ICC bureau must uphold judges’ verdict on Karim Khan, say top lawyers
Leading lawyers and legal experts have called on the governing bureau of the International Criminal Court (ICC) to uphold the findings of a judicial panel that cleared the court’s chief prosecutor, Karim Khan, of wrongdoing following a sexual misconduct complaint.
The 21-member bureau of the ICC’s Assembly of States Parties (ASP) is set to convene again on Monday for the third time to discuss its response to the report by three senior judges and the next course of action in the long-running saga, which has sidelined Khan since he took indefinite leave in May 2025.
Speaking to Middle East Eye ahead of Monday’s meeting, Khan’s lead counsel, Sareta Ashraph, said the process followed by United Nations investigators and judges had been “gender-competent” after a number of civil society groups called on the bureau to reject the panel’s findings.
Other legal experts voiced confidence in the competence and experience of the three-judge panel in their handling of the highly sensitive and complex case.
MEE exclusively reported last week that the judge's panel appointed by the court's governing body ruled that the UN Office for Internal Oversight Services (OIOS) investigation into misconduct allegations against Khan had not established any "misconduct or breach of duty" by the prosecutor. The allegations have unfolded in parallel with his office's efforts to pursue a war crimes investigation against Israeli and Hamas officials over the war in Gaza.
The investigation was based on an outsourced, ad hoc process authorised by the ASP presidency 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.
Both the complainant and the prosecutor, who strenuously denied all allegations of misconduct, cooperated with it.
For more than a year, UN investigators were tasked with gathering and weighing evidence against Khan to enable the panel of judges appointed by the bureau to provide authoritative legal advice on whether the prosecutor had committed misconduct applying the standard of proof “beyond reasonable doubt”.
'The three judges the Bureau chose are judges of real eminence'
- Professor Eirik Bjorge KC
On 11 December, they submitted their 150-page report and 5,000 pages of evidence to the panel. The judges then spent nearly three months examining the OIOS report. On 9 March, they filed their report, concluding: “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.”
The judges, whose names were first publicly identified by The New York Times, are Leona Theron from South Africa, Paul Lemmens from Belgium and Seymour Panton from Jamaica.
“The three judges the Bureau chose are judges of real eminence,” Professor Eirik Bjorge KC told MEE.
“Particularly evident is the eminence of Leona Theron of the South African Constitutional Court; she has handed down important and thoughtful judgments in the field of women’s rights,” he said.
Theron was the first Black female judge on the Constitutional Court of South Africa.
In a dissenting opinion in a landmark 2007 rape ruling, in which the majority reduced a life sentence to 16 years citing "mitigating factors", Theron argued that courts have a duty to protect women's dignity and send a clear message to potential rapists.
She described the crime as "one of the worst imaginable" and insisted that women are entitled to the full protection of the law.
“The Belgian member, Paul Lemmens, is a celebrated former judge of the European Court of Human Rights whose expertise is administrative law. Seymour Panton brings both the experience of a senior domestic judge and an international criminal judge,” added Bjorge, noting that Lemmens is currently the president of the Administrative Tribunal of the Council of Europe.
“When an international body such as the ASP Bureau asks a panel of judges to make a determination and the body receives that determination, then it should self-evidently uphold it,” Bjorge said, an opinion echoed by experts previously interviewed by MEE.
“Matters of this gravity are, exactly as the Bureau itself determined at the time, not matters to be politicised and haggled over by diplomats, but to be settled by non-political judges especially selected for the task.”
Reacting to MEE's reporting, several UN legal experts have also urged respect for the panel's findings, including the special rapporteur on Palestine, Francesca Albanese, and the special rapporteur on the right to housing, Balakrishnan Rajagopal.
And on Friday, the President of the Paris Bar, Louis Degos, wrote to the ASP president Paivi Kaukoranta on behalf of 37,000 lawyers, expressing concern about the possible disregard of the panel’s opinion.
“Indeed, the ASP would risk not only adjudicating the disciplinary case, but also assessing (or not) the prosecutorial policy pursued by Prosecutor Karim Khan since he took office,” Degos wrote in the French-language letter obtained by MEE.
“We are aware that the Presidency of the ASP is fully conscious of the risks that disciplinary proceedings may be instrumentalised," the letter added.
“It is therefore our duty to support this stance of independence, at a time when the ICC is facing numerous attempts at destabilisation."
The African Bar Association on Saturday also urged the bureau to adopt the panel's findings, warning that "any departure by a political body from the reasoned conclusions of experienced judges could undermine the institutional credibility of the Court and weaken confidence in the rule of law."
‘Gender-competent process’
Khan’s lead counsel in this process has been Sareta Ashraph, a barrister specialising in international criminal law, with expertise in intersectional analyses of sexual and gender-based violence.
Over the past two decades, she has worked on and led gender-competent investigations and legal analyses for both the UN and civil society organisations. In 2020, she was listed as one of Apolitical’s 100 Most Influential People in Gender Policy.
When approached by MEE for comment, Ashraph emphasised that important aspects of the process remain subject to strict confidentiality obligations, and as a result, she could not be drawn on discussions of the underlying evidence or non-public aspects of the process.
However, she explained that she undertook "a gender-competent analysis of the underlying material" and drafted defence submissions to the panel.
“Individuals alleging sexual violence often don’t report because they perceive - in many cases, correctly - the justice system as not being genuinely responsive to them,” Ashraph told MEE.
“In the case of Mr Khan, however, the bureau established an ad hoc process specifically for this complaint, and worked to ensure there was a victim-centred approach in a system that also respected due process.
“That is apparent in both the OIOS investigation and in the lengthy reasoned analysis of the eminent panel of jurists.”
Ashraph added: "If the Bureau starts to step away from the reasoned and unanimous analysis of the judges, they open up a conversation about whether the process that they established is founded upon law and due process, or on politics and power."
Standard of proof
MEE reported last week that a minority of members of the bureau are seeking to sabotage the judges’ report and to make their own assessment of the OIOS investigation. The French daily Le Monde later reported that the majority of bureau members are in favour of upholding the judicial findings.
But two civil society groups are urging the bureau to disregard the judges’ report, making various arguments against the process, including that the panel’s opinion is advisory and that the "beyond a reasonable doubt" standard of proof is too high for non-criminal contexts.
'Lobbying for lowering the standard of proof once a finding has been already made is to assert a disturbingly Kafkaesque notion of justice'
- Sareta Ashraph, Barrister
The two groups, the International Federation for Human Rights and the Women's Initiatives for Gender Justice, had previously backed the process and advocated for the establishment of a judicial panel by the bureau.
“This legal assessment must be conducted by experts and cannot be undertaken by a political body,” the two organisations wrote in an expert report at the beginning of the process.
“It is imperative that an independent body, distinct from the ASP bureau, conduct the legal assessment of the OIOS’ factual findings to ensure fairness, impartiality and institutional credibility.”
The same groups, however, are now criticising the standard of proof adopted as too onerous.
The standard of "beyond a reasonable doubt" is the highest standard of proof in criminal law and the one adopted by the ICC in misconduct cases.
The ICC follows the jurisdiction of the Administrative Tribunal of the International Labour Organization, which adopts the same standard.
If the standard is disregarded, it would be against the ICC’s own rules, experts have pointed out.
“While a handful of civil society actors are raising concerns about the standard of proof of beyond a reasonable doubt, this is the standard of proof for all such cases, and it would be deeply concerning if a lower standard of proof was applied only here,” Ashraph said.
“I am also far from convinced that a lower standard of proof would have yielded a different outcome. Regardless, advocacy around the standard of proof needed to take place at the start of the process, not once it has concluded," she added.
"Lobbying for lowering the standard of proof once a finding has been already made is to assert a disturbingly Kafkaesque notion of justice."
While the three judges said they did not find evidence of misconduct beyond a reasonable doubt, Judge Lemmens, in a separate opinion, went further, saying he had “serious doubts”, suggesting that he doubted whether the evidence could ever meet the standard beyond a reasonable doubt.
“I do not believe that OIOS should be faulted for this outcome. The facts are what they are. This case contains fairly unusual turns and behaviour on both sides. And with totally contradictory accounts, without any witnesses to the alleged misconduct,” Lemmens wrote in the report, seen by MEE.
“For the Panel... misconduct can only be established if it is proven beyond a reasonable doubt. I have serious doubts. On that basis, I have joined the majority in the unanimous opinion of the Panel.”
The ASP bureau has until 8 April to make a preliminary assessment on the panel’s report. The prosecutor will then have 30 days to respond, and the bureau will have another 30 days to make a final decision. If the panel’s report is adopted, Khan will be able to resume his work.
Experts have previously told MEE that the bureau must either adopt the findings by consensus or a majority vote.
The next few weeks will determine both Khan's future and the credibility of the court itself.
Khan sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant in May 2024, and the court has faced a ferocious campaign by Israel and its allies, primarily the US, attempting to pressure him to drop the investigation.
Since February 2025, US President Donald Trump's administration has imposed financial and visa sanctions on Khan, his two deputy prosecutors, six judges, the UN’s special rapporteur on Palestine and three Palestinian NGOs in connection with the Israel-Palestine investigation.
This article was sourced from Middle East Eye.
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