The International Criminal Court’s new chief prosecutor is controversial

Karim Khan will have to mend the court’s tattered reputation

BORIS JOHNSON’S government was cock- a- hoop. The election on February 12th of Karim Khan, a British barrister, as chief prosecutor for the International Criminal Court ( ICC) in The Hague was surely a sign that Britain still had diplomatic heft post-brexit. Mr Khan’s appointment would be “pivotal in ensuring we hold those responsible for the most heinous crimes to account,” beamed Dominic Raab, the foreign secretary. Others say Mr Khan’s appointment is less a diplomatic coup for Britain than for Kenya, whose government has done much to damage the ICC’S credibility. As a result, some fret that Mr Khan may not be the champion of the downtrodden the post demands.

The ICC badly needs such a champion. Victims of humanrights abuses around the world have been ill-served since the court began operating in 2002. Mr Khan’s two predecessors, Luis Moreno Ocampo and Fatou Bensouda, managed to secure just five significant convictions between them in 18 years. Mr Khan has many of the attributes a successful prosecutor needs: he is, admirers say, combative, wily and “frighteningly clever”.

He also has decades of experience in international criminal law, most recently heading a UN investigation into atrocities committed by Islamic State. His candidacy was backed by, among others, a group of six mostly Francophone African NGOS and human-rights groups.

But he has critics, too. Last month 22 African human-rights groups, most of them Kenyan, wrote to the ICC’S member states urging them not to back Mr Khan’s candidacy. Their concerns stemmed mainly from his role as chief defence counsel for William Ruto, now Kenya’s deputy president, in one of the most troubled trials before the ICC. In 2012 the court formally accused Mr Ruto and Uhuru Kenyatta, now Kenya’s president, of orchestrating ethnic violence in which more than 1,000 people were killed after a disputed election five years earlier.

Both cases collapsed. Charges against Mr Kenyatta were dropped in 2014. The case against Mr Ruto was halted two years later, after prosecution witnesses recanted their testimony or simply vanished. The ICC judges refused to acquit him, citing evidence of witness intimidation and “intolerable political meddling”. They also made it clear that the case could be revived in the future.

There is no suggestion, of course, that Mr Khan, who will begin his nine-year term in June, did anything wrong in defending Mr Ruto. No issues have been raised about his other dodgy clients, who included Charles Taylor, a former dictator of Liberia, and Saif al-islam Qaddafi, the son of Libya’s former despot. Every defendant is entitled to a lawyer, and lawyers have a duty to represent their clients to the best of their ability. Nor is there any reason to believe that Mr Khan was anything but appalled that witnesses were intimidated. Indeed, judges in Mr Ruto’s case praised him for reporting allegations of witness-tampering to the police. Even so, human-rights lawyers and African activists say the Ruto case raises a number of questions.

The first is what Mr Khan would do if the Ruto trial were revived? Last November the ICC began hearings concerning a Kenyan lawyer, Paul Gicheru, accused of corruptly influencing witnesses preparing to testify against Mr Ruto. Even assuming that Mr Khan asks to be recused from all matters involving the Kenyan deputy president, as is routine in such matters, would a pall still be cast over the court? “It is not about bias but about the perception of bias,” says one Kenyan lawyer.

Rooting for Ruto

In this regard, Mr Khan has not always helped himself. Critics in Kenya believe that over the course of Mr Ruto’s trial he overstepped the boundaries of a legal advocate. In 2016, after the collapse of the case, he addressed a celebratory rally called by the ruling party at which Mr Kenyatta promised that no Kenyan would ever be tried before a foreign court again. In a television interview Mr Khan criticised the ICC’S prosecution, suggesting it was politically motivated and aimed at “regime change in Kenya” to install leaders “amenable to outside interests”. Mr Ruto, incidentally, is hoping to succeed Mr Kenyatta next year when constitutional term-limits apply. But he faces ferocious opposition and the campaign looks set to turn nasty. His tangle with the ICC may well be brought up.

Mr Khan’s strident conduct of the defence won him much admiration among Kenya’s ruling politicians. In turn he has them to thank for his new position. Mr Khan’s two predecessors were both appointed by consensus among the ICC’S members. In the middle of last year the ICC’S selection committee released a shortlist of four names that did not include Mr Khan’s. It appeared that the committee, backed by an independent panel of experts, had settled on Fergal Gaynor, an Irish human-rights lawyer, to replace Ms Bensouda. But Mr Gaynor is not popular in certain political quarters in Kenya, having represented victims of the post-election violence before the ICC. In July the Kenyan government objected, saying none of the candidates had enough managerial or diplomatic experience, and demanded that the selection process be opened up again. The committee duly complied, allowing Mr Khan and others such as Spain’s Carlos Castresana a late tilt at the job. In a secret ballot in which many African countries are understood to have rallied behind Kenya, he won 72 votes, ahead of Mr Gaynor’s 42.

For Mr Khan’s stint in office to be judged a success, he will have to show zeal and steel in pursuit of big-time human-rights abusers. George Kegoro, the executive director of the Kenya Human Rights Commission, an NGO, has doubts. He called the appointment a “major reversal” for international justice and warned that it would “break the court”. Mr Khan’s first challenge will be to provide the necessary assurance that the ICC will be able to protect future witnesses who testify against murderous bigwigs.

The fate of prosecution witnesses in Mr Ruto’s case hardly provides comfort to future whistle- blowers. Kenyan activists point to the fate of Meshack Yebei, a wheeler-dealer whose horribly mutilated body was found in early 2015. Mr Khan said that the murdered man was a vital defence witness whose death harmed his client’s case. About a year before Yebei was abducted and killed, however, he told journalists that he would no longer assist the defence and that he had important information for the ICC’S prosecutors. Mr Khan and the ICC did not respond to requests for comment from The Economist. But in a statement to Journalists for Justice, an NGO in The Hague, Mr Khan wrote that criticism of his record was to be expected in the “highly competitive process” of electing a new prosecutor, adding that he had asked for Yebei to be placed in the ICC’S witness-protection programme. “I did everything ethically within my power to ensure Mr Yebei and his family were safe,” he wrote. “Any prosecutor of the ICC must have thick skin... i am fortunate to have that thick skin.”

It would be unreasonable to expect Mr Khan to win over all his critics. But he could make a start at rebuilding trust in the ICC by looking at its past failures in protecting those who assisted it. Some Kenyan prosecution witnesses who remain anonymous today worry their lives could be at risk if their identities are ever revealed. “Everyone involved in that process is very worried,” says Mutula Kilonzo Jr, a Kenyan senator and lawyer. “They feel they are in a very dangerous situation.” Beefing up the court’s protection programmes to allay these fears ought to be Mr Khan’s first step. Only by looking backwards can he hope to ensure that future witnesses are able to put their faith in the court.

This article was culled from The economist where it was first published.