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In January, I was retained by the prosecutor of the International Criminal Court (ICC), Karim Khan, who is facing an investigation into allegations of misconduct and abuse of authority. I was tasked with undertaking a gender-competent analysis of the then-undisclosed evidence collected by the United Nations Office of Internal Oversight Services (OIOS), which was tasked by the president of the Assembly of States Parties (ASP) with the inquiry.
I would also lead the drafting of defence submissions to the Judicial Panel, comprising three eminent judges selected by the Bureau of the ASP, the ICC’s executive oversight body. The Judicial Panel was charged with legally characterising any facts found by the OIOS in the course of its investigation. This process, not contemplated in existing court regulations, was designed and implemented by the bureau and established specifically for this complaint.
As a condition of receiving the disclosure, I signed a confidentiality agreement that bars me from discussing the evidence. I am permitted, however, to respond to any inaccurate or misleading information placed into the public domain. I intend to abide by these obligations in this article.
The OIOS’s investigation began in November 2024 and ran until December 2025. All parties had lengthy interviews and were able to submit any material that they believed to be relevant. OIOS investigators also interviewed many others and independently collected material. Contrary to what has been reported with regard to the allegation of sexual misconduct, there are no corroborating witnesses. The material collected ran to more than 5,000 pages.
The Judicial Panel spent three months reviewing the OIOS report and the mass of underlying material. In March, the judges handed down an 85-page report, in which they recounted and analysed the evidence. In their conclusion, as has been publicly reported, the judges stated that they were “unanimously of the opinion that the factual findings by OIOS do not establish misconduct or breach of duty under the relevant legal framework”.
This finding did not surprise me. The totality of evidence collected by the OIOS was not, in my view, capable of meeting the long-accepted standard of proof of beyond reasonable doubt. I remain unconvinced that a lower standard of proof would have yielded a different outcome. The doubts inherent in the evidence were not merely reasonable; they were serious.
So far, so straightforward. Once the Judicial Panel’s conclusion became publicly known, however, a number of intriguing events unfurled.
First, the bureau circulated an “OIOS Report Summary”, which did not summarise the concluding operative section of the OIOS report, titled “Findings”, but rather drew from the report’s brief narrative overview in an early section titled “Overview”. That the summary was misaligned with the OIOS’s findings was evident, not only from reading the OIOS report’s “Findings”, but also from the Judicial Panel’s analysis of the OIOS report, which repeatedly referenced the lack of conclusive factual findings made by the OIOS.
The purported summary, which gave the impression that the OIOS had made conclusive factual findings with regard to the sexual misconduct allegations, promptly leaked.
Simultaneously, in the public space, a number of individuals and organisations, none of whom had access to the evidence, began to advocate for the bureau to disregard the reasoned analysis and unanimous conclusion of the Judicial Panel. This ran counter to the position taken while the investigation was under way.
In May, for example, the International Federation for Human Rights produced an explainer in which it emphasised that the “legal assessment must be conducted by experts and cannot be undertaken by a political body. 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.”
Under the surface of these curious happenings appears to be some conviction, arrived at despite the relevant individuals and organisations not having access to or having studied the evidential record, that the only correct finding is one in which serious misconduct is determined.
Believing that justice resides only in one specific outcome risks injustice. First, and immediately, the presumption of innocence, a cornerstone of due process is discarded. Specious arguments and a willingness to mislead become justified in service of what one has decided is a greater good.
The dangers of a nonevidence-based belief have not been fully acknowledged. It has opened the door, shockingly, to the possibility of diplomats on the bureau closing their eyes to the expertise and analysis of distinguished judges who reached a meticulously reasoned and unanimous finding that the facts do not establish either misconduct or breach of duty. Were an ICC prosecutor to be removed or even sanctioned by political actors after having been exonerated by an independent Judicial Panel, it would raise grave questions about the independence of the Office of the Prosecutor, particularly when that office has broadened the reach of the court beyond that of geopolitically weaker states.
People often believe they have an instinct for justice. They do not. But that belief is key to why individuals’ views on the “right” outcome persist, even though they know they haven’t grappled with the evidence.
Justice is not a matter of belief, nor can it be found in political expediency.
The closest we have come to designing meaningful justice systems is to ensure there is a meaningful investigation in which all parties can participate and are treated with dignity and in which the due process rights of the subject are respected before the full evidential record is thoroughly analysed by qualified, impartial judges or juries and a predetermined standard of proof is applied. That is what has happened here.
Should the bureau, a political entity, disregard the rigorous analysis and unanimous conclusion of the eminent Judicial Panel – and in so doing, contravene the jurisprudence that binds the bureau – it would raise profoundly troubling questions about the impartiality and independence of a process that will determine the future of the ICC prosecutor and, with it, the direction of the court.
After a yearlong investigation and a three-month evidential review, the independent, impartial and eminent Judicial Panel provided its lengthy, reasoned judgement and unanimously determined that the OIOS’s factual findings do not establish misconduct or breach of duty on the part of the prosecutor.
This is the outcome, based on the evidential record, and it is just. The bureau must uphold the Judicial Panel’s considered findings and declare the matter closed.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.
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