How US is bending the rules to undermine the International Criminal Court
Some institutional failures unfold not through scandal but procedure, with acts of sabotage dressed up in the language of good-faith inquiry and accountability.
Read more about the dangerous situation surrounding the International Criminal Court (ICC) in Josep Borrell’s commentary: How Trump, together with Russia and China, is dismantling the International Criminal Court brick by brick.
Borrell recalls that the story starts in April 2024, when a group of US senators warned–in fact, threatened–Khan that if he dared to seek an arrest warrant against Israeli Prime Minister Benjamin Netanyahu for war crimes, he would become a target himself.
"Undeterred, Khan did just that, filing applications for warrants to arrest Netanyahu, former Israeli Defense Minister Yoav Gallant, and a Hamas commander," Borrell writes.
He notes that Khan had previously sought the arrests of Russian President Vladimir Putin, former Philippine President Rodrigo Duterte, and the Taliban leadership
"But now, Khan’s enemies have managed to start a debate about his potential removal, with allegations of sexual misconduct serving as the tip of the spear," the former EU foreign policy chief writes.
Although an internal judicial panel – the mechanism the Court itself created to weigh such matters – examined the allegations and found that they did not meet the threshold for proving misconduct, those pushing for Khan’s removal have not given up.
According to Borrell, in the latest development, ICC member states are preparing to conflate two separate questions – whether serious misconduct occurred and whether the prosecutor should be removed – in a single vote.
"Folding the second question into the first – which, again, has not been proven – enables removal based on an unsubstantiated accusation, or on a different issue altogether (such as engaging in a consensual intimate relationship from a position of authority–something that no one ever alleged)," he argues.
Borrell stresses that the Trump administration and Netanyahu want the same thing: to ensure that no international court can touch soldiers, border agents, or its chosen allies, no matter how serious the allegations of war crimes and crimes against humanity.
According to the Financial Times, when US President Donald Trump met with Chinese President Xi Jinping in May, he suggested that China and Russia – neither of which is a party to the Rome Statute, which created the ICC – join him in opposing the tribunal. That America’s chosen partners in this crusade are precisely the two countries with the greatest reason to fear the Court says more about the real purpose of the operation against Khan than any communiqué about sovereignty.
The countries that are still party to the Rome Statute therefore face a choice that will outlast this case.
"They can demand a process worthy of the institution they built, and which would afford the ICC’s own prosecutor the same procedural fairness that it demands of every state. Or they can set a precedent that politics trumps judicial findings," the former EU foreign policy chief concludes.
In Borrell's view, Karim Khan has has shown the courage and fortitude to seek arrest warrants for suspects who would have been considered untouchable in the court’s earlier years. At a time when international criminal justice and the rule of law face a full-scale frontal assault, not least from indicted war criminals, he deserves the world’s recognition and support.