Karim Khan investigation: Former ICC judges criticise handling of complaint against prosecutor

Middle East Eye

a day ago

Former judges at the International Criminal Court have criticised the court's oversight body over its handling of an ongoing investigation into a complaint of alleged sexual misconduct brought against the court's chief prosecutor, Karim Khan.
Speaking to Middle East Eye, two former judges at the court said they were gravely concerned by the way in which Khan had been publicly identified as the subject of a complaint, and questioned the need for an external investigation into his alleged misconduct.
Cuno Tarfusser, an Italian judge who worked at the court from 2009 to 2019, told MEE: "I am deeply disturbed, even scandalised, by the way the proceedings against Karim Khan seem to be unfolding."
Another former judge, speaking on condition of anonymity, told MEE he feared that a lack of due process had taken the investigation into 'bandit country' in which 'anything can happen'.
The investigation by the United Nations' Office of Internal Oversight Services (OIOS) was commissioned by Paivi Kaukoranta, the President of the Assembly of State Parties, the ICC's oversight body, after details of a sexual misconduct complaint against Khan were leaked to the media in October.
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Khan was publicly identified by Kaukoranta as the subject of a complaint, even though the ICC's own investigative body, the Internal Oversight Mechanism (IOM), had closed two investigations of its own, without publicly naming the chief prosecutor, after the complainant, a female ICC staff member, declined to cooperate.
Announcing the OIOS inquiry the next month, Kaukoranta said the IOM had investigated the complaint against Khan on the basis of requests by a third party and by Khan himself, and acknowledged the IOM was 'competent to investigate such allegations'.
Exclusive: How Karim Khan's Israel war crimes probe was derailed by threats, leaks and sex claims Read More »
But she said that 'the particular circumstances of the case, including the IOM's victim-centred approach, and perceptions of possible and future conflicts of interest' had led her to seek an external investigation.
Both judges told MEE they believed Khan had been denied due process and the right to privacy in being named by Kaukoranta and by her decision to outsource the investigation to the OIOS.
The former judge said it was his view that Khan should not have been publicly identified before the investigation was completed, commenting: "It's a genie that you can't put back in the bottle."
Tarfusser told MEE the investigation appeared to have been 'tailored' for Khan.
'It is unprecedented and a shame within an institution based on the rule of law that a personalised proceeding is created just for Karim Khan,' he said.
'This, far from being decisive, threatens to permanently damage the credibility of the court itself. This way of doing things, these procedures, are known to autocratic states, not to states or institutions based on legality and law.'
The other former judge said he was concerned that the handling of the complaint would erode trust in the court's procedures. He said it could discourage future complainants from coming forward because of a lack of confidence that their complaint would be dealt with correctly.
Cuno Tarfusser told MEE he was "scandalised" by how the investigation into Khan had unfolded (ICC/Flickr)
'It damages the whole structure of the complaints procedure,' he said.
The complaint against Khan is based on allegations of sexual misconduct made by a female ICC staff member, but was initially reported to the IOM by a member of Khan's office rather than the complainant herself.
Khan, who has been chief prosecutor at the ICC since 2021, has strenuously denied all of the allegations against him.
He is understood to have been interviewed by OIOS investigators in early May and to have cooperated with the investigation.
Khan was forced to step away on leave later in May following the publication of new allegations against him, including claims that he had sexually assaulted the complainant on a number of occasions over a period of almost a year.
Khan's lawyers said in a statement at the time: "Our client has decided to take a period of leave, not least as the wildly inaccurate and speculative media focus on the matter is detracting from his ability properly to focus on his job.
'Our client remains the Prosecutor, has not stepped down and has no intention of doing so.'
But new questions about the investigation into Khan were raised this week after MEE revealed details of a pressure campaign exerted on the prosecutor which sought to derail his investigation into alleged Israeli war crimes in Gaza and the occupied Palestinian territories.
MEE reported that an initial complaint of sexual harassment was made against Khan in May 2024 as he was in the final stages of preparing to apply to the court for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his then-defence minister, Yoav Gallant.
The allegations re-emerged in October 2024, as the ICC was preparing to issue the warrants, when details of the initial complaint were circulated to journalists and on social media. It was these allegations which prompted the ASP to commission the OIOS investigation.
Then, in May this year, reports that Khan was accused of sexual assault, as first reported by the Wall Street Journal, broke just as Khan was reported to be seeking further arrest warrants for Israeli officials.
The complainant told MEE that her complaint had 'nothing whatsoever to do with the Court's investigation into Palestine', and said she is not affiliated with, or acting on behalf of, any state or external actor.
She said any suggestion that her complaint was politically motivated is 'highly inappropriate… offensive and unfounded'.
She said she continued to support all investigations under the ICC's jurisdiction.
French newspaper Le Monde on Friday also published details of a campaign against Khan and others working at the court.
It quoted British lawyer Andrew Cayley, who oversaw the ICC's Palestine investigation, as saying that he had been told by Dutch intelligence that he was at risk.
He said in December he had been directly threatened: "I was told I was an enemy of Israel and that I should watch my back."
Cayley quit the court earlier this year after being warned by the British foreign office that he was at risk of being targeted by US sanctions.
The judge who spoke on condition of anonymity told MEE the investigation into the complaint against Khan needed to look into allegations of suspected interference in the work of the prosecutor's office.
He noted that a lot of people had an interest in damaging the prosecutor and the court, and said judges working at the court had always had to deal with "a political undercurrent from one source or another".
Both judges told MEE their concerns were shared by a number of other former and current ICC judges.
The court has faced punitive and hostile measures over its investigation into alleged Israeli war crimes. Khan was subjected to US sanctions in February, and the US sanctioned four current ICC judges in June.
Speaking last month at a meeting of the ASP, the US State Department legal advisor, Reed Rubinstein, warned the court's oversight body that 'all options are on the table' if the arrest warrants against Netanyahu and Gallant are not withdrawn.
It remains unclear when the investigation into Khan will be completed and what will happen next.
In June, the ASP Presidency announced that the OIOS's final report would be sent for assessment to an external panel of judicial experts to help consideration of 'appropriate next steps'.
It said the work of the panel would be conducted on a confidential basis.
Asked for comment, the office of the ASP Presidency referred MEE to its public statements about the allegations against Khan and the OIOS investigation.
It said the findings of the investigation would be 'handled in a transparent manner' once it was concluded.