Justice à la Carte: The ICC’s Curious New Recipe for Removing Karim Khan — Abbi Kanthasamy

JULY 4 — There is a smell when an institution starts cooking its procedures to order: scent of diplomats in a sealed room discovering that the rules they wrote have become inconveniently indigestible.

The International Criminal Court was meant to be where power met a law it could not bomb, bribe, sanction or bully into silence. No backdoor for presidents and generals.

Which makes the reported manoeuvring over Chief Prosecutor Karim Khan so spectacularly awkward.

According to Middle East Eye, the ICC’s political bureau has approved a process combining two previously separate decisions: whether Khan committed serious misconduct, and whether he should be removed. One vote. One motion. One clean swing of the diplomatic cleaver.

That may sound like administrative housekeeping to people who think due process is a decorative fern in the lobby. It is not. It is the whole building.

The bureau’s own March procedures paper reportedly envisaged a more sensible sequence. First, the Assembly of States Parties—125 countries in all—would determine whether serious misconduct had been established. That required a two-thirds majority of those present and voting. Only then would it hold a second vote on removal, requiring an absolute majority.

First establish the offence. Then decide the penalty.

Now, according to Khan’s lawyers, the proposed single-vote arrangement does not merely compress the process. It lowers the effective bar for reaching the grave finding that serious misconduct occurred. Before deciding whether to remove the man, make it easier to decide that he has done the thing that justifies removing him.

That is not a footnote. That is the menu.

The ICC prosecutor should not be beyond scrutiny. A man entrusted with investigating war crimes and crimes against humanity should be held to an exacting standard. Allegations must be investigated properly. If serious wrongdoing is proven, consequences should be real.

But “properly” is doing a lot of heavy lifting here.

Proven by whom? Under what rules? Why do the rules appear to become more elastic after the target has been chosen?

The reported facts become stranger. A judicial panel appointed by the bureau itself reportedly examined a United Nations investigation and concluded unanimously that the evidence did not establish misconduct or breach of duty. One judge reportedly expressed serious doubt that the evidence could meet the required standard at all.

Then the bureau appears to have taken that advice, thanked it politely, and placed it in the drawer marked “ornamental”.

That does not prove Khan is innocent or that the allegations should be ignored. It proves the court risks looking as though it commissioned legal advice as table decoration.

The allegations remain serious and disputed. Khan denies them. The complainant’s account reportedly concerned unwelcome, non-consensual conduct. Yet the bureau’s alleged finding appears to rest on a different proposition: a consensual relationship said to be improper because of a power imbalance.

Khan’s lawyers say this alternative allegation was never put to him during the investigation. Their point is devastatingly simple: one cannot fail to prove one accusation, then quietly replace it with another and call the substitution justice.

That is not law. That is a magic act.

Now you see the allegation. Now you do not. Now here is a new one wearing the old one’s shoes.

Khan’s work has made him a geopolitical lightning rod. His office pursued cases involving Vladimir Putin, Benjamin Netanyahu, Hamas leaders, Myanmar’s junta and Taliban officials. The United States sanctioned ICC personnel. Russia retaliated. Israel challenged the court’s conduct.

None of that makes the allegations against Khan false. Politics does not manufacture innocence.

But it does create an overwhelming obligation on the ICC to be cleaner than a surgeon’s table. It cannot afford a process that even resembles improvisation when the entire world is looking for reasons to dismiss it as selective justice with better stationery.

The ICC has no army, oil wells or aircraft carriers. It has legitimacy.

That legitimacy is not a public-relations accessory. It is the engine. Once states can alter the route after the train has left the station, every strongman gets a free talking point: international justice is merely politics in a robe.

The Assembly of States Parties meeting in New York on July 24 should not become a popularity contest about Karim Khan. They should ask one brutal, uncomplicated question.

Are we being asked to decide this case under clear rules that existed before the evidence was weighed?

Or are we being asked to bless a procedural rearrangement because the original rules proved inconvenient?

Remove Khan if the evidence and lawful process justify it. Keep him if they do not.

But do not turn the ICC into a place where due process is celebrated in speeches, then quietly taken outside and shot behind the kitchen.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.