Laws of humanity: Karim Khan QC

When we speak, Karim Khan QC is in Malaysia, flying back from delivering his final report as Special Adviser and Head of UNITAD, the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant, at the Security Council in New York.

Starting out at the Bar in 1992, Karim did not want to be ‘pigeonholed’ because of his background (Pakistani father, British mother – an ethnic minority in England) in immigration law or crime. His father advised him not to concern himself with financial considerations; to focus on what he most enjoyed. Karim cut his teeth at the Crown Prosecution Service. When he saw the horrors of the Balkans war on CNN and learnt that the International Criminal Tribunal for Former Yugoslavia (ICTY) had been established, he aspired to work there one day. Karim’s applications went into a ‘black hole’ but he persevered, eventually becoming the first from the English Bar to be recruited by the Office of the Prosecutor at the ICTY, in The Hague.

That was the beginning of a career not only as a prosecutor but as a defence counsel and victims’ counsel in the ICTY, the International Criminal Tribunal for Rwanda (ICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon, the Special Court for Sierra Leone (SCSL), Special Panels for Serious Crimes in Timor Leste and at the International Criminal Court (ICC). On 16 June 2021, Karim became Chief Prosecutor at the ICC in The Hague, the first British barrister to be elected to that post.

When he was called to the Bar, international criminal law did not exist as a field of practice. So I start by asking how he ended up practising in this area. ‘I did my pupillage at 5 Paper Buildings (Chambers of John Matthews QC) in the Temple, a specialist criminal law Chambers,’ he tells me. ‘I expected to have a criminal law practice, having also secured an offer with the CPS. That said, I was extremely keen on human rights law from the outset. I certainly did not foresee how the Human Rights Act of 1998 [would become] central to every part of domestic law, or how international criminal law [would take] off in the way that it has.’

He read law at King’s College, London and was already involved in human rights work: ‘I am a member of the Ahmadiyya Muslim Community,’ he explains, ‘which faced heavy persecution in Pakistan. [Dictator] General Zia-ul-Haq... enacted Military Ordinance XX which made it a criminal offence in Pakistan for members of my community to call ourselves Muslims or “pose” as Muslims in any way. Many were killed or imprisoned or sought asylum outside of Pakistan. Unfortunately, that law and state-sanctioned persecution against Ahmadi Muslims, and also Christians and others, continues today. I think my voluntary work at university, and in my community, helped me gravitate to this area.’

What else spurred him on? ‘The war in the Balkans was raging. I encountered many refugees in the UK and was touched by the reporting that put a spotlight on that awful conflict. The prospect of justice for crimes of such magnitude just seemed the right thing to do and incredibly exciting.’

He was determined to work at the ICTY and kept applying until he was successful some years later. Karim has made his name in the field, acting in some of the most prominent cases reaching international criminal and hybrid courts (from Temple Garden Chambers) including as Lead Counsel for the largest group of victims in the ECCC arising out of the Khmer Rouge period, Lead Counsel representing the Deputy President of Kenya, Ruto against ICC crimes against humanity allegations arising from violence following Kenya’s 2007 national elections (Karim ensured his acquittal), representing the Former Prime Minister of Libya during the government of Gadaffi, charged with crimes against humanity and corruption in the courts of Libya following extradition from Tunisia (Baghdadi A-Mahmoudi case). Karim also acted at the confirmation state of proceedings for Jean-Pierre Bemba Gombo, Former Vice President of the Democratic Republic of Congo for crimes allegedly committed in the Central African Republic (Bemba was eventually acquitted by the ICC) and was Lead Counsel until June 2007 to Charles Taylor, former President of Liberia, before the SCSL, the first African president to be prosecuted at an international court. 

‘The cases are huge,’ he tells me. ‘It takes a team to work on them.’ These are extremely complex cases which need (as Peter Haynes QC put it during a training session I attended for counsel before the ICC) commitment: they can last over ten years. We discuss how the work of a barrister in such international fora extends beyond the courtroom into the field – investigating, collecting evidence – areas in which a barrister would not usually get involved.

Karim feels that ‘our tradition in common law, being able to have the experience of prosecuting and defending, representing victims, is wonderful. It… keeps one grounded’. He expands: ‘Realising that your opponent in the courtroom is an opponent in a case, not an opponent in life, is important. [W]hat is always corrosive is if you are prosecuting and you feel you are doing “God’s work” or if you feel that the defence is the representative of the devil’s incarnate. We need to be moderate, to be objective. The ability to work on different sides is a wonderful privilege that enriches one’s practice and fosters the objectivity which is essential to good advice.’ The word ‘humbleness’ crops up many times during our conversation, and he also emphasises the importance of diversity – going, as he put it, beyond the ‘white male anglophone’ or ‘French white Paris Sorbonne’ in the composition of legal teams acting in such cases.

‘If you are to succeed in the international plane,’ he notes, ‘one needs a mix of different legal systems, gender, languages and culture in a team. We are working in other peoples’ countries with their own history with their own politics,’ he stresses. ‘One cannot come in as some sort of legal commando, you cannot... parachute in with Archbold International in one’s backpack and think you can succeed, investigate and prosecute... One needs also to study the situation in the country, learn its history and culture and become acquainted with its politics. To do this effectively and in a time efficient manner it is also essential to… work with lawyers and investigators who come from and know the country or the region concerned - and its people and dynamics. I really believe one must have the humility to be a student and start understanding the realities on the ground. If one simply seeks to transpose applicable international criminal law in a country, without awareness of the undercurrents, of the richness of that country’s history and traditions, or the complexity of its politics, ethnic, cultural, religious allegiances or dynamics, you can look like an idiot and become unstuck very quickly indeed!’

I mention that the President of the International Court of Justice, in a recent speech marking its 75th anniversary, noted the ‘unsatisfactory situation’ that ‘very few of the counsel [appearing before the ICJ] are from developing countries’. She added that ‘while there are many aspects of international law on which jurists of all stripes can be expected to agree, we must acknowledge that there is no single, homogenized answer to many legal questions that arise in international disputes. As much as each individual may aspire to a cosmopolitan perspective, we must all have the humility to appreciate that we are shaped by our respective experiences. We must actively seek differing perspectives and promote open exchanges of ideas, especially with those whose views differ from our own.’

Should this need for diversity be kept in mind by leading counsel who have influence in forming the legal teams before international courts, I ask. Karim agrees: ‘I think it is essential, quite frankly, and not just at the Bar. Diversity is essential in all areas of human endeavour.’

He shares a fascinating anecdote about Professor Abdul-Salam of Imperial College, London, a family friend and the Muslim world’s first Nobel Prize winner for theoretical physics, who was ‘one of the main advocates for opening up diversity and way ahead of his time’. He refers me to what another professor of theoretical physics, Jim Gates, observed about Salam.

Gates said: ‘When we look at diversity in an area like physics, many people leap to the conclusion that discrimination is the cause or the lack of minority participation. Others believe that it is a lack of ability or dedication. I've concluded there may be something quite different at work. Suppose we lived in a world where the only kind of music that existed was classical music and some bright young person came along and learned classical music, but then created jazz. How does the existing establishment view him? He's not playing by their rules. Some people might say he's not playing by any rules. So the difference in aesthetic plays an enormous role. I have a strong suspicion something like that's at work in theoretical physics. In the early eighties Professor Salam commented that when a sufficient number of people of the African Diaspora start to do physics, he suspected something like jazz would appear… You see, there are different styles in how physics is done. There are styles of physics that are Russian, Germanic, English, and even American, which is very detectable to me. When enough people of African heritage do physics, they're going to bring a different aesthetic, and it will be new and valuable. Because classical music and jazz exist we don't think that we're musically poorer. Had jazz never come into existence we would've been musically poorer… And that's what's lost when people with different inputs don't participate in science. We miss the opportunity to create jazz.’

Karim thinks that the same applies to law. And that this diversity may also be about your place of origin. I tell him that living in a country in strife allowed me to observe things that later became crucial to the manner in which I plead crimes against humanity cases as counsel. Kids who have grown up in war zones may become the great international lawyers of tomorrow because they are seeing certain things that someone growing up in the West does not see, I suggest.

He agrees: ‘If you come from a background in which you don’t have electricity or if you grow [up] in the middle of conflict, you bring a different perspective. You can read all you want, but this does not compare to experience of life. We need to bring the understanding of such experiences into every area of human endeavour including the law. It enriches the law.’

I ask what has been the best part of his work, so far? He does not hesitate: ‘It is the people that I have met, the survivors particularly, the communities affected, that have had a profound impact upon me rather than the jurisprudence of the cases, important though that undoubtedly is. If one is involved in Cambodia, Former Yugoslavia, Sierra Leone, one meets a diverse group of people mostly characterised by immense courage – people that overcome lack of education, poverty, trauma... who have the will to survive, endure and persist in their demands for justice as an essential prerequisite in order for them to move on. Their fortitude and resilience and hope they generally retain is as staggering as it is humbling.’

Karim also observes that for far too long, we have not given proper focus to crimes targeting or affecting children. ‘We conflate these with general crimes against the civilian populations. We talk about gender crimes and crimes against children as if they were the same thing. They are completely different and require different skills, understanding of trauma and how crimes affect different groups. The experience of children in terms of... destruction of schools or child soldiers under duress and then their ability to get rehabilitated. Transgenerational harm. These are massive issues. Trying to learn from those affected by conflict, we can try to make sure that the next generation of jurisprudence is more profound than the preceding one. This should be the continuous demand of civilisation as we move forward. This greater maturity of the law, to provide greater protections particularly for those marginalised groups is something we should support.’

I ask whether, from his first experiences in The Hague, he thinks that the English common law system has influenced the manner in which these tribunals have developed. ‘It definitely did at the beginning,’ he says. ‘The ICTY had much more of a common law pedigree.’ He tells me that the American Bar Association was quite heavily involved in the drafting of the rules of procedure and evidence; they were helping the judges. ‘This was a source of criticism. What one saw over a period of time at the ICTY and ICTR, was the judges amending the rules. They started revising the rules of procedure and evidence in such a way as to incorporate greater aspects of the civil law system.’ That journey led to the preparatory committees which preceded the conclusion of the Rome Statute.

By the time the Rome Statute for an ICC was signed in 1998, ‘the Francophone world, the civil law world more generally, wanted a more balanced system. We now have a fused system by way of victims’ participation, but also by balancing the obligation under Article 66, not only to prove the case beyond reasonable doubt but in Article 54, to get to the truth, and to investigate incriminatory and exonerating evidence equally. This was, to my mind, a very sincere attempt to try to get the best of both worlds in a unique, sui generis Statute, that was respectful for the different legal norms and cultures that enrich the world’s legal systems. It is not a European Criminal Court for the rest of the world. It really has to take on board some of the principles of all legal systems so as to foster fair trials in order to be seen as the Law of Humanity, or at least the law of those 123 States that are State parties.’

We talk about his work in Iraq, for which he left private practice. He literally walked into an empty office after being appointed by the Secretary General. ‘All I had was a Security Council Resolution; there was no Commission of Enquiry as in Syria or fact-finding mission that was there for the Myanmar mechanism.’ He had to decide what to do.

He has seen the immense dignity of survivors: ‘I am Muslim. I saw the crimes that Da’esh was committing in the name of Islam – a religion whose name means “peace”. It is important not to be a spectator. It was a job that took me to the frontline. To my mind, Da’esh have similarities with the Nazis. It is an ideology driven by terror and fear. It has targeted anybody who does not follow their creed; not just Yazidis or Christians but also Shi’a Muslims, Sunni Muslims, Kaka’i, Shabak, and Turkmen communities, Arab and Sunni; anybody who is just normal and moderate – or who refused to live as they were ordered – were targeted and tortured or killed. People were burned alive and drowned, crucified, thrown off buildings; children put into slavery, made into suicide bombers and combatants; women subjected to slavery; every kind of perversion, every type of criminality that you can imagine, was being committed.’

Karim recruited a team. ‘I deployed with five people to Baghdad in October 2018 from New York. We rented a couple of rooms in a hotel. We now have three field offices [New York, Erbil and Dohuk] and our headquarters in Baghdad. We have now 217 staff.’ Half of the leadership team, and 49% overall, are women. ‘I am immensely proud of the team. We have Iraqis on board who work on an equal footing with international UN staff. It has been a privilege to lead UNITAD.’

He collected evidence for genocide, crimes against humanity and war crimes in Iraq committed by Da’esh, using new technology to investigate such widespread crimes ‘in which the fabric of society is ripped [to] pieces’. Karim explains: ‘You cannot deal with these crimes in the usual fashion as if it is a one-off murder in a city. They are qualitatively, and quantitatively, different.’

What prepared him to be able to work so closely with the atrocities he saw? Since the ICTY, he has done a lot of investigative work in the field in different parts of the world, he points out. He was not just doing the courtroom advocacy. ‘I saw the devastation, spoke to witnesses,’ he states.

We discuss international justice and what works: ‘In Iraq, State consent was crucial. Bespoke systems are appropriate… and the Rome Statute system is a very good one. It is based on complementarity. Justice is best done at home. The best place for justice is national courts, by national judges, with national authorities who know the country very well. The ICC is not the default. It is a court of last resort…

‘I am inclined to think that The Hague itself should be a city of last resort. The Statute allows for the ICC to sit away from The Hague in the country or region where the crimes were committed. That has many advantages, for example, less trauma for witnesses, it’s closer to the targeted communities and can be “owned” more easily which is also important. The Special Court of Sierra Leone worked very well. The ICC model can work equally well.’

Even more important than the model or the venue is ‘making sure things work effectively and realising what matters’. The human rights activist, Nadia Murad said in the context of a Security Council Arria-Formula meeting that in the three months since UNITAD helped identify and return the bodies of victims massacred in Kojo, young Yazidi women had been able to get married. ‘We returned the bodies in February this year. Until their fathers or brothers had been buried, they just felt unable to move on with their lives. So this is not just a lawyer’s exercise. This matters to people,’ Karim says.

‘We saw it in Rwanda, we saw it in Da’esh. Communities that were considered “the other”, somehow different and not entitled to the same protection of the law. What we need is to show that every life matters… Sometimes we take it for granted that we have investigations for crimes against communities who really believe that their lives did not matter at all because nobody protected their rights, or respected them or their way of life, even before the genocide or crimes against humanity took place.’ The fact that the international community actually spends the money, time and resources to attempt to do justice ‘can be essential for communities beneath the radar, who felt that they were an underclass; viewed as less worthy; their lives, as less precious. It is important to keep reasserting the quality of humanity. It is a protection… not only in the courtroom but in villages far away from the courtroom. Law can play a part,’ he reflects.

As our meeting draws to an end, I ask what his main challenge is, moving forward? ‘The Office of the Prosecutor in the ICC must not be viewed a paper tiger. It can make a difference. It can protect. It can do justice. It is instrumental in the continuous march of humanity to civilisation – we are not in that world yet,’ he states.  

This is the full version of Monica Feria-Tinta's interview with Karim Khan QC; an abridged version appeared in the July 2021 print issue of Counsel magazine.