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The New Troubling Visage of Lady Justice

  • Opinion

By Abdul Basit, BA International Relations and Economics

Universal accountability or faceless justice has long constituted the utopian daydreams of philosophers and international theorists alike. Plato talked about it and so did More. The closest we have come to realise such an aspiration is undoubtedly the founding of the International Criminal Court (ICC). However, the menace of statism is once again threatening to rot this effort from the inside out and the appointment of Karim Khan serves as a linchpin of this wider phenomenon.

The ICC elucidates its mission as ending the impunity for the perpetrators of the most serious crimes that concern the international community. Its appointments, therefore, must also be made in a manner that sustains that ethos. However, to what extent the court will be served in fulfilling its mission by its latest choice of chief prosecutor is debatable. 

Karim Khan is a career international criminal lawyer who, on the face of it, appears to be entirely qualified for his new job. Yet his track record of being the defence counsel of men like Charles Taylor, Said Gaddafi, Abdallah Banda and Bahar Garda casts a long shadow on his humanitarian credentials.

Although some might hail the appointment of a non-white individual to this role, it must be remembered that he is also British. In an organisation that is constituted by nation-states that vote to elect the chief prosecutor, the bifurcation between the country and its representative is difficult if not impossible. 

This indistinguishability between man and state strikes at the heart of a problem that has plagued international justice since at least the Nuremberg trials. I’m referring to the moral authority of one nation to judge another. 

Is it really just for a British barrister to prosecute injustices in regions of the world that suffer from conflict and instability as a direct result of colonialism? The war crimes committed in Afghanistan and the Israel-Palestine conflict are both on this prosecutor’s agenda, yet the common denominator in both these conflicts is British policy that helped exacerbate violence and spread chaos. 

It is also uncouth for a British barrister to occupy this position given Britain’s continued refusal to comply with ICC’s ruling on the Chagos Islands.

The pariah of colonialism also looms large over the various African cases that are currently in the purview of this court. The ICC has often been criticised for its apparent special focus on Africa (not without cause given that, out of 30 cases and 13 investigations, only 3 are non-African). 

It has defended itself by pointing out that several Africans hold prominent positions in its hierarchy, one of whom Karim Khan has replaced. This will undoubtedly reignite accusations of not only the moral soundness of the court’s efforts but also raise uncomfortable questions about the new prosecutor’s commitment to prosecuting war crimes given his previous track record.

It is a prerequisite that politics be separated from any meaningful pursuit of justice to ensure credibility and, along with it, enforceability. It is due to this reason that the first two prosecutors were elected unanimously, but this tradition was broken by the deep political wrangling that delivered Karim Khan to his new post. It was only after intense lobbying by the UK and Kenya that he received a marginal majority of votes in a secret ballot, another first for the ICC.

It is this blatant politicisation of the role that threatens the very fabric of international justice and severely hampers the potency of the ICC. All of this even before the new prosecutor has started his work. The question begs itself, is the appointment of Karim Khan truly in the best interest of justice? 

Photo caption: International Criminal Court headquarters in The Hague. (Credit: Piroschka Van De Wouw, Reuters)

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