The International Criminal Court's investigation into sexual misconduct allegations against its chief prosecutor, Karim Khan, has been a failure, according to Kenneth Roth, a Guardian US columnist and former executive director of Human Rights Watch. In a scathing critique, Roth argues that the process relied on a flawed internal review that failed to make credibility assessments, leaving the allegations unresolved.
Flawed Fact-Finding by UN's OIOS
The UN's Office of Internal Oversight Services (OIOS) was tasked with fact-finding but delivered a 150-page 'he said, she said' account without determining what actually happened. It detailed the complainant's testimony and Khan's denials but refused to make credibility judgments, leaving key factual disputes unresolved.
According to Roth, the OIOS interviewed the complainant, Khan, and others in the prosecutor's office, but shockingly did not decide what had occurred. On the key matters in dispute, it made no findings of fact at all.
Complainant's Allegations
The complainant, a married lawyer with a child, alleged a pattern of coercive sexual behavior by Khan in hotel rooms during work trips, his ICC office, and his home. She reported 'suicidal thoughts' and being placed on a 'suicide watch.' Khan denied the allegations, stating he never engaged in any prohibited conduct that could be construed as inappropriate, unwelcome, or abusive.
Roth notes that the OIOS never opined on whether the complainant was credible in revealing these humiliating and painful encounters.
Panel's Limited Mandate
The OIOS report was handed to a three-judge panel tasked with assessing the findings under the standard of proof beyond a reasonable doubt. However, with no factual findings to assess, the panel had no choice but to conclude the burden of proof was not met. The panel chastised the OIOS but could not conduct its own fact-finding.
Despite the panel noting that the incomplete record does 'not disprove the allegations of misconduct,' Khan claims the process exonerated him.
Next Steps for ICC Member States
The matter now goes before the 21-member executive bureau of the Assembly of States Parties. Roth argues that the bureau should either return the matter to the OIOS with explicit instructions to make credibility assessments or make its own credibility judgments from the written record.
Roth suggests that if the bureau finds serious misconduct, the decision goes to the full Assembly of States Parties. If lesser or no misconduct is found, the bureau can resolve it on its own.
Political Interference
The complaint has become entangled with the Israel-Palestine issue. Some supporters of the Israeli government have sought to instrumentalize the allegations, while others suggest the complainant is acting at the behest of Israel. However, a private investigation found no evidence linking the complainant to the Israeli government.
Roth warns that governments are lining up for or against Khan based on their views on the Israel-Palestine case, not on the merits of the complaint. He emphasizes that the complainant deserves real consideration of her claims, not an investigation with no meaningful fact-finding.
Roth concludes that the ICC bureau should ignore Khan's 'exoneration tour' and take matters into its own hands, either by making credibility judgments itself or pressing the OIOS to fulfill its responsibilities expeditiously.
