ICC’s bold move on Gaza warrants brings fresh scrutiny of Prosecutor Karim Khan

International Criminal Court (ICC) Prosecutor Karim Khan’s decision Monday to request arrest warrants not only for senior Hamas officials but for Israeli Prime Minister Binyamin Netanyahu and his defence minister, Yoav Gallant, for war crimes and crimes against humanity in the besieged Gaza Strip has shaken Israel’s supporters in Washington.

US President Joe Biden called Khan’s decision “outrageous”, slamming any attempt to draw an equivalence between the Israeli state and the Palestinian militant group. Secretary of State Antony Blinken called the decision "profoundly wrong-headed" and said the administration was willing to work with a Republican push in Congress to impose sanctions on ICC officials.

If ICC judges grant the requested warrants, 124 countries across the world – including every member of the European Union – will be obliged to arrest Netanyahu and Gallant on sight. It is the first time in the court’s history that a sitting Western-backed leader has been targeted by the international court in this manner.

While neither Israel nor the US are signatory members of the ICC, Washington has supported the tribunal’s actions in the past, including the arrest warrant for Russian President Vladimir Putin issued over Moscow's full-scale invasion of Ukraine.

Lutz Oette, professor of international human rights law at the School of Oriental and African Studies (SOAS) in London, said the ICC has long had to fight accusations that the court was more concerned with punishing the West’s enemies than holding all war criminals equal before the law.

“Since its early days, the court's legitimacy has been questioned because it had, for a considerable time, primarily focused on situations and cases concerning African countries, which had obvious colonial connotations,” he said. “Observers increasingly viewed the ICC as another legal tool in an unequal world, which enshrined Western hegemony, including through impunity for any of the international crimes alleged to have been committed by nationals of states such as the USA and the UK.”

Khan himself seems an unlikely figure to have challenged that impunity. A British barrister and King’s Counsel with more than 30 years’ experience working in international criminal and human rights law, Khan was elected as the ICC’s chief prosecutor in February 2021. Even before his election, Khan had become something of a fixture at the international criminal tribunals that sprang up in the wake of the atrocities that stained the latter half of the 20th century. Nor has he bound himself to one side of the courtroom or the other, appearing for both prosecution and defence, depending on the case at hand.

Among those that Khan has defended over the years are former Kosovo Liberation Army commander Fatmir Limaj; late Libyan leader Muammar Gaddafi’s son Saif al-Islam; former Liberian president Charles Taylor; and William Ruto, now president of Kenya.

Khan’s involvement in these last two cases ended abruptly. ICC judges declared a mistrial in the case of Ruto, charged with crimes against humanity for having allegedly incited violence following the 2007 election, after what was described as “witness interference and intolerable political meddling” by Kenyan officials. Taylor, who would later be found guilty of war crimes and crimes against humanity during Sierra Leone’s brutal civil war including murder, rape, terrorising civilians and sexual slavery, fired the court-appointed Khan, instead choosing to represent himself. Khan stormed out, the judge’s threats to hold him in contempt following him out of the courtroom.   

Speaking in 2021 with Shehzad Charania, then director and head of the London Attorney General’s Office, Khan said that he saw no difference between prosecuting a case and representing a defendant.

“It keeps one grounded and prevents corrosive traits such as thinking that defence counsel is the devil incarnate or that as a prosecutor you are doing ‘God’s work’,” he said.

Besides appearing for the prosecution in international tribunals investigating genocides in Rwanda and the former Yugoslavia, Khan also led a UN group investigating war crimes believed to have been committed by the Islamic State group.

He has also acted as counsel for victims, representing those most directly affected by the crimes of the people on trial. In Cambodia, Khan worked as victims' counsel in the trial of Khmer Rouge prison chief Kaing Guek Eav, better known by his alias Duch, who ran Phnom Penh’s infamous S-21 prison. More than 14,000 men, women and children – many of them themselves Khmer Rouge cadres accused of turning against the regime – are believed to have been held and tortured in the former school before being executed in what are now called the “killing fields” outside the capital.

Khan’s first years as the ICC’s chief prosecutor have not been without controversy. Months after his election, Khan – who was reportedly the favoured candidate of the UK and the US – announced that the ICC would be de-prioritising investigations into alleged US crimes against humanity in Afghanistan, instead turning the court’s limited resources towards investigating atrocities attributed to the Taliban and Islamic State group.

Critics have also accused Khan of doing little to advance an investigation into the deteriorating situation in the Palestinian territories opened by his predecessor just months before he took office. These same voices have pointed to the speed with which Khan sought – and received – an arrest warrant for Putin in March 2023 for Russia’s full-scale invasion of Ukraine as damning proof of the new prosecutor’s double standards.

“Against this background, there has been a long-standing demand for the ICC, and the prosecutor in particular, to take action against powerful, Western states, including Israel,” Oette said. “Critical voices viewed him as being biased in favour of Israel. By making the request for arrest warrants, he has responded to these accusations by taking action.”

But Khan’s decision to request arrest warrants for both Israeli and Hamas officials has brought a new wave of criticism crashing down on his head. Senior US Republicans’ threats to slap sanctions on ICC officials following Khan’s announcement echoes then president Donald Trump’s targeting of staff at the tribunal. In 2020, the Trump administration accused the ICC of infringing on US sovereignty by authorising an investigation into possible US war crimes committed in Afghanistan. A number of court staff, including then prosecutor Fatou Bensouda, were hit with asset freezes and travel bans – measures that would later be lifted in April 2021, after Biden’s election.

Oette said that any US sanctions imposed against ICC officials would likely be designed to bring the international tribunal to heel.

“The Trump administration imposed financial and travel sanctions against Khan's predecessor,” he said. “There appears to be considerable political pressure in the US to impose similar sanctions now. Such sanctions are designed to intimidate and punish the ICC officials, and the court overall.”

If the US were to impose new sanctions, he said, the embattled tribunal could find itself on trial in the court of international opinion.

“There is a risk that sanctions influence decision-making when it comes to further arrest warrants,” Oette said. “Conversely, the prosecutor and the court as a whole struggle with a legitimacy deficit, and need to show that they are truly independent and international.”