With Karim Khan's dismissal, the elimination of the war crimes court is near-complete

Millions of people around the world will now find themselves even more exposed to the criminal actions of predatory states. Unlike Khan's accuser, they are unlikely to ever get their day in court

The most important question we should be asking after Karim Khan’s dismissal last week as chief prosecutor of the ICC – the international war crimes court in The Hague – is not whether he is guilty of “sexual misconduct” against another staff member, identified as “Sarah”.

That can only be decided through a legal process – one, let us note, that has already taken place. A fact-finding body carried out a lengthy investigation of Sarah’s allegations over more than a year; its thousands of pages of evidence were then evaluated in detail by three senior judges.

Though you would not know it from the media coverage, they concluded that there was no evidence to suggest any kind of misconduct by Khan, sexual or otherwise.

Strangely, that determination was largely confirmed by an extraordinarily deferential “exclusive” CNN interview with Sarah, aired earlier this month.

She declined to give any meaningful details of what Khan had allegedly subjected her to, and celebrity interviewer Christiane Amanpour delicately avoided pressing her for any clarification.

No matter. The purpose of the CNN interview was never about excavating facts. It was designed to offer face-saving cover as an entirely political body called the Assembly of States Parties, comprising diplomatic representatives of the 125 states signed up to the ICC, entirely ignored the legal findings and dismissed Khan.

Paradoxically, it was the Assembly of States Parties that appointed the judges who had concluded that there was no evidence of misconduct or breach of duty by Khan. That inconvenient judgment was simply reversed, despite the Assembly members being in no position to weigh the evidence themselves.

We should not forget that many of these states have an investment in weakening the only international court that can bring their own senior officials to trial for war crimes.

In May 2024 – shortly before Sarah made her allegations – the ICC demonstrated that it was finally ready to prosecute western leaders for war crimes, not just those from the Global South or from the West’s official enemies, such as Russia’s Vladimir Putin.

Khan issued an arrest warrant for Israeli prime minister Benjamin Netanyahu and his former defence minister Yoav Gallant. Both are accused of crimes against humanity for starving the people of Gaza through a prolonged blockade of food, water and power.

Were Netanyahu ever to face trial – and found guilty, as he almost certainly would be – a lot of other leaders would have good reason to fear they might be found culpable next, not least for their complicity in Israel’s mass slaughter of Palestinians in Gaza.

The question that needs answering now is not whether Khan is guilty of misconduct – that has been decided at a political level, not a legal one. No, we need an answer to an equally political, and far more troubling, question.

“Cui bono?” Or “Who benefits?”

The evidence is hiding in plain sight. The evidence is revealed both in the deeply politicised process that led to Khan’s downfall, and in what that process means for the future of the court.

Covert war

Khan is not the first ICC chief prosecutor to face extreme pressures – and, as with Khan, those pressures surfaced at the very moment Khan’s predecessor tried to take on Israel over its war crimes.

Fatou Bensouda faced a “covert war” waged against her by Israel for the best part of a decade, according to an investigation by the Guardian in May 2024, just as Khan issued his arrest warrant for Netanyahu.

The Guardian’s report, published nearly three years after Bensouda had completed her nine-year term at the ICC, revealed that, during that time, she had faced threats to herself and her family, the monitoring of her communications, and an intimidating visit to her home.

More recently, Bensouda has confirmed these accounts in an interview with Al Jazeera. Bensouda notes that she repeatedly reported Israel’s campaign of intimidation to the Dutch authorities, but they did nothing to investigate the threats or protect her.

She also says certain “authorities” – she does not name them – warned her that she was going too far in investigating Israeli crimes and that “you could be harmed or you could be killed, or family members could be harmed in some way.”

The campaign of threats – instigated by Yossi Cohen, then the director of Israel’s spy agency, Mossad – intensified as Bensouda considered whether to open a formal investigation into Israeli war crimes and crimes against humanity in the illegally occupied Palestinian territories.

Israel’s crimes against the Palestinian people, we should remember, predate – by decades – Hamas’ attack on 7 October 2023. In fact, though no one is supposed to mention it, Israel’s sustained crimes of occupation are the self-evident cause of that Hamas attack.

An Israeli source told the Guardian that “the Mossad’s objective was to compromise the prosecutor or enlist her as someone who would cooperate with Israel’s demands”– that is, scrap the ICC’s investigation into Israeli crimes. Another source admitted that Cohen was acting on Netanyahu’s instructions.

During one contact, Cohen reportedly issued a Mafia-style threat to Bensouda: “You don’t want to be getting into things that could compromise your security or that of your family.”

The Guardian reported that the Mossad “took a keen interest in Bensouda’s family members and obtained transcripts of secret recordings of her husband, according to two sources with direct knowledge of the situation. Israeli officials then attempted to use the material to discredit the prosecutor”.

The paper also noted that there were fears among senior ICC officials that “Israel had cultivated sources within the court’s prosecution division” – the division Khan would inherit from Bensouda.

Cohen was described as “stalking” Bensouda, and personally “ambushed” her in a hotel room in New York in 2018. Afterwards he repeatedly phoned her, in a threatening manner that was said to have escalated over time. When Bensouda asked Cohen how he had obtained her phone number, he reportedly replied: “Did you forget what I do for a living?”

According to the Guardian:

On one occasion, Cohen is said to have shown Bensouda copies of photographs of her husband, which were taken covertly when the couple were visiting London. On another, according to sources, Cohen suggested to the prosecutor that a decision to open a full investigation would be detrimental to her career.

Between 2019 and 2020, the Mossad had been actively seeking compromising information on the prosecutor and took an interest in her family members.

The spy agency obtained a cache of material, including transcripts of an apparent sting operation against her husband.

Israel used the materials to mount a “smear campaign” against her, but one that ultimately proved unsuccessful.

Concerted backlash

When Khan took up the role of ICC chief prosecutor in June 2021, he proved reluctant to pick up where Bensouda had left off on the Palestine case. Presumably, he was only too aware of the retaliation from Israel against her.

Bensouda had announced in December 2019 that she had grounds to open a full criminal investigation into allegations of war crimes in Gaza, the West Bank and East Jerusalem.

However, in the face of a concerted backlash from western states, she delayed opening the investigation. She first sought a ruling from a pre-trial chamber of ICC judges – presumably in the hope it would serve as some kind of insurance policy – on whether the court had jurisdiction over the occupied Palestinian territories.

By February 2021 the judges confirmed what was already self-evident. The court did have such jurisdiction because Palestine had been signed up to the court since 2015.

Bensouda stepped down a few months later.

The door was now open for Khan to prosecute Israeli officials for war crimes. However, the new chief prosecutor gave every appearance – perhaps understandably – of preferring to sit on his hands.

It was not just Israel that had been fearsomely opposed to its officials being tried for war crimes. Washington was equally incensed at the prospect – sometimes, it seemed, more so than over the possibility that US officials might also face arrest warrants for crimes committed by the US military in Afghanistan and Iraq.

Between 2019 and 2020, during Trump’s first presidency, the US imposed severe visa restrictions and financial sanctions on Bensouda. Mike Pompeo, then US secretary of state, linked the sanctions to the Palestine case: “It’s clear the ICC is only putting Israel in [its] crosshairs for nakedly political purposes.”

Khan might well have avoided pursuing Israel indefinitely had it not been for the events that followed 7 October 2023.

Israel’s mass slaughter of Palestinian civilians in Gaza, its devastation of the enclave’s homes and infrastructure, and its starvation of the entire population were actions so criminally abhorrent that UN agencies, major human rights groups and Holocaust scholars were soon all in agreement that they amounted to genocide.

In May 2024, Khan announced arrest warrants against Netanyahu and Gallant, as well as three Hamas leaders subsequently killed by Israel.

Tsunami of threats

Shortly before Khan made that announcement, 12 senior US Senators had sent a threatening letter to the ICC: “Target Israel and we will target you.” The letter ended: “You have been warned.”

Describing Israeli and US sovereignty as inseparable, the senators reminded Khan that Washington had demonstrated “the lengths to which we will go to protect [our] sovereignty.”

A 2002 law, popularly known as “The Hague Invasion Act”, authorises the US president “to use all means necessary and appropriate” to bring about the release US persons and any allies imprisoned or detained by the ICC. Those allies, it goes without saying, include Israeli leaders.

Such threats, it should be noted, are a violation of Article 70 of the Rome Statute.

Following the issuing of the arrest warrants, there followed a tsunami of similar threats – and presumably more that have yet to become public – against Khan and the ICC.

A British-Israeli lawyer within the ICC – one known to have ties to Netanyahu’s legal adviser – warned Khan "they will destroy you and they will destroy the court" if the warrants were not rescinded. He urged Khan to “climb down the tree" and drop the case.

The UK’s foreign secretary of the time, David Cameron, phoned Khan to tell him Britain would defund the court and withdraw from the Rome Statute that founded the ICC if Khan did not back down.

Cameron warned Khan that he was “on the brink of making a huge mistake” and urged him to “take a step back and consider things”. He added that applying for arrest warrants for Israeli officials was tantamount to “dropping a hydrogen bomb”.

Meanwhile, Trump issued an executive order imposing aggressive financial sanctions against Khan and other ICC officials, including several of its judges.

Khan himself received warnings that Israel’s Mossad was continuing its operations in The Hague, where the ICC is located, to monitor and compromise the court’s investigators as they compiled evidence on Israel – just as it had done earlier under Bensouda.

Khan publicly stated that retaliatory threats and intimidation were explicitly targeting members of his own family.

Untouchable criminals

What conclusions should we draw from all of this?

Quite aside from the matter of whether Sarah’s allegations of “sexual misconduct” are true or not, it is clear that Israel and the US have been digging for dirt – and apparently ready to fabricate such dirt – on any chief prosecutor who tries to hold them to account for their crimes.

Both have indicated that they are ready to manipulate legal and political processes to ensure the outcome they desire: that they remain untouchable.

We have a template for how this plays out. Julian Assange, founder of the whistle-blowing site Wikileaks, published details in 2010 of US and British war crimes in Afghanistan and Iraq. Almost immediately he found himself entangled in accusations of sexual misdemeanours – in his case in Sweden – that were similarly amplified by an uncritical western media.

Assange faced years in various forms of confinement while the US and UK pressured Sweden to keep alive an investigation against him Swedish prosecutors at least twice sought to drop for lack of credible evidence.

In fact, the US and UK never wanted the evidence tested – they were quite happy with a permanent, unresolved “investigation” – precisely because they knew it would have been unlikely to withstand judicial scrutiny.

The point was simply to generate constant headlines about “rape”, turning Assange into a pariah, justifying his effective disappearance from public life, severely weakening Wikileaks as a whistleblowing platform, deflecting attention from the all-too-real crimes committed by the US and Britain, and paving the way to a political show trial to extradite him to the US on entirely confected “espionage” charges.

This has been repeated in the case of Khan and the ICC. In Khan’s case, the evidence was tested and found inadequate. So the legal process has been replaced by a flagrantly political one.

Khan has been turned into a legal pariah, even stripped of his right to work as a lawyer in the UK by the British Bar Association.

The ICC has been further weakened, just as Israel and the US have expressly stated they wanted it to be. Marco Rubio, Trump’s secretary of state, has recently launched an official campaign to dismantle the ICC “brick by brick”.

He says: “Now they [the ICC] are going to see the consequences”. Consequences of what? Of seeking to enforce international law against a key US client state.

Meanwhile, accountability for the all-too-real crimes being committed by Israel in Gaza, Lebanon and the West Bank – and actively supported by western states like the US, Germany and Britain – recedes yet further into the background.

As each brick protecting the ICC is dismantled, a brick is added to the wall of protection around Netanyahu and Israel’s genocidal war machine.

Israel, meanwhile, is barely concealing that it has been masterminding the effort to destroy the ICC.

According to Guy Azriel, the diplomatic correspondent for i24 News, Israeli foreign Minister Gideon Sa’ar “oversaw a dedicated task force and employed intensive diplomatic efforts aimed at securing Khan’s removal from office”.

Hillel Neuer, director of the Israel apologist group United Nations Watch, cheered what he called “our campaign to remove” Khan, and warned Francesca Albanese, the UN’s legal expert on the occupied Palestinian territories, “you’re next”.

Like Khan, Albanese has been searching for practical, legal ways – not just rhetoric – to hold Israel and its western allies to account for the crimes in Gaza.

Predatory states

The ICC claims its work will not be affected by Khan’s removal and that the arrest warrants against Netanyahu and Gallant will still be pursued under new stewardship. That seems doubtful.

Israel and the US are cranking up the intimidation of the ICC, which has no tools – beyond the support of members states – to enforce its rulings or protect itself from the hostility of a rogue superpower.

Currently the court appears paralysed, allowing Israel to muddy the waters with interminable, and vexatious, appeals against the arrest warrants.

Any lawyer who takes up the post of ICC chief prosecutor will be only too aware of the fate that befell Khan and the campaign of intimidation against Bensouda as soon as each tried to enforce accountability on Israel and its western patrons.

It will take a very brave individual indeed to renew that task. Khan’s successor will understand that, in any further confrontation with Israel and Washington, the US will not hesitate to crush the ICC and, with it, remove the only effective restraint on criminality by powerful states.

More likely, however, the Assembly of States Parties – the political body that ousted Khan – will privately require from his successor reassurances that the new chief prosecutor reliably defer to the principle of Israeli and western impunity. Only someone less willing to ruffle feathers stands any chance of being appointed.

That was the clearest of messages sent by the Assembly when a majority of member states voted to be rid of Khan. The short-lived experiment in creating a mechanism for enforcing international law is over. We are back to the law of the jungle.

Hundred of thousands of people around the world – more likely millions – will now find themselves even more exposed to the criminal actions of predatory states. Unlike Khan’s accuser, they are unlikely to ever get their day in court.

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