Investigating the prosecutor

External investigator will question Karim Khan KC as judge stands down

Allegations of sexual misconduct against the British prosecutor of the International Criminal Court will now be handled by an external investigator, its supervisory body confirmed yesterday.

The announcement by Päivi Kaukoranta, president of the court’s Assembly of States Parties, means that the allegations against Karim Khan KC will no longer be investigated internally by an office known as the independent oversight mechanism, or IOM.

Karim Khan KC

The Finnish diplomat insisted that the IOM, which she said was operationally independent and reported directly to the Assembly of States Parties, would have been “competent to investigate such allegations”.

But, she added, “given the particular circumstances of this case, including the IOM’s victim-centred approach and perceptions of possible and future conflicts of interest, the IOM has indicated that it has no objection to exceptionally resorting to an external investigation”.

In a statement, Kaukoranta said that “practical modalities of the investigation are being finalised”, which presumably means her staff have not yet worked out who will do it.

It seems inevitable that the external investigation will take longer than the one that had already been set up.

Reuters, one of the news agencies that reported the decision to hold independent investigation last Friday, said that staff at the International Criminal Court were calling on Khan to step down while the investigation was under way.

A source told Reuters that “the alleged victim in the Khan case does not have confidence in the independence of the court’s internal body, whose incoming head is a former member of Khan’s staff, because details of reports to it about the alleged misconduct were leaked”.

She is said to be willing to assist an external investigation.

More details of her allegations have been widely reported. These cannot be confirmed and I have not written about the complainant or her allegations myself.

Little more than two weeks ago, Kaukoranta said the allegations against Khan had been referred to the IOM “on the basis of a third-party report”. The assembly president was “aware of recent public reports regarding alleged misconduct by the prosecutor towards a member of his office”.

She added:

The court has a zero-tolerance policy towards prohibited conduct such as harassment, including sexual harassment, discrimination and abuse of authority. 

Any reports of misconduct are taken very seriously, with full respect for the presumption of innocence as well as the duty of care towards International Criminal Court personnel. 

Also on 24 October, Khan issued a statement on Twitter/X.

He said:

I welcome this statement from the president of the Assembly of States Parties. It was with deep sadness that I understood reports of misconduct were to be aired publicly in relation to me. There is no truth to suggestions of such misconduct. I have worked in diverse contexts for 30 years and there has never been such a complaint lodged against me by anyone.

The independent oversight mechanism of the court (IOM) is the body that oversees any matter that may justify investigations. If ever asked to do so, I would be willing to provide any information needed to the IOM. I have and would always encourage any victim of harassment to raise their voice and come forward with such accounts wherever they may occur.

Where there are any type of reports of this nature it is essential that they are thoroughly listened to, examined and subjected to a proper process. The use of a fair process is particularly essential in the context in which the International Criminal Court is currently operating, so as to protect the rights of all persons.

This is a moment in which myself and the International Criminal Court are subject to a wide range of attacks and threats. It has never been more important that the International Criminal Court, including myself as prosecutor, is able to focus on its job to deliver justice for the victims of international crimes, and demonstrate through our actions that all lives deserve the protection of international law.

I will continue to make every effort, to the best of my ability, to deliver on that mandate no matter what actions are taken against me.

I will not be providing any further comment.

In comments reported by the Guardian last night, Khan said he would remain in his role but any issues relating to the allegations would be handled by his two elected deputies, Mame Mandiaye Niang and Nazhat Shameem Khan.

“At my request, a coordination group chaired by the deputy prosecutors, acting independently and not reporting to me, has already taken responsibility for addressing all relevant issues connected to this issue internally within the office,” he said.

He also told the Guardian: “I will be continuing all other functions as prosecutor, in line with my mandate.”

Judge stands down

It is nearly six months since Khan asked the court to issue warrants for the arrest of the Israeli prime minister Benjamin Netanyahu and Israel’s former defence minister Yoav Gallant. Khan also sought the arrest of three Hamas leaders who have since been killed.

The prosecutor was clearly hoping for a decision by now. But detailed legal submissions and counter-arguments are still being received by the three-judge panel assigned to the case, the most recent of them published on 28 October. And last month the senior member of the pre-trial chamber, Iulia Motoc, asked to be removed from the case on medical grounds.

On 25 October, “noting that Judge Motoc considered that she needed to be excused from the situation in the State of Palestine ‘based on medical grounds and the need to safeguard the proper administration of justice’”, the court’s president and two vice-presidents granted her request.

“The presidency notes further that the personal medical situation of Judge Motoc is entitled to medical confidentiality,” it added in a ruling. But the fact that Motoc based her request to stand down partly on “the need to safeguard the proper administration of justice” could mean that having to decide whether to issue arrest warrants was too stressful for her. It could equally mean that unrelated medical treatment was taking up too much of her time.

Motoc was replaced by Judge Beti Hohler. The panel’s new presiding judge is Nicolas Guillou.