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TB: Justice Update – New ICC Prosecutor Elected 

[INTRO MUSIC]

Asymmetrical Haircuts: Justice Update, with Janet Anderson and Stephanie van den Berg. All rise.

The ICC Finally Elects a New Prosecutor

Janet: 00:09  So finally, we’re actually through this tortuous extended extra-time period, and the International Criminal Court finally has a prosecutor.

Stephanie: 00:19  It’s been quite a journey.

Janet: 00:21  It certainly has not been uneventful, but maybe just wrap up this last little bit.

Stephanie: 00:27  So, the main thing that just happened was that Karim Khan, a British barrister, was elected prosecutor of the ICC, the new prosecutor. A prosecutor is elected every nine years. We followed the process for months.We had lots of interviews about it. It was the first time there was no consensus between states, even after prolonged delays and periods of trying to get consensus. So, it went to a vote on Friday, February 12th. Khan won in the second round with 72, which got him the majority of the 123 member states voting for the next prosecutor of the ICC.

Mariana Peña on the Election Process 

Janet: 01:01  And several people have been really heavily involved in this process, like we have either observing or advocating. One of those is Mariana Peña from Open Society Justice Initiative. She’s been working on all the different elections that were happening at this assemblage of states parties. So, we asked her how she now feels.

Mariana Peña: 01:22  I’m super happy it’s over. I actually looked back at the work we’ve been doing with Open Society on the prosecutor election. We started in November 2018. So, it’s been over two years. It’s two very, very intense years. 

And we started with advocacy on the committee for the election of the prosecutor. So, the whole issue of merit and the fact that the election had to be based on merit. And the fact that there was a need for a panel to look into the qualifications. And then as of November 2019, our advocacy on high moral character really took off. So, that was also very, very intense for the last 18 months or so. So, I’m glad it’s over.

Stephanie: 02:13  Mariana mentions there this high moral character. Now, that’s the bit of the Rome Statute that’s about the ethical framework, the background and so on of the candidate.

And that’s what a lot of the debate became about with the work of the committee to elect the prosecutor, assessing candidates, kicking off that discussion and what kind of assessment or vetting was needed.

Mark Kersten: A “Dumpster Fire” Election

Janet: 02:34  Another observer of all of this is Mark Kersten of Justice in Conflict. And so, we asked him what he made of this very long, drawn out process with so many different elements, including the committee to elect the prosecutor and many other bits involved.

Mark Kersten: 02:53  I’m probably not allowed to swear. So, I’m just going to go with dumpster fire. I mean, you could not have a worse process with more nasty politics in the background, turning people off from an important election process that was an opportunity to really have meaningful conversations. 

I would be hard pressed to figure out what else could have happened to have made it really worse. I don’t really know what process was followed at this point. And I followed it quite carefully. 

Now, luckily for the court and for international criminal justice is the outcome was actually pretty good. And in the coming weeks and months, we’ll have to really, really think clearly, I think, about what went wrong with that process, what went wrong with vetting, because things clearly didn’t happen normally. The politics at play weren’t great.

Consensus couldn’t be reached. I know there are people who think that consensus is overrated, but that’s what they tried to do. And they could not reach a consensus in the background.

States were going back and forth. Various people were trying to undermine candidates. And I think, you know, I don’t know a single person who could suggest that it was OK and that it went well.

Janet: 04:12  And Mark here also mentions the stuff about vetting. Open society has been working on the issues around the process, and they called for more experts to be involved and to take the process by and large out of the hands of states and out of the kind of political backroom dealing that tends to go on in these things. But that didn’t happen.

Mariana Peña: 04:31  In the end, what we got was a hybrid panel of diplomats assisted by a panel of experts. So it was a compromise. It wasn’t perfect.

It was better than what they had before, which was just diplomats in the election of Fatou Bensouda. That’s what they had. And the previous election, they had nothing. So we are improving, but it’s a step by step process.

Early Impressions of Karim Khan in Court

Janet: 04:52  So in the end, it was states who chose Karim Khan QC, British barrister. And he’s a really familiar figure if you’ve been covering international criminal justice for as long as we have.

Some people started to share their favorite anecdotes about him, particularly on Twitter. So we reached out to a few of them and asked them to send them in. Thijs Bouwknegt of NIOD, Utrecht, actually sent in audio of Karim Khan himself in court. Thanks, Thijs.

Janet: 05:18  This is at the special court for Sierra Leone, where Karim Khan was defending Charles Taylor, the former Liberian president. And it’s a bit of a classic.

Karim Khan (Court recording): 05:27  The defense is that all things being equal, Mr. Taylor should be afforded the same rights, the same privileges, the same regime in accordance with the presumption of innocence and equality of treatment that are afforded to all other detained persons under the custody of the special court for Sierra Leone. Your Honor, there is issues regarding food. This is still a rather Eurocentric detention facility.

There is one other detainee at the moment of the ICC. Mr. Taylor is the only detainee, of course, from Sierra Leone. The diet is European.

The dietary facilities are very different from Freetown. And, Your Honor, all these matters need to be addressed. Your Honor, I won’t go through all the minutia.

Suffice it to say that the registry is seized of the matter. Progress is going on, but extremely slowly. These are matters that, on many occasions, are not rocket science.

With a modicum of goodwill, a modicum of common sense between the parties, the special court and the ICC, and a willingness to resolve these issues, they can, in my respectful submission, all be resolved without a huge amount of controversy. But there must be a willingness on both sides, the ICC and the special court, to do so. 

Janet: 07:04  Of course, the special court was holding its trial at that point in The Hague at the ICC’s own premises. How to confuse Western journalists about which court is which. And what I really liked about this clip is Khan’s use of this word Eurocentrism and his use of the typical term, it’s not rocket science, when appealing to the court for a modicum of goodwill. 

Stephanie: 07:25  Thijs also recalled one of the more notorious moments in the Taylor trial, when Khan walked out of court right on the day of the prosecutor’s opening statement, so maximum effect with all the international media there. The eyes of the world were really on this case, which, of course, Khan knew. And that was also the day that Taylor told Khan that he no longer wanted him to be his lawyer.

Thijs Bouwknegt: 07:47  Another time, of course, that I remember very well, which occurred in the same trial of Charles Taylor, was that at the day that Stephen Rapp, the prosecutor of the special court for Sierra Leone, was to give his opening statements in the start of the Taylor trial, Karim Khan actually that day received a letter from Charles Taylor that he had ceased to have him as a lawyer, which, of course, really created many problems for Khan because he felt that he couldn’t speak on his behalf anymore. Also, not argue against anything that Rapp would say that day.

And actually, he told the chamber that he felt compelled to stop working and actually leave the courtroom. And this led to perhaps one of the few really fierce arguments that I’ve seen in a courtroom, specifically at the International Criminal Court, between Khan and Julia Sebutinde, who then was still a judge at the special court for Sierra Leone and, of course, now is a judge at the International Court of Justice, where she basically told him to sit down and stay in court and hear out what Rapp had to say during his opening statements. But Khan, in the end, really didn’t feel comfortable doing that and sort of shrugged and then actually walked out of court. Really, really to the disappointment of Judge Sebutinde and all the other parties in the court. But I think at the time, this was really the only thing he could he could do.

Colleagues Remember Working with Karim Khan

Janet: 09:31  Talking about his role as a defence lawyer, Santiago Vargas Niño also remembers working in the ICC’s Office of the Prosecutor during the Kenya cases, when Khan represented William Ruto.

Santiago Vargas Niño: 09:48  He was a fierce advocate for his clients’ rights, who worked tirelessly to receive a fair trial. I was inspired by his outstanding skills for litigation. Mr Khan made the courtroom his won, arguing effectively with precision and flair.

Stephanie: 10:06  Others who’ve worked with Khan or observed him at the courts agree.

Brianne McGonigle Leyh was at the Cambodia Tribunal working for civil parties as part of the Comrade Duch case. He was held responsible for overseeing the notorious prison where thousands were tortured or executed. Brianne worked with Khan on behalf of civil parties, those affected by the crimes or their relatives.

Brianne McGonigle Leyh: 10:28  So I first met Karim back when I was an intern for a defence team at the ICTY in 2005. I later worked with him as co-counsel, representing civil parties before the ECCC and the Deutsch trial. And since that time, I’ve worked with him on a number of smaller projects.

So I have a lot of memories from these experiences. I have always been struck by how incredibly hard he works and how dedicated he is to his cases. But one story really stands out for me. This is when he first came to Cambodia to address the court at a preliminary hearing before the trial even started. It was a technical hearing, but many of the civil parties in the case were attending. There were two rooms crammed full of civil parties waiting for the hearing to start.

And they were confused about the process. Not all of them had met their representatives. Many thought that this was the start of the trial. And Karim took the time to speak with as many of the individuals as possible, explaining the process, but really just connecting with them. And when we were ushered inside, they had some seats reserved for civil parties in the courtroom and some in the gallery. And he really tried to ensure that the civil parties in the courtroom were all comfortable and that they all had headsets so that they could follow everything.

And that really impressed me because he also had to prep for the hearing. And then the proceeding started. And when he spoke in the courtroom on behalf of our clients, but also on behalf of all victims, really, he captured everyone’s attention. He really is the best orator that I’ve ever heard in court. And after the hearing, all of the civil parties were rushing up to thank him, to shake his hand. They were so appreciative because even though many did not speak English and were listening to an interpretation, they could feel the passion and how he was delivering it. And it meant a great deal to them. I think anyone could get a big head from this, but he remained really humble then and now. For him, it was an honour to represent their interests before the court.

Janet: 12:33  And towards the end of that process, the same one, Craig Etcheson, who worked in the co-prosecutor’s office, also remembers Karim in court.

Craig Etcheson: 12:43  During months of trial, Duch’s attorneys had constructed a very elaborate guilty plea. But on the very last day of final arguments, he asked for an acquittal. Karim Khan rose, addressing the judges, and said, Your Honours, the accused seeks to ride two horses. It was an eloquent advocacy in a confounding and confusing situation.

Stephanie: 13:15  And friend of the podcast, Kevin Heller, saw Karim Khan in action at the defence at the ICTY, the International Criminal Tribunal for the former Yugoslavia, where Khan was in the defence in a number of cases. I kind of had to Google because I didn’t remember them all. But there was Perisic, there was Haradinaj, Khan was all over the place at the ICTY.

Kevin Heller: 13:35  I first saw Karim Khan when I was working as one of Radovan Karadzic’s formerly appointed legal associates at the ICTY. I had some spare time, so I thought I would drop into one of the courtrooms and watch an ongoing trial. There was this lawyer.

He was bald, kind of striking looking. But what struck me the most was just the absolute control he had over the courtroom. Normally, when you go to one of these trials, somebody would be talking, other people would be kind of whispering to each other and taking care of other business.

And some people would be paying attention to the lawyer, but not everyone. Not when Karim spoke. There was not a rustle in the room. It was absolute silence. Every eye was upon him as he, with his normally perfect syntax addiction, made a point. I don’t even remember what the point was. I just was struck by, again, this absolute control he had over the courtroom. And then later, when I was speaking to a very senior trial prosecutor who was involved in the Kardic case, I was struck by the fact that she said that Karim was the only lawyer that everyone in her office was absolutely terrified to meet in court, just because he was simply so good. And if you were in the courtroom that day watching him, you would understand exactly why she said that.

From Defence Counsel to Chief Prosecutor

Janet: 15:00  So from that, you get this real kind of poacher turned gamekeeper vibe that’s going on for some people. A big defense lawyer now becomes a big prosecutor. But we should also remember that there’s some real annoyance and even some fear in some quarters.

For example, some civil society groups say that Khan went too far in defending William Ruto and became so closely associated with his own clients that he was really doing a political rather than a purely legal job. Now, it was difficult to get anyone on the record for the podcast to say that, though. I think especially now that Khan’s been elected, it feels like for some people, a mending the fence moment. And for others, it’s more of a like, well, let’s wait and see how he actually performs.

Stephanie: 15:44  Meanwhile, Olympia Beku, a law professor from Nottingham, says that in her experience, Khan really advocates for victims, also outside of the courtroom.

Olympia Bekou: 15:55  When I interviewed Karim recently as part of a report I did on behalf of the European Parliament, it struck me how important victim communities were to him. He said human life matters – regardless of colour, class, creed, gender orientation. It is human life. And that’s what we have to focus on.

What Will Khan Bring to the ICC?

Janet: 16:17  At an event this week, Fatou Bensouda, the current prosecutor, told the audience that Khan has “a wealth of experience and acumen” as she welcomed him into the job.

Mark wrote a piece suggesting that Khan would bring a lot to the job and we’ll put a link up to that on the show notes. So we asked Mark Kersten to explain exactly what qualities he thought that Khan would bring. 

Mark Kersten: 16:41  I mean, a couple of things. We are in a really fractured time, not just for international criminal law and justice, but internationally and diplomatically with the rise of, you know, populism and nationalism and threats against institutions like the ICC and multilateralism more generally. And I really think that, you know, at the end of this process, however bad it was, I wanted to be someone who rallied around the person who’s now got one of the toughest jobs in the world as ICC chief prosecutor. And I think, as I said in that piece, that he deserves the benefit of the doubt.

He hasn’t done anything yet as chief prosecutor. He’s not chief prosecutor yet. He won’t be for another six months, but he deserves the benefit of the doubt. And I think he has a lot of the characteristics and experiences that, to me, suggests that he would be a good prosecutor and bring really novel, interesting qualities. I’ll mention two very briefly is, you know, one is the fact that he has significant experience in the Middle East and for the ICC, the Middle East has been something of a blind spot. I remember when Libya was referred to the ICC and the ICC put out a request to have more Arabic speaking lawyers, because it just had never had sufficient numbers of them for the potential cases that were coming to the ICC.

Very few Middle Eastern states engage with the court and even less are actually members of the ICC. So I think it’s really important and interesting and novel and potentially fruitful that he’s engaged in the Middle East in the way that he has. And then secondly, you know, he’s been a defense lawyer for a number of high profile individuals faced with various types of crimes before international tribunals.

And I know that’s raised a lot of skepticism and concern from certain parties about, you know, how vigorously he was a defense lawyer, how politically he was engaged with some of his defendants or whatever it may be. But I mean, what a great boon to the court to have a chief prosecutor who knows how to basically be the best defense lawyer you could possibly be, which is what Karim Khan was for so many people. He can utilize those skills and I think really create really novel prosecutorial strategies.

And then I guess lastly, if I was going to add stuff, he just does not strike me as someone who pulls his punches, who is fiercely independent. And that matters because the most important thing that, you know, has to transpire over the next coming months and years is for the prosecutor to be transparent and not pull their punches in the face of, you know, political pressures from major powers or whatever it may be to, you know, not investigate certain situations.

Karim Khan’s Courtroom Reputation

Stephanie: 19:24  And of course, Janet also asked Mark for any anecdote he had of seeing Karim Khan in court.

Mark Kersten: 19:29  Yeah. The first time I came across him, I was, I was rather young. I think it was in 2010 and I was at the special tribunal for Lebanon watching proceedings that were, you know, against a journalist for having released a video from what I remember as obstruction of justice types of allegations she was facing.

And he was there, he was arguing, he was the defense lawyer. Somebody told me or asked me what I thought of him. And he had, he was, he was just commanding on the floor and quite an exceptional orator, which I think he is well known for. And I’ll never forget. Somebody told me, you know, other prosecutors fear having to face off against Karim Khan and judges absolutely love it when he’s in the courtroom because of his exceptional ability as a defense lawyer, as an advocate, and his ability to really to express his case strategy and, and the laws and the legal arguments that he wants to put forward. 

So, you know, personally, and I think this probably goes for you too, Janet is, you know, we’re interested in the communication side. How does the ICC tell its story? How does the prosecutor engage with the media and what stories do they share and how do they tell about the work they’re doing, which I think is so crucial to the court. And I’m really, really looking forward to having such an exceptional orator speak to these issues, speak at conferences, speak in press, availabilities and so on and so forth. I think that’ll be something really interesting to see with someone who’s got such a mastery of the English language. And of course also of the legal languages that he engaged in.

What Will It Be Like Working with Karim Khan? 

Janet: 21:07  So maybe just to finish, Bensouda said this week that she’s already in productive preliminary discussions with Khan on the handover, but what will he be like as a colleague? What faces those who are going to be working with him at the office of the prosecutor in the court? Brianne McGonigle says it will be hard work.

Brianne McGonigle Leyh: 21:24  Everyone who has ever worked with Karim knows how hard he works and how involved he is in his cases.

I remember many instances when I would send off draft motions really late at night, only to wake the next morning with a revised version already in my inbox from him. And of course it was always much better working for him. I felt appreciated and he always reminded us that we’re contributing to something really important, justice.

Janet: 21:57  Now, of course, there were people who didn’t respond to the request and who said, I’d rather not. So clearly I would say there are still some people who don’t like him.

Stephanie: 22:06  Yeah, he might be a bit of a polarizing figure and he has a way to go in convincing some people, but as we’ve heard, he has a lot of admirers already in this international justice world.

And at least he’s very well known and has a lot of connections. 

Janet: 22:20  So we’ll just keep on watching him. And we’ll also say thank you so much to the members of the community who responded to this call and sent their recording in.

Stephanie: 22:31  Yeah. And we’ll also obviously try to get an interview with him if he allows, but maybe his media strategy is now to keep silent until he takes the job, but we’ll definitely going to be emailing him to make sure that we try to get him. 

Janet: 22:44  That we will. Thanks very much, Stephanie. See you soon.

Stephanie: 22:47  See you.

Janet: 22:48  Bye.

Stephanie: 22:48  Bye.

[OUTRO MUSIC]

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