Exclusive: How Karim Khan’s Israel war crimes probe was derailed by threats, leaks and sex claims
Already targeted
by US sanctions, the ICC chief prosecutor’s pursuit of Benjamin
Netanyahu and other Israeli leaders now threatens his career, his
reputation, and the future of the court itself
A
major Middle East Eye investigation has uncovered extraordinary details
of an intensifying intimidation campaign targeting the British chief prosecutor of the International Criminal Court over his investigation into alleged Israeli war crimes.
The campaign has involved threats and warnings directed at Karim Khan
by prominent figures, close colleagues and family friends briefing
against him, fears for the prosecutor’s safety prompted by a Mossad team
in The Hague, and media leaks about sexual assault allegations.
It has taken place against the backdrop of Khan’s efforts to build
and pursue a case against Prime Minister Benjamin Netanyahu and other
Israeli officials over their conduct of the war against Hamas in Gaza and accelerating Israeli settlement expansion and violence against Palestinians in the illegally occupied West Bank.
Last month, Middle East Eye revealed that Khan was warned in May that
if the arrest warrants issued last year for Netanyahu and his former
defence minister Yoav Gallant were not withdrawn, he and the ICC would
be destroyed.
The warning was delivered by Nicholas Kaufman, a British-Israeli
defence lawyer at the court, during a meeting with Khan and his wife,
Shyamala Alagendra, at a hotel in The Hague.
Kaufman told Khan he had spoken to Netanyahu’s legal advisor and was
"authorised" to make him a proposal that would allow Khan to "climb down
the tree", according to a note of the meeting on file at the ICC seen
by MEE.
In response to questions from MEE, Kaufman denied threatening Khan.
He denied having been authorised to make any proposals on behalf of the
Israeli government and said he had shared his personal views with Khan
on the Palestine situation.
The meeting came less than two weeks before allegations of sexual
assault against Khan, which he has strenuously denied, were first
published, and as he was reportedly preparing to seek arrest warrants
for more members of the Israeli government.
There is no suggestion of any connection between the Kaufman-Khan meeting and the publication of the allegations.
Nicholas Kaufman, pictured during court proceedings at the ICC in 2024 (ICC/Flickr)
Khan went on leave shortly afterwards after an attempt to suspend
him, prompted by a senior member of his own office, failed and amid an
ongoing United Nations investigation into the allegations against him.
Intense pressure on the prosecutor had been building even before Khan
became the subject of the now widely publicised allegations.
MEE can reveal details about correspondence between Khan and the
complainant, a female ICC staff member, which appear to raise questions
about some of the previously reported claims about the case in American
and British media.
In response to questions from MEE, the complainant said she had fully
cooperated with the UN investigation and could not “engage with the
questions posed or correct the inaccuracies” because she is bound by
“obligations of confidentiality and professional integrity”.
Khan has declined to comment to MEE on the matters raised in this article.
The timeline of events reveals that pressure on Khan started to build
in April 2024 as he prepared to apply for the warrants for Netanyahu
and Gallant, then again in October, before judges issued the warrants.
It intensified further this year as Khan was reported to be seeking
warrants for more Israeli ministers, and coinciding with further media
leaks about the sexual assault allegations.
MEE spoke to sources with knowledge of the affair and reviewed
material understood to be relevant to the investigation into the
allegations currently being conducted by the UN’s Office of Internal
Oversight Services (OIOS).
MEE’s investigation can reveal that:
- In April 2024, weeks before Khan
applied for the warrants for Netanyahu and Gallant, then-British Foreign
Secretary David Cameron privately threatened Khan that the UK would
defund and withdraw from the ICC if it issued warrants for Israeli
leaders
- In May 2024, US Republican Senator Lindsey Graham threatened Khan with sanctions if he applied for the warrants
- Before the allegations were made,
Khan had received a security briefing that indicated that Mossad,
Israel’s intelligence agency, was active in The Hague and posed a
potential threat to the prosecutor
- The woman accusing Khan of sexual
misconduct wrote in May 2024 in text messages to Khan that there were
“games being played” and attempts to make her a “pawn in some game I
don’t want to play”. Two internal ICC investigations into the
allegations were closed after she refused to cooperate with them
- The complainant had previously
sought and obtained Khan’s help in another complaint against a second
senior ICC official. This was during the period in which she later
alleged Khan had repeatedly sexually assaulted her. Investigators found
no wrongdoing on the part of the individual who was the subject of her
complaint
- Thomas Lynch, Khan’s special
assistant, who he tasked to liaise with Israel on the Palestine
investigation, played a key role in making the allegations against Khan
official. Privately however, Lynch had expressed his own doubts about
the allegations to Khan’s wife and said that the timing was suspicious.
In response to questions from MEE, Lynch described allegations in this
article as “false and misleading”.
- A female ICC lawyer told MEE there
was a group of people within the court who disagreed with Khan’s
approach and who were working to discredit him. She said she had been
approached in May 2024 and asked if Khan had ever behaved
inappropriately towards her: “I told them he is the last person on my
list of men who would do that”
- Khan met Nicholas Kaufman, the
British-Israeli defence lawyer, to discuss the Israel investigation just
two weeks before he was forced to go on leave after it was publicly
revealed that he was under investigation over sexual assault
allegations. According to a note of the meeting on file at the ICC,
Kaufman told Khan that if the warrants against Netanyahu or Gallant were
not dropped, “they will destroy you and they will destroy the court”
- Two former ICC judges have told
MEE they have grave concerns about the way the OIOS investigation into
the allegations against Khan has been conducted, questioning why the
prosecutor was publicly named as the subject of a complaint, and the
need for an external investigation into his alleged misconduct
Hostile measures
The campaign against Khan has taken place in parallel with both
punitive and hostile measures taken against the ICC by the United
States, and the allegations of sexual misconduct against the chief
prosecutor, which started as accusations of harassment but later
escalated to accusations of sexual assault.
Since February, Khan has been sanctioned by the US government -
which, like Israel, does not recognise the jurisdiction of the ICC -
over the arrest warrants issued against Netanyahu and Gallant.
On 19 May, the ICC and the prosecutor’s office issued a statement saying that Khan would take leave until the conclusion of the OIOS investigation.
The court said that the work of the prosecutor’s office would continue under the leadership of the two deputy prosecutors.
Last month, the US imposed further sanctions against four judges at
the court, which it accuses of “illegitimate actions” targeting the US
and Israel.
A senior State Department legal advisor this month warned the court’s
oversight body that “all options are on the table” if the warrants
against Netanyahu and Gallant are not withdrawn.
ICC judges on 16 July nonetheless rejected a request from Israel for
the warrants to be withdrawn pending the outcome of the court’s ruling
on an ongoing Israeli appeal challenging its jurisdiction in the case.
A source in The Hague, with knowledge of the matter and speaking on
condition of anonymity, told MEE: “This has been an attempt not just to
destroy Karim Khan but the International Criminal Court – by countries
that claim to support the international rule of law.”
The source added that Khan had done everything “by the book” in applying for the warrants.
“If anything, he delayed the process,” the source said.
After Khan was elected as chief prosecutor in 2021, he raised the
criteria for applying for warrants to include a realistic prospect of
conviction.
The criminal investigation into alleged war crimes in the occupied
Palestinian territories had been launched just months before Khan took
office by his predecessor, Fatou Bensouda, a former Gambian justice
minister who is now her country’s ambassador in London.
The Guardian revealed
last year that Mossad had pressured and allegedly threatened Bensouda
in a years-long failed campaign to stop her from opening the
investigation, and then placed her successor, Khan, under surveillance.
On 17 November 2023, over a month after the Hamas attack on Israel
and the start of Israel’s ensuing bombardment of Gaza, five states –
South Africa, Bangladesh, Bolivia, Comoros, and Djibouti - referred the
Palestine case to the prosecutor.
The following month, with his office under pressure to respond, Khan
travelled to Israel and also met Palestinian officials in Ramallah in
the West Bank.
ICC Chief Prosecutor Karim Khan (L) meets Palestinian
Authority President Mahmoud Abbas in Ramallah in the occupied West Bank
in December 2023 (AFP)
He visited kibbutzim and the site of a music festival, which were
attacked by Hamas on 7 October 2023. In Ramallah, Khan met officials,
including Palestinian Authority President Mahmoud Abbas as well as
“families of Palestinian victims” and heard “personal accounts of their
experiences in Gaza and the West Bank”.
Khan pledged that his office would “further intensify its efforts to advance its investigations in relation to this situation”.
Having decided in January 2024 that he had prepared the cases for
arrest warrants, Khan took the unusual step of convening an independent
legal panel of prominent lawyers, including British-Lebanese lawyer Amal Clooney, to examine the Palestine case.
A number of media reports have suggested that Khan sought arrest warrants on 20 May that year to win support in the context of allegations against him.
But the prosecutor’s decision to apply for warrants was made six
weeks before the allegations were made, and the application for the
warrants was submitted only after the first internal investigation into
the harassment accusations had been opened and closed.
MEE understands Khan’s extensive team of lawyers and researchers had
decided they were ready to apply for the warrants by 16 March.
But there were more steps in the process. On 21 March, Khan ordered a
complementarity check to examine whether Israel itself was
investigating the alleged crimes and concluded it was not.
On 25 March, Khan informed the Biden administration in Washington of
his decision. Two days later, he went to the White House to meet Jake
Sullivan, then national security adviser, and Brett McGurk, then
National Security Council Coordinator for the Middle East and North
Africa.
A series of threats
On 15 April in London, the prosecutor told British Justice Minister
Alex Chalk that he would apply for the warrants. Khan had asked to meet
the foreign secretary, David Cameron, but Cameron was out of the
country.
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Cameron, a former prime minister who had been appointed foreign
secretary in November 2023, phoned Khan while the prosecutor was on an
official visit to Venezuela on 23 April.
Last month MEE revealed details
of the call based on information from a number of sources, including
former staff in Khan’s office familiar with the conversation and who
have seen the minutes of the meeting.
Cameron told Khan that applying for warrants for Netanyahu and Gallant would be “like dropping a hydrogen bomb”.
According to MEE’s sources, the foreign secretary spoke aggressively and repeatedly shouted over Khan.
Cameron threatened that if the ICC issued warrants for Israeli
leaders, the UK would “defund the court and withdraw from the Rome
Statute”.
Cameron did not respond to MEE’s requests for comment. The British Foreign Office declined to comment.
The day after the call with Cameron, 12 Republican senators,
including Marco Rubio, who is now Donald Trump’s Secretary of State,
wrote a letter to Khan warning: “Target Israel and we will target you”.
They threatened that if the ICC issued warrants against Israeli
officials, the US would “sanction your employees and associates, and bar
you and your families from the United States”.
On 25 April, British journalist Douglas Murray wrote in the New York Post
that in the “next few days”, Khan would seek arrest warrants for
Israeli officials. It had not yet been public knowledge that the
warrants were imminent.
However, the process was further delayed when the Israeli government
said on 28 April that it would allow Khan to visit Israel and Gaza. Such
a visit would have been unprecedented for the chief prosecutor of the
ICC.
Thomas Lynch, Khan’s assistant, told the prosecutor the visit was on,
but Khan insisted on obtaining an official letter from the Israeli
government, giving him permission to visit Gaza.
On 1 May, Khan received another significant threat during a
conference call with senior ICC officials, Senator Lindsey Graham and a
bipartisan group of senators.
Senator Lindsey Graham told Khan the ICC was “made for Africa and thugs like Putin, not democracies like Israel” (AFP)
According to material reviewed by MEE, Graham told Khan that if he
proceeded with the warrants “you may as well shoot the hostages
yourself” and “we will sanction you”.
He added that the ICC was “made for Africa and thugs like Putin, not democracies like Israel”.
Khan referenced this remark in an interview on CNN with Christiane Amanpour at the time that the arrest warrants were issued, but did not disclose the name of the state official who had said it.
British barrister Andrew Cayley, who oversaw the ICC’s Palestine investigation, recently told the Observer newspaper that Graham was “screaming at us”.
Graham’s office did not respond to MEE’s request for comment.
In a later statement,
in which he claimed that the by-then public misconduct allegations
against Khan had cast a moral cloud over his application for Israeli
arrest warrants, Graham said the senators had urged Khan “to respect the
principle of complementarity and to engage in good faith with Israeli
officials before making any decision as to how to move forward against
the State of Israel”.
On the morning of 2 May 2024, before Khan had been made aware of the
allegations against him, he met Pieter-Jaap Aalbersberg, the Dutch
National Coordinator for Counterterrorism and Security (NCTV), whose
office is responsible for security in the Netherlands, along with the
ICC’s president, vice president and registrar.
The purpose of the meeting was to discuss the need to urgently
enhance security for the ICC, as well as information Khan had been given
that Mossad was active in The Hague and posed a potential security
threat to the prosecutor and others involved in the case.
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A spokesperson said the NCTV could not comment on any matters concerning the safety of persons.
In an NCTV report on state threats, published on 17 July, it noted
that the US and Israel had publicly threatened the court and that the US
had imposed sanctions on Khan due to the arrest warrants against
Netanyahu and Gallant.
It warned that further measures could damage or halt the court’s
operations, and it noted that both the ICC and the International Court
of Justice, which is currently examining a complaint of genocide brought
against Israel, were “an attractive target for espionage and subversive
influence for a large number of countries”.
On 8 May, after the ICC’s Internal Oversight Mechanism (IOM) had
closed its investigation into the harassment allegations, Khan wrote to
Saklaine Hederaly, the then-head of the IOM, to tell him about the
suspected threat from Mossad.
Khan wrote: “The timing is particularly concerning coming as it does
along with a tide of other threats from a variety of sources, some of
which are public and others are not.”
He went on: “Given the security factor and the nature of the threats…
I would like your advice as to how we can manage security risks and
threats in a manner that cannot be considered a reprisal. It goes
without saying, of course, that I will not engage in any act of reprisal
against any individual related to this matter or any other.”
By 19 May, the day before Thomas Lynch was due to fly to Israel ahead
of Khan, the official letter from Israel still had not arrived.
Khan cancelled the trip. The next day, in a video statement,
he announced that he was seeking warrants for Netanyahu and Gallant, as
well as Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Deif -
all three now dead - for alleged war crimes.
Complaints against Khan
By the time Khan announced the application for arrest warrants, the
ICC’s own investigative body, the IOM, had already closed its first
investigation into the allegations of harassment.
On 29 April last year, one of Khan’s colleagues had raised these in a
private conversation with two others, one of whom was Lynch, Khan’s
close assistant.
They brought it to Khan’s attention on 2 May, and Lynch referred the
allegations to the IOM late on 3 May, according to material reviewed by
MEE.
But the investigation was ended on 7 May after the woman said she did not want to cooperate.
In October, however, an anonymous account on social media platform X began circulating details of the allegations.
According to the Wall Street Journal, an anonymous source sent information
about the allegations to journalists in an email that contained the
phone numbers of the complainant and Lynch, next to the Hebrew word for
telephones.
The allegations, which were reported by the Wall Street Journal as being drawn from a “whistleblower’s report”,
included Khan “sexually touching” the complainant, putting his hand in
her pocket and demanding to be let into her hotel room during the night.
On 19 October, the Mail on Sunday reported that Paivi Kaukoranta, the
president of the Assembly of States Parties (ASP), the ICC’s oversight
body, confirmed the allegations had been made.
Khan (C) announces arrest warrant applications in April
2024, flanked by trial lawyers Brenda Hollis (L) and Andrew Cayley (R)
(ICC)
The IOM then opened a second investigation. But this was also closed
within days after the complainant said again that she would not
cooperate.
Soon afterwards, the OIOS opened an external investigation at the request of Kaukoranta, the president of the ASP.
In May this year, for the first time, the Wall Street Journal reported on allegations under investigation by the OIOS, which went far beyond the previously reported harassment allegations.
The complainant was reported as having alleged that Khan had sexually
assaulted her on a number of occasions, including on various overseas
missions, as well as in The Hague. She said the abuse began in March
2023 and had continued for nearly a year.
MEE can reveal that during much of the period in which the
complainant alleges Khan was abusing her, she was engaging with external
investigators - with Khan’s support - on separate misconduct
allegations against another senior court official.
In summer 2022, Khan’s complainant alleged that this other official had behaved inappropriately towards her.
MEE has learnt that Khan sent a letter to the president of the ASP on
31 August 2022 raising the complainant’s concerns on her behalf. As a
result, that October external investigators were appointed to examine
the complainant’s allegations.
The investigation, which the complainant engaged with, continued
until 11 December 2023. On that date, the investigators concluded that
there had been “no unsatisfactory conduct” on the part of the senior
official under investigation.
This means that several of the occasions when Khan is accused of
assaulting his colleague occurred during the same period that she was
engaging with this external investigation – with Khan’s support.
MEE understands that the complainant maintained friendly relations
with both Khan and his wife throughout the period in which she later
alleged she had been regularly assaulted by Khan.
Khan has been widely accused of pressuring the complainant to withdraw her allegations against him.
But text messages between the complainant and Khan after she first
made the allegations against the prosecutor, which are among the
material reviewed by MEE, appear to raise questions about this
accusation.
The complainant messaged Khan during one overseas mission in April
2024, at around 4am, asking Khan if he liked the hotel he was staying
in. She ended the exchange: “Text when you’re up. Glad to be back on mission with you”.
This was less than a week before she first made harassment allegations against Khan.
On 6 May 2024 she texted the prosecutor informing him that she had
been contacted by the IOM after Lynch referred her allegations to the
body.
“I told them I have no interest in talking,” she said.
Khan replied: “You always have my support and confidence. I am here
if you need to talk. Or you can go to racine [Mamadou Racine Ly, an
adviser to the prosecutor] or the deputies.”
On 8 May, the complainant texted Khan again.
This time, she said she had not cooperated with the IOM, and that “I
do not like drama or games being played – I want nothing to do with it”.
She added: “Everyone can do as they wish. I am not playing and I am not a pawn.”
Khan responded that she was “performing an important role in the
Office and in the ICC”. He said he agreed “some serious games were
afoot. I will leave it at that”.
On 14 May, the complainant texted Khan again, saying she felt that
the investigators “were trying to put my back against the wall - and I
do not like being pushed”.
She added that it was “as though the ground was shifting under me and
I couldn’t find where to place my feet”, and that she felt like a “pawn
in some game I don’t want to play”.
In his reply, Khan told her: “You are, of course, free to do what you
think is right and we have processes... If you also need time to rest
and recover and look after yourself please know you have it.”
Months later, on 17 October, the complainant phoned Khan. By this
point, the allegations she had made in April were circulating online.
Khan asked her multiple times if she was recording the call. She denied that she was.
Her recording of the call, which lasted for more than an hour, is
also among the material reviewed by MEE that is understood to be
relevant to the OIOS investigation.
In the recording, she did not make any accusations against Khan. The
woman suggested she should take unpaid leave or resign and that she
should “just disappear and go quietly”.
Khan urged her not to do so. He advised her to take the paid sick leave she was entitled to.
Khan is heard to urge her not to be pressurised by anybody “to do something… or not to do something”.
“If, you know, this speculation in the paper that you will go to the
president of the ASP and ask for an investigation is correct, okay,”
Khan said.
“Then there will be an investigation and that’s your choice.
“And if you don’t want to do that, nobody can force you. And again, that’s your choice.”
He advised her against making “precipitous decisions” and asked if she was feeling pressurised.
“If you’re asking, like, by a particular person,” she replied, “no, but I am feeling pressurized by the situation.”
Later in the conversation, Khan asked if it was her intention to make
a complaint to the ASP. He said someone had spoken “apparently on your
behalf” suggesting that she wanted another investigation.
“No, but who could that be? Because I'm not even talking to anyone,” she replied.
Somebody was “stirring the shit”, Khan remarked.
He reiterated that the complainant had “full rights to do
everything”, but said that one option would be to write to the president
of the ASP to reaffirm that she had no intention of making any
complaint.
“So these are things for you, but these are things for you to make at a time when you’ll feel able to make them,” he said.
Seven times during the call, Khan urges the complainant to “get
better”. Eight times he tells her: “Look after yourself.” And nine times
he advises her: “Take your time”.
MEE sent an extensive list of questions to the complainant covering
matters including her complaint against Khan, the complaint she had made
with Khan’s support against another ICC official, her friendship with
Khan and his wife, and comments she made in messages and the phone call
to Khan.
She said: “As a staff member of the International Criminal Court, I
am bound by obligations of confidentiality and professional integrity,
and I therefore cannot engage with the questions posed
or correct the inaccuracies contained within it.”
However, she said: “I categorically reject the insinuations and
selective characterisations presented, which are highly inaccurate,
defamatory, and clearly intended to discredit me personally.”
She said she had fully cooperated with the UN investigation and complied with “all legal and institutional obligations”.
She denied any link between her complaint against Khan and the
prosecutor’s investigation into Israel, and said she was not affiliated
with, or acting on behalf of, any state or external actor.
She said: “I continue to support all investigations under the Court's
jurisdiction, as I always have. My complaint has nothing whatsoever to
do with the Court’s investigation into Palestine. Two things can be true
at the same time, and one has absolutely no connection to the other.”
She said the events of the past year had been “deeply painful and
personally destructive” and had significantly affected her health and
well-being.
She said: “I’d like to emphasize that everything that has transpired
over the past year has been deeply painful and personally destructive. I
have had nothing to gain from these events. I have only lost.”
‘A very close friendship’
MEE can also reveal the key role played in the proceedings by Thomas
Lynch, a senior legal adviser at the ICC and a longstanding friend and
colleague of Khan and his wife.
Lynch has known Alagendra for over 25 years. Sources close to them
both told MEE they “share a long history of very close friendship”.
Khan had tasked Lynch, who worked in his office as his special
assistant, with liaising with Israel on the Palestine investigation.
On 3 December 2023, at the end of his trip to Israel and the West
Bank, Khan drafted a press statement before boarding a flight to New
York.
But while Khan was in the air, Lynch showed the draft statement to
Israeli officials. He then made significant revisions and published it
before Khan landed, according to sources and material reviewed by MEE.
The statement
was dramatically different from Khan’s draft and usual neutral
language, and triggered widespread accusations of pro-Israel bias.
It called Hamas a “terror organisation” and used emotive language,
describing the 7 October attacks in southern Israel as “crimes that
shock the conscience of humanity”.
Such rhetoric was not used to describe the violence inflicted by Israeli forces on Palestinians in Gaza.
Former staff in the prosecutor’s office recalled that Khan was
furious that the statement had been edited and published without his
knowledge and initially told Lynch that it should be withdrawn.
According to the material reviewed by MEE, Lynch sought
Alagendra's help in persuading her husband not to take the statement
down, and thanked her the next day for her help. Khan was unhappy that
Lynch had involved his wife in the matter.
Asked about this episode and other matters raised in this article,
Lynch told MEE: “As you are aware, there is an ongoing confidential
investigation into this matter that limits my right to reply.”
He said questions put to him by MEE were “false and misleading”, without offering any further clarification.
Privately, Lynch opposed Khan’s decision to pursue the warrants for
Netanyahu and Gallant and had told Alagendra on 20 April 2024 that doing
so would lead to “serious repercussions”.
At an event in The Hague, Lynch told Alagendra that Khan’s decision
to seek the warrants was not wise. He said there were “other ways to
proceed” and described the Palestine case as “the most difficult file
I’ve ever handled”.
On 3 May, Lynch persuaded Khan to delay applying for the warrants
because Israel had agreed to allow the prosecutor to visit Gaza.
But despite many verbal assurances that the trip was on, the promised
letter from the Israeli government granting him access never
materialised.
Lynch also played a significant role in the process by which Khan was forced on leave.
Lynch triggered the initial investigation by the IOM into harassment
allegations against Khan in May 2024, after Khan told him to follow the
established procedures.
On 4 May, just after the investigation was launched, Alagendra met up
with Lynch. According to the material reviewed by MEE, Lynch privately
expressed his own doubts about the allegations and said their timing was
“suspicious”.
The WSJ reported
last month that Lynch said in a statement to UN investigators that
Alagendra had intimidated him during the meeting and said she had told
him she had heard Lynch was having an “inappropriate relationship” with a
colleague.
“At this point, I began to view her comments to me as threatening and
became very uncomfortable,” Lynch said, according to the reported
statement.
Alagendra categorically denied Lynch’s allegations. “Let’s be honest -
I strongly doubt even Tom [Lynch] genuinely believes I threatened him.
It’s a convenient narrative, but not a credible one,” she said.
Following the publication in May this year of the sexual assault
allegations against Khan, Lynch approached the ICC’s presidency in a bid
to have the prosecutor suspended.
Lynch urged the presidency to start a process by which ICC member states could vote to formally suspend Khan.
When this attempt failed, Lynch approached the two deputies and urged them to make the same case to the presidency.
This followed leaked reports that Khan was preparing to request arrest warrants for more Israeli officials.
It was amid this internal turmoil that the decision was made that
Khan should step away on leave while the investigation continued.
In a statement at the time, Khan’s lawyers said: "Our client has
decided to take a period of leave, not least as the wildly inaccurate
and speculative media focus on the matter is detracting from his ability
properly to focus on his job.
“Our client remains the Prosecutor, has not stepped down and has no intention of doing so.”
Some within the ICC acknowledge that Khan’s conduct of the Palestine
investigation, and his pursuit of senior Israeli officials in
particular, has been a divisive issue within the precincts of the court
and the tightly woven international legal community of The Hague.
Critics within the system suggest that Khan should have gone for
lower-level targets and question whether he has leaned too heavily on
open-source evidence, rather than insiders prepared to give testimony,
in building his case.
One female ICC lawyer, who has previously worked closely with Khan,
told MEE: “There is a whole group of people inside the ICC who were
working against Karim Khan who wanted to find something on him long
before his team started the process of applying for warrants against
Netanyahu and Gallant.”
She said she had been contacted in May 2024 by someone who had asked her if Khan had ever behaved inappropriately towards her.
“I told them he is the last person on my list of men who would do
that. I worked closely with him, and I never had the slightest sense
that he would do this.”
The lawyer said Lynch’s disagreement with Khan over the case was
common knowledge within the court. The men had taken different views as
early as October 2023, she said.
“[Lynch] said quite openly to people in the court that going after
Israel, and particularly the leaders, would be a bad idea because the
court could lose its donors and Israel has a right to defend itself. I
understand their disagreement was growing in 2024 and was quite open in
the court.”
The hotel meeting
On the evening of 1 May, just two weeks before the events leading to
Khan stepping down on leave unfolded, the prosecutor had sat down with
his wife and another old friend and fellow lawyer at a table in the
restaurant of the Hotel des Indes in The Hague.
The Hotel Des Indes in The Hague on 13 October 2017 (Wikimedia Commons)
Nicholas Kaufman is an ICC defence attorney whose current work
includes representing Rodrigo Duterte, the former president of the
Philippines, who is currently facing trial on a charge of crimes against
humanity over the deaths of thousands of people during his so-called
“war on drugs”.
According to a note of the meeting filed on record at the ICC and
seen by MEE, Kaufman had messaged Khan a few days earlier to propose a
meeting to discuss what he described as “an insight into the Israeli
mentality regarding the current state of litigation”.
Kaufman told Khan he had been contacted by a Wall Street Journal
journalist. He said he had refused to cooperate with him but had spoken
to him extensively about Palestine because the reporter had heard he was
advising Gallant.
Kaufman said he was not interested in discussing “the scandalous
allegations people raise”, and commiserated with Khan that he’d had “to
deal with the snakes in the grass in your own office”.
The day before the meeting, Kaufman messaged Khan again to tell him he had spoken to Roy Schondorf, Netanyahu’s legal advisor.
According to the note of the meeting, Kaufman told Khan that he
should have gone for “lower-level suspects”, and said that by indicting
Netanyahu and Gallant, he had “basically indicted Israel”.
Again, he told Khan that he had spoken to Schondorf, and then told
him he had a proposal he said he was “authorised” to make – a way, as he
put it according to the note, to allow Khan “to climb down the tree”.
Khan, Kaufman suggested, should reclassify the arrest warrants as
confidential. This would allow Israel to challenge them in private.
Khan asked Kaufman why Israel did not “proceed with complementarity”,
which would entail investigating the alleged war crimes in Israeli
domestic courts.
Kaufman said this was impossible, but suggested to Khan he could
contribute evidence to a “non-criminal, non-investigative process”.
But, Kaufman warned, all options would be “off the table” if it
emerged that Khan had applied for further warrants against Israeli
officials, or if the warrants for Netanyahu and Gallant were not
withdrawn.
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ICC lawyer linked to Netanyahu advisor warned Khan to drop war crimes probe or be 'destroyed'
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According to the note, Kaufman told Khan: "They will destroy you and they will destroy the court."
The note records that after the meeting, Khan's wife said to him: "That was a clear threat." Khan agreed.
In response to MEE’s questions, Kaufman said: “There was absolutely no threat”.
He told MEE: “As friends, we had known each other for years, so I
felt myself at liberty to tell him my personal views on the Palestine
situation and the case against the Israeli officials which I felt had
brought the court into serious disrepute."
Kaufman confirmed he had spoken to Schondorf prior to meeting Khan,
but said that the two men “gossip frequently about the ICC”. He said he
is not advising Gallant.
Kaufman told MEE: "I do not deny that I told Mr Khan that he should
be looking for a way to extricate himself from his errors. I am not
authorised to make any proposals on behalf of the Israeli government nor
did I."
Neither Netanyahu’s office nor Schondorf responded to MEE’s request for comment.
At present, the progress and future direction of the ICC’s
investigation into alleged Israeli war crimes rests with Khan’s
deputies, pending the outcome of the OIOS investigation.
On 27 May, the Wall Street Journal reported
that just before he took leave, the prosecutor had been preparing to
seek new warrants for Bezalel Smotrich and Itamar Ben Gvir, Netanyahu’s
key far-right allies in his coalition government, over their roles in
expanding illegal settlements in the occupied West Bank.
Whether or not those applications have been filed is no longer public
knowledge after the court recently ordered that any further warrants
cannot be publicised.
According
to the WSJ: “Some officials and legal experts doubt the court would
move ahead without a chief prosecutor on the job, given the political
risks such a prosecution could bring.”
But the pressure on both the prosecutor’s office and the court itself has continued to build.
Kaufman said on a podcast on 8 June that recent US sanctions on four
ICC judges “are meant to be designed to encourage the dropping of the
arrest warrants for Prime Minister Netanyahu and former Defence Minister
Gallant”.
Kaufman added: “Accordingly, most commentators believe that
[sanctioning the judges] is a further warning shot over the bows, if I
can put it that way, before the sanctioning of the deputy prosecutors
who've now taken over from Karim Khan, who has gone out on self-imposed
leave because of the allegations of sexual misconduct.”
Since being subjected to sanctions by the US in February, Khan has
had his American visa revoked, and his wife and children have been
banned from travelling to the country. His bank accounts have also been
frozen and his credit cards cancelled in the UK.
It remains unclear when the outcome of the OIOS investigation into the complaint against Khan will be completed.
Contacted for comment, the ASP Presidency referred MEE to its public
statements and said the findings of the investigation would be “handled
in a transparent manner once the investigation has concluded”.
In a statement
on 24 June, the ASP Presidency said the report of the investigation,
when received, would be assessed by an external panel of judicial
experts. It said the work of the panel, which would inform
“consideration of the appropriate next steps, would be conducted on a
“confidential basis”.
But one former ICC judge told MEE he was “deeply disturbed, even
scandalised by the way the proceedings against Karim Khan seemed to be
unfolding”.
In a statement to MEE, Cuno Tarfusser, who served at the court from
2009 to 2019, said he believed Khan was being made to pay a price for
his “independence and intellectual honesty, together with his
imperviousness to outside solicitations”.
Another former ICC judge, speaking on condition of anonymity, also
said he was gravely concerned by the way in which Khan had been named as
the subject of a complaint in apparent breach of his right to privacy,
and by a lack of due process, which he said had taken the investigation
into “bandit country”.
He called for the investigation to look into concerns about
interference in the work of the prosecutor’s office, as well as the
complaint against Khan.
Meanwhile, the ICC finds itself in a precarious position.
In a further threat to the court last month, US State Department
legal advisor Reed Rubinstein warned that “all options remain on the
table” unless all arrest warrants and the investigation into alleged
Israeli war crimes are dropped.
“Israel needed to get Karim out before he went for the next warrants,” a source in The Hague who knows Khan told MEE.
“Now, anyone who dares to speak on his behalf will be viewed as complicit in sexual violence.
“It’s clear that there is a campaign to have the warrant for
Netanyahu withdrawn. If the campaign succeeds, it will be the
destruction of the International Criminal Court.
“And it will be the end of the rules-based order.”