On June 8, the Bureau of the Assembly of States Parties of the International Criminal Court (ICC) announced a decision to suspend Chief ICC Prosecutor Karim Khan and to refer Khan to a special Session of the full Assembly of States parties for disciplinary proceedings.
Already under fire from U.S., UK, and Israeli officials, spy agencies, and proxies designed to intimidate Khan out of pursuing Israeli perpetrators for crimes in Palestine, Khan was accused in May of 2024 by a third party (not by an alleged victim) of workplace sexual misconduct and had gone on leave pending multiple levels of investigation. Khan was reportedly informed of the case against him just as he was preparing to announce arrest warrants for the Israeli Prime Minister and former Defense Minister. The warrants were nevertheless announced just days later.
The allegations against Khan (who denies the allegations) were investigated by the Court’s own independent Oversight Mechanism, which considered and closed the case due to lack of evidence and the absence of a complainant or cooperation from any alleged victim. The Bureau nevertheless referred the case for further fact finding by the UN Office of Internal Oversight (OIOS), and, ultimately, to an independent and impartial Judicial Panel appointed by the Bureau itself to determine whether misconduct had occurred.
OIOS produced its confidential report, which largely recorded the allegations and counterclaims, but reportedly “did not make conclusive factual findings of sexual misconduct or retaliation.” The Judicial Panel then reviewed the allegations and the OIOS findings of fact, and issued its decision in March of this year, unanimously concluding that the facts “did not establish misconduct or breach of duty under the relevant legal framework.”
Nevertheless, the political Bureau of states, led by Western governments, decided in April to disregard the results of the investigation and to proceed with a disciplinary process, further delaying the Prosecutor’s return to his duties, and has now issued this second decision referring Khan to the full Assembly for disciplinary proceedings.
In issuing these decisions, the political Bureau has stunned Court followers and campaigners for justice in genocide-ravaged Palestine for its open disregard for the findings of investigative bodies, its demonstrable procedural irregularities, the appearance of political bias, and a decade-long context of dedicated efforts by Israel, the U.S., the UK and other Western states to buttress Israeli impunity and to obstruct ICC justice on the Palestine case. Observers suspect that the obstruction campaign against Khan for his pursuit of Israeli perpetrators and the contemporaneous issuance of these decisions are more than just coincidental.
A political decision
The Bureau’s action is highly irregular and deeply inappropriate on its face. This is a small, political body, it lacks the expertise or independence to make quasi-judicial determinations or to overrule the findings of competent investigative and judicial bodies, it has had to invent new procedures of questionable legitimacy to interfere in this way, it is not representative of the full membership of the ICC, and its membership is heavily weighted in favor of the Israeli regime and its U.S. sponsor. Indeed, more than three-quarters of the Bureau members are aligned with the U.S. and Israel over Palestine. Importantly, members of the Bureau are not independent experts. Rather, they represent their respective states in the body.
The 21-member Bureau is headed by a European President (Finland) and includes a total ten European and Western Group members: Belgium, Bosnia and Herzegovina, Cyprus, Finland, Italy, Latvia, Poland, Slovenia, Switzerland, and New Zealand; two close U.S. allies in Asia (Republic of Korea and Japan); close Israeli and U.S. ally Kenya; Chile, currently led by Trump-inspired, far-right and openly Zionist President José Antonio Kast (who has publicly opposed the ICC for pursuing Israeli regime perpetrators); pro-Israel and Trump-aligned Ecuador; and the newly pro-Israel government of Bolivia.
That leaves only Brazil (though Brazil voted in favor of the original decision of the Bureau), Senegal, Sierra Leone, South Africa, and perhaps Uganda (although its growing ties with the Israeli regime are cause for concern) to respond to the U.S.-Israel and broader Western assault on the court in defense of the Israeli regime. Once again, Africa (including South Africa) is left to hold the line for international law, just as it has done across town in the Hague in the case against Israel for genocide in the International Court of Justice, as the West deepens its complicity in Israeli crimes and impunity.
Of course, regional affiliation is not a perfect indicator of voting records, but it is a generally reliable indicator. In an earlier stage of the process this past April, a decision by the Bureau to proceed with disciplinary action despite the findings of the panel of judges that reviewed the case was supported by Belgium, Bolivia, Brazil, Chile, Cyprus, Ecuador, Finland, Italy, Japan, Latvia, New Zealand, Poland, Slovenia, South Korea, and Switzerland. It was opposed by Senegal, South Africa, Kenya, and Sierra Leone, with abstentions by Bosnia and Uganda.
A context of obstruction
The decision comes as just the latest obstacle placed in the way of the ICC case against Israeli perpetrators. Most significant in this regard has been an organized campaign of obstruction and intimidation led by the U.S., UK, and the Israeli regime itself.
Indeed, Khan himself was nominated by the UK and elected as prosecutor with strong Western support, in part for his assurances that he would prioritize cases referred to him by the Security Council, effectively therefore excluding cases against perpetrators from Western powers and Israel (as well as China and Russia). Western countries were thrilled when cases were initiated against Russian officials but outraged when Khan proceeded on the case of Palestine.
That campaign has included a decade of surveillance and interference from Israeli spy agencies, pressure and smear campaigns launched by Israel proxy groups in the West, direct intimidation from UK government officials, and official sanctions imposed by the U.S. on Khan and other ICC officials. The U.S. had even passed legislation (nicknamed “The Hague Invasion Act”) allowing for military intervention in the seat of the Court in the Netherlands in case of the arrest and prosecution of perpetrators from the U.S. or its allies (notably, Israel).
And, for a time, it worked. It took almost a decade for the ICC to act on atrocities in Palestine after a file was initially opened through a preliminary investigation in 2015. Khan himself, appointed in 2021, dragged his heals on the Palestine file until May of 2024, finally taking action only when the live-streamed genocide in Gaza and contrasting decisive prosecutorial action on the Russia/Ukraine file made further inaction on the crimes of the Israeli regime politically and reputationally untenable.
The storm that has followed, bringing the full fury of the Israeli regime, its proxies, and its sponsors in Washington and London, has already succeeded in many of its nefarious aims. The cases against Israeli fugitives from justice like indicted perpetrators Benjamin Netanyahu and Yoav Gallant have been delayed. The issuance of further warrants for other Israel regime perpetrators appear stalled. The energy of the Court, its sanctioned judges and officials, and its Office of the prosecutor has been drawn away from their mandate to pursue justice for the victims of war crimes, crimes against humanity, and genocide, and into the defense of besieged court personnel and the institution itself.
Connecting the dots
All allegations of sexual misconduct, workplace harassment, or abuse of power must be fully investigated, with full respect for due process, and due regard for the rights of accuser and accused alike. However imperfect the process, that is precisely what happened in this case. An internal review, followed by an OIOS fact finding, followed by a decision by an independent and impartial Judicial Panel, have all been concluded. All parties have been heard. All evidence reviewed. The Judicial Panel has concluded that the facts “did not establish misconduct or breach of duty under the relevant legal framework.”
Beyond the serious impacts on the parties to this case, enormous collateral damage has been suffered by the Court, the Office of the Prosecutor, its personnel, and the cause of justice for long-delayed cases. To extend that delay, and to impose yet further costs by allowing political interference in a matter resolved by an independent judicial body, would be indefensible at this stage. Barring the production of any new evidence of misconduct (not allegations, but evidence), the case should be closed, and the Office of the Prosecutor restored to full capacity.
Otherwise, the decision by the Bureau of the Assembly of States Parties (a political body dominated by Western states and their allies) to suspend ICC Prosecutor Khan, despite the exculpatory findings of the judicial panel that reviewed the case, will inevitably be seen as just the latest step in a long campaign by the Israeli regime and its U.S., UK, and other allies to obstruct, delay, and punish the Prosecutor and the Court for their attempts to hold Israeli regime perpetrators to account, and to send a message to judges and future prosecutors: ‘challenge the Israeli regime or Western powers and we will crush you.’ And what is certain is that, should they succeed in removing Khan, Western states would use all their power to ensure that his replacement is someone who will not follow through on the prosecution of Israeli perpetrators (nor on US and UK perpetrators of abuses in the war on Afghanistan).
Today, the ICC is in crisis. When it convenes in special session to review the case, the full Assembly must overturn this improper action by the Bureau and take concrete steps to protect the court and prosecutors from Israeli, U.S., and Western persecution. This includes protection from U.S. sanctions, UK intimidation, Israel proxy smear campaigns, spying and surveillance, and all efforts to otherwise obstruct justice. To avoid further damage to the reputation of the Court, the Palestine case should be given urgent priority, thereby demonstrating to victims and perpetrators alike that interference in the course of justice will not succeed. And ICC office policies on sexual misconduct should be reviewed and strengthened, with a focus on prevention, the avoidance of even the appearance of impropriety, due process for those accused, and protection for all staff and associated personnel from abuse of power.
If they fail to do so, the still nascent ICC may well wither and die on the vine, and with it, any hope of universal institutions of justice and criminal accountability in our time.
Craig Mokhiber
Craig Mokhiber is an international human rights lawyer and former senior United Nations Official. He left the UN in October of 2023, penning a widely read letter that warned of genocide in Gaza, criticized the international response and called for a new approach to Palestine and Israel based on equality, human rights and international law.
