Happenings in The Hague: Transition of the ICC Office of the Prosecutor

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1. Who is Karim Khan, and how did he become the new Prosecutor of the International Criminal Court?

You may have heard that the International Criminal Court (ICC) recently welcomed a new Prosecutor. If so, you heard right! Karim Khan was elected by the Assembly of States Parties (ASP) to the Rome Statute on 12 February 2021 and took office on 16 June this year—marking the conclusion of Prosecutor Fatou Bensouda’s nine-year term. The process which led to Khan’s election was particularly complex, starting all the way back in August of 2019. The process was facilitated by a newly formed Committee on the Election of the Prosecutor, assisted by a panel of experts appointed by the Bureau of the ASP, which reviewed 144 individual and state-nominated applications and created an internal longlist of 16 candidates followed by a public shortlist of four qualified candidates. Public hearings with the four shortlisted candidates were held in July 2020, where candidates responded to questions from both States Parties and civil society organisations. After States Parties could not agree on a consensus candidate [1] among the four candidates from the shortlist, the decision was made to increase the options for States Parties to choose from still interested candidates of the longlist. Because this decision was a deviation from the accepted electoral process adopted by the Bureau of the ASP in 2019, civil society organisations, including FIDH, called on States Parties to ensure a fair and rigorous assessment and at least organise public hearings with the other candidates, ultimately leading to hearings with the expanded list of nine candidates held in December 2020 and the election in February 2021 by secret ballot of Karim Khan, who received 72 votes of the 123 States Parties.

Khan is a British barrister with long experience as a defence lawyer in international criminal trials, and he has most recently served as Special Advisor and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by ISIL (UNITAD). [2] He will now serve at the Office of the Prosecutor (OTP) at the ICC for a non-renewable nine-year term.

2. I see, thanks, that was useful. But then, how and by whom is the Prosecutor elected?

The Assembly of States Parties, which is the managing and legislative body of the ICC, is responsible for the elections of the Prosecutor, the Deputy Prosecutor, and the Judges. Although not one of the four organs of the Court (which are comprised of the President, the OTP, the Judiciary, and the Registry), the ASP is a body of representatives from states who are parties to the Rome Statute, the treaty which established the ICC. The ASP represents the ICC’s important function as an international organisation, in addition to its being a court. Given this hybrid quality of the ICC, it is critically important this electoral process by States Parties be as transparent and merit based as possible so as to ensure that the OTP remains politically unbiased and entirely independent.

3. Wait, what is the Office of the Prosecutor?

The Office of the Prosecutor is an independent organ of the International Criminal Court, and is responsible for carrying out preliminary examinations, investigations, and prosecutions of crimes that fall within the jurisdiction of the court, namely genocide, crimes against humanity, war crimes, and crimes of aggression. The OTP’s “independence” means that it is the sole organ of the ICC with the power to select which situations require investigation, and must do so without following any instructions given by other organs of the court or external actors. The OTP is headed by the Prosecutor and Deputy Prosecutor and is supported by the work of 380 staff members from over 80 nationalities. Khan is now the third Prosecutor, following Argentinian Luis Moreno Ocampo (2003-2012) and Gambian Fatou Bensouda (2012-2021).

4. Ok, now that I’m caught up, what does this transition mean for those decisions made by the outgoing Prosecutor Bensouda?

The OTP is currently conducting 6 preliminary examinations and 14 formal investigations. During her final months as Prosecutor, Bensouda announced the start of a formal investigation into alleged crimes committed in Palestine since June 2014, the conclusion of the preliminary examination into the situations in Ukraine and Nigeria, she said are ripe for a formal request for authorisation to open an investigation, and the request for authorisation to begin an investigation into the situation in the Philippines. Khan will now pick up where Bensouda left off and will see through either the continuation or conclusion of ongoing preliminary examinations, investigations and prosecutions.

5. So then, what are the main challenges that Karim Khan will inherit as Prosecutor?

Prosecutor Bensouda leaves behind a legacy of policies and strategies, not the least the policy on sexual and gender-based crimes adopted in 2014, and of strengthening the OTP’s independence and reach by opening investigations in places of intense political pressure and opposition, such as Afghanistan and Palestine. Khan will inherent an array of challenges that have faced the OTP in recent years, especially those concerning:
 The often-criticized lengthiness of preliminary examinations, particularly of those that may not lead to any investigations, charges, or reparations for victims.
 The impact of budgetary limitations on the decisions of an underfunded OTP.
 The ICC dependence on the still insufficient cooperation and support of States, and the risk of threats and attacks against the OTP by States opposing investigations that would potentially target their nationals, as illustrated by the former US administration’s campaign of intimidation and attacks against the ICC and its personnel, eventually lifted by the current Biden administration.
 The widespread concern regarding the overall effectiveness of the OTP, especially given the limited number of indictments and convictions since the inception of the Court. [3]

Khan acknowledged some of these challenges in his swearing in speech, during which he explained that “[o]pening preliminary examinations, requesting authorization or commencing investigations is a start, but as we say in English the proof of the pudding is in the eating. We have to perform in trial.” Moreover, Khan now inherits the responsibility to make decisions about particularly sensitive situations and cases, and the urgent need to request an operational budget that meets the growing docket of investigations and cases at the OTP. During the speech, Khan emphasized that "[t]he Rome Statute architecture is a promise to the future that tomorrow need not be as bleak and sorrowful as yesterday.”

In a recent letter sent to Prosecutor Khan by FIDH and 47 member organisations, we highlighted also the importance of reviewing the staff of the OTP to ensure that necessary linguistic and geographic needs are present in the expertise of staff, the importance of a gender balance throughout the Office’s varying teams, and the role the OTP has in communicating and reaching out to victims. Prosecutor Khan is not the only person to be recently elected at the ICC, as six new judges were also sworn in on 10 March 2021. FIDH published its report “Whose Court is it? Judicial Handbook on Victims’ Rights at the ICC” on 4 June 2021, which provides key recommendations for Chambers on how to best exercise their duty in upholding victims’ rights at the ICC.

6. Given these challenges, is there a role that civil society can play in this transition period?

Civil society has traditionally played an important role in collecting information that can contribute to the investigatory work of the Office of the Prosecutor. NGOs have also often acted as a bridge between different organs of the Court and the survivors of crimes. As such, over the last two decades civil society has gained valuable insights into how international justice, in particular the work of the ICC and the OTP, is perceived in countries under the jurisdiction of the Court. Hence, civil society can contribute to reflections on Bensouda’s term as Prosecutor, including an overview of the successes, failures, and recommendations derived from victim-centered dialogues. In keeping with this important role, FIDH recently submitted a letter to Prosecutor Khan with brief recommendations regarding many of the aforementioned challenges he will face throughout his term. Additionally, FIDH is also carrying out a stocktaking exercise to review the progress and setbacks of the Office of the Prosecutor (OTP) over the last nine years. This research will be published as a series of three papers, each of them focusing on a key area:

 1. The investigation and prosecution of sexual and gender-based crimes (SGBC), launched on 18 June 2021,
 2. The work conducted during preliminary examination phases; and
 3. The strategy and implementation concerning outreach to victims and affected communities.

The full report will be presented with the occasion of the 20th Assembly of States Parties in December 2021. These papers will not only look at the work of Bensouda’s Office, but also make specific recommendations that the new Prosecutor, Karim Khan, can implement moving forward.

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