Exclusive: 'Handful' of ICC states aim to sabotage report clearing Karim Khan
A minority of members from the bureau of the Assembly of States Parties (ASP) at the International Criminal Court (ICC) are calling for the findings of a judges' report, which found no evidence of misconduct against ICC prosecutor Karim Khan, to be ignored, Middle East Eye can reveal.
MEE reported exclusively on Saturday that the court’s chief prosecutor had been cleared of any wrongdoing by a panel of three senior judges appointed by the bureau of the ASP, the ICC’s governing body, to review the findings of a United Nations investigation into complaints of alleged sexual misconduct.
MEE has since obtained a copy of the panel’s confidential report. The panel, composed of two male judges and one female judge, ruled unanimously that the UN’s Office for Internal Oversight Services' (OIOS) investigation had not established any "misconduct or breach of duty" by Khan.
But MEE understands that a minority of the 21 bureau members, mainly representatives from western states, are opposed to the panel’s report and are of the opinion that it should be dropped.
These members are seeking to block the panel’s report from the rest of the ASP and to re-characterise the findings based on their own assessment of the OIOS report, two senior diplomatic sources briefed on a recent bureau meeting told MEE.
The bureau met again on Monday afternoon to discuss its response to the judges' report.
MEE contacted ASP for comment, but did not receive a reply by the time of publication.
Following the publication of MEE’s report on Saturday, the Finnish president of the ASP, Paivi Kaukoranta, sent an internal email to ICC staff, saying that the case against Khan is ongoing and confidential.
“No decisions have been taken, and no weight should be given to recent media speculation,” she said.
“Currently, the Bureau is considering the OIOS report and the report of the ad hoc Panel pursuant to its responsibility as the competent decision maker and consistent with the legal framework of the Court,” she added.
But experts warn that deferring the matter to a political body and ignoring the judges' report risks undermining the court's credibility and the rule of law.
"The members of the judicial panel have spoken unanimously, finding no misconduct and no breach of duty under the applicable legal framework, and this conclusion must be taken seriously by the members of the bureau," said Sergey Vasiliev, an ICC expert.
"Otherwise, there is a real risk of creating the appearance that the value of the report, in the eyes of some officials and States Parties - who were behind this process at the outset - is diminished solely because the panel happened to reach a conclusion with which they disagree, and that they are therefore now prepared to give it little regard.”
According to Ezequiel Jimenez, an international law expert specialising in the ASP, it would be "surprising" if the bureau disregards the panel’s findings.
Even though the ICC’s own rules allow the bureau to either adopt the panel's findings or disregard them, Jimenez says it is unlikely the bureau will reach a consensus to disregard the judges' findings.
Historically, the bureau has reached decisions by consensus, he said.
“It’s difficult to foresee a consensus in this case, when the bureau itself appointed the ad hoc panel of judges. The bureau members are politicians, career diplomats, appointed by their governments and respond to their national interests,” he said.
“That was the whole point that they created the ad hoc panel. I would be extremely surprised if they don't adopt the findings of the report and find an alternative decision,” he told MEE.
Over 5,000 pages of evidence
The OIOS investigation was commissioned by the presidency of the ASP in November 2024, following media reports that a member of Khan's office had accused him of sexual assault, and after the complainant had refused to cooperate with the ICC’s own investigative body.
The role of the panel has been to provide independent legal advice to the bureau, based on the facts presented in the OIOS report, on whether Khan committed serious misconduct, less serious misconduct, or no misconduct at all.
Khan has always strenuously denied the allegations against him.
'The Panel is unanimously of the opinion that the factual findings by OIOS do not establish misconduct or breach of duty'
- Judges' report
The OIOS report, along with over 5,000 pages of underlying evidence, was submitted to the panel on 11 December. The judges were initially given 30 days to deliver their report. But they have been granted multiple extensions by the bureau due to the large volume of evidence.
Most recently, however, on 4 March, the bureau refused to extend the mandate when the panel said it needed more time to provide a more in-depth report.
In the report, seen by MEE, the panel was critical of the OIOS investigators, saying their report “either did not reach conclusive factual determinations or concluded that such determinations were impossible based on the evidence collected”.
It said the report did not indicate which witnesses' testimonies were found credible and which were rejected, did not resolve "narrative inconsistencies and discrepancies", and did not "thoroughly test witnesses' motive or bias".
It said the report relied on hearsay evidence in the absence of direct evidence of misconduct, which it assessed as carrying less evidential weight.
In a damning conclusion, the panel said the OIOS report failed to consider the reliability of information and whether it reached the standard of conclusive circumstantial evidence.
The panel said it "finds itself compelled to the conclusion that on the materials disclosed, there is insufficient evidence to support a finding of misconduct measured against the standard of proof of beyond reasonable doubt."
Therefore, the panel concluded: “The Panel is unanimously of the opinion that the factual findings by OIOS do not establish misconduct or breach of duty under the relevant legal framework.”
This article was sourced from Middle East Eye.
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