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The case against the prosecutor
International Criminal Court , Issue 1542
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KARIM KHAN: His appointment as prosecutor at the International Criminal Court is welcomed by the government -- but not human rights groups in Africa
BRITISH barrister Karim Khan delighted Boris Johnson’s government last month when, despite the opposition of many human rights groups in Africa, he won the opaque contest to be the next prosecutor of the International Criminal Court in The Hague.

An old mucker of foreign secretary Dominic Raab, Khan’s clinching of the ICC job seemed to Downing Street a rare diplomatic coup in the post-Brexit era. Sweeter still, Britain’s candidate saw off rivals from Ireland, Spain and Italy. None of the candidates on the final shortlist, including Khan, who has previously defended Colonel Gaddafi’s son Saif al-Islam and former Liberian president and warlord Charles Taylor, had much experience as prosecutors, nor had they run an organisation the size of the ICC, with its 900 staffers.

Kenyan kicker
Khan’s arrival may prove a more tangible victory, however, for human rights-lite governments in Africa. Khan, who was not originally on the shortlist, was only added after Kenya said it would lead other African member states in rejecting the other candidates. Uhuru Kenyatta’s government then tried to undermine Ireland’s candidate Fergal Gaynor, who has represented victims of political violence in the former British colony.

Khan has acted for Kenya in a longstanding maritime boundary dispute with Somalia. But the story goes back to 2012, when president Kenyatta and his deputy William Ruto were charged by the ICC with crimes against humanity – orchestrating mass violence after disputed elections. More than 1,200 people were killed; another 300,000 were chased from their homes.

Ruto hired Khan as his chief defence counsel in what turned out to be one of the ICC’s most problematic cases. The ICC dropped charges against Kenyatta in 2014, after witnesses disappeared. Two years later, it declared a mistrial in Ruto’s case. The court also complained of “intolerable political meddling” by the Kenyan authorities, adding that it could reopen the case against Ruto. Three Kenyans were charged with witness tampering.

Crossing a line
More than 20 African legal and human rights organisations wrote to the ICC in January asking it to rule out Khan for the prosecutor’s job, citing his troubled history in the Ruto case. Khan, they argued, crossed a line from Ruto’s lawyer to his spokesman. After the ICC cases ended, he stayed in Nairobi for a celebratory rally at which the jubilant president and deputy declared that no Kenyan would be ever be tried again in a foreign court. Then Khan told Kenya TV that the ICC cases against Kenyatta and Ruto were politically driven and served “external interests”.

Most damning was the view from George Kegoro, head of Kenya’s Human Rights Commission, who fears that few of Africa’s civil society organisations, which have a critical role in ICC investigations and prosecutions, would trust Khan as its prosecutor. That could mean a slow painful death for the troubled court – or no cases in Africa, which would suit the Kenyan government and others in the continent just fine.

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