ICC: New chief prosecutor divides opinions in Africa
June 15, 2021
Kenyans remember Khan for representing former Cabinet Secretary Francis Muthaura and current Deputy President William Ruto in 2011 at the International Criminal Court. Luis Moreno Ocampo, then the ICC's chief prosecutor had built a case charging that Ruto committed crimes against humanity during Kenya's 2007-2008 postelection violence.
Khan, 51, successfully proved to the ICC judges that the evidence against Ruto was too weak and therefore inadmissible. On April 5, 2016, Ruto was declared innocent and the case dropped.
"It has to be an absolute priority for the incoming prosecutor to do everything he can to improve the track record of the ICC prosecution when cases are in court," Elizabeth Evenson, associate director of the International Justice Program at Human Rights Watch, told DW.
"He has a really difficult job to get better success in the courtroom," Evenson said. Khan would need to strengthen investigations and prosecutions, "while also living up to these high ambitions of a court that signals no one is above the law," said Evenson, whose research and advocacy centers on the ICC.
On the streets of Kenya's capital, Nairobi, there are high expectations for the third chief prosecutor in the ICC's history.
"He has good experience, having been on the side of the dock," Erastus Wangwa, a community health volunteer in Nairobi, told DW. "I think he's going to do a good job, having represented a high-profile case."
"We believed in Bensouda, but he is going to be even better because he'll have to act more than what Bensouda has been doing," said Richard Owino, a Nairobi businessman.
The Charles Taylor 'baggage'
During the 1991-2002 civil war in Sierra Leone, Liberian President Charles Taylor backed one of the most brutal rebellions in recent history. Taylor gave military and financial support to the Revolutionary United Front (RUF) rebels, whose fighters were known for mutilating their victims. Captured civilians were forced to choose between "short sleeve" — shoulder amputation — and "long sleeve": elbow amputation.
Despite Khan's defense of Taylor, the UN-backed Special Court for Sierra Leone in The Hague convicted the former warlord of crimes against humanity on April 26, 2012, and sentenced him to 50 years in prison.
"I don't feel good because this man defended Charles Taylor, who did many bad things to humanity and even caused the war in Sierra Leone," Monica Ghaliwa, a Sierra Leonean journalist, told DW.
"I think it's a slap in the face of Sierra Leoneans and even the ECOMOG that helped fight the war," Ghaliwa said, referring to the Economic Community of West African States Monitoring Group, an armed force.
Voice for the voiceless?
In his early days as legal counsel, Khan was involved in the first trials after the Rwandan genocide. At the time, he represented victims of war crimes, crimes against humanity, and other atrocities in Kenya, Sierra Leone, and Cameroon.
"He came to the Kenyan people's defense concerning colonialism. He made sure that they were well compensated," Owino said, adding that Khan showed that "he loves our people and that he has compassion and is a good person in general."
On April 27, 2017, Khan appeared at Cameroon's Military Tribunal in Yaounde as part of a team of lawyers defending Nkomgho Felix Agbor Bala, a Cameroonian human rights lawyer.
Agbor Bala was the head of a group of Anglophone lawyers and teachers seeking to ensure the rights of Cameroon's Anglophone minority. Yaounde charged him with terrorism offenses and agitating for secession. Again, Khan's intervention helped secure a victory and Cameroon's authorities released Agbor Bala on August 30, 2017.
'Hot chair' to sit on
The incoming prosecutor is taking up his mandate at a critical moment for the ICC. In the 18 years of its existence, former prosecutors Luis Moreno Ocampo and Fatou Bensouda have managed to secure just five significant convictions.
"We've seen under the term of the outgoing prosecutor, Fatou Bensouda, an office of the prosecutor that was willing to push forward with difficult decisions, even in the face of intense pressure," Evenson said.
"That's a legacy that we will be looking to the new prosecutor to build on, as he takes up this position to safeguard that independence," Evenson said. "It's only by demonstrating that independence that the International Criminal Court can attract the legitimacy, the credibility and the support it needs."
Tough task ahead
For the next nine years, with a staff of about 400 people, Khan will be tasked with reforming an institution plagued by setbacks and financial problems.
"The fact that the incoming prosecutor has experience at the ICC from the defense table should be an advantage," Evenson said, declining to speculate about whether there would be specific conflicts of interest that could arise from Khan's prior work.
"But I would expect that he would resolve any conflicts of interest in a way that upholds the highest standards of a fair process," she said.
Khan has been quoted as saying that it is not unusual to appear for both sides in a legal career. Such flexibility, he argued, helps to stay grounded, while preventing the defense counsel from being seen as the devil's spawn or the prosecution as a divine task.