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Ruto’s former lawyer Khan now in charge at ICC

By Kamau Muthoni and Nzau Musau | February 14th 2021

Deputy President William Ruto with his lawyer Karim Khan and Joshua Sang at the ICC. [File, Standard]

Lawyer Karim Khan, the fast-talking Queen’s Counsel lawyer who represented Deputy President William Ruto in the International Criminal Court (ICC), is the new court’s prosecutor.

Given to verbose and dropping phrases, Khan was elected by Assembly of State Parties for a nine-year term, replacing Gambian Fatou Bensouda. The court’s first prosecutor was Louis Moreno Ocampo who initiated the Kenyan cases.

His position now puts him at the centre of a raging storm with regard to the situation of lawyer Paul Gicheru, who surrendered to the court, and who had been accused of witness interference by his predecessor. Gicheru’s witness interference case relates to Khan’s former client, Ruto.

Khan beat three other candidates by garnering 72 votes out of the 123 member states and was largely pushed by Kenya. He beat Fergal Gaynor of Ireland, who was the victims’ lawyer during the Uhuru-Ruto trial.

Gaynor managed 42 votes, Spain’s Carlos Castresana Fernandez (five votes) and Francesco Lo Voi of Italy with three votes. One member did not vote.

Khan would have sailed through unopposed but Mauritius and Spain placed a last-minute hurdle by filing objections against him. Mauritius was aggrieved by the fact that he is a British national and the UK had vowed not to abide by the ruling on Chagos Island’s sovereignty by The Hague-based court. Last year, Kenya’s ambassador to Netherlands Lawrence Lenayapa opposed Gaynor, saying he had served as legal representative of parties in active cases.

Karim Khan during a past media briefing. [File, Standard]

Most challenging cases

“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.

“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 Uhuru Kenyatta. His statement, after the withdrawal, may be the reason why Kenya was jittery over his qualification. He said the decision was a disappointment to over 2,000 victims of crimes committed during the 2007/08 post-election chaos.

“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 said.

Kenya also wanted two more shortlisted candidates – Susan Okalany, who is a High Court judge and Richard Roy, a judge in the same court – disqualified. The Ambassador said Roy could not sit as a prosecutor as the current deputy prosecutor was 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 in Iraq.

His first task is to save the reputation of the court and enhance its acceptance as more countries view it as political machinery. As the court’s foremost ambassador, he will have to debunk the claim harped by defense lawyers, including himself, that the ICC is a political tool.

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

At the opening of Ruto’s trial on September 9, 2013, Khan described the investigations in to the Kenyan cases as “exceptionally deficient” and submissions by Bensouda “vacuous.”

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