ICC chief can’t be trusted to put Israeli war criminals on trial

David Cronin

The Electronic Intifada  / October 2, 2023 

Will the International Criminal Court ever stop playing games ?

Last December, Karim Khan – its chief prosecutor – stated that he had a “goal” of visiting Palestine this year.

It is now October and Khan still has still not undertaken such a trip.

When I contacted the court asking if one had been scheduled, Khan’s office replied that it is “making every effort to achieve this objective.”

The ICC’s refusal to answer a simple question with a “yes” or a “no” is symptomatic of a bigger problem. While Khan may sometimes throw a few crumbs towards Palestinians, he is in no rush to deliver anything that resembles justice.

An examination of the circumstances under which Khan landed his current job may explain his nonchalance.

Formally nominated for the post by Britain, Khan won a vote held at the United Nations headquarters in New York on 12 February 2021.

Exactly one week earlier, ICC judges gave the green light for an investigation into war crimes carried out in the occupied West Bank (including East Jerusalem) and Gaza.

Boris Johnson was Britain’s prime minister when his government nominated Khan.

In April 2021, Johnson responded to grievances about the ICC expressed by the lobby group Conservative Friends of Israel.

Britain wished to “bring about positive changes” at the ICC, Johnson wrote, claiming that Khan’s appointment as chief prosecutor “will help serve reform.” Johnson then stated, “We oppose the ICC’s investigation into war crimes in Palestine.”

I submitted a freedom of information request to the Foreign Office in London, inquiring if Britain had any particular deal with Khan. “The British government did not conclude an agreement with Mr. Khan ahead of his nomination,” the Foreign Office stated.

Perhaps the Foreign Office is telling the truth.

Perhaps it was deemed unnecessary to specify in writing what Britain expected from Khan.

‘Political antennae’

A British attorney who then had the formal title given to senior lawyers of “queen’s counsel,” Khan is very much part of the establishment. So it was unlikely that he was going to act against Britain’s perceived interests.

And regardless of whether it had a formal deal with Khan, Britain voiced its confidence in him. The official British statement of nomination praises Khan’s “political antennae.”

Khan’s main rival for the post of the ICC’s chief prosecutor was Fergal Gaynor, an Irish lawyer.

In his job application, Gaynor mentioned that he had been “lead counsel for a group of Palestinian victims” during proceedings at the ICC in 2020. Those proceedings paved the way for the announcement the following year that the court was opening its Palestine investigation.

Would Gaynor have moved that investigation forward if his candidacy for the chief prosecutor post proved successful? It is impossible to say.

Still, it is noteworthy that Britain – with a government hostile to the very idea of holding Israel accountable for its crimes – threw its weight behind Khan, knowing that his main rival (Gaynor) had been instrumental in securing an investigation into those crimes.

What we do know for certain is that Khan has generally avoided saying anything in public about Palestine since assuming the post of the ICC’s chief prosecutor.

‘Sorry I’m busy’

In May this year, Al Jazeera’s Kristen Saloomey approached Khan, asking whether the ICC would examine Israel’s killing of her colleague Shireen Abu Akleh 12 months prior.

Khan’s response? “Sorry I’m busy.”

His reticence on Israeli aggression contrasts with the strident approach he has taken toward Russia’s invasion of Ukraine.

Not only did the ICC open within a few weeks following the February 2022 invasion, it issued an arrest warrant for Vladimir Putin, the Russian president.

That was lightning speed considering it took the court years to finally decide to formally open an investigation on the situation in Palestine, a probe that has not produced a single indictment and generally appears stalled.

Although the US has rejected the ICC’s founding document, the Rome Statute, it is assisting the court’s Ukraine probe.

That probe is being headed by Brenda Hollis, a retired colonel with the US Air Force.

Holding the rank of colonel with a military that is notorious for waging unprovoked wars should automatically disqualify someone from being a war crimes investigator.

Why does the ICC drag its heels on investigating Israel yet take swift action when Russia attacks Ukraine?

When I asked the court for an explanation, Khan’s office stated that he “put in place a dedicated team to advance the Palestine investigation” upon taking up his job as prosecutor.

Khan’s office had requested “additional resources” from governments backing the ICC in 2022. The office added that it is “again seeking a significant increase in resources in its budget for 2024 for a number of situations, including the situation in the state of Palestine.”

That sounds ominous.

Far from being a genuinely independent prosecutor, Khan is at the mercy of donors.

Britain – a state which wants to shield Israel from scrutiny and constantly acts as a lapdog for the US – is among the court’s top four funders.

Citing financial constraints, Khan has made a blatantly partisan intervention into the ICC investigation on Afghanistan.

The result is that the investigation will only focus on the West’s enemies – the Taliban and Islamic State. The US will get away scot free with violence inflicted on Afghan civilians over a period of two decades.

What exactly did the British government mean when it praised Khan’s “political antennae”? Was it saying that he could be trusted not to embarrass the West – a region to which Israel claims attachment?

If Karim Khan struggles to attain such a basic goal as visiting Palestine, it seems extremely unlikely that he will put Israel’s war criminals on trial.

David Cronin is an associate editor of The Electronic Intifada; his books include Balfour’s Shadow: A Century of British Support for Zionism and Israel and Europe’s Alliance with Israel: Aiding the Occupation