The scandal undoing the ICC

0:01The chief prosecutor of the International Criminal Court was removed from his job last week. The elected official prosecutor Karim Khan committed serious misconduct and a serious breach of duty under Article 46.1 of the Rome Statute. A U.N. watchdog had spent about two years investigating allegations that Khan sexually abused a female co-worker. Now, in normal times, a scandal such as this would be the ICC's biggest problem, but it's 2026. And so Marco Rubio. And we have lunatics and crazies involved in the ICC. And Zoran Mamdani. Benjamin Netanyahu is a war criminal. And Benjamin Netanyahu. I'm going to New York.

0:40And the nation of Chad and the nation of Venezuela are also threatening the court's legitimacy. Coming up on Today Explained from Vox, dark days at the ICC.

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2:12Harry Davis is an investigative correspondent for The Guardian. He's been covering the ICC and those who seek to influence it for about three years now. He was reporting last week when the ICC's chief prosecutor, Karim Khan, was removed from his position, which is no small deal. Where does this start? We had to go back two years to the very end of April 2024 and behind the scenes at the ICC, a woman, a young woman in her 30s who worked directly for Kareem Khan confided in some colleagues about what she was experiencing. When I made that disclosure, I was exhausted. I was extremely emotional. I was not in a good place.

2:59And it was after the colleague I share an office with had repeatedly said, are you okay? Something's wrong. Something's up. You haven't been, you've been behaving strangely. And it came up. And she alleged that Khan had been abusing her over an extended period of time. I have no other way to describe it, but an escalation. of attempts. And so that escalation was happening in this environment where you are trying desperately to almost emotionally regulate Mr. Khan.

3:47And as I would describe it, the pawing, the physical nature of it.

3:59But it didn't start that way because it was kind of like encroachments on the boundaries slowly, not just physically, but emotionally as well. These colleagues then went forward to report this internally and then also informed Khan that they had been made aware of these allegations. And at that point, the complainant, the woman, didn't want this to blow up. She didn't want this to jeopardize the work of the court. And she didn't initially comply or work with an internal investigation. Again, my intention was never to have an investigation or for this to have gone as far as it did. I just wanted it to stop.

4:48That's it. But eventually, the fact that she had made these allegations emerged into the public domain. And then, well, sort of all hell broke loose then. What happens after all hell breaks loose? Well, there seems to have been an effort by a mysterious third party at that stage to get information about these allegations into the public domain. And at that point, the ICC is under a great deal of pressure and strain and scrutiny. Just months earlier, Karim Khan had made a momentous decision to seek arrest warrants for not only three senior Hamas figures who were involved in planning the attack on southern Israel on October 7th.

5:40He also sought arrest warrants against Benjamin Netanyahu, the prime minister of Israel, and and his then defense minister, Joab Gallant. This meant the allegations were very much viewed against that backdrop, and there were immediate concerns that these allegations were somehow part of a smear campaign against him. What do we know about the woman who made the allegations? How did she end up here? Sarah is a lawyer. She is originally from Malaysia. She is Muslim. She's a mother. She had worked at the court for several years before she started working for Kareem Khan. I was maybe the oldest intern.

6:24I started off as an intern at the court and I did essentially anything that was asked of me in the immediate office. And that could be drafting speeches and I would be there to assist in any way possible. She was in a job that meant she worked very closely with Khan as his direct special assistant. It would be preparing his briefing notes. It would, I would be one of four people in his immediate team. And so essentially anything that Mr Khan needed, we would be executing. And she suddenly found herself in this situation, which just having spoken to people around her, close to her, caused her a great deal of psychological distress.

7:13And she found herself at the center of this, what became a very geopolitically contested, fraught drama. There were several moments during the course of this past two years where her allegations were referred to by senior Israeli politicians, including Benjamin Netanyahu, and that this was a distressing moment for Sarah, from what I understand. Did Karim Khan ever admit to having done anything here? What does he say happened? So Khan has consistently denied any wrongdoing. I, in October, asked for an investigation. I denied the allegations. I met the UN and in the very first opening comment to the investigators, I completely denied engaging any harassment, abuse of authority, inappropriate behaviour.

8:08Looking at the evidence, looking at the report, there was no misconduct or breach of authority by me. Certainly no reprisals or abuse, harassment, as has been alleged. His lawyers have also argued that the process that has resulted in his ousting was procedurally unfair. They've also sought to characterize the process as a politically motivated effort to get rid of him as a sort of form of retaliation or in response to his decision to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu. Okay, so his lawyers say this was politically motivated because he issued an arrest warrant for Benjamin Netanyahu.

8:58What exactly are these folks alleging? And are they alleging that Sarah, the woman who filed the complaint, are they alleging that she's part of it? Like, what's the story they're telling? There have been efforts over the past two years to suggest that she may be part of a plot to smear him. According to this report, even some inside the ICC found the timing of the allegations suspicious. What's your response to that? Well, first of all, are you a Mossad agent? No. Yeah. And if I would be one, I would say I was terrible at it. There's a very nuanced picture here. So the ICC is under, without doubt, is under huge pressure from the US, but also Israel.

9:52I've reported at great length on the way in which the Israeli intelligence services have spied upon and sought to intimidate the ICC. And that has gone on for many years. but are the allegations themselves by Sarah and by a second woman who is also who also came forward to the Guardian last year who had a similar set of allegations against Khan about his conduct towards her early in his career are the are the underlying allegations fabricated by the Israelis and there is a distinction to be brought to be made here between the allegations themselves and the underlying allegations and claims that these women have made with the way in which Israel and pro-Israeli actors, which would include the current Trump administration, have sought to instrumentalize and weaponize, exploit this situation because they don't like the fact that Khan made this huge decision to seek arrest warrants for sitting Israeli prime minister.

10:55and that distinction is something that I think some people have struggled to make but it is it is there are two things could be true here the Israelis and Israeli government can be seeking to exert a great deal of pressure upon the court with the U.S. in a very aggressive fashion it can also be true that these allegations are serious credible and warrant a great deal of scrutiny and they have now been subject to a great deal of scrutiny through the course of this UN watchdog and they've gone through this disciplinary process and this disciplinary process it is fair to say is has been somewhat ad hoc and uh drawn out convoluted and has has raised a great deal of concerns about the way in which states may not be using it in order to remove Khan because they also don't like the decisions he made, prosecutorial decisions he made in relation to Israel and Palestine.

11:55Let me ask you this. So Karim Khan has to be replaced now. What's that process going to be like? There has to be a new election. The ICC prosecutor is elected by all member states. So there will be a process. It's unclear exactly when that will be. but for now the prosecutor's office which is um which is a division of the court has about 400 staff it's it's it's like the kind of engine room of the court that is investigating and working on these cases that is currently being led by khan's two deputies deputy prosecutors they are also elected officials um they they have been running the court the this organ of the court the prosecutor's office for more than a year now because khan had previously stepped away and then he was then suspended.

12:42So it's in their hands for now, but there will need to be an election. One of those two candidates may run, they may decide that they want the top job. But some of the people I've spoken to in the court also feel that now might be the time for a fresh start with a new face and to bring in someone new.

13:05That person, whoever it is, will need to be able to be a custodian at the prosecutor's office and manage it through this exceptionally challenging time, probably the most challenging moment the court has ever encountered.

13:28Harry Davies is an investigative correspondent with The Guardian. That tape of Sarah, the woman who accused Karim Khan, is from an excellent interview that Christiane Amanpour conducted for CNN. When we come back, Marco Rubio on the warpath and the ICC in his crosshairs.

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17:36Today Explained is back, this time with former Ambassador Beth Van Skok. She advised the State Department on global criminal justice, which makes her something of an expert on the ICC. Well, it's an institution that I have studied for many years. I led an NGO delegation in the 1990s that participated in the drafting of the court, and then I've studied it ever since. I've also been in government. My most recent role was as ambassador at large for global criminal justice. And so my office was essentially the liaison between the United States and a whole host of international justice institutions, but including the International Criminal Court.

18:14If the International Criminal Court is charged with dealing with people who have allegedly done very bad things and then trying them and determining if they have done very bad things, why is the United States not a member? The United States signed the treaty in the waning days of the Clinton administration, but never submitted it to ratification for the Senate. And one of the concerns is that the final treaty allows for jurisdiction over individuals who may commit crimes on the territory of states' parties. And the United States has always been concerned about that principle because we have troop commitments.

18:49And there's a very strong belief that U.S. service members should enjoy all of the protections of the Uniform Code of Military Justice. Now, supporters of the court have always said, listen, the United States and its personnel are vulnerable regardless of whether you join, right? If U.S. personnel are committing crimes on the territory of states' parties, which we saw in Afghanistan. So Afghanistan is a state party member. The U.S. personnel, most notably members of the Central Intelligence Agency, committed what President Obama called torture in Afghanistan. And so that conduct was potentially vulnerable to be brought before the ICC.

19:28The response is then, of course, then do those cases domestically and there'll be no occasion for the International Criminal Court to consider those matters.

19:40There have been peaks and valleys in the relationship between the ICC and the United States. So we're in a valley, a frankly pretty deep valley right now, with this new campaign that Secretary Rubio announced a week or so ago. But back in the Bush administration, there was also very acute concern, and it stemmed from this Afghanistan investigation. And so then the Bush administration and also Congress both put in place measures that they thought would be protective of U.S. service members. So that was one kind of more valley. Now, what's interesting is in the second term of the Bush administration, many of these measures were dismantled because the Bush administration realized that the court was doing important work in some areas where it also cared about justice, and in particular, Darfur.

20:27And I promise this to the people of Darfur. The United States will not avert our eyes from a crisis that challenges the conscience of the world. Then the Obama administration announced a reset in its relationship with the court. And that's where I entered the picture. I was deputy in the office that I later led as ambassador in the next Democratic administration. So at that point, the Obama administration directed across the various executive agencies to look for ways to support the court where the work that it was doing was consistent with U.S. policy in those particular situation countries. It was created, and the idea of international justice was created, for those extraordinary circumstances in which you see a leader operating in ways that is so contrary to international norms and basic beliefs that we have about the dignity of people.

21:34the international community sees the need to speak and to render judgment. Then we had the first Trump administration, which reversed course almost immediately, eventually opposed sanctions on senior figures, including the prosecutor herself. There was the previous prosecutor and one of her key aides. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority. Then we get to the Biden-Harris administration. They pulled down those sanctions and again launched a reset of the relationship. And at that point, there were a number of situations where the court was working, including following the brutal war of aggression by Russia against Ukraine.

22:20And here we saw a remarkable rise of bipartisan support for the work of the court. You had senior Republican figures in Congress supporting the court. The late Lindsey Graham led a resolution that was supporting justice in Ukraine. There is no rule of law in Russia to hold Putin accountable. So this international tribunal is the right way to go. Secretary Rubio, then Senator Rubio, joined that resolution. There was new legislation passed that made it easier for the United States to support the work of the court. And then, of course, with the second Trump administration, we have reversed course again, and in particular with Rubio's announcement.

23:00But as we speak, the ICC and its friends are waging a war against our country, not with bullets or missiles, but with statutes, compacts and the force of so-called international law. Well, let's talk about the reversal. So Secretary of State Marco Rubio is at one point on board with the ICC. And then recently he more or less vows to dismantle it. If they believe they can deprive us of our sovereignty, we will teach them the full meaning of American resolve. What happened here? Well, it's not clear what the precipitating event is, to be honest. There is no existential threat at present. Obviously, there's always the concern that this is some kind of a distraction because matters are not going well in Iran and with respect to the economy.

23:53And so this is something to sort of pull eyeballs away from those matters onto something that he can sort of look tough in terms of being America first, etc., which ultimately results in being America alone rather than America first necessarily. So it's not clear what the precipitating event is. Is this just kind of red meat for anti-multilateralism or is there something that is not made public that is happening? Secretary Rubio's words were pretty strong. He talks about dismantling the threat from the court, not dismantling the court itself, dismantling the threat. And there is also some nuance there.

24:32Is there anything actually that Marco Rubio or anyone else in the United States at the highest level could do to the International Criminal Court to like put an end to it? The International Criminal Court exists. It's part of a larger system of the rules-based order that we've been trying to build since World War II. Almost all of our friends and allies are members of this court, and they care deeply about its success. They are committed to seeing a system of international criminal justice. So, no, is the answer. The United States alone cannot dismantle this court. Now, it can injure the court, and it has already done so.

25:06I mean, we should note that there's already eight judges, including judges who hail from some of our closest allies, France, for example, who have been subjected to brutal sanctions. They can't use credit cards that pass through New York. They can't make reservations online because of financial sanctions. They can't travel to the United States because of travel bans, etc. The chief prosecutor and his two deputies have been sanctioned. Nongovernmental organizations that are involved in human rights in Palestine have been sanctioned. And a UN figure has been sanctioned. Now, those measures are already in place.

25:42What his most recent campaign seems to announce is some kind of a diplomatic move to try and convince states to leave the court or to cease their cooperation with the court. And we have seen in several recent days a couple of states announcing that they were withdrawing. These are mostly states within Africa, but also Venezuela, which is subject to investigation by the prosecutor's office. The United States can certainly injure the court, but there's no way that we could dismantle the court. I want to ask you about an interesting development here, Beth. Most Americans, I think, don't spend a lot of time thinking about the International Criminal Court, but they may know, because lately it has gotten a lot of attention, that the court has issued a warrant, an arrest warrant for Benjamin Netanyahu, and that New York City's mayor, Zoran Mamdani, has said he would like to see Netanyahu arrested if he comes to New York.