At least 184 scholars, lawyers, and experts of international law and politics have expressed grave concerns over the integrity of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), in a joint letter on December 6.
In the open letter addressed to the assembly of State Parties of the ICC, the academics raised concerns that the international court is witnessing the erosion of impartiality and non-discrimination under chief prosecutor Karim Khan. The letter pointed to considerable delays, lack of responsiveness, as well as policies of understaffing and under-resourcing.
While invoking Article 42 (5) of the Rome Statute, the letter said “neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence.”
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The Prosecutor has insisted several times on describing the Palestinian population and victims in Gaza as civilians “caught in the crossfire”, seemingly concluding that the Israeli military’s conduct of hostilities has respected the principles of “distinction” and “proportionality”. This framing has formed the core of the Israel’s official discourse not only since October 7, but also during the 2014 Gaza War, the letter said.
“The Court announced on 30 November 2023 Prosecutor (Karim) Khan’s visit to Israel at the invitation of victims, after having met with some of them in the Hague previously. In doing that, the Prosecutor has neglected the longstanding pleas from UN special rapporteurs, scholars and international lawyers, NGOs, and Palestinian victims who have ardently requested the Prosecutor’s visit to Palestine and meetings in the Hague for years.
While elaborating on the concept of impartiality, which is one of the core principles governing the work of the OTP, the letter said the fair and impartial principality includes “refraining from expressing an opinion that could, objectively, adversely affect the required impartiality, whether through communications media, in writing or public addresses, or through any other actions outside the context of the proceedings before the Court”.
“The Prosecutor explicitly asserted that the visit, which was carried out without a publicly accessible agenda or transparent funding, is non-investigative, and intended solely to express sympathy and engage in dialogue, acts which fall outside of his mandate as a prosecutor,” the letter read.
While urging to expedite its investigation of Palestine situation beyond the October 7, the academics highlights the Prosecutor is seemingly “acting that crimes under the jurisdiction of the Court have taken place only since this date, and is thus “deprioritizing” the crimes that have formed the object of the Office’s activities for almost a decade.”
Giving recommendation as to how the policies and actions need to reform in order to stop grave breaches that constitute international crimes committed in Palestine is unforeseeable under the current Prosecutor’s mandate, the letter outlines some demands for ICC’s Assembly of State Parties to:
“Provide adequate political and financial support to the Court, ensure that the Prosecutor disburses resources on the basis of investigative needs as opposed to politically-motivated prioritization, and urge it to expedite its investigation into the Situation in Palestine.
“Investigate the adherence of the Prosecutor’s Office to ICSC Standards of Conduct, particularly in relation to impartiality, and non-discrimination.
“Investigate the conduct of the current prosecutor of the international criminal court, Karim Khan, and take appropriate measures in accordance with the mandate of the Assembly derived from Article 112 of the Rome Statute.
