With a formidable 30-year track record in international justice as an investigator, prosecutor and counsel for the defence in notable cases, Karim AA Khan KC, the chief prosecutor of the International Criminal Court (ICC), was interviewed by IBA executive director Mark Ellis at a lunchtime session on Wednesday. 

Referencing the ICC’s engagement in the ongoing Israel-Palestine conflict in Gaza, Khan confirmed the ICC has a dedicated team that is “actively investigating the situation”, but he directly addressed all the victims of conflict by saying: “Where there is no hope, there is no justice, just violence and extremism,” adding that “one of the best balms to the voices of hate is justice.” 

Acknowledging the challenges the ICC has in managing reduced resources to fund investigations, Khan noted there is sometimes “a lack of real vigour to fund institutions that have to deliver on promises to victims”. But he agreed with Ellis that current crises have focused people’s attention on the importance of law, justice and accountability. 

He also acknowledged the suffering of Jewish victims, as well as other communities globally affected by war and violence. He said: “People need to feel that institutions value life, equality and justice,” and not just criminal justice alone. 

Referring to the work of all supranational bodies, including the ICC, he said: “We have the burden of history to make sure at this moment that institutions are seen to work better because we have many opportunities to succeed quickly.” 

Khan revealed that he had spoken to Israeli families about terrorist attacks from Gaza, noting that “Jewish people have a unique history” because of the Holocaust, which supplied a critical context for the impact the attacks have had on Israeli society. However, he also noted the same applied to Palestinians, who had faced their traumas and uncertainty. 

Khan deprecated all forms of international tribalism, which, he said, “almost forces people to deny the humanity of others”, adding: “We must have the ability to have enough love in our hearts and have compassion in our soul to recognise other people’s suffering, even as we seek justice.”

Agreeing with Ellis, Khan said Israel has a responsibility to comply with the rules and customs of war, one stated in unambiguous terms – not just a moral obligation, but legal obligations that should be adhered to. 

There should also be no impediments to material relief, Khan added, noting the candidly expressed views of the Red Cross, the United Nations and others to allow the same while acknowledging the genuine difficulties of the current conflict. 

On Ukraine, Khan discussed the background and timing behind deciding to indict Vladimir Putin, the president of Russia, before the ICC. Noting the specific situation of children in the Russia-Ukraine conflict, he called them “the most invisible part of the population” who have suffered the most profound effects, either by being directly targeted or affected by the conflict, leading to generational harm. 

Without excluding the possibility of other indictments, he said any new charges would be based on the evidence before the ICC and solely on the evidence, which would first be presented to the ICC’s judges for their consideration. 

While expressing support for Ukraine’s desire to join the ICC eventually, Khan noted that irrespective of any state’s decision to ratify the Rome Statute, there were a variety of ways in which states could support the same objects. He argued that “sovereign states have certain rights to decide for themselves” in areas in which we can work together “that would be enhanced by being based upon shared values, and also our basic humanity”. 

Khan discussed with Ellis the idea of creating a special tribunal for the crime of aggression while recognising limits on the ICC’s jurisdiction. 

Khan obliquely answered the question by noting that institutions had to be very sensitive to allegations of double standards over selecting such tribunals, not least between countries in the global north and south. 

Surveying the factors at play, he said one option would be to consider amending the Rome Statute so that whatever mechanism did take place could be undertaken to a common standard rather than creating a unique or extraordinary tribunal for that purpose, in line with an existing rules-based legal order. 

Khan acknowledged the US was one of those countries that had been very forceful in saying it would not support the creation of an international tribunal for the crime of aggression, saying he has had “constructive discussions” with US politicians. 

The session closed with questions from the audience, from thoughts over the doctrine of proportionality about the Gaza conflict, and in relative terms, as well as how to deal with the proliferation of electronic evidence in war, and whether existing mechanisms in public international law were insufficient for preventing war crimes.

This article first appeared in the daily newspaper for the IBA Annual Conference 2023, which is published in partnership with The Global Legal Post