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Can’t Khan can? Ruto lawyer now succeeds Bensouda as ICC top prosecutor

By Kamau Muthoni | June 17th 2021

Deputy President William Ruto's lawyer during the ICC cases Karim Khan during a media briefing in Nairobi on April 6, 2016.[Jonah Onyango,Standard]

Deputy President William Ruto’s lawyer Karim Khan has finally taken over from Fatou Bensouda as the new Chief Prosecutor for the International Criminal Court (ICC).
The 51-year-old Briton replaces Bensouda for a nine-year term and all eyes will be on him as he has lawyer Paul Gicheru’s file in his in-tray. Gicheru is wanted by the ICC for allegedly influencing witnesses ICC had lined up against Ruto and journalist Joshua arap Sang.

In his inaugural speech, the new prosecutor said he wants to bring back accountability and hopes to work with countries that are not among the 123 members bound by the Rome Statute. 

“The priority for me, and I believe that’s the principle of the Rome Statute, is not to focus so much on where trials take place, but to ensure that the quest for accountability and inroads on impunity are made,” Khan said.

“My conviction is that we can find common ground in the quest and in the imperative to ensure we eradicate genocide, crimes against humanity and war crimes.”

Not only will Khan’s reign as top prosecutor of international crimes and crimes against humanity draw scrutiny, but his decision on whether Kenya’s cases should be re-opened or closed eternally will also be a burden to deal with.

ICC left the cases against President Uhuru Kenyatta and Ruto open despite dropping the charges.

Khan beat three other candidates by garnering 72 votes from the 123-member states and was largely pushed by Kenya. He was not on the initial shortlist but in the end, he surpassed the required votes by 10.

He beat Fergal Gaynor of Ireland by 42 votes, Spain’s Carlos Castresana Fernandez by five, and Francesco Lo Voi of Italy by three. One member did not vote.

In her farewell speech, Bensouda said for one to be effective in that office, fidelity to the law should be the bottom line.

“To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions must be based solely on the law and the evidence. During my tenure, I have done my utmost to live by these convictions in the service of the Rome Statute, without fear or favour,” stated Bensouda, reflecting on her mandate.

Khan’s first task is to increase the legitimacy of the court as more countries view it as political machinery. The voice is louder in Africa, whose perception is that the court’s only focus is on its leaders and not those in the West and first world countries.

There is also the Israel-Palestinian conflict in Gaza and the relationship with the United States of America, which he will have to crack. Former US President Donald Trump slapped Bensouda with a travel ban and assets freeze over inquiry on US forces war crimes in Afghanistan.

Kenya wrote to the president of Assembly of State Parties Ogon Kwon last year objecting to lawyers Gaynor and Morris Anyah’s candidature, casting doubt on their independence. The two represented victims of the 2007-2008 post-election violence. 

Kenya’s Ambassador to the Netherlands, Lawrence Lenayapa, in his letter dated July 13, 2020, argued that the two should not be considered as they have been engaged in a case before the court.

“We note that some of the candidates have served as legal representatives of parties in active situations… It would be prudent for State Parties to settle for a candidate who would not have to recuse himself from some of the most challenging cases pending before the court,” Lenayapa wrote. He continued: “This would undoubtedly weaken the stature of the office of the prosecutor.”

Gaynor was the victims’ representative when the ICC withdrew crimes against humanity charges against President Kenyatta. His statement, after the withdrawal, maybe the reason Kenya was jittery over his qualification. He said the decision was a disappointment to over 2,000 victims of crimes committed during the poll chaos.

Gaynor hails from Ireland and is a prosecutor in Cambodia.

Meanwhile, Anyah quit representing victims amid protests over the trial court judges limiting the victim’s representation during the trial.

“A prosecutor should command the respect of the judges, inspire the confidence of its own staff and build the confidence of states and victims. At a time when the court is faced with many difficulties, we need to work together to elect a candidate who will strengthen and build confidence in the office of the prosecutor,” Lenayapa continued.

Kenya also wanted two more shortlisted candidates - Susan Okalany, who is a High Court judge, and Richard Roy, who is a judge at the same court to be disqualified.

The ambassador said Roy cannot sit as a prosecutor as the current Deputy Prosecutor is from his country, Canada.

Khan has been leading a team set up to investigate allegations of genocide, crimes against humanity and war crimes committed by the Islamic State group in Iraq.

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