Khan may face regulator

Prosecutor warned of disciplinary action if International Criminal Court misled

British lawyers have threatened to trigger a disciplinary investigation into the International Criminal Court’s senior prosecutor unless he reviews the arrest warrants he is seeking for Israeli government ministers, the Telegraph reports today.

Karim Khan at the International Criminal Court, wearing his KC’s robes

Karim Khan KC announced on 20 May that he was seeking arrest warrants for the Israeli prime minister Benjamin Netanyahu and Israel’s defence minister Yoav Gallant — as well as three Hamas leaders, two of whom have since been killed. A pre-trial chamber of three judges has yet to rule on the request.

The group UK Lawyers for Israel said last night they had “analysed Khan’s public statement and found that every phrase of every sentence of his summary of the charges was contradicted by information in the public domain, including important information that came to light after 20 May”. Three barristers representing the group reminded Khan of his professional obligations, both under the court’s own professional rules and also as a leading barrister regulated by the Bar Standards Board.

“This requires him to act, and be seen to act, with honesty, integrity and independence — and not to mislead a court or anyone else,” said Jonathan Turner, the group’s chief executive. “If we are not satisfied that he is complying with the code of conduct of the English bar, we will report our concerns to the Bar Standards Board,” Turner told the Telegraph.

“This matters to more than just Mr Netanyahu and Mr Gallant,” the barrister added. “If the prosecutor can have the court issue arrest warrants on the basis of bogus allegations, no one is safe from the risk of arrest and possibly years of imprisonment in The Hague — even if eventually acquitted.”

Last Friday, Khan urged the International Criminal Court to issue arrest warrants on the strength of his initial application and the evidence he had previously provided. He argued that the court’s founding statute did not allow it to hear counter-arguments at this stage. His position is that he is merely seeking to initiate a prosecution and that a decision to issue arrest warrants can be challenged after the event.

But Sally Langrish, legal adviser to the UK Foreign, Commonwealth and Development Office, had argued in a submission to the court on 10 June that the issue of an arrest warrant “is a serious step because it affects the liberty of the individual concerned”. Arrest warrants must be enforced by any state that is a party to the court’s founding treaty, including the UK.

Evidence

In a 25-page letter sent on 27 August, UK Lawyers for Israel told Khan he should immediately ask the court’s pre-trial chamber not to take a decision on his application for arrest warrants until he had fully reviewed the evidence now publicly available.

In particular, they say:

• Khan alleged that that Israel had imposed “a total siege over Gaza, that involved completely closing the three border crossing points, Rafah, Kerem Shalom and Erez, from 8 October 2023 for extended periods”. In fact the Rafah crossing is on the border with Egypt, which was responsible for closing it at various times. Other crossings were opened and aid was also delivered by air and sea.

• Israel’s defence minister did not say, on 9 October 2023, that Israel was imposing a complete siege on Gaza. In fact, he said: “We are imposing a complete siege on the city of Gaza.” The Hebrew words עיר עזה (“city of Gaza”) can be heard clearly on the recording. And closing the crossing points into the Gaza Strip, which are all at some distance from Gaza City, could not in the short term impose a “complete siege” on the City of Gaza.

• Khan alleged that Israel “arbitrarily restrict[ed] the transfer of essential supplies — including food and medicine — through the border crossings after they were reopened”. However, according to official Israeli documents, food was transferred to the Rafah crossing and/or through other crossings into the Gaza Strip on 191 of the 225 days between 21 October 2023 and the end of May 2024, while medical supplies were transferred on 175 days in this period.

• Khan alleged that “the [total] siege [by Israel] also included cutting off cross-border water pipelines from Israel to Gaza” — which he said were Gazans’ principal source of clean water — “for a prolonged period beginning 9 October 2023”. However, publicly available evidence, including from official sources, shows that before 7 October 2023 the three pipelines from Israel provided no more than 10% of the fresh water used in the Gaza Strip. The other fresh water used by Gazans was mainly obtained from the aquifer, usually after desalination, or from the sea after desalination.

• Khan alleged that “the [total] siege also included… cutting off and hindering electricity supplies from at least 8 October 2023 until today [20 May 2024]”. However, publicly available evidence, including from official sources, shows that before 7 October 2023, Israel supplied about half of the Gaza Strip’s electricity through 10 power lines. Nine out of the 10 power lines from Israel to Gaza were destroyed by Hamas on 7 October. It would have been dangerous for Israeli workers to repair them at that time and Gaza had substantial reserves of fuel which allowed the continued use of electricity generators. Solar power could also be used and electricity was clearly available for essential and non-essential purposes.

• Khan accused Israel of obstructing the delivery of aid by humanitarian agencies. However, publicly available evidence, including from official sources, shows that these agencies have been unable to deliver aid at the same pace as Israel has been able to inspect and clear it for delivery. Hamas and other armed groups have frequently looted humanitarian aid, resulting in its diversion away from those who most need it.

• Khan alleged that “this [the alleged total siege by Israel] took place alongside… attacks on and killing of aid workers, which forced many agencies to cease or limit their operations in Gaza. This may refer to an air strike on a three-car convoy of World Central Kitchen staff in North Gaza on 1 April 2024, resulting in the death of seven aid workers. An investigation found that Israel Defence Force commanders had ordered the strike after wrongly concluding that the cars were being used by Hamas terrorists. In doing so, the commanders had failed to comply with the IDF’s rules of engagement and standard operating procedures. They were dismissed and Israel apologised. A former chief of the Australian defence force later found that the use of “armed locally-contracted security on the… convoy, not notified or approved in the detailed coordination process between World Central Kitchen and the Israeli authorities… gave the appearance of the presence of Hamas”.

• Khan alleged that “famine is present in some areas of Gaza and is imminent in other areas”. These reports were based on fundamentally inadequate information. Their conclusions were wrong and their predictions of imminent famine did not come to pass.

• Khan alleged that “Israel has intentionally and systematically deprived the civilian population in all parts of Gaza of objects indispensable to human survival.” These allegations do not appear to be based on data collected in a scientific manner. Despite the Gaza Ministry of Health claim that there have been 34 deaths since the beginning of the war allegedly caused by starvation, the chief paediatrician of Kamal Adwan hospital, where the majority of the starvation deaths have been reported, said that the cause of death in these cases was not lack of food or water but intestinal infections.

Comment

The three barristers provide solid evidence for their claims. Of course, this can be challenged in court. But what’s incontrovertible is that more evidence has emerged since 20 May which Khan has not put before the judges.

Every prosecutor in the United Kingdom is under a continuing obligation to disclose material information that comes to light at any point in a trial.

If the prosecutor becomes aware that information he has put before the court is inaccurate, incomplete or misleading, he must surely be under a professional duty to put the record straight before the court reaches a decision that it may later find to have been unjustified.

Fairness demands nothing less.

Update 1 September: Readers have asked me about Khan’s professional obligations.

Bar Standards Board

The Bar Standards Board’s Handbook applies to all barristers.

“Barristers” includes those who hold a practising certificate as well as “unregistered barristers”.

An unregistered barrister is what used to be called a non-practising barrister: “an individual who does not hold a practising certificate but who has been called to the bar by one of the inns and has not ceased to be a member of the bar”. Unregistered barristers remain subject to certain core duties and conduct rules at all times.

As far as I am aware, there are no temporal or geographical exemptions to the rules and duties: the handbook applies even if a barrister is “off duty” and wherever the barrister happens to be.

The Bar Standards Board has confirmed that a barrister’s duties and rules apply to the conduct of a barrister when acting outside the course of that person’s professional practice. It said last year:

Of the core duties and mandatory rules that apply to barristers (including unregistered barristers) at all times, the following are most likely to be relevant to non-professional conduct:

Core Duty 5 (CD5) You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

Rule C8 (rC8) You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

Khan

The Bar Standards Board’s public records confirm that Khan is a barrister with a current practising certificate.

In my view, he is bound to comply with the rules and duties in the handbook. It does not matter whether or not he is in practice at the English bar or whether he holds himself out as a practising barrister. Even if he were to give up his practising certificate, he would still be an unregistered barrister. The only way of avoiding the obligations of a barrister is to be disbarred.

Rome statute

A reader suggests that this is inconsistent with the court’s founding treaty, the Rome statute.

Article 42 makes it clear that the office of the prosecutor is an organ of the court. The office is headed by the prosecutor, currently Khan. As prosecutor, he must “not engage in any other occupation of a professional nature”.

It follows that Khan must not practise at the bar of England and Wales while he remains prosecutor of the International Criminal Court. But it is perfectly proper for him to remain a barrister regulated by the Bar Standards Board.

Article 42 says that a member of the office of the prosecutor must not “act on instructions from any external source”. So if the Bar Standards Board ordered him to bring or drop a particular case, complying with that instruction would put him in breach of his obligations to the court. But I don’t see how that could stop the Bar Standards Board from imposing a sanction on Khan if it finds him to be in breach of his professional obligations.

Code of conduct for prosecutors

The possibility that the prosecutor will remain subject to another regulatory code while working at the court is specifically acknowledged in the court’s code of conduct for the office of the prosecutor.

Paragraph 10 of this code says:

Where there is any inconsistency between this code and any other code of ethics or professional responsibility which members of the office are bound to honour outside the applicable legal regime established at the court, the provisions of this code shall prevail in respect of the professional conduct of members of the office when working for or practising before the court.

That provision does not seek to exempt the prosecutor from other professional obligations; nor could it. I understand it to mean that when disciplinary measures are under consideration by the International Criminal Court the prosecutor must be judged by the provisions of the court’s own professional rules.

Privileges and immunities

Article 48 of the Rome statute says that the prosecutor

shall, when engaged on or with respect to the business of the court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.

That provision is binding on the United Kingdom. Would the government have to exempt Khan from any disciplinary sanction imposed by the Bar Standards Board?

The answer might turn on article 31 of the Vienna Convention on Diplomatic Relations, which grants limited immunity from the UK’s “civil and administrative jurisdiction”.

But I can’t see it coming to that. Paragraph 77 of the code of conduct says the prosecutor’s privileges and immunities – and similar wording in the agreement on privileges and immunities of the court –  

are granted in the interests of the good administration of justice and not for the benefit of the individuals themselves. Those privileges and immunities may be waived in accordance with the applicable procedures and there is a duty to do so in any particular case where they would impede the course of justice and can be waived without prejudice to the purpose for which they were accorded.

Duty to investigate incriminating and exonerating circumstances

Even if the UK granted Khan immunity, he would still be subject to the code itself.

Paragraph 49 says

In compliance with the duty to establish the truth under article 54(1)(a) of the statute, the office shall investigate incriminating and exonerating circumstances equally in all steps involved in the planning and conduct of investigative and prosecutorial activities.

In particular, members of the office shall:

(a)  conduct investigations with the goal of establishing the truth, and in the interests of justice;

(b)  consider all relevant circumstances when assessing evidence, irrespective of whether they are to the advantage or the disadvantage of the prosecution;

(c)  ensure that all necessary and reasonable enquiries are made and the results disclosed in accordance with the requirements of a fair trial, whether they point to the guilt or the innocence of the suspect.

For the avoidance of doubt, as lawyers like to say, I should make it clear that I am not, and never have been, a barrister. As always, I am happy for readers to correct me if I have got anything wrong.

Update 5 September: Khan has received a letter from the Bar Standards Board, the barristers’ regulator. Speaking on the BBC’s Political Thinking with Nick Robinson podcast, he dealt with some of the criticisms made by the UK Lawyers for Israel group.

At 34 minutes 46 seconds into the interview, Robinson said:

The other criticism that is made, as you know, and has recently been made by a coalition of lawyers who speak up for Israel here in the UK, is that you’re ignoring new evidence — that when you talk, for example, of a total siege of Gaza they say: not true, border crossings have been opened for aid deliveries and that you should present this new evidence to the court, to the judges, before they make their judgment.

The interview continued:

KK Yes I saw that. I mean, I had my first letter from the Bar Standards Board of England and Wales, that regulates barristers.

NR Because, just to explain, this was effectively a threat saying that because you weren’t doing what they said you ought to do, you should be disbarred as a barrister in Britain if you ever choose to come back and operate within the law.

KK Yes. I mean, I had one complaint, I was notified that the Bar Standards Board dismissed one from some others, but on broadly the same lines at the beginning of the month, and yes, this was a threat. We know our ethical responsibilities under the bar’s code of conduct. Also as the elected prosecutor of the ICC, we’ve submitted evidence, we’ve considered evidence, we have a duty to investigate incriminating and exonerating evidence equally.

Shortly afterwards, at 36.23, Robinson took up another point raised by the group:

NR What about the evidence though? Because the evidence they say you should submit, regardless of their motives and their animus towards you which is clear, they say, well, you said total siege, there wasn’t a total siege. You said the water was cut off but in fact the water was not entirely cut off and indeed Israeli supplies of water was only a fraction, 10% they say, of the fresh water used in Gaza. You say there was an allegation of starvation as the UN did, but they say lots of food has been supplied, not as much as people might like but food has been supplied. This they say is all evidence that should be submitted to the court now.

KK You see, Nick, I have one advantage at least, that hopefully even they will concede. I’ve seen the evidence. They haven’t. The application is not public. It is confidential. It is filed to the chamber. So they are guessing what evidence has been submitted. We have discharged our responsibilities. The investigation was led by Brenda Hollis, a US national who was the chief prosecutor of the Special Court for Sierra Leone, and Andrew Cayley, who is a British King’s Counsel, who was the British director of service prosecutions, the senior prosecutor for the British armed forces, and more recently he was His Majesty’s chief inspector of the Crown Prosecution Service. So we have very formidable people involved. They have their ethics, they have a pedigree internationally before many different courts and I think we have left it to the judges now to decide and others must do what they think is appropriate. But I’m not going to be dissuaded by this type of attempt to litigate in the press. These are matters before the court and others must do whatever they think appropriate.

Khan was not asked what the Bar Standards Board said in its letter. Nor was he pressed on whether he should, as a matter of principle, update the court on evidence that has come to light since 20 May.

Update 9 September: the UK Lawyers for Israel group has now reported Khan and his staff to their regulators. They are accused of failing to comply with their professional obligations.

L-R: Brenda Hollis, Karim Khan KC, Andrew Cayley KC

There is a complaint to the Bar Standards Board about Khan and his senior trial lawyer Andrew Cayley CMG KC, both of whom are practising barristers. It’s alleged they have failed to comply with their duty not to mislead the court.

There is a separate complaint against Cayley and Brenda Hollis, another senior trial lawyer, as well as staff working with them. This has been sent to the registrar of the International Criminal Court. It’s alleged that they failed to include important material that would exculpate the suspects in their applications to the court.

The complainants observe that, under the court’s rules, any complaint to the International Criminal Court against the prosecutor must remain confidential.