In 2013 Academic Essay, International Criminal Court (ICC) Prosecutor Karim Khan Explains Why The ICC Is Incapable Of Delivering Justice; In 2007, Khan Was Defense Counsel For Liberian President Charles Taylor In UN-Backed War Crimes Trial; During The Trial, Taylor Denied Claims That He Had Ordered His Men To Eat Human Flesh

Introduction: The International Criminal Court Prosecutor's 2013 Essay

In a 43-page academic essay titled "Defensive Practices: Representing Clients Before the International Criminal Court," published in 2013, [1]International Criminal Court Prosecutor Karim A. Khan explained in detail how ICC procedures hamper the possibility of granting defendants their right for due process. At the time, he was a British litigator who had served for both the defense and the prosecution at several international courts.[2]

According to Khan, in ICC cases suspects and defendants are sometimes deprived of basic defendant rights, due to the court's procedures. He wrote that in cases that he himself had represented, the defendants were not granted disclosure of the charges within a reasonable time frame, rendering useless their ability to properly conduct their defense. In other cases, key evidence that could contribute to the defense case was heavily redacted, making it unusable for the defendant.

Khan also explained in the essay that the ICC is prone to bias due to outside pressure from NGOs and civil societies that dictate narratives which are later accepted as "truth" in court even before the defendant has any chance to present his case. These wrongful practices resulted in the tarnishing of the reputations of honest people in at least one case.

Khan's 2013 Essay Undermines the Legitimacy of the ICC

Khan's 2013 essay significantly undermines the legitimacy of the ICC. Khan now serves as prosecutor on behalf of the very same system he so harshly criticized.

Below are excerpts from the essay, which Khan coauthored with Anand A. Shah.[3]

On The Effect of Media Coverage and Popular Sentiment:

"In the case of a client suspected or accused of committing international crimes, the public perception of the client's guilt is often further magnified by the assistance of well-financed civil-society groups, nongovernmental organizations, and international media pushing a narrative that becomes accepted as the "truth" even before the client appears in court."

On The Level of ICC Professionalism in Litigation and Criminal Investigation:

"In the early days, it may not be too brutal to characterize the ICC as a think tank of a court divorced or unfamiliar with the realities of criminal investigations and courtroom litigation – at least from the defense perspective."

On Testimony and Witness Credibility:

"[ICC procedures] allow[s] the prosecutor to submit and rely on anonymous summaries of witness evidence that may be significantly lacking in substance, coherence, or both..."

On The Standard of Proof:

"The applicable standard of proof at the confirmation stage – 'sufficient evidence to establish substantial grounds to believe' – is, of course, lower than the beyond-a-reasonable-doubt standard required to obtain a conviction at the trial stage."

On False Accusations Leading to Injustice:

"Accordingly, charges against at least one individual who appeared as suspect before the ICC were very likely wrongly confirmed for trial, resulting in concomitant stress and mental anguish to the individual and his family, damage to the individual's reputation, and the unnecessary expense of time and resources by the court, prosecution, and non–legal aid–funded defense. This injustice was only rectified on March 11, 2013, more than a year after the issuance of the confirmation decision in this case..."

On Late Disclosure and Defendant's Rights:

"Article 67(1)(b) of the Rome Statute guarantees a suspect or accused person adequate time and facilities for the preparation of his or her defense. Article 67(1)(a) requires that a suspect or accused must 'be informed promptly and in detail of the nature, cause and content of the charge[s]' against him or her. Unfortunately, the practice that has developed at the ICC with respect to the manner and timing of prosecution disclosure to the defense at the confirmation and trial stages has undercut these fundamental rights."

"Late prosecution disclosure is only one aspect of a troubled ICC disclosure regime..."

On Redactions Causing Miscarriage of Justice:

"There is also a more fundamental danger with what has become a regime of almost reflexive imposition of redactions at the ICC – namely, that the process of application for, judicial review of, and imposition of redactions has become so unwieldy and unmanageable that outright miscarriages of justice may occur."

"The above-mentioned reflexive, if not cavalier, attitude toward redactions by the ICC prosecution, and the wide scope and imposition of redactions at the ICC – beyond merely witnesses and their families – has resulted in a bureaucratic, overbroad, and resource-draining redaction regime. At its worst, such a regime risks resulting in a fundamental miscarriage of justice, and otherwise greatly hinders the work of the defense."

"Delayed disclosure limits the time available to the defense to review and act upon the material received. When critical information remains redacted from the defense – such as the identity of a witness or the time and place of an alleged meeting – the defense can hardly be expected to conduct full and effective investigations on this basis..."

In 2007, Khan Represented Liberian President Charles Taylor at The Special Court for Sierra Leone on War Crimes Charges; During The Trial, Taylor Denied Claims That He Had Ordered His Men To Eat Human Flesh

In June 2003, the prosecutor of the Special Court for Sierra Leone (SCSL), a judicial body established jointly by the Government of Sierra Leone and the United Nations to try those bearing "the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996,"[4] charged then-Liberian President Charles McArthur Ghankay Taylor with war crimes. In April 2012, Taylor was found guilty of crimes against humanity and war crimes, including murder, rape, slavery and the use of child soldiers.[5] Thus, he became the first former head of state to be convicted for crimes against humanity by an international or hybrid tribunal since the Nuremburg trials of Nazi leaders following World War II. 

During his trial, which began in 2007, Taylor denied claims by a former officer in his militia that he had commanded his soldiers to eat the flesh of his enemies, among them African peacekeepers and U.N. soldiers, to instill fear.[6]

The defense counsel assigned to Taylor was Karim A. Khan, who is now the International Criminal Court prosecutor. According to The Cambridge companion to International Criminal Law (Cambridge University Press, 2015), Taylor had "devised" a "strategy" with a "dramatic twist" together with Khan for the trial's opening phase.[7]

Taylor did not show up for the opening of the trial on Monday, June 4, 2007, stating through Khan that he would not participate in a "sham" trial. The court ordered Khan to represent the defendant or be held in contempt of court, but Khan insisted that it would be unethical of him to do so. After the presiding judge told Khan that "your code of conduct cannot override a court order which I made a few minutes ago" and the court "directed Khan to sit down" and "invited the prosecution to continue with its opening statement," Khan then "dramatically picked up his materials and walked out of the courtroom." As a result, the opening statements stage was delayed until new defense could be assigned to Taylor..

Khan announces his request for arrest warrants against Israeli Prime Minister Benjamin Netanyahu (Source: Creative Commons)

Defense Counsel Khan and his client, Charles Taylor

 

* Yigal Carmon is President and Founder of MEMRI.