Published in the Jerusalem Post, 2 September 2024
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On August 30 the UK’s Daily Telegraph reported that an organization called UK Lawyers for Israel (UKLFI) has threatened to charge the International Criminal Court’s (ICC) chief prosecutor, Karim Khan, with professional misconduct. Khan is a British lawyer, known in the UK’s legal system as a barrister and King’s Counsel. He is subject to the discipline of the Bar Standards Board. Found guilty of professional misconduct, a barrister in the most serious cases can be disbarred and forbidden to practice law.
In a letter to Khan
dated August 27, the UKLFI refute, item by item, his accusations against
the Israeli prime minister, Benjamin Netanyahu, and defense minister, Yoav
Gallant, and provide detailed evidence showing that each and every one of his
allegations is false. In addition they cite new information that has come
to light subsequent to his application for international arrest warrants which
also shows his original charges to be in error. They say the professional
standards he has to adhere to as a member of the English bar oblige him to
review his application to the ICC.
If he does not respond, the UKLFI say they will report him to his professional disciplinary body charged with professional misconduct. They will back their charges with the vidence provided in their letter, and considerably more which they say they have available.
On May 20, 2024 Khan, as
the ICC’s chief prosecutor, applied to the court to issue international arrest
warrants against three Hamas leaders and also against Netanyahu and
Gallant. His request in respect of the Israeli leaders was backed by a
catalog of alleged war crimes and crimes against humanity that he accused them
of committing. He states as a fact that Israel indulged in “collective
punishment of the civilian population”. He substantiates this by
asserting that Israel deliberately starved the Gaza population, wilfully caused
them great suffering, serious injury and death, and intentionally directed
attacks against them, murdering and persecuting them. He makes these
assertions without offering any proof that the actions he lists were deliberate,
wilful or intentional.
Their letter to Khan is
long and very detailed. It deals scrupulously with each allegation that
Khan makes against Israel and its leaders, showing in detail where charges are
patently untrue, or where evidence has emerged since Khan submitted his application
that reveal the inadequacy of the original accusation. It deals in this
way with his assertions that Israel imposed a “total siege” on Gaza that
involved closing all the border crossings; restricted supplies of food and
medicine; cut off fresh water; cut off electricity; obstructed aid
delivery by humanitarian agencies; and was responsible for acute
famine.
One by one, by
reference to ascertainably reliable evidence, it demonstrates each to be
false. For example, take the charge of an Israel-instigated famine in the
Strip. Khan says in his application: “Famine is present in some areas
of Gaza and is imminent in other areas. As UN Secretary-General António
Guterres warned more than two months ago: “1.1 million people in Gaza are
facing catastrophic hunger – the highest number of people ever recorded –
anywhere, anytime’”.
The UKLFI observe that
the quotation of the UN Secretary-General appears to be from a post by him on
social media on 18 March 2024. “On that date,” they write to Khan, “reports
relating to the situation in the northern part of the Gaza Strip were published…by
the Famine Early Warning Systems Network (FEWS NET). It appears that the
Secretary General based his post on those reports and that you also relied on
them.
“On 4 June 2024,"
they continue, "the Famine Review Committee (FRC) published a Review of
the FEWS NET analysis of 18 March 2024 which concluded that “The FRC does not
find the FEWS NET analysis plausible for the current period” and “is unable to
endorse the IPC Phase 5 (Famine) classification for the projection period”.
“We appreciate that this
Review was published after you filed the applications,” write the UKLFI, “but
it is now your professional duty to draw it to the attention of the Court,
since it contradicts a key allegation on which, according to the Statement, the
applications are based.”
This example may
be particularly striking, but the others are equally convincing. In all,
the weight of evidence countering Khan’s accusations against Israel in general,
and Netanyahu and Gallant in particular, seems overwhelming. But Khan has
argued that the Court should take no account of submissions that challenge the
basis of his application, and that he himself does not intend to amend
it. The UKLFI argue that if Khan does not agree to reconsider the terms
of his application he will be guilty of professional misconduct.
According to Wikipedia,
54-year-old Karim Asad Ahmad Khan is a British lawyer specializing in
international criminal law and international human rights law. His
father, a consultant dermatologist, was born in Mardan,
Pakistan; his mother, a state registered nurse, in the UK. Khan,
married and with two sons, is a member of the Ahmadiyya Muslim Community. One of his two brothers was once a Conservative Member of
Parliament.
Under the heading: “Your professional obligations” the UKLFI point out that Khan is “registered as a practicing barrister by the Bar Standards Board” and that, as such, “you must comply with the requirements set out in the BSB Handbook.” They proceed to maintain that if Khan continues to stand by the terms of his original application to the ICC knowing it to contain false information, he is in breach of a number of rules applying to English barristers.
“We believe,” they
continue, ”that the material referred to in this letter and its Annex B
constitutes only a small portion of the publicly available material refuting
the allegations in the Statement. Although we have provided substantial
material in this letter…we would respectfully remind you of your obligation to
seek out all exonerating material, using the ICC’s substantial resources. It
seems to us that you have made no real effort to do so.
“Please let us have your
response within 7 days…We are not asking you to deal with the substance within
7 days, but merely to confirm that you will carefully investigate and respond
to us substantively on the points we raise within a reasonable time frame.”
Their letter is dated August 27. So they have given Khan until September 3 to confirm that he is prepared to review his application for international arrest warrants against Netanyahu and Gallant, or they will charge him with professional misconduct. He is now uneasily balanced on the horns of a dilemma.
Published in the Jerusalem Post, and the Jerusalem Post online titled:"UK lawyers threaten to charge ICC prosecutor Karim Khan with misconduct," 2 Sep 2024:
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