Will UK lawyers charge ICC prosecutor Karim Khan for professional misconduct? - opinion

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 refutes, item by item, Khan’s accusations against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, and provides detailed evidence showing that all his allegations are false.

It also cites 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. The UKLFI maintains that 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 says it will report him to his professional disciplinary body charged with professional misconduct. It will back its charges with the evidence provided in its letter and considerably more, which the organization says it has.

ON MAY 20, 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, willfully 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, willful or intentional.

In its letter, the UKLFI writes: “We are dismayed to read that you intend to rest on the submissions you advanced in the applications, despite our having shown that every allegation against Benjamin Netanyahu and Yoav Gallant set out in your published summary of them is false, and despite the highly relevant evidence that has emerged since you filed the applications. 

“With all due respect, this seems to us to manifest a serious lack of integrity on your part. We respectfully urge you to reconsider this position in the light of your professional obligations.”

The letter to Khan is long and very detailed

It deals scrupulously with each allegation that Khan makes against Israel and its leaders, showing where charges are patently untrue, or where evidence has emerged since Khan submitted his application that reveals 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, referring to reliable evidence, it demonstrates each to be false. For example, the charge of an Israel-instigated famine in the Gaza 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 observed that the quotation of the UN secretary-general appears to be from a March 18, 2024 social media post by him. “On that date, 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 June 4, 2024,” the UKLFI continues in their letter, “the Famine Review Committee (FRC) published a review of the FEWS NET analysis of March 18, 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 does not intend to amend it. The UKLFI argues 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 points 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 maintain that if Khan continues to stand by the terms of his original application to the ICC, knowing that it contains false information, he is in breach of several rules applying to English barristers.

“We believe 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,” the UKLFI writes. “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 seven days… We are not asking you to deal with the substance within seven 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.

The writer is the Middle East correspondent for Eurasia Review. His latest book is Trump and the Holy Land: 2016-2020. Follow him at www.a-mid-east-journal.blogspot.com