International Criminal Court (ICC) Chief Prosecutor Karim Khan and some of his staff face disciplinary investigations regarding their applications to arrest Israeli leaders.
UK Lawyers for Israel (UKLFI) has reported Khan and his staff to regulators, accusing them of not complying with their professional obligations. UKLFI stated that they were obliged to provide the Court with information and evidence that exonerates the accused, Israel’s Prime Minister, Benjamin Netanyahu, and Defence Minister, Yoav Gallant of the charges, including extensive information and evidence that has come to light since the applications were filed.
UKLFI provided extensive details of its concerns, backed by numerous cited documents, to the Prosecutor in a letter and annexes on 27 August 2024. In that letter, UKLFI expressed its dismay that the Prosecutor has asked the Court to ignore any information or evidence other than the material he originally filed in his applications for the arrest warrants, “despite [UKLFI] having shown that every allegation against Benjamin Netanyahu and Yoav Gallant set out in [the Prosecutor’s] published summary of them is false, and despite the highly relevant evidence that has emerged since [the Prosecutor] filed the Applications.”
Having received no reply, UKLFI has now reported Khan and his assistant, Andrew Cayley, both English barristers, to the Bar Standards Board for England and Wales (BSB). UKLFI accused Khan and Cayley of not complying with their duty not to mislead the Court.
UKLFI stated that BSB’s guidance observes, “knowingly misleading the court also includes inadvertently misleading the court if you later realize that you have misled the court, and you fail to correct the position”.
The ICC Prosecutor has specifically claimed that the Applications for arrest warrants are made ex parte, without the accused being heard. English judges have emphasized that a Prosecutor seeking an ex parte order has a duty to disclose ‘“any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge's decision, including any matters which indicate that the issue….might be inappropriate”’.
In the words of Hughes LJ, “A prosecutor seeking an ex parte order must put on his defense hat and ask himself what, if he were representing the defendant or third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge….”
UKLFI has also requested the Registrar of the ICC to set in motion a disciplinary investigation of staff of the Office of the Prosecutor (OtP), including Andrew Cayley and Brenda Hollis, for breaches of the ICC’s rules.
The ICC’s rules similarly require staff of the OtP to seek truth objectively, including by investigating exonerating material and ensuring that the results are disclosed to the Court. It appears to UKLFI that OtP staff who participated in the preparation of the Applications for warrants to arrest Netanyahu and Gallant have manifestly breached this and other obligations.
The ICC’s Rules require any complaint to the ICC against the Prosecutor to remain confidential.
UKLFI Chief Executive, Jonathan Turner, said, “We have shown that every phrase of every sentence of the Prosecutor’s summary of the applications to arrest Netanyahu and Gallant in his public statement is false. If it was a fair and accurate summary of the applications, which have not been published, the applications themselves are entirely false. The Prosecutor’s insistence that the Court must act on these applications as filed, disregarding all other information and evidence, is most unsatisfactory."
"As the Prosecutor made his public statement he was flanked by Brenda Hollis and Andrew Cayley KC. They appear to be complicit in misleading the Court. The BSB and ICC should investigate this apparent misconduct thoroughly. Pending the outcome of these investigations, the Court should not make any rulings relying on any material provided by the Prosecutor or the OtP in this situation,” Turner said.