BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions

The election of two highly qualified UK nationals, Judge Joanna Korner QC and Karim Khan QC, to the roles of Judge and Prosecutor to the ICC respectively, will help serve reform. … As a founder member of the ICC, we have been one of its strongest supporters and continue to respect the independence of the institutions. We oppose the ICC’s investigation into war crimes in Palestine. We do not accept that the ICC has jurisdiction in this instance, given that Israel is not a party to the Statute of Rome and Palestine is not a sovereign state.

Beneath his frat-boy antics, disheveled looks, and bumbling affectations, lies a cunning, calculating, consummate political operator par excellence – even if many of his policies and positions reflect short-term, myopic, tactical jockeying and half-baked ideas. Boris Johnson may have written a (mediocre at best) biography of Winston Churchill, but Winston Churchill he is not. He also seems without a clue as to the concepts of judicial and prosecutorial independence, and that words coming from a Head of State, when imprudent, ill-conceived, and injudicious, create perceptions. Negative ones.

On 9 April 2021, the UK Prime Minister sent a letter to the Conservative Friends of Israel, noting its concerns about the International Criminal Court’s (ICC) recent ruling on the Palestine situation where the Pre-Trial Chamber found that the ICC has jurisdiction to investigate crimes committed in Palestine (see my recent review here). Understandably, the ruling on the Palestine situation has caused a fair amount of consternation or euphoria, depending on where one lines up on the issues involved. The UK had its chance to make amici submissions before the Pre-Trial Chamber. A ruling was issued. To now publicly pressurize the ICC to reverse course (no other way to view Johnson’s remarks), is pure, naked, crude political interference.

Whether the ruling on the Palestine situation is just or not, whether it is solidly supported by a strict adherence to and fair application of the applicable jurisprudence, whether the ruling will or should yield charges of individuals alleged to have committed crimes, without favor or prejudice, are issues meriting serious debate. A ruling, particularly this one, is not an end in itself, but rather a means to future prosecutorial and judicial processes, which, if scrupulously adhered to without extraneous or extrajudicial interference, are likely to yield results unfettered by unbefitting perceptions of bias resulting from impressions of procedural or substantive shenanigans. Not to mention actual bias.

Having not gone into the merits, in a previous post I expressed my opinion –  practical as it may be and not nuanced on the legal intricacies involved. The Assembly of States Parties having admitted Palestine as a fully-fledged State Party, the ICC Prosecutor had no option but to consider Palestine’s referral. I also noted that effectively the Pre-Trial Chamber was equally obliged to find as it did, since the States Parties, including the UK, had voiced no objections to Palestine joining the ICC – irrespective of whether Palestine was willing to subscribe to and abide by all the conditions demanded of a State Party under the Rome Statute. I understand the counterarguments, but to now claim that Palestine is not a state and thus cannot enjoy the privileges of membership, is a bit like closing the barn door after the horses have run off.

Cheeky of Johnson to claim that the UK supports the ICC and respects its independence, while in the same breath asserting that “we” (presumably the UK as a State Party) oppose the ICC investigation and do not accept ICC jurisdiction in a situation which the ICC has effectively ruled on. These remarks can be viewed as mere rhetorical red meat to his fellow conservatives, whose support he needs to remain at the helm of his party and as Prime Minister. Conversely, remarking about the highly qualified UK nationals recently elected as Judge and Prosecutor, was a nice touch. Hell, if the intent was to highlight the UK’s imposing presence at the ICC, he should have also given a shout-out to the Registrar, another UK national. And by the way, kudos to the UK for having such outstanding professionals at the highest levels of the ICC’s institutions.

But what I find troubling with Johnson’s letter is his mention of the recent addition of UK nationals to the ICC, while also attacking the ICC (and let’s not mince words, this goes to the Prosecutor Fatou Bensouda and the two Pre-Trial Chamber Judges that ruled in favor of jurisdiction) for finding – through the independence exercised by its institutions – that it has jurisdiction to investigate war crimes committed in Palestine. Whether intended or not (and I suspect the former), by mentioning Judge Korner and Mr. Khan, Johnson clearly gave the impression to some that the fix may be in. Suspicious minds will no doubt also claim that Judge Korner and Mr. Khan were selected and lobbied for by the UK government to ensure their election; that a quid pro quo must have been part of the deal.

To be clear, I happen to know Judge Korner and Prosecutor-Elect Karim Khan from our days at the International Criminal Tribunal for the former Yugoslavia. Both have impeccable credentials, are exceptionally qualified, and beyond doubt will exercise their respective authority and discretion with the utmost independence and impartiality. And I am certain, as night follows day, that neither of them would even entertain a casual conversation of a quid pro quo nature, let alone acquiesce to anything of this kind, as the price for securing the support of the UK/Johnson government – even assuming that such support would have been needed.  There is not the slightest danger that either will ever be a stalking horse for Boris Johnson, or any other political partisan.  But as I noted, words, and the perceptions they create, do matter. Regrettably for both Judge Korner and Mr. Khan, Johnson’s remarks – while perhaps merely meant to highlight their stellar qualifications and the UK’s commitment to the ICC – have manufactured an artificial cloud, risks raising false expectations or unwarranted fears.

My simple point is that the time-tested refrain that justice not only must be done, but it must also (I would say, especially) be seen to be done, is not a trifling cliché.  This is particularly so for the ICC, which is already a punching bag for so many.  Further, if we are to accept even half of the findings in the Independent Expert Report, the ICC is punching well below its weight and by many accounts has yet to meet its potential.  The ICC is already struggling.  World leaders, especially those who head State Parties, should be particularly careful to avoid further hobbling the institution with an irresponsible suggestion that the fix is in.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “BORIS JOHNSON’S IMPRUDENT LETTER: irresponsibly fostering misperceptions”

  1. Excellent post. Obviously, he doesn’t understand no hell here in this issue.

    Why to blame the court or the prosecutor? it is the government of Israel to be blamed, or, alternatively, states parties. All over the world, agents of the Israeli states, are engaged in fighting globally, Antisemitism, anti Zionism etc…… This is understandable of course. But, the fact here, is that states parties, hadn’t opposed the accession of Palestine. The Israeli government, was sleeping, until awaken abruptly to a nightmare. It was up to the assembly of states parties, and the UN, not the court and the prosecutor.

    I quote from the ruling of the pre trial chamber:

    ” The chamber has no jurisdiction to review that procedure and to pronounce itself on the validity of the accession of a particular state party would be ultra vires as regards its authority under the Rome statute”

    More over, I quote:

    ” However, it should be noted that these states remained silent during the accession process and that none of them challenged Palestine’s accession before the Assembly of State Parties at that time or later. ”

    So, why to blame the court now ? It is those states parties, and the Israeli government, not the court or prosecutor.

    Typically, everybody blames courts, for interfering with the action and the wish of the sovereign (what is so called ridiculously “judicial activism”). So, here in that case, who is the sovereign ? The assembly of States Parties ? The court, has deferred to their decision to accept Palestine, so, stay put, and blame yourself. That’s it.

    Thanks

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