ICC to consider legal advice that criticises UN report on prosecutor Karim Khan | International criminal court
The governing body of the international criminal court is expected to meet on Monday to consider the recommendations of a panel of judges who challenged the findings of the investigation into chief prosecutor Karim Khan.
Last year’s UN investigation into allegations about Khan’s behavior appears to have provided a factual basis for allegations of misconduct against him. The senior British lawyer was accused of sexual misconduct by a complainant.
Now three judges appointed by the ICC have sent an 85-page report in which they examine the evidence against Khan and consider whether the allegations against him meet the threshold of “beyond reasonable doubt”, a high standard used in criminal cases.
Using this as a criterion, the judges recommended that the UN investigation did not find that Khan’s conduct amounted to misconduct or a breach of his duty.
The report criticizes the UN investigation’s methodology, saying it failed to resolve inconsistencies in the statements of Khan and the alleged victim.
The panel’s assessment was limited to a purely legal analysis of the UN investigation into Khan. The judges did not cross-examine the witnesses.
The judges’ recommendations are understood to have sparked disagreement among a group of ICC member states responsible for overseeing the Netherlands-based court over whether to accept the legal analysis.
Khan’s lawyers will argue that the panel’s recommendation amounted to an acquittal and that it was a “firm and rigorously reasoned finding of law”. But the process is not over yet and he may still face dismissal.
Khan’s fate will depend on how diplomats from a group of states view the conflicting evidence and whether the UN report’s findings on his merits will warrant disciplinary action. Such action could also include a vote on whether to remove him from office.
According to information obtained by The Guardian, Päivi Kaukoranta, the chairman of the ICC’s state party council, distributed a memo to members this weekend stating that “the disciplinary process before the bureau is ongoing and remains confidential.”
The memo stated: “No decisions have been made and recent speculation in the media should not be given any weight. The Bureau is currently evaluating this matter.” [UN] report and report of the ad hoc panel in accordance with his responsibility as the competent decision maker.
The panel of judges was appointed by the court’s governing body last year.
They were tasked with reviewing the UN report on Khan, compiled by the UN Office of Internal Oversight Services.
The UN report claims that the man’s behavior towards a woman increased over time, and as a result, he had sexual intercourse with a woman without her consent in his private home, during his trips abroad and at the ICC center.
It contained supporting statements saying that it had identified evidence that provided a factual basis for the allegations made by the complainant. He recommended that the ICC consider appropriate action based on the evidence.
The judges, two men and one woman, said they were faced with two diametrically opposed versions of events. They said the UN report failed to resolve contradictory or directly contradictory accounts in many cases.
The judges concluded that the UN report often did not reach definitive, concrete findings, or sometimes such findings were not possible. They said inconsistencies in the narrative were not resolved and the witnesses’ motives were not thoroughly tested, so in many respects the truth was not revealed.
The judges agreed that the factual findings of the UN investigation did not constitute misconduct or breach of duty within the relevant legal framework.
The panel said it could not determine the complainant’s credibility.
Much of the evidence presented, including text messages sent to fellow staff members in which the alleged victim complained of being harassed, was brushed aside by judges as hearsay evidence.
In their report, which the Guardian also reviewed, the judges said: “Investigators in the present case were either unable to reach definitive, concrete findings or concluded that such findings were impossible on the basis of the evidence collected… As a result, the UN report failed to establish where the truth lay in terms of many critical aspects of the allegations.”
Khan has consistently said he has done nothing that could be considered abusive or inappropriate. He had been on leave since May last year after the allegations emerged and led to a request for an investigation.
If the governing body makes an initial determination on Monday or at a later meeting that the material findings represent some form of misconduct, Khan will have a chance to respond.
If it detects that serious misconduct has occurred, The court’s 125 members may need to vote on whether Khan should be removed from office.
