majority, but not unanimity, might be required. The selection of the Deputy Prosecutors would ensure representation of the main regions of the world.

This would strengthen the authority of the Court. The target of those who try to corrupt the Court would be blurred, harder to hit. The credibility of sensitive decisions, like one to prosecute a sitting head of State, or to open an investigation into a situation involving the interests of powerful States, would be greatly enhanced. At the same time this would greatly reduce Court’s vulnerability to the sort of pressures that have become so evident throughout the Karim Khan debacle.