The Prosecutor of the International Criminal Court (ICC), Karim Khan, has a formidable pedigree. Born in Scotland, he was a prosecutor in the Crown Prosecution Service of England and Wales from 1993 to 1996.
He then moved into private practice, prosecuting and defending people accused of war crimes and crimes against humanity and was appointed Queen’s Counsel (now King’s Counsel) in 2011.
In 2021, in its “Leading Silk” category, the UK’s authoritative “Legal 500” lauded Khan’s legal achievements. It said, “He ensures he has a very deep knowledge of not just the facts of an incident but of all aspects of a case, which in this field (international crime and extradition) involves politics, culture and society.”
As a prosecutor, Khan was involved in the tribunals that conducted successive war crimes trials. They concerned, for example, individuals from the former Yugoslavia, Rwanda, Cambodia and Lebanon. He also defended people accused of human rights violations, including Charles Taylor (Liberia), Bahr Idriss Abu Garda (Sudan), William Ruto (Kenya) and Fatmir Limaj (Kosovo). Whether prosecuting or defending, he was always highly regarded.
The ICC was established in 2002, under the multilateral Rome Statute (which the UN General Assembly adopted in 1998 by a vote of 120 to 7). Seated in The Hague, it is the world’s only permanent international court empowered to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Israel was among the handful of countries opposing the ICC’s creation, reportedly because the list of war crimes included “the action of transferring population into occupied territory”.
Given his standing, it came as no surprise that on Feb 12, 2021, Khan was elected the ICC’s third chief prosecutor by the Assembly of States Parties meeting in New York. He secured 72 votes, with his three rivals obtaining, respectively, 42, 5 and 3 votes. It was a healthy mandate, and he has since discharged it without fear or favor.
In 2023, for example, the ICC, on Khan’s application, issued an arrest warrant for the Russian president, Vladimir Putin, for alleged war crimes in Ukraine. It said there were “reasonable grounds” for believing that Putin bore responsibility for “the unlawful deportation of population” from Ukraine to Russia. The US and the UK hailed Khan’s actions (even though the US is not a party to the Rome Statute).
Whereas the US president, Joe Biden, said Putin had “clearly committed war crimes” and the warrant was “justified” and made “a very strong point”, the spokesman of the then-British prime minister, Rishi Sunak, said it was essential that Putin was held to account for the “atrocities” in Ukraine.
By contrast, Biden and Sunak were less than ecstatic when, on May 20, Khan applied to the ICC for arrest warrants for the Israeli prime minister, Benjamin Netanyahu, and his then-defense minister, Yoav Gallant (together with three Hamas leaders, Mohammed Diab Ibrahim Al-Masri, known as “Deif”, Ismail Haniyeh and Yahya Sinwar, for their alleged roles in the Oct 7 atrocities, in which an estimated 1,139 people died, and for their activities after that). This was despite Khan having explained he had “reasonable grounds to believe” they had engaged in war crimes and crimes against humanity, which incensed Israel’s backers.
Whereas Sunak called Khan’s move a “deeply unhelpful development,” Biden said it was “outrageous.” However, not everybody was in denial. The then-Labour Party foreign affairs spokesman, David Lammy (now foreign secretary), pointed out that all parties to the Rome Statute, including the UK, “have a legal obligation” to comply with the ICC’s arrest warrants. He explained that the warrants “reflect the evidence and judgment of the prosecutor about the grounds for individual criminal responsibility”.
The Rome Statute has 124 state parties, and Netanyahu cannot safely enter any of them. He is liable to arrest whenever he travels, and will forever have to look over his shoulder. Although, because of the US, he will probably never face trial in this life, there are over 44,000 Palestinians awaiting him on the other side
After a six-month deliberation, the ICC agreed with Khan’s analysis and issued three arrest warrants on Nov 21. It said there were “reasonable grounds” for believing that Netanyahu and Gallant bore “criminal responsibility” for the war crime of starvation as a method of warfare, as well as for the crimes against humanity of murder, persecution and other inhumane acts. They were liable for “the war crime of intentionally directing an attack against the civilian population”.
They were accused of having intentionally and knowingly deprived the civilian population in Gaza of objects “indispensable to human survival”, including food, water, medicine, fuel, and electricity.
Regarding the war crime of starvation, the ICC said the “lack of food, water, electricity and fuel, and specific medical supplies, created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza”. This allegedly resulted in civilian deaths, including children, due to malnutrition and dehydration.
The ICC indicated it had not yet determined if “all elements of the crime against humanity of extermination were met”, meaning this remains a future possibility for Netanyahu and Gallant.
Although Khan had sought arrest warrants for the three Hamas leaders, only one was issued. This was because Israel had already killed Ismail Haniyeh and Yahya Sinwar. While an arrest warrant was issued for Deif, Israel claimed he had died in an air attack in southern Gaza in July, although this has yet to be confirmed.
On Nov 21, the day the warrants were issued, the Gaza Health Ministry reported that the death toll in Gaza during the 13-month conflict had surpassed 44,000, the majority being women and children.
Shortly before, on Nov 8, the UN human rights agency, headed by Volker Turk, revealed that nearly 70 percent of verified deaths in Gaza were of women and children. Approximately 44 percent of the victims were children, with the largest single category aged 5 to 9 years. It said that Netanyahu’s forces had “caused unprecedented levels of killings, death, injury, starvation, illness and disease”, and warned that “widespread or systematic” attacks on civilians could amount to “crimes against humanity”.
By any yardstick, the crimes alleged against Netanyahu as prime minister are horrific. If proved, those in the US and the UK who have facilitated them, whether by providing aircraft, munitions or finance are complicit and may themselves also be prosecutable (given that Palestine, of which Gaza is part, is a signatory to the Rome Statute).
Like many other indicted suspects, Netanyahu saw bombast as his best line of defense. Having accused Khan of being “corrupt,” he said the judges were “driven by anti-Semitic hatred toward Israel”. He must have imagined this would play well in the US, and he was correct.
Whereas Mike Waltz, Donald Trump’s choice as national security adviser, said the ICC should “expect a strong response to the anti-Semitic bias of the ICC and United Nations come January”, Republican senator Lindsey Graham, a Trump outrider, called for the imposition of sanctions on the ICC. As Trump imposed sanctions on Khan’s predecessor, Fatou Bensouda, in 2019, for pursuing investigations into alleged war crimes by US forces in Afghanistan and elsewhere, such threats must be taken seriously.
However, even if the US is contemptuous of international justice, the British prime minister, Sir Keir Starmer, fortunately, is not. When asked if the UK would arrest Netanyahu if he entered the country, his spokesman said: “The government would fulfil its obligations under the act and indeed its legal obligations.” Those obligations were “set out by domestic law and indeed international law”, and Netanyahu has been warned.
This did not play well in the US. In a chilling insight into how his country views the “special relationship”, Graham declared that the US would “crush” Britain’s economy if it helped arrest Netanyahu.
It is encouraging that, for a change, the UK is not prepared to allow itself to be led by the nose by the US, but there is more for it to do. Despite the horrors described by the ICC, the British government is still supplying weapons to Israel, and this must end immediately. If it is to retain its self-respect, demonstrate its moral authority, and reassert its global credibility, the UK must withdraw support from a government headed by a man accused of some of the most horrendous offenses in the criminal calendar.
Just as the UK imposed punitive sanctions on Putin and his inner circle over Ukraine, so also must it treat Netanyahu and his inner circle in the same way over Gaza. The crimes alleged against Netanyahu by the ICC are infinitely worse than those alleged against Putin, and the UK must avoid double standards. It cannot treat Netanyahu differently simply because his country is a Western ally.
Moreover, as Khan is an eminent British barrister committed to upholding the rule of law at the global level, Starmer must do everything possible to protect him from American reprisals. Although his predecessors, Rishi Sunak, Liz Truss and Boris Johnson, were always afraid of doing anything that displeased the White House, he is hopefully made of sterner stuff. The UK has every reason to be proud of Khan, and it must uphold his interests, however much it upsets the US.
In words that must have resonated with Starmer and Lammy (both lawyers), Khan, on May 20, explained, “Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my Office and the Court. This is how we will prove, tangibly, that the lives of all human beings have equal value.” Everybody who believes in criminal justice (including hopefully those who spout away incessantly about the “international rules-based order”) should applaud Khan’s sentiments.
The Rome Statute has 124 state parties, and Netanyahu cannot safely enter any of them. He is liable to arrest whenever he travels, and will forever have to look over his shoulder. Although, because of the US, he will probably never face trial in this life, there are over 44,000 Palestinians awaiting him on the other side.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
