International Criminal Court (ICC) Prosecutor Karim Khan was removed from office by a vote of 82 of the 125 member states at a special session of the Assembly of States Parties (ASP) held in New York on July 24. The decision is being viewed as a political step that endangers the court's independence.
Professor Martin Shaw, Emeritus Professor of International Relations and Politics at the University of Sussex, and Dr. Heidi Matthews, a faculty member at York University's Osgoode Hall Law School in Canada, warned that US and Israeli pressure on the court lies behind the removal, and that the decision could weaken ongoing cases, particularly the Palestine investigation.
Independent panel found insufficient evidence
Khan's lawyers say the decision was procedurally unfair, and that their client was removed before having the opportunity to defend himself. The independent panel of judges appointed by the court, however, found no evidence beyond a reasonable doubt that Khan had committed serious misconduct. Despite this, the ASP proceeded directly to a removal vote rather than deepening the investigation to resolve the disputes.
Prof. Shaw noted that the ICC, which has been active for about 25 years, was previously criticized for predominantly trying African leaders, and that this picture changed during Karim Khan's tenure over the last three years. Recalling that Khan advanced the investigation into Israel and Hamas with the onset of the genocide in Gaza, and secured arrest warrants for Israeli Prime Minister Benjamin Netanyahu as well as Russian President Vladimir Putin, Shaw said, "In recent years, the court had begun to operate as an institution that takes seriously international crimes committed by powerful actors, including Western states."
US and Israel's effort to dismantle the court
Pointing out that US Secretary of State Marco Rubio relaunched the campaign against the court last week, Shaw said, "Israel and the US are trying to dismantle the Court. It is impossible not to see this as part of that crisis." Shaw conveyed that the removal decision does not formally alter the ongoing investigation and charges, but noted that his main concern is the court's stance going forward.
Shaw stated that the new prosecutor will be aware that they too could be removed if they take steps that disturb powerful states, and assessed, "Internal and external elements seeking to roll back the Palestine investigation and the Gaza charges have been further emboldened by the decision to send Khan packing."
The most serious institutional crisis in 24 years
Dr. Heidi Matthews stressed that Khan's removal is the most serious institutional crisis in the ICC's 24-year history. Explaining that the independent panel assessing the allegations against Khan found no sufficient legal basis for misconduct, yet the ASP proceeded directly to a vote, Matthews said the decision was taken in the context of the Trump administration's all-out assault on the court.
Noting that Rubio described the decisions taken against the ICC as a "government-wide campaign," Matthews said, "The removal decision cannot be considered apart from the unprecedented political efforts to discredit and disrupt the Court's work."
Palestine investigation is the court's litmus test
Stating that the arrest warrants for Netanyahu and former Israeli Defense Minister Yoav Gallant remain in effect, Matthews pointed out that it is unknown who the new prosecutor will be and that this process will also be conducted under political pressure. Recalling that last month, judges allowed charges against defendant Abdallah Banda in the Darfur case to be withdrawn after the prosecutor cited insufficient evidence, Matthews warned that a similar justification could be put forward in the Netanyahu and Gallant cases.
Matthews said the situation in Palestine is seen within the international criminal law community as a "litmus test" for the court's legitimacy, and noted that three arrest warrants were also issued for Hamas leaders as part of the same investigation, but the cases have not progressed because these individuals were killed by Israel. Matthews assessed, "If the new prosecutor abandons this investigation, we will be at a critical turning point for the Court's capacity to seriously address crimes committed by Western states or their allies."
