One week ago, several outlets reported on a consequential development in the disciplinary case regarding the alleged sexual misconduct by the International Criminal Court (ICC) prosecutor, Karim Khan. In a confidential report addressed to the Bureau of the Assembly of States Parties (ASP), the judicial experts tasked with assessing the United Nations probe’s factual findings unanimously concluded that no misconduct or breach of duty by Khan could be established under the legal framework.
It is now for the 21 ICC states represented on the bureau to decide whether to uphold or depart from the panel’s legal conclusion. If the bureau were to find misconduct of a less serious nature, it could impose sanctions on Khan. A finding of serious misconduct would lead to a plenary ASP vote on the possible removal.
A minority of bureau members have reportedly been pushing for the judicial experts’ report to be set aside and for the bureau to substitute its own conclusions for those of the panel. This would be a precarious step. We are concerned that it would undermine the quality of subsequent decisions in Khan’s case and seriously damage the integrity of the ICC’s governance framework. It would also raise serious questions about the state parties’ credibility and their commitment to the rule of law in governing the court.
This position is consistent with our unequivocal belief that there must be zero tolerance for sexual and other forms of workplace abuse in any organisation — public or private — especially those dedicated to international justice and the fight against impunity for the most serious crimes, and that accountability for any such abuse is non-negotiable.
At the same time, particularly in politically sensitive cases, strict adherence to due process, the highest standards of decision-making, and the rule of law is of paramount importance to prevent ill-founded decisions, political interference, and abuse of power. These convictions are not in tension. For us, the ends do not justify the means.
It is true that the bureau is not legally bound by the panel’s conclusions: the experts performed an advisory function, and their report is not formally binding. Their mandate was to assist the bureau in reaching a credible and well-founded decision on the legal assessment of the factual findings reached in the UN investigative report.
The question before the panel was strictly legal. It was to give a legal characterisation of facts established by UN investigators. Factual findings are distinct from the allegations or the evidence on which they are based, and, as far as can be judged from media reports, the panel did not cross that line.
Diplomats should refrain from assuming the role of judicial experts at this stage, particularly now that such judicial expert advice has been issued. As a political body, the bureau initially recognised that it was not well-placed to make this legal determination on its own — understandably so, given the risks of politicisation of the process and the diminished credibility of any outcome. It mandated a nonpolitical, quasi-judicial body — a panel of judicial experts with relevant subject-matter expertise and experience — to carry out that assessment. This was a sound decision.
The integrity of the court and of the Rome Statute system is at stake as never before. Given the seriousness and complexity of this matter, it was appropriate that the legal assessment be entrusted to an independent and impartial body of judicial experts. In politically charged contexts, such bodies are best placed to assist political decision-makers in reaching conclusions that are both well-founded and credible – and, as much as possible, insulated from political influence.
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