Code of Conduct for the Office of the Prosecutor
Chapter 3. Specific duties
Section 1. Objective truth-seeking
49. In compliance with the duty to establish the truth under article 54(1)(a) of the Statute, the Office shall investigate incriminating and exonerating circumstances equally in all steps involved in the planning and conduct of investigative and prosecutorial activities. In particular, Members of the Office shall:
(a) conduct investigations with the goal of establishing the truth, and in the interests of justice;
(b) consider all relevant circumstances when assessing evidence, irrespective of whether they are to the advantage or the disadvantage of the prosecution;
(c) ensure that all necessary and reasonable enquiries are made and the results disclosed in accordance with the requirements of a fair trial, whether they point to the guilt or the innocence of the suspect.
50. Staff members shall report to the Prosecutor concerns which, if substantiated, would tend to render a previous conviction made by the Court unsafe, bring the administration of justice into disrepute or constitute a miscarriage of justice.
It should be an article of faith that before the International Criminal Court’s Office of the Prosecutor (ICC OTP) seeks an arrest warrant on a person, it has reliable, authentic, and relevant evidence to achieve a conviction. Put differently, the prosecution must not only have evidence to overcome the low hurdle of sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged for confirmation, but evidence that would: (a) overcome any challenges raised in a motion for a directed verdict (judgment of acquittal) at the end of the prosecution’s case-in-chief; and (b) secure a conviction at the end of trial, having met its burden of proof beyond a reasonable doubt.
Nothing is guaranteed. The evidence gathered by the prosecution between the arrest and trial can alter or even be lost – as witnesses become unavailable or with the discovery of new evidence that was previously unknown or unavailable. Of course, with the opportunity to collect additional evidence during this interim period, the prosecution can and usually does enhance its case.
Often, in challenging the confirmation of charges, the defence exposes the legal and factual weaknesses in the prosecution’s case. Barring a non-confirmation result, this affords the prosecution an opportunity to shore up its case, plug in the holes, revisit witnesses to “clarify” and “supplement” and (hopefully) unintendedly give them the opportunity to recalibrate (confabulate) their evidence through leading questions predicated on evidence and arguments presented by the defence.
Be that as it may, the point is that once a person is arrested, unless s/he is provisionally released, the prospect of spending years in detention before the trial begins, and years more during the trial, and even more years while waiting for the judgment, is a fact.

Despite the checks and balances spelled out in the Code of Conduct for the OTP (Chapter 3), the Regulations of the OTP (Chapter 3), and Rules of Procedure and Evidence (Chapter 5), all of which are based on and in furtherance of the Rome Statute (Part 5), something went awry in The Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka.
On 16 October 2023, ICC Prosecutor Karim A.A. Khan notified Pre‑Trial Chamber II of his office’s withdrawal of all charges against Maxime Jeoffroy Eli Mokom Gawaka (Mokom).
Prosecutor Khan explained:
Having considered the totality of the evidence, in light of changed circumstances regarding the state of the evidence, at this stage the Prosecution does not consider that there is a reasonable prospect of conviction at trial even if the charges were confirmed.
It has become clear that several critical witnesses are unavailable to testify and that ongoing investigative efforts are unlikely to result in new evidence of comparable probative value. Among the unavailable witnesses are insider witnesses who provide critical information regarding the charges against Mr Mokom. The Prosecution has taken all reasonable steps to secure their cooperation and/or availability.
The Prosecution has renewed its efforts and sought to investigate Mr Mokom’s linkage to the charged crimes, to supplement its evidence. However, none of its attempts to interview additional potential witnesses who could hold information linking Mr Mokom to the charged crimes have been successful in the past weeks.
The absence of footnotes, sources, or authority supporting Prosecutor Khan’s pithy six-page notice of fuzzy and murky claims did not go unnoticed. Pre-Trial Chamber II found his reasons (excuses) for withdrawing the charges against Mokom “limited and lack[ing] additional information in support.”
Before we go on, some uncontroverted facts. Prosecutor Khan filed the notice:
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- After the OTP invested more than nine years investigating the Situation II in the Central African Republic;
- After the OTP had an arrest warrant against Mokom secured nearly five years ago;
- After the OTP filed its Document Containing the Charges in March 2023;
- After the OTP argued that those charges should be confirmed and sent to trial during the 22‑24 August 2023 oral confirmation hearing;
- Before the parties submitted supplemental written submissions following the oral confirmation hearing;
- Before Pre-Trial Chamber II issued a decision on the confirmation of charges; and
- After Mokom spent 19 months in detention.
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Since the confirmation of charges process had not been concluded, it was within Prosecutor Khan’s discretion to withdraw the charges. With the case against Mokom terminated (with the face-saving caveat: without prejudice), Pre-Trial Chamber II had no need to scrutinize Prosecutor’s reasons – or, to be less charitable, excuses.
Questions abound.
To start with, why the abrupt volte-face? Why after robustly and presumably genuinely representing to Pre-Trial Chamber II during the confirmation proceedings that it had the goods, the evidence, the proof that Mokom committed all of alleged charges, did the OTP abandon ship midway through and before Pre-Trial Chamber II would weigh in?
Could it be that the OTP did not have the evidence to get the charges confirmed? That would have resulted into a major public relations mess for the OTP (dare we recall the stinging criticism from the Expert Report), with loss of face for Prosecutor Khan. Worse yet, could it be that the writing was on the wall? Were the charges confirmed (a rather low hurdle), barring an unimaginable and unforeseeable miracle the OTP would ultimately have to move to withdraw the charges since the evidence from the get-go was insufficient or unreliable or a combination of both for a conviction.
I am inclined to guess that the latter scenario is the more probable one. If correct, paraphrasing a popular line from the US sitcom I Love Lucy, Prosecutor Khan would “have some ‘splainin’ to do.” He would have to reveal, in some detail, why/how after getting the charges confirmed and after having Mokom confined to a detention cell for nearly two years, he (actually, his line prosecutor who would lead the prosecution of Mokom during trial) belatedly realized the dearth of reliable and admissible evidence making it improbable for a conviction.
Could it be that the new prosecutor assigned to the case saw the writing on the wall – that Mokom should not have been arrested, let alone detained on charges unsupported by the evidence? Evaluating and assessing the evidence during the confirmation process focuses the mind. Could it be that the previously assigned prosecutor may have assessed the evidence differently? Could it be that because of his involvement in Yekatom and Ngaïssona, a companion case to Mokom’s, the previously assigned prosecutor was not on top of the case as well as he should have been? Could it be that the previously assigned prosecutor had lost detachment and objectivity? Could it be that once the new prosecutor assigned to the case started to meet the disclosure obligations, the weaknesses became so glaring and beyond repair that s/he had no choice but to alert the powers that be that the case against Mokom was fatally flawed?
Whatever the case, it is safe to assume that the writing had been on the wall well before the case was passed on to a fresh pair of eyes, an unincumbered and less subjective and more diligent and more conscientious individual who has not been in the trenches so long in a particular set of facts that s/he has lost perspective – unable to see the forest for the trees – or has lost objectivity, or is risking cutting it close to the ethical lines, or hoping that evidence suspected or believed or wished to exist will eventually come to light as the case inches toward the trial.
Mokom was in detention this whole time. Even though Pre-Trial Chamber II decided back in March 2023 that he should be granted provisional release with appropriate conditions, no ICC State Party was willing to take Mokom – not even the Netherlands, the Host State of the ICC Headquarters, where he was required to be present to attend his trial. A good part of this period was, unfortunately, spent resolving a conflicts of interest issue, which, considering the lack of complexity in the legal issues involved, could have, in my opinion, been resolved in a third of the time. More consideration should have been given to Mokom’s detention, his lack of legal representation on the substance of his case, and the steep challenges in coming up to speed with his eventual counsel once the case file would be made available. Oh well and a shrug seems so inadequate.
And this brings me to the next point worth considering in unpacking the OTP’s performance. Up until Mokom obtained access to the case file, the OTP could, should, and most likely was diligently investigating and gathering further evidence to bolster its case against Mokom. Presumably, the lead prosecutor in this case – the person overseeing the preparation of and eventual trial of the case – was not idly sitting by, hoping, like fine wine the case would get better with time. One has to presume that considering the OTP’s ongoing trials in the Situation II in the Central African Republic – in particular the factually related Yekatom and Ngaïssona case – evidence would have been gathered.
With OTP investigators, under the direction of the lead prosecutor, investigating, gathering evidence and/or re-evaluating evidence during the Yekatom and Ngaïssona trial, it defies logic that efforts would not have been made to also gather and re-evaluate evidence related to the Mokom case. Eventually, the conflicts of interest issue for Mokom would be resolved with the case headed to confirmation proceedings. There is no such thing as a case been fully investigated. The search for and double checking of evidence continues until the closing arguments, and even beyond.
Which begs the question: how is it that the OTP did not realize the shambles of its case against Mokom before the confirmation proceedings, when it had the luxury of time, resources, and lack of pressure from the defence? Did it misapprehend the quality of its evidence? Did it ignore diligence? Did ineptitude play a role? Did overwork and understaffing and underfunding factor into the equation?
Whatever the answer(s), vague and unsupported claims of implosion – the loss of witnesses and what have you, militating for the face-saving qualified withdrawal of all charges against Mokom – rings hollow. Indeed, as framed in the notice, it appears that Prosecutor Khan is insinuating by whiff that the OTP’s case was compromised by external factors associated with or in support for Mokom. A classic case of opting for misdirection, when cold, sobering, brutally honest examination and analysis and reflection is needed to get to the core of the problem(s) that resulted in the arrest and, it bears repeating, the 19-month detention of Mokom.
Mokom must now find an ICC State Party that will take him and ensure that his temporary living conditions do not involve “any deprivation of liberty or restriction of any freedoms.” How successful he will be remains to be seen. With the charges having been withdrawn, perhaps he will have better luck than when he was trying to be provisionally released. In any event, Mokom may wish to consider seeking compensation (see the decision on Bemba’s claim for compensation and damages), though the OTP seems to have also anticipated this, hence the without prejudice bit in its pre-confirmation withdrawal of the charges.
Parting Remarks
Prosecutor Khan (Karim, as I know him, having spent years together in a case at the International Criminal Tribunal for the former Yugoslavia), is an honorable, decent, and conscientious person. He is also fair. The Mokom fiasco (let’s call it what it is) was not of his making. Yes, it blossomed under his watch, but the seed had been planted well before.
The Expert Report reveals systemic inadequacies within the OTP. As with any institution dependent on international civil servants, many of whom are motivated by power, prestige, ego, and self-preservation, where inertia sets in and innovation is shunned, where empire-building within the institution as well as within sections routinely takes root, effecting change can be painfully slow. Prosecutor Khan inherited an OTP that was not operating on all cylinders. Investigators seemed out of synch with the lead prosecutors, stubbornly clinging to their turf. Some prosecutorial talent appear less talented than what their CVs reflect. And some cases – at various stages – appear to need a thorough re-evaluation, with some perhaps needing to meet a similar fate to that of the Mokom case. Far be it for me to give a diagnosis and to suggest what medicine is most appropriate – what to do, whom to get rid of, which cases to re-evaluate. But the simple truth is that all is not well in OTP land.
With its limited resources and over-stretched mandate, the OTP should only seek arrests where the evidence is solid, reliable, persuasive, and accessible, proving the person in question guilty beyond a reasonable doubt of all crimes s/he is alleged to have committed. Greater scrutiny is required. As well as some serious house-cleaning.
The resources wasted on this case, not to mention what Mokom suffered during his 19-month detention, is something that warrants an internal investigation by the OTP as to the how and why. How and why is it that after spending more than nine years investigating Mokom, securing an arrest warrant, filing its Document Containing the Charges, arguing that those charges should be confirmed, and having Mokom spend 19 months in detention the OTP felt compelled to withdraw the charges? When factoring in all the resources that went into investigating and prosecuting this case, as well as those spent on the defence and victims (did I mention that Mokom spent 19 months locked up at the ICC Detention Center?), to simply withdraw the charges and claim that “critical witnesses are unavailable to testify” does not help us understand exactly what went wrong.
Prosecutor Khan should be commended for making the right decision in withdrawing the charges against Mokom. In his shoes others would do nothing, preferring to put Mokom through the meat grinder, hoping to pull a rabbit out of the hat or for judicial assistance in getting an otherwise unachievable guilty verdict, rather than do what is right and ethical. Hats off to Prosecutor Khan.
Now comes the messy part: transparency.
Acknowledgment
I am indebted to my hard-working and talented colleague Mr. Noah Al-Malt, who over the course of the last 10 years has assisted me not just in the various cases I have been involved with but also in researching, drafting, and preparing for my trainings, lectures, and posts.
A verily commendable article.