The Palestinian Human Rights Organisations Council (PHROC) and the Palestinian NGO Network (PNGO) note with deep concern the 24th July decision of the Assembly of States Parties of the International Criminal Court (ICC) to remove Chief Prosecutor Karim Khan from office. The disciplinary process, lacking transparency, legal certainty and due process, culminated in the removal of the Prosecutor by secret ballot, setting a dangerous precedent. These developments, we believe, threaten the independence of the Court and create scope for the further use of such processes in ways that could undermine the Court and the newly appointed Prosecutor in the future.
As human rights and civil society organisations, we maintain zero tolerance for sexual harassment and the abuse of authority and encourage the reporting of such conduct. All allegations must be examined through clear, transparent, and independent procedures that ensure fairness to both complainants and respondents and remain free from political influence or interference.
The action and method by which the Assembly of States Parties (ASP) made the decision to remove the Chief Prosecutor of the ICC from office represents a grievous moment in the history of the Court. As former Judge and Vice President of the ICC, Cuno Tarfusser, along with over 180 Palestinian and international organisations, have warned, this action constitutes a clear and direct breach of the prosecutorial independence built into the Rome Statute.
On 21 July, three UN Experts ––the UN Special Rapporteur on the Independence on Judges and Lawyers, the UN Special Rapporteur on violence against women and girls, its causes and consequences, and the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism– wrote to the President of the Assembly of States Parties and Member States of the Bureau also outlining similar concerns that the Court’s “complaints handling process does not fully reflect best practice international standards in line with international human rights law, including labour rights”.
The Experts recommended inter alia that the ASP avoid “establishing irregular, uncodified ad hoc procedures”, advising that “[t]he Rules must clearly define all aspects of the complaints process, including the roles of all actors (extending to the ASP Bureau and ASP), and allocating clear responsibilities for findings of facts and law”. The Special Rapporteurs warned that “[c]omplaints processes must not be exploited for political attacks or reprisals by any actor, including member States, to discredit the Court’s vital work for justice and accountability.”
Alarmingly, the majority of States Parties on the Bureau of the ASP chose to abandon the proper procedure which should have been followed in the disciplinary process, including by disregarding the legal report of the eminent Judges Panel. The Judges concluded that there was insufficient evidence to support a finding of misconduct measured against the standard of proof of beyond reasonable doubt. The Judges found that due to the “many unresolved factual disputes” any attempts to characterise the findings of the investigation would be “almost destined for fruitlessness” since there was “little that is capable of being legally characterised”.
The Political Bureau disregarded the findings of the Judges Panel as merely “advisory” while deciding instead that it would apply the requisite standard of proof. The Bureau explained that “unlike the Panel, the Bureau was not subject to limitations precluding it from drawing factual conclusions from the evidentiary record”, assuring that it had “applied the applicable standard of proof required for disciplinary determinations”.
Our organisations stress that there was no legal characterisation by an ad hoc panel that the factual findings of the investigation amounted to “serious misconduct or serious breach of duty in the case of the Prosecutor”, as required under Rule 81 of the Rules of Procedure of the ASP. We stress again that the substitution of legal conclusions and claims by the Bureau, a political organ of the Court, was an egregious overreach, exposing the disciplinary process to risk of political interference, gravely undermining the legitimacy of the proceedings, and reducing the removal of the Prosecutor to a political referendum.
Politicisation
This political referendum was expedited by further unprecedented procedural changes to the voting rules. As our organisations had previously warned, the disciplinary proceedings have been exploited by Israel and its allies, with the intention of quashing the arrest warrants issued by the Court for Israel’s Prime Minister, Netanyahu and former Minister of Defence, Gallant. In addition to pushing for the removal of Prosecutor Khan, Israel further attempted to use the administrative proceedings as a back-door to influence the completely independent criminal proceedings before the Court– using the disciplinary process as a means to cast aspersions and tarnish the credibility of the independent functioning of the Court.
Following the removal of Prosecutor Khan, a prominent Israeli news correspondent announced: “that Israeli Foreign Minister Gideon Sa’ar played an active role in efforts to advance the [dismissal of Khan]. According to the official, Sa’ar oversaw a dedicated task force and employed intensive diplomatic efforts aimed at securing Khan’s removal from office.” The Executive Director of the anti-Palestine and Zionist – Israel affiliated organisation, UN Watch, stated on social media, “Our campaign to remove [Karim Khan] succeeded — he's just been fired. You’re next, @FranceskAlbs. Your support for Hamas terrorism will have consequences.” Adding “We are now calling on the Dutch authorities to launch a criminal investigation into . . . Karim Khan”.
Prime Minister Netanyahu coordinated a letter by US Representatives sent on 1 November 2024, urging the Assembly “to take all necessary steps available under its authority-up to and including holding a vote for his removal-and to consider the implications on the investigations led by Prosecutor Khan”. The letter warned that “Any action by the Court regarding arrest warrants for Israeli officials without the benefit of a completed investigation into the serious allegations hanging over Prosecutor Khan would cast doubt on the Court's actions, and jeopardise the credibility of the ICC more broadly.”
In a Machiavellian attempt to link the timing of the initiation of the disciplinary proceedings to the timing of the application for arrest warrants –filed by Prosecutor Khan on 20 May 2024 when Israel had killed 35,562 Palestinians and injured 79,652 Palestinians in a seven month genocidal onslaught on Gaza– Israel’s Minister of Foreign Affairs, Gideon Sa’ar suggested the arrest warrants were “an attempt to deflect from the serious misconduct [Khan] feared would be revealed” calling for their immediate revocation. Israel’s ambassador to the UN called the arrest warrants a “political witch hunt”. Israel’s Prime Minister’s office issued a statement calling the ICC a “kangaroo court that has no jurisdiction over Americans or Israelis”, stating that its arrest warrants were “bogus”. Israel’s Prime Minister Netanyahu, “welcom[ing] the decision . . . to remove Karim Khan”, further encouraged the commitment of US Secretary of State Marco Rubio “to act forcefully” to dismantle the Court as “a very positive development”.
It is important to draw a distinction between the politicisation of the administrative proceedings of the Bureau and Assembly of States Parties, and the separate criminal proceedings before the Court, including the Situation in the State of Palestine, which are completely independent. In this regard, our organisations note the statement of the Palestine Mission in the Netherlands, naming “the desperate attempts by Israeli occupation representatives and apologists, linking the vote to remove the Prosecutor. . . [to] the arrest warrants against alleged criminal Israeli officials” as “highly cynical”. Our organisations further note the statement of the President of the Assembly of States Parties, that “these disciplinary proceedings are not related to the conduct of investigations or proceedings before the Court and are without prejudice to the independence of the International Criminal Court.”
Independence of the prosecutor
However, the Bureau-led abandonment of procedures and removal of the Prosecutor by political referendum has pierced a hole in the veil of Prosecutorial independence. Israeli perpetrators of Rome Statute crimes have exploited the disciplinary proceedings to ensure the removal of the Prosecutor, in an effort to facilitate their long-standing impunity and ensure the continued destruction of the Palestinian people. Israeli perpetrators of Rome Statute crimes will continue to exploit the Court’s shortcomings in an effort to negate the arrest warrants issued against Israeli perpetrators, and to extinguish the Court’s entire investigation into the Situation in the State of Palestine, including by working to remove an actively engaged Prosecutor.
It is imperative that the next Chief Prosecutor be guaranteed the independence to act in the exercise of the Office’s responsibilities, an independence which is fundamental to the effective functioning of the Court. Fair and effective processes for disciplinary proceedings and for the protection of all Court personnel must be urgently introduced.
Protecting the ICC
Across Palestine, Israel’s structures of settler-colonial apartheid violence is escalating in destructive capacity and genocidal intent. Failed by its allies, and directly attacked by its enemies, the Court, and the principles for which it stands, cannot be abandoned. In the face of sanctions, death threats and attacks against Palestinian civil society organisations and human rights defenders who play a central role in documenting violations, and in providing evidence to the Court, Palestinian civil society will resolutely persevere in demanding justice, and in protecting and supporting the frameworks and institutions upon which the pursuit of justice is built.
We reiterate our steadfastness in protecting the ICC, and in supporting its capacity to viably and actively pursue its mandate in holding to account those individuals responsible for the perpetration of Rome Statute crimes, both in the Situation in the State of Palestine, and in all other situations where it is required.
We urge States to support the ICC, safeguard the independence of the Court and any future Chief Prosecutor, and fully comply with their obligations under the Rome Statute, including by executing all outstanding arrest warrants issued by the Court. We note that in the immediate aftermath of Prosecutor Khan’s dismissal, four Member States of the ASP, Canada, France, Greece and Italy, permitted Prime Minister Netanyahu overflight through their jurisdictions, without taking the required steps to detain him for prosecution in the Hague. We further regret that certain States, acting under the coercion of the United States and Israel, have initiated their withdrawal from the Rome Statute.
While the Israeli settler-colonial apartheid regime continues to wage its genocide in Gaza, with genocidal intent extending to the West Bank, we warn the international community that its complicity, silence, and inaction are further fuelling international crimes against the Palestinian people. We call on the Court to demonstrate its continued commitment to accountability by advancing its investigations into the Situation in the State of Palestine, issuing further arrest warrants and expanding its investigations into all crimes under its jurisdiction, including settlement-related crimes, the crime of apartheid, and genocide.