In January, I used to be retained by the prosecutor of the Worldwide Legal Court docket (ICC), Karim Khan, who’s dealing with an investigation into allegations of misconduct and abuse of authority. I used to be tasked with endeavor a gender-competent evaluation of the then-undisclosed proof collected by the United Nations Workplace of Inside Oversight Companies (OIOS), which was tasked by the president of the Meeting of States Events (ASP) with the inquiry.
I might additionally lead the drafting of defence submissions to the Judicial Panel, comprising three eminent judges chosen by the Bureau of the ASP, the ICC’s government oversight physique. The Judicial Panel was charged with legally characterising any info discovered by the OIOS in the middle of its investigation. This course of, not contemplated in present courtroom rules, was designed and applied by the bureau and established particularly for this criticism.
As a situation of receiving the disclosure, I signed a confidentiality settlement that bars me from discussing the proof. I’m permitted, nonetheless, to reply to any inaccurate or deceptive data positioned into the general public area. I intend to abide by these obligations on this article.
The OIOS’s investigation started in November 2024 and ran till December 2025. All events had prolonged interviews and have been capable of submit any materials that they believed to be related. OIOS investigators additionally interviewed many others and independently collected materials. Opposite to what has been reported with regard to the allegation of sexual misconduct, there aren’t any corroborating witnesses. The fabric collected ran to greater than 5,000 pages.
The Judicial Panel spent three months reviewing the OIOS report and the mass of underlying materials. In March, the judges handed down an 85-page report, by which they recounted and analysed the proof. Of their conclusion, as has been publicly reported, the judges said that they have been “unanimously of the opinion that the factual findings by OIOS don’t set up misconduct or breach of responsibility beneath the related authorized framework”.
This discovering didn’t shock me. The totality of proof collected by the OIOS was not, for my part, able to assembly the long-accepted customary of proof of past cheap doubt. I stay unconvinced {that a} decrease customary of proof would have yielded a distinct end result. The doubts inherent within the proof weren’t merely cheap; they have been critical.
To this point, so simple. As soon as the Judicial Panel’s conclusion grew to become publicly identified, nonetheless, plenty of intriguing occasions unfurled.
First, the bureau circulated an “OIOS Report Abstract”, which didn’t summarise the concluding operative part of the OIOS report, titled “Findings”, however somewhat drew from the report’s temporary narrative overview in an early part titled “Overview”. That the abstract was misaligned with the OIOS’s findings was evident, not solely from studying the OIOS report’s “Findings”, but additionally from the Judicial Panel’s evaluation of the OIOS report, which repeatedly referenced the shortage of conclusive factual findings made by the OIOS.
The purported abstract, which seemed that the OIOS had made conclusive factual findings with regard to the sexual misconduct allegations, promptly leaked.
Concurrently, within the public house, plenty of people and organisations, none of whom had entry to the proof, started to advocate for the bureau to ignore the reasoned evaluation and unanimous conclusion of the Judicial Panel. This ran counter to the place taken whereas the investigation was beneath approach.
In Could, for instance, the Worldwide Federation for Human Rights produced an explainer by which it emphasised that the “authorized evaluation have to be performed by consultants and can’t be undertaken by a political physique. It’s crucial that an unbiased physique, distinct from the ASP Bureau, conduct the authorized evaluation of the OIOS’ factual findings to make sure equity, impartiality and institutional credibility.”
Below the floor of those curious happenings seems to be some conviction, arrived at regardless of the related people and organisations not getting access to or having studied the evidential report, that the one right discovering is one by which critical misconduct is decided.
Believing that justice resides solely in a single particular end result dangers injustice. First, and instantly, the presumption of innocence, a cornerstone of due course of is discarded. Specious arguments and a willingness to mislead develop into justified in service of what one has determined is a better good.
The hazards of a nonevidence-based perception haven’t been totally acknowledged. It has opened the door, shockingly, to the opportunity of diplomats on the bureau closing their eyes to the experience and evaluation of distinguished judges who reached a meticulously reasoned and unanimous discovering that the info don’t set up both misconduct or breach of responsibility. Have been an ICC prosecutor to be eliminated and even sanctioned by political actors after having been exonerated by an unbiased Judicial Panel, it will increase grave questions concerning the independence of the Workplace of the Prosecutor, notably when that workplace has broadened the attain of the courtroom past that of geopolitically weaker states.
Individuals usually imagine they’ve an intuition for justice. They don’t. However that perception is essential to why people’ views on the “proper” end result persist, although they know they haven’t grappled with the proof.
Justice shouldn’t be a matter of perception, nor can or not it’s present in political expediency.
The closest we’ve got come to designing significant justice techniques is to make sure there’s a significant investigation by which all events can take part and are handled with dignity and by which the due course of rights of the topic are revered earlier than the complete evidential report is completely analysed by certified, neutral judges or juries and a predetermined customary of proof is utilized. That’s what has occurred right here.
Ought to the bureau, a political entity, disregard the rigorous evaluation and unanimous conclusion of the eminent Judicial Panel – and in so doing, contravene the jurisprudence that binds the bureau – it will increase profoundly troubling questions concerning the impartiality and independence of a course of that can decide the way forward for the ICC prosecutor and, with it, the path of the courtroom.
After a yearlong investigation and a three-month evidential assessment, the unbiased, neutral and eminent Judicial Panel supplied its prolonged, reasoned judgement and unanimously decided that the OIOS’s factual findings don’t set up misconduct or breach of responsibility on the a part of the prosecutor.
That is the result, primarily based on the evidential report, and it’s simply. The bureau should uphold the Judicial Panel’s thought-about findings and declare the matter closed.
The views expressed on this article are the writer’s personal and don’t essentially mirror Al Jazeera’s editorial stance.
