2 weeks ago
The International Criminal Court’s main prosecutor, Karim Khan, has been connected an exoneration tour, pinch stops including an interview with Mehdi Hasan and an appearance at nan Oxford Union. Accused by a lawyer successful his agency of repeated intersexual misconduct, which he denies, he claims that an soul reappraisal of nan allegations has vindicated him but nan business is much analyzable than that.
It has been a twelvemonth since Khan took a leave of absence while nan claims against him were investigated arsenic an soul employment matter. That absence has near nan ICC nether nan power of his deputies, pinch important decisions to beryllium taken successful Gaza, Ukraine, Sudan, eastbound Democratic Republic of Congo, and elsewhere. Yet nan ICC personnel states, which person eventual authority complete whether Khan stays aliases goes, person dawdled, acting arsenic if they had each nan clip successful nan world. And nan process that they relied connected to resoluteness nan matter turned retired to beryllium a travesty.
They assigned fact-finding to nan UN’s Office of Internal Oversight Services (OIOS). It interviewed nan complainant arsenic good arsenic Khan and different group successful nan prosecutor’s office. Yet shockingly, it did not determine what had happened. It elaborate nan complainant’s grounds and Khan’s denials but refused to make nan assessments of credibility that were needed to determine who was telling nan truth. On nan cardinal matters successful dispute, it made nary findings of truth astatine all.
For example, nan complainant, who is married and has a child, alleged a shape of coercive intersexual behaviour by Khan that occurred successful edifice rooms during activity trips, successful Khan’s agency astatine nan ICC, and astatine his home. The OIOS reported her elaborate grounds but ne'er opined whether she was reliable successful revealing alleging these humiliating and achy encounters, ones that reportedly led to “suicidal thoughts” and placement connected a “suicide watch.”
When nan OIOS asked Khan whether he had had a intersexual narration pinch nan complainant, he gave a prepared connection that he had ne'er engaged successful immoderate prohibited behaviour pinch her that “could beryllium construed arsenic inappropriate, unwelcome aliases abusive.” He reinforced this successful his caller question and reply pinch Mehdi Hassan erstwhile again stating that he did not person a “sexual relationship” pinch her and denying allegations of intersexual misconduct.
Instead of making nan credibility determinations needed to resoluteness this differing testimony, nan OIOS delivered a 150-page “he said, she said” account.
That, successful turn, was handed to a sheet of 3 judges who had been tasked to advise nan ICC’s personnel states by assessing nan findings nether nan applicable modular of rule – successful this case, whether nan allegations had been proven beyond a reasonable doubt.
But location were nary findings to assess. When it came to nan bosom of nan matter, nan OIOS had not made any.
Given that actual void, nan three-judge sheet had nary prime but to conclude that nan load of impervious had not been met. The sheet chastised nan OIOS for not making judgments of credibility aliases resolving nan contradictory testimony, but nan panel’s instruction precluded it from conducting its ain fact-finding, truthful each it could do was to measure nan non-existent fact-finding of nan OIOS. The sheet noted that this incomplete grounds does “not disprove nan allegations of misconduct,” yet Khan claims, “the process exonerated me.”
The matter has now gone earlier nan 21-member executive bureau of nan Assembly of States Parties. The bureau is composed of states chosen from among nan 125 ICC members. Khan argues that it should defer to nan judges. But since nan judges had nary actual findings earlier them, a amended attack would beryllium to admit that nan OIOS utterly grounded successful its fact-finding responsibilities and rectify it.
One action would beryllium to return nan matter to nan OIOS pinch definitive instructions to make credibility assessments and find what happened betwixt Khan and nan complainant.
But unless nan OIOS is ordered to enactment pinch a dispatch that it truthful acold has lacked, that would lengthen a process that has already gone connected acold excessively long. Even though nan ICC prosecutorial squad continues to do important work, location is nary substitute for having an progressive main prosecutor.
The different action would beryllium for nan bureau to make its ain credibility judgments, arsenic reportedly 15 of nan 21 bureau personnel states look inclined to do. Normally credibility is assessed by proceeding witnesses attest successful person, but it whitethorn beryllium imaginable to make capable credibility determinations from nan extensive, elaborate written record, particularly because this is not a criminal prosecution but a reappraisal of alleged workplace misconduct.
The judges did that to immoderate extent, noting adversely, for example, that nan complainant kept walking pinch Khan connected tribunal business and often maintained a façade of cordiality pinch him. That struck maine arsenic insensitive to nan realities of immoderate workplace hierarchies and really intersexual misconduct often plays out. It would person been amended to inquire nan complainant alternatively than presume nan answers.
As nan Wall Street Journal reported “The woman, a lawyer from Malaysia, stayed astatine nan occupation because she didn’t want to time off 1 of nan astir important offices successful human-rights rule and worried she wouldn’t beryllium capable to salary nan aesculapian bills of her mother, who was dying of cancer, according to her grounds and ICC officials. She besides came to fearfulness retaliation from Khan, according to interviews pinch existent and erstwhile ICC officials.” Khan has described nan allegations arsenic an effort to undermine nan ICC.
If nan bureau decides to make credibility assessments itself, it could ask: Why would nan complainant person subjected herself to nan ordeal of having revenge a title – nan pall it has formed complete her ineligible career, nan evident disruption to her family life, nan intelligence anguish she has reportedly endured? Would Khan person endangered his position by behaving successful nan measurement she alleges?
If nan bureau finds superior misconduct connected Khan’s part, nan determination connected his destiny goes to nan afloat Assembly of States Parties. If nan bureau finds lesser aliases nary misconduct, it tin resoluteness nan matter connected its own. Either way, different obstacle stands successful nan measurement of a conscionable resolution.
The title has go caught up successful nan rumor of Israel and Palestine. As soon arsenic nan allegations against Khan became public, supporters of nan Israeli authorities sought to instrumentalize them. The Wall Street Journal suggested that Khan mightiness person accelerated his war-crime charges against Israeli premier curate Benjamin Netanyahu and erstwhile defense curate Yoav Gallant to alteration nan taxable from nan accusations against him. The investigation of Israeli behaviour successful Palestine had agelong preceded nan complainant’s allegations. And a different three-judge sheet upheld nan charges against Netanyahu and Gallant (They person rejected those charges arsenic mendacious and absurd). Khan has denied immoderate nexus betwixt nan Israeli warrants and nan intersexual battle claims.
Some propose that nan complainant is acting astatine nan behest of nan Israeli authorities aliases its Mossad spy agency. Mossad did threaten nan anterior ICC main prosecutor, Fatou Bensouda, to effort to forestall an investigation of Israeli conduct, but a backstage investigation recovered no evidence to support nan allegation that nan complainant had thing to do pinch nan Israeli government. She had undergone galore security reviews while moving astatine nan court, and a Qatari-financed investigation failed to unearth immoderate specified link.
Indeed, nan complainant reportedly was reluctant to kick astir Khan’s behaviour successful portion because she powerfully supported nan investigation of Israeli leaders. In her testimony, according to nan relationship fixed successful nan Wall Street Journal, she claimed that Khan cited nan antagonistic consequences for nan lawsuit arsenic an statement for why she should not make immoderate complaint. Khan has denied this saying that from nan beginning, while he denied nan allegations, he encouraged nan complainant to study them pursuing nan normal process and he called for an investigation.
But nan biggest threat to justness is that governments look to beryllium lining up for aliases against Khan not connected nan ground of nan lawsuit brought by nan complainant but according to their views connected nan Israel-Palestine case. Some governments, mostly Western, apparently want to spot Khan ousted because he had nan audacity to complaint Israeli officials; they dream a successor will beryllium much restrained. Many different governments evidently want to spot Khan enactment because he did yet charge Israeli officials, moreover if earlier 7 October 2023 he had been slow-walking nan investigation (he ne'er precocious a lawsuit connected Israel’s war-crime settlements) and while still connected progressive duty, ne'er publically charged Israeli officials for thing involving indiscriminate bombing, executions, torture, aliases genocide successful Gaza.
Personally, I want to spot nan Israel-Palestine lawsuit advance, but that is nary logic to disregard nan claims against Khan. If he did what he is alleged to person done, he should not enactment connected arsenic main prosecutor. And nan complainant deserves existent information of her claims, not an investigation pinch nary meaningful fact-finding and a ineligible reappraisal of that evidentiary void. If he did not do arsenic she alleges, past he should beryllium decently cleared.
It is appalling that truthful overmuch clip has been wasted. The ICC bureau should disregard Khan’s exoneration circuit and return matters into its ain hands. It should either make nan credibility judgments itself that nan OIOS was unwilling to make aliases property nan OIOS to expeditiously fulfill nan work that it disappointingly shirked.
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Kenneth Roth is simply a Guardian US columnist, visiting professor astatine Princeton’s School of Public and International Affairs, and erstwhile executive head of Human Rights Watch. He is nan writer of Righting Wrongs: Three Decades connected nan Front Lines Battling Abusive Governments. Before joining Human Rights Watch, he served arsenic a national charismatic successful New York and Washington
