ICC Chief Prosecutor Khan reported by fellow British barristers for professional misconduct

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Polite but firm: Fellow British barristers have followed through on their promise to report to the Bar Standards Board (BSB) the top lawyer at the International Criminal Court (ICC), Karim Khan, for making “false” statements about Israeli leaders, and for misleading the court.

Three barristers at the non-profit company UK Lawyers for Israel (UKLFI) wrote to Khan on Aug. 27, reminding him of his duty to consider all of the evidence presented in the case of his May 20 request for arrest warrants for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. A response from Khan was requested within seven days but was not forthcoming.

Instead, Khan faced questions about the UKLFI complaint during a BBC podcast with Nick Robinson, on Sept. 5. Khan excused all of the legal challenges put to him by UKLFI, via Robinson, by accusing many people of having a ‘narrative,’ and by claiming that fellow lawyers are only “guessing” as to the evidence presented.

In its Sept. 9 report to the BSB, UKLFI responded to the contents of the BBC interview, challenging Khan regarding full compliance with his duty of disclosure.

“The Prosecutor has suggested in an interview by Nick Robinson for the BBC published as a podcast on 5 September 2024 that no one can complain about his performance of his duties in relation to the applications for the arrest warrants because the public does not have the knowledge of the evidence that he has," the UK lawyers wrote. "This is wrong in principle because compliance with the duty of disclosure does not depend on what the Prosecutor knows, but on whether he has disclosed all the evidence, both inculpatory and exculpatory, to the court to whom his applications are addressed."

“There are very good grounds in this case for believing that he has not complied with his duty because, whilst he maintains that the applications are confidential, he has made a public statement and given media interviews about what the applications contain, and has permitted and encouraged his panel of so-called experts to publicise their views about the applications.”

Another point raised in the UKLFI complaint to the BSB highlights how Khan has publicized his actions while simultaneously claiming the case should be handled privately.

“This is a highly controversial proceeding, which has been deliberately publicised by the Prosecutor. It is not the standard practice of the ICC to publicise applications by the Prosecutor to the ICC for arrest warrants; they are usually made secretly. However, in this case, the Prosecutor not only revealed that he was making the applications but has made a public statement summarising them, and encouraged his advisers (or expert witnesses) to publicise their knowledge of the matter."

“In doing so, he has exploited the one-sided nature of the proceedings, in which the accused play no role, to enable him to derive publicity and approval for his actions. In these circumstances it is absolutely essential and urgent that he be required to comply with the Rules to which we refer in our letter to him.”

One of the three UKLFI signatories, Chief Executive Jonathan Turner KC, explained:

“We have shown that every phrase of every sentence of the Prosecutor’s summary of the applications to arrest Netanyahu and Gallant in his public statement is false. If it was a fair and accurate summary of the applications, which have not been published, the applications themselves are entirely false. The Prosecutor’s insistence that the Court must act on these applications as filed, disregarding all other information and evidence, is most unsatisfactory.

“As the Prosecutor made his public statement he was flanked by Brenda Hollis and Andrew Cayley KC. They appear to be complicit in misleading the Court.

“The BSB and ICC should investigate this apparent misconduct thoroughly. Pending the outcome of these investigations, the Court should not make any rulings relying on any material provided by the Prosecutor or the OtP [Office of the Prosecutor] in this situation.”