Over hundred scholars, practitioners of law, international law and politics have voiced serious concerns over the integrity of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC).
In an open letter addressed to the assembly of State Parties published on December 6, legal scholars and experts raised alarm over what they perceive as a troubling erosion of impartiality and non-discrimination under the leadership of Chief Prosecutor Karim Khan. The signatories express concerns that the international community is currently witnessing questionable decisions on the situation in Palestine, marked by significant delays, a lack of responsiveness, and policies indicative of understaffing and under-resourcing.
On 30 November, the ICC announced that Khan was “visiting Israel at the request and invitation of survivors and the families of victims of the 7 October attacks,” and issued a statement stressing the importance of upholding international law. Khan spoke with the families who requested his visit and toured “scenes of calculated cruelty” in southern Israel.
The ICC prosecutor expressed outrage about Hamas’s attacks on Israeli civilians, the taking of hostages to Gaza, escalating settler violence in the West Bank, civilian casualties and attacks on civilian infrastructure in Gaza and Gaza’s acute need for humanitarian aid. He also said that his office was committed to a thorough investigation of possible crimes under the Rome Statute and that international law should protect everyone.
The legal scholars questioned the purpose of Khan’s visit, stating that the Prosecutor explicitly asserted that the visit that was carried out “without a publicly accessible agenda or transparent funding, is non-investigative,” and mainly to “express sympathy and engage in dialogue,” fell outside of his mandate as a prosecutor. “A lack of transparency also shrouded his subsequent visit to Ramallah. These raise serious concern about the OTP’s commitment to its mandate underlying which are the principles of non- discrimination, and impartiality,” the letter read.
The letter noted that the ICC prosecutor has insisted several times on describing Palestinian population and victims in Gaza as civilians “caught in the crossfire”, seemingly concluding that the Israeli military’s conduct of hostilities has respected the principles of “distinction” and “proportionality”. This framing, the letter underscored, has formed the core of the Israeli official discourse since the 7 October, but also during the 2014 Gaza War.
ICC’s Khan has been under severe criticism from human rights organization over what they said was a “prolonged delay” in Khan’s direct engagement with victims, especially in Gaza.
The Palestinian BDS National Committee (BNC) accused Khan of complicity in enabling genocide in Gaza by failing to issue arrest warrants or even issue statements aimed at deterring the commission of crimes against humanity. The Committee also called on all states “to push for sacking” Khan during the Assembly of States Parties to the Rome Statute that is currently underway in New York City.
Other rights groups Al Mezan Center for Human Rights, Al-Haq, and the Palestinian Centre for Human rights further noted that Khan had “not been available” to meet with Palestinian victims and their legal representatives, saying “numerous requests” had been made since he assumed his post in June 2021.
As noted by three prominent Palestinian human rights groups, that announcement was accompanied by a photo of Khan standing in East Jerusalem, which was annexed by Israel in contravention of international law.
“Our organizations and Palestinian victims have continuously requested the Prosecutor to visit Palestine, emphasizing the necessity for firsthand engagement. The absence of such interaction raises serious concerns about the perceived disparity, impartiality and lack of transparency in the Prosecutor’s engagements,” the rights group said, adding: “Recognizing the Prosecutor’s responsibility for fair and comprehensive investigations, it is paramount to prioritize direct engagement with those affected by the alleged crimes.”
Israel is not a member of the Hague-based ICC and does not recognize its jurisdiction. But Khan in October stressed his court had jurisdiction over potential war crimes carried out by Hamas militants in Israel and by Israelis in the Gaza Strip. The ICC has had an ongoing investigation in the occupied Palestinian territories into possible war crimes and crimes against humanity there since 2021.