Within the next month, both parties to the sexual misconduct allegations against the current International Criminal Court (ICC) prosecutor Karim Khan – which he denies – are due to submit their views of the multi-layered investigation so far. Meanwhile, the lack of public information and the complex nature of the process by which the prosecutor has been investigated since October 2024, continues to give rise to much speculation.
Following an outsourced investigation, and a legal assessment by a panel of judges, as recounted in Justice Info, leaks led to apparently clear-cut statements: “ICC prosecutor cleared of all charges”, which dominated social media during the weekend of March 22, based on a partial summary in Middle East Eye of the leaked judges’ assessment; the investigation was also described as a “witch-hunt” by one UN Special Rapporteur, while another, Francesca Albanese, called on “those who stand for justice” to ensure any attempt to remove the prosecutor must fail. Her missive on X has had 236,000 views and been liked by 14,000. The States Parties bureau president was forced to issue a rare press statement expressing “concern” and stressing that the disciplinary process “is ongoing and remains confidential” and that “[n]o decisions have been taken, and no weight should be given to or conclusions drawn from media speculations”.
The following week, the balance was tipped in the other direction by a report in the New York Times, based on the leaked judges’ report had a different assessment: “The U.N. investigators found evidence that Mr. Khan engaged in “non-consensual sexual contact” with a woman on his staff”. See-sawing commentary has continued, with associations and individuals lining up to express their fears either that the project of international criminal justice represented by the ICC would be irreparably damaged by the prosecutor staying, or by states forcing him out.
A decision by June 8?
At the heart of the matter is fairness in the process set up by the Bureau of the Assembly of States Parties (ASP) – a 21-member body representing states, elected by the 125 state members of the court. They are ambassadors, resident in New York or Brussels where the ICC is one matter among many pressing issues, or in The Hague, where the court is likely a larger part of their portfolio. They are elected freely, though behind the scenes negotiations are carried out to ensure regional balance. At the next ICC’s annual meeting, the three-year term of the whole bureau, including of the president Finnish ambassador to Brussels Päivi Kaukoranta, will be over. Conforming to informal geographical rotation, the next president, to be elected in December, is due to come from Africa.
In the case of the allegations against Khan, it was the bureau’s president who decided to open the current investigation in November 2024 and who entrusted it to UN’s oversight investigators, after the matter had been closed by the courts’ own internal oversight mechanism. The court itself has – afterwards – adopted a new methodology governing investigations into alleged misconduct by its highest officials.
At the most recent meetings of the bureau, on April 1 and 8, it has been reported, via media leaks, that four African states disagreed with a decision that the investigation needed to be continued, because “some form of misconduct” may have occurred. UK barrister Sareta Ashraph, engaged since January 2026 to advise Khan on his inputs into the investigation, wrote in Aljazeera of the dangers “[s]hould the bureau, a political entity, disregard the rigorous analysis and unanimous conclusion of the eminent judicial panel”.
Lately, diplomatic sources have confirmed to Justice Info that both the prosecutor and the complainant have been provided with redacted versions of the investigation – 5,000 pages – and of the judges’ report – 85 pages – and invited to make submissions by May 8. Once those have been examined, the bureau should decide by June 8 on how to characterise the allegations: nothing, lesser misconduct or serious misconduct. In the latter case, the bureau could recommend that the full ASP be convened to decide on the prosecutor’s future.
Opposing camps formed
The variety of commentary from the ICC-adjacent community is couched in lawyerly terms and is focused on fairness. It includes a discussion on whether the standard of proof used by each body in the process has been correct. The terms of reference from the bureau to the judges’ panel seen by your correspondent clearly includes reference to the “beyond reasonable doubt” criteria. But the UN OIOS, which conducted the investigation, indicates in its manual for practitioners a different standard for its investigations: “Clear and convincing proof requires more than a preponderance of the evidence but less than proof beyond reasonable doubt – it means that the truth of the facts asserted is highly probable”.
The court staff themselves are seeking to have their say, albeit anonymously. Earlier this month an anonymous message was circulated from “concerned members” of the office of the prosecutor stating that staff feared Khan’s potential return. In particular, they worry that there could be retaliation against those who gave evidence to the investigators. Another letter circulated, from “the silent majority” of staff in the office, who said they have “refrained from going to the media to express any comment out of full respect for the process”. Asserting that “the majority of staff appreciates the prosecutor for his hard work and his leadership which yielded unprecedented successes in the work of the office in the past years”, they condemned “external and politicized statements that aim to influence the independence and the objectivity of a judicial process under the disguise of freedom of expression”.
A controversial “mess”
US academic professor Milena Sterio, from the American Branch of the International Law Association, describes the process as “a mess” and “controversial to say the least”. Speaking as a member of the committee which released this statement, Sterio expressed concern that the prosecutor will now have “some of the names of individuals employed at his own office who have complained about him”. This may “be devastating to individuals who in the future have legitimate complaints, whether it be sexual harassment, or the workplace culture”.
Similarly, the Association of International Law Criminal Prosecutors which represents those who either have worked or are working for the ICC, has been decrying the “structural deficiencies this process has exposed”, resulting in a process “in which the facts were never fully determined”. They express “gravely concern” about “reports that the prosecutor, prior to taking leave, engaged in conduct characterised by UN investigators as retaliatory toward staff supportive of the complainant” and call on the court to overall its investigative structure, underlining that “the Court cannot credibly prosecute the gravest crimes against persons while tolerating a culture in which its own staff are inadequately protected”.
“A bitter taste”
Within defence circles, there have also been contrasting views. One, expressed by Micheal Karnavas, last defending Paul Gicheru from allegations of witness interference in the ICC Kenya cases, suggests that “conduct at the highest levels of an institution – even where it does not meet a criminal threshold – may nonetheless bear directly on its functioning, its reputation, and its ability to command trust” and that “institutional credibility isn’t maintained by process alone”. But rather needs clear standards and “the willingness to enforce them confidently, transparently, and [sic] unhesitantly”.
Cyril Laucci, last seen defending Al Kushayb at the court, says whether one likes Khan or not, “whatever the prosecutor did or did not do, the handling of the allegations has been deeply unsatisfactory. It leaves a bitter taste for those concerned with the rights of victims, including victims of sexual violence and abuse of power, as well as for those committed to the rights of the defence, the presumption of innocence, and the guarantees of a fair trial. Above all, it profoundly undermines confidence in the independence of the Court”.
Split in the NGO community
The NGO community is similarly split. The FIDH representative in The Hague, Danya Chaikel has been widely quoted. She points out that the judges’ report was “not an exoneration” of Khan, that the panel instead established “many unresolved factual disputes”. Her organisation and Women’s initiatives for Gender Justice have lobbied specifically on the issue of the standard of proof at which these matters should be judged. Their paper argues that a victim-centred approach “demands heightened scrutiny and rigorous safeguards to ensure a watertight procedure that protects both the elected official and the complainant”. But Khan’s lawyer Ashraph – herself a gender expert and co-founder of the Atlas network of women lawyers – argues that the process had been “gender-competent”.
A statement by the coalition of NGOs from Francophone Africa for the ICC has also been addressed to the ASP bureau, insisting on the integrity of the process. Ali Ouattara, the coordinator, told Justice Info that the role of the panel “composed of independent judges, should be respected”. “We must be frank: the court is going through a delicate period. There are clear disagreements, in particular between some western states with the independent exercise of discretionary power by prosecutor Khan”, that could “increase the risk that judicial processes could be seen as influenced or contested for political reasons”.
“For years, he adds, persistent criticism – particularly from African states and commentators – accused the ICC of focusing disproportionately on Africa, thereby reinforcing the impression that it was a ‘court for Africans’. Under Khan’s leadership, this narrative has been seriously challenged.” “In these circumstances, yes, the ICC would risk losing much of its credibility if prosecutor Khan were to be removed from office by political leaders, given the unanimous ruling handed down by highly respected judges. Not because it has been confronted with serious allegations, but because [the ICC] has failed to deal with them in a manner consistent with the rule of law that it is supposed to uphold”, wraps up Ouattara.
