The election of Donald Trump as the next president of the United States has once again placed the International Criminal Court (ICC) in extreme peril, raising the threat of U.S. sanctions because of its probe of crimes in Israel and Palestine during the ongoing Gaza conflict.
Since May, when ICC Prosecutor Karim Khan requested arrest warrants for three Hamas leaders as well as Israeli Prime Minister Benjamin Netanyahu and then-Defense Minister Yoav Gallant, members of the U.S. Congress have assailed the court for what incoming Senate Majority Leader John Thune recently called its “outrageous and unlawful actions,” for which he promised to make imposing sanctions a “top priority in the next Congress.”
The election of Donald Trump as the next president of the United States has once again placed the International Criminal Court (ICC) in extreme peril, raising the threat of U.S. sanctions because of its probe of crimes in Israel and Palestine during the ongoing Gaza conflict.
Since May, when ICC Prosecutor Karim Khan requested arrest warrants for three Hamas leaders as well as Israeli Prime Minister Benjamin Netanyahu and then-Defense Minister Yoav Gallant, members of the U.S. Congress have assailed the court for what incoming Senate Majority Leader John Thune recently called its “outrageous and unlawful actions,” for which he promised to make imposing sanctions a “top priority in the next Congress.”
In addition to the threat of legislative action, once he takes office, Trump could simply impose sanctions by executive order, as he did four years ago to retaliate against an examination into alleged George W. Bush-era U.S. crimes in Afghanistan. By sealing off the court from the global financial system, sanctions would stymie ongoing efforts to hold accountable perpetrators of grave crimes, not just in Israel and Gaza but also in other countries where the United States has backed ICC investigations.
However well-intentioned, criticisms of the ICC have unfortunately not always been consistent. The current resistance to the court’s investigation of crimes in Israel and Palestine comes not too long after U.S. lawmakers on both sides of the aisle praised the court for charging Russian President Vladimir Putin for crimes in Ukraine.
Opposition from powerful political forces would be bad enough. Yet in addition to these external challenges, the court faces an internal crisis that jeopardizes its most precious resource: moral authority.
Late last month, the Guardian reported that Khan had been accused of “unwanted sexual touching and ‘abuse’” of a female lawyer on his staff over the course of a year. Khan and another official are alleged to have tried to persuade the individual to disavow the accusations, which Khan has denied. An internal body, the Independent Oversight Mechanism (IOM), determined that “no investigation was necessary at this stage” after speaking with the alleged victim, who “refused to explicitly confirm or deny to the IOM the factual basis of what had been reported” and “declined to pursue a formal complaint with the IOM.”
Shortly prior to Khan’s election in 2021, as part of my organization’s ongoing support for international justice, we evaluated the mechanisms in place to secure the election of officials with what the ICC’s governing statute terms “high moral character.” We concluded that the ICC and its member states lacked the means to enforce that standard. Our work led to the adoption of a permanent due diligence process to vet candidates for senior ICC offices. This was essential for an institution that has in the past suffered from a toxic environment with high rates of bullying and harassment.
According to the ICC statute and applicable rules, a finding of “misconduct” that is “likely to cause serious harm to the proper administration of justice” or “to the standing of the Court” by one or more of the court’s highest officials may lead to removal from office or other disciplinary measures depending on the gravity of the violation. Internal provisions proclaim that the “Court has a zero-tolerance policy on discrimination, harassment, including sexual harassment, and abuse of authority.”
But absent implementation, a legal framework is not enough. In 2020, a high-level, officially appointed Independent Expert Review found that many ICC staff did not trust the court’s complaint mechanisms and were disinclined “to make complaints freely and willingly about, and to report officially, alleged impeachable conduct, especially by elected or senior officials.” The experts recommended that investigations of elected officials, including the prosecutor, be delegated to ad hoc investigative panels composed of “eminent and experienced non-sitting and independent judges.” These proposed reforms have yet to be implemented.
But an external inquiry is precisely what is needed now. Critics of the court have already raised “questions as to whether there may have been a connection” between the prosecutor’s decision to seek arrest warrants against Netanyahu and Gallant and the emergence of the allegations against him. For his part, Khan has suggested the allegations are part of a smear campaign against him and the court.
Some rights advocates see in the allegations, and the decision to launch an investigation, “a deliberate effort to obstruct justice and bully the ICC to drop its case against Israel.” In fact, the court has long been the object of unwelcome attention from hostile states. Last year, the court suffered a major cyberattack that paralyzed its information systems. Russia indicted Khan and one of the court’s judges. Netanyahu has called the prosecutor an antisemite, and the Dutch government is looking into reports of a long-term spying campaign allegedly run by Israel against senior court staff.
The current situation makes it all the more essential that an impartial probe be undertaken by respected individuals of the highest integrity to find the facts and clear the air. This is critical to ensure that, whatever the outcome, the court can pursue its vital, legally complex, and politically sensitive work free of the cloud of misconduct.
On Nov. 11, the president of the court’s governing body confirmed that it will commission an “external investigation.” This should include the alleged sexual misconduct and intimidation and also related complaints that one or more states may have sought to interfere with the court’s operations, including by disseminating disinformation about the allegations. All those subject to investigation, including the prosecutor himself, should be afforded defense rights, including the presumption of innocence.
Khan has denied wrongdoing, pledged to cooperate with the new inquiry, and stated that his two deputies would “take responsibility for the matter internally.” In order to safeguard the court’s reputation and avoid both the possibility and the appearance of impropriety as ICC cases proceed, the prosecutor should also step aside from day-to-day duties and hand over management of the office to one or both of his deputies until the external investigation is completed.
This would in no way prevent the ICC’s pretrial chamber now considering the prosecutor’s request from issuing arrest warrants. Nor need it hinder or slow the hundreds of capable prosecutors, investigators and other staff in the Office of the Prosecutor from advancing the court’s examinations of crimes in Israel, Palestine and other places.
In this second age of Trump, the ICC will once again be in the line of fire. Now more than ever, it is essential to recall that this court was created to ensure that the most serious international crimes do not go unpunished. As Trump returns to office, ICC member states, including many U.S. allies, will need to argue that sanctions against the court are a blunt instrument that harm U.S. interests more than they advance them.
But to preserve its credibility, the ICC first needs to clean up its own house.
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