ICC bureau to pursue case against Karim Khan despite judges’ ruling
A majority of members on the governing body of the International Criminal Court (ICC) on Wednesday backed a motion stating that Chief Prosecutor Karim Khan may have committed some form of misconduct, diplomatic sources with knowledge of the matter told Middle East Eye.
The preliminary vote by the 21-member executive bureau of the Assembly of States Parties (ASP) comes less than a month after a panel of judges appointed by the same body concluded that a UN investigation had not established any "misconduct or breach of duty" by Khan.
However, Middle East Eye can reveal that a group of predominantly western and European states voted on Wednesday to disregard the opinion of the judges and to make their own assessment based on the evidence presented in the UN report.
The 15 states that backed the motion are Belgium, Bolivia, Brazil, Chile, Cyprus, Ecuador, Finland, Italy, Japan, Latvia, New Zealand, Poland, Slovenia, South Korea and Switzerland.
The four that voted in favour of the judges' panel report are Senegal, South Africa, Kenya and Sierra Leone. Uganda and Bosnia and Herzegovina abstained.
The vote is not a final decision. The bureau is still weighing the language of the correspondence that will be provided to Khan on the matter in the coming days. He will then have 30 days to respond.
A final determination by the bureau on the nature of the alleged misconduct a majority of its members believe Khan may have committed is expected to be made in early June, diplomatic sources explained.
It is unclear whether this alleged misconduct relates to the original complaint of sexual misconduct against Khan which prompted the UN investigation, or to some other alleged misconduct or breach of duty.
Khan, who has been on indefinite leave since details of the allegations against him were reported in the media last May, has strenuously denied any wrongdoing.
The allegations against him have unfolded in parallel with a campaign to disrupt his office's efforts to pursue a war crimes investigation against Israeli officials over the war in Gaza.
The report by the UN's Office of Internal Oversight Services (OIOS) presented evidence and counter-evidence from complainants and Khan but, according to the subsequent judges' panel report, “either did not reach conclusive factual determinations or concluded that such determinations were impossible based on the evidence collected”.
The judges also said the UN report did not indicate which witnesses' testimonies were found credible and which were rejected, it did not resolve "narrative inconsistencies and discrepancies", and it did not "thoroughly test witnesses' motive or bias".
They added that the report relied on hearsay evidence in the absence of direct evidence of misconduct, which they assessed as carrying less evidential weight.
Accordingly, the panel said it found 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".
Middle East Eye has asked the ASP for comment.
In their first public statement, Khan's lawyers, Tayab Ali and Sareta Ashraph, said the prosecutor had yet to receive any correspondence from the bureau.
"An investigator’s report does not have the same weight as a Judicial Panel finding in any rule of law system," they said in a statement on Thursday shared with MEE.
'It raises cogent and troubling questions about whether political considerations have been allowed to displace legal judgment'
- Lawyers for Karim Khan
"If it is the case that this conclusion has instead been set aside, it raises cogent and troubling questions about whether political considerations have been allowed to displace legal judgment.
"It is alarming and places the Bureau outside of the law that governs it, if political representatives have sought to substitute their own assessment for that of an eminent independent Judicial Panel," they said.
"That Panel, comprising three highly distinguished international judges and appointed by the Bureau itself, reviewed the entirety of the evidential record over a period of three months and reached a unanimous and unequivocal conclusion: that the material does not establish any misconduct or breach of duty of any kind."
The lawyers added that the OIOS "did not make determinative findings of any misconduct or breach of duty within their 137 actual findings." It presented allegations that required a legal assessment, they added.
"As the Judicial Panel made abundantly clear, there were no findings by OIOS against Mr Khan. The Judicial Panel explained that a finding is not the repetition of an allegation or a reference to evidence or information; it is the result of subjecting that material to rigorous scrutiny and legal analysis," they said. "That is precisely what the Judicial Panel undertook."
According to an internal ASP document seen by MEE, in the event of a finding of serious misconduct or misconduct of a less serious nature, the bureau may decide to suspend Khan, pending a final resolution of the case.
In either case, Khan would be given 30 days to respond to the report.
If the bureau approves a finding of serious misconduct, the 125 members of the court must vote by an absolute majority (63 states) to remove Khan from office.
A finding of a less serious misconduct, on the other hand, may prompt the bureau to impose disciplinary measures on the prosecutor.
Fears of a politicised process
Legal and ICC experts have urged the bureau to uphold the findings of the panel's report, to avoid politicising the decision.
MEE has previously reported that some members of the bureau, primarily western states, were seeking to sabotage the judges’ report and to make their own assessment of the UN investigation.
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 has committed serious misconduct, less serious misconduct, or no misconduct at all.
“The Panel is unanimously of the opinion that the factual findings by OIOS do not establish misconduct or breach of duty under the relevant framework,” the panel concluded on 9 March, according to the report seen by MEE.
Wednesday's vote and the panel's conclusions mark significant milestones in the investigation, which has left the court in an unprecedented state of limbo amid uncertainty surrounding Khan's future and leaks to the media about the allegations that he faced.
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.
But both the complainant and the prosecutor cooperated with the external, UN-led investigation.
Respect judges' findings, say UN experts
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”.
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 probe until they reached their conclusion last month.
Reacting to the conclusion of the judges, 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.
'Any departure by a political body from the reasoned conclusions of experienced judges could undermine the institutional credibility of the Court'
- African Bar Association statement
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."
On Saturday the African Bar Association 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".
This article was sourced from Middle East Eye.
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