ICC Governing Body to Review Judges' Legal Advice on Prosecutor Khan
The International Criminal Court’s (ICC) governing body is scheduled to meet on Monday to evaluate the legal advice provided by a panel of judges who have contested the findings of a United Nations (UN) investigation into allegations against the chief prosecutor, Karim Khan.
Last year, a UN inquiry into claims regarding Khan’s conduct reportedly established a factual basis for allegations of misconduct. Khan, a senior British lawyer, has been accused by a complainant of sexual abuse.
Subsequently, three judges appointed by the ICC submitted an 85-page report analyzing the evidence against Khan and assessing whether the allegations met the "beyond reasonable doubt" standard, a stringent criterion typically applied in criminal cases.
Applying this benchmark, the judges advised that the UN inquiry did not prove that Khan’s conduct constituted misconduct or a breach of his duties.
The report criticizes the UN investigation’s methodology, noting its failure to reconcile inconsistencies in the accounts provided by Khan and the alleged victim.
The panel’s review was limited to a strictly legal examination of the UN investigation; the judges did not conduct cross-examinations of witnesses.
This legal advice has reportedly sparked disagreement among some ICC member states responsible for overseeing the court, particularly regarding whether to accept the judges’ analysis.
Lawyers representing Khan argue that the panel’s advice effectively exonerates him, describing it as a
"decisive and meticulously reasoned legal finding". However, the process remains ongoing, and Khan could still face dismissal.
Khan’s ultimate fate will depend on how diplomats from the member states interpret the conflicting evidence and whether they consider the UN report’s findings sufficient to warrant disciplinary measures. Potential actions include a vote on his removal from office.
has learned that Päivi Kaukoranta, ICC president of the assembly of state parties, circulated a note to members over the weekend clarifying that
"the disciplinary process before the bureau is ongoing and remains confidential".
The note further stated:
"No decisions have been taken, and no weight should be given to recent media speculation. Currently, the bureau is considering the [UN] report and the report of the ad hoc panel pursuant to its responsibility as the competent decision maker."
Background of the UN Report and Judges' Review
The panel of judges was commissioned by the ICC’s governing body last year to review the UN report, which was prepared by the UN’s Office of Internal Oversight Services.
The UN report detailed allegations that Khan’s behaviour towards a woman escalated over time, culminating in non-consensual sexual contact occurring at his private residence, during overseas trips, and at ICC headquarters.
The report included supporting statements and concluded that it had identified evidence establishing a factual basis for the complainant’s claims. It recommended that the ICC consider appropriate action based on the evidence.
The judges, comprising two men and one woman, reported encountering two completely opposing versions of events. They noted that the UN report often failed to resolve conflicting or directly contradictory accounts.
The judges observed that the UN report frequently did not reach conclusive factual determinations or sometimes concluded that such determinations were not feasible. They stated that narrative inconsistencies were unresolved and that the motives of witnesses were not thoroughly examined, resulting in an inability to establish the truth in many respects.
Unanimously, the judges concluded that the factual findings of the UN investigation did not establish misconduct or breach of duty under the applicable legal framework.
The panel also stated that it was unable to determine the credibility of the complainant.
Much of the evidence presented, including complaints of harassment and text messages to fellow staff members, was dismissed by the judges as hearsay.
In their report, which has been reviewed by , the judges wrote:
"The investigators in the present matter either did not reach conclusive factual determinations or concluded that such determinations were impossible based on the evidence collected … Consequently, the UN report failed to establish where the truth lies with regard to many critical aspects of the allegations."
Khan's Response and Potential Outcomes
Khan has consistently denied any abusive or inappropriate behaviour. He has been on leave since May last year, following the emergence of the allegations and the subsequent demand for an inquiry.
If the governing body, either on Monday or at a later meeting, initially determines that the factual findings indicate some form of misconduct, Khan will have the opportunity to respond.
Should the governing body conclude that serious misconduct has occurred, the 125 member states of the court may be required to vote on whether to remove Khan from office.
