Josep Borrell, the former EU high representative for foreign affairs, has accused the United States and Israel of exploiting sexual misconduct allegations against International Criminal Court chief prosecutor Karim Khan to achieve what he called their long-sought goal of neutralising the court from within.
In an article published by Project Syndicate on Friday, Borrell urged ICC member states to uphold due process in their vote on the fate of Khan next week.
“Some institutional failures unfold not through scandal but procedure, with acts of sabotage dressed up in the language of good-faith inquiry and accountability,” he wrote. “By the time anyone notices what is happening, the damage has been done.”
“I fear that this is what we are witnessing in attacks against Karim Khan, the chief prosecutor for the International Criminal Court in The Hague. Recent developments seem to satisfy goals that the United States and Israel have spent months working toward.”
The Assembly of States Parties to the Rome Statute (ASP), which is made up of diplomatic representatives from the international court’s 125 member states, is due to vote on Khan’s future at the United Nations’ headquarters in New York City on 24 July.
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It comes after the ASP’s executive bureau, a body of diplomats from 21 member states, determined by a two-thirds majority last month that Khan had committed “serious misconduct”.
This was despite a judicial panel, appointed by the bureau to review the findings of a United Nations investigation into complaints against Khan, concluding that the evidence against him was insufficient to establish any level of misconduct.
Khan has strenuously denied any misconduct or breach of duty.
Borell noted that, as exclusively reported by Middle East Eye, the bureau of the ASP has amended the voting process on Khan’s removal from a two-stage vote to a single vote in an apparent break with its own rules.
He also noted the bureau’s conclusion that the prosecutor engaged in serious misconduct based on a novel allegation that both the complainant and prosecutor denied.
According to the court’s own rules, the ASP is the competent decision-maker for voting on a final determination of the misconduct allegations and whether to remove the prosecutor from office.
Any finding of misconduct would require the approval of a two-thirds majority of the states present and voting at the ASP.
If the ASP votes to find serious misconduct, it would then hold a second vote on whether to remove the prosecutor.
A second vote to remove Khan would require an absolute majority of the 125-member ASP (63 votes), according to article 46 of the Rome Statute.
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The bureau’s March procedures paper, seen by MEE, gives effect to these court rules and outlines the course of action that would follow the bureau’s decision.
However, the bureau has decided to merge the two votes into a single one, with an absolute majority needed to remove the prosecutor.
The 8 June confidential bureau decision, seen by MEE, states that the bureau found “the evidence establishes beyond reasonable doubt” that Khan “engaged in a sexual relationship” with the complainant, and argued that “in the context of that power imbalance a sexual relationship could never be appropriate”.
Khan denied the existence of any sexual relationship, while the complainant’s account centred on allegations of non-consensual conduct.
The bureau’s decision appeared to reframe the nature of the sexual misconduct, in an apparent departure from the sexual assault allegations that have been the centrepiece of the investigation as well as media leaks about the case.
“This is no mere formality. Folding the second question into the first—which, again, has not been proven—enables removal based on an unsubstantiated accusation, or on a different issue altogether (such as engaging in a consensual intimate relationship from a position of authority—something that no one ever alleged),” Borell wrote.
Borrell traced the case against Khan to April 2024, when a group of US senators “warned – in fact, threatened” the prosecutor that seeking an arrest warrant against Israeli Prime Minister Benjamin Netanyahu would make him “a target himself.”
Khan pressed ahead regardless, filing for warrants against Netanyahu, former Israeli defence minister Yoav Gallant, and three Hamas officials, having previously sought – and secured – warrants against Russian President Vladimir Putin, former Philippine president Rodrigo Duterte, and Taliban leaders.
The former EU diplomat linked the case to a broader offensive against the court, pointing to a recent Wall Street Journal commentary by US Secretary of State Marco Rubio, in which he announced the administration’s intention to dismantle the ICC “brick by brick.”
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Borrell noted that Washington had already sanctioned 11 senior ICC officials, including Khan, two deputy prosecutors and eight judges, freezing their bank accounts and cancelling their credit cards and Apple, Amazon and PayPal accounts.
Citing Financial Times reporting, Borrell also said Trump had suggested to Chinese President Xi Jinping in a May meeting that China and Russia – neither of which is party to the Rome Statute – join Washington’s campaign against the court, a detail he said undercut US claims that the effort was about defending national sovereignty.
“That America’s chosen partners in this crusade are precisely the two countries with the greatest reason to fear the Court says more about the real purpose of the operation against Khan than any communique about sovereignty,” he wrote.
“The Trump administration and Netanyahu want the same thing: to ensure that no international court can touch soldiers, border agents, or its chosen allies, no matter how serious the allegations of war crimes and crimes against humanity,” Borrell added.
“Both see the ‘Khan scandal’ as the perfect occasion to defang the court. They do not need to destroy it from the outside if its own member states can hollow it out from within, ignoring a judicial finding to hold a political vote against the man who signed the warrants that most inconvenienced them.”
“Khan has shown the courage and fortitude to seek arrest warrants for suspects who would have been considered untouchable in the court’s earlier years,” he concluded.
“At a time when international criminal justice and the rule of law face a full-scale frontal assault, not least from indicted war criminals, he deserves the world’s recognition and support.”
