He always holds on to me and leads me to the bed. It’s the feeling of being trapped. People have told me to stand up against this man, yet everyone, including elected officials, seem to be very scared of him and says there is nothing we can do [about making him step aside] because he refuses.
Prosecutor Karim A. A. Khan’s accuser, as quoted in the WSJ
In my last post, I warned of the International Criminal Court’s (ICC) self-inflicted quandary: being at a credibility and sustainability crossroads. I referred to two imminent tests. The first test dealt with jurisdiction in the Rodrigo Duterte case. With some Judges/Chambers indulging enthusiastically in creative judicial activism on jurisdictional issues in general, I warned that reversing course will take judicial courage and restraint. Both are in short supply if past is prologue. The second test dealt with the Khan affair.
For months it had been reported that ICC Prosecutor Karim A.A. Khan was accused by his female assistant of sexual harassment, and that with the help of others, he obstructed the investigation by intimidating witnesses or pressuring them to recant. I warned against dragging out the investigation or sweeping the matter under the proverbial rug. When I posted, Khan had yet to be interviewed. Optically, the process seemed as quick as a snail and as transparent as my grandmother’s thick velvety-green pea soup. Then last week it was reported in the conservative but respected US newspaper, The Wall Street Journal (WSJ), that Khan had finally been interviewed. The article is a bombshell. What was initially reported as alleged sexual harassment is much more serious. As reported in the WSJ, the lurid details of what the accuser is claimed to have stated when interviewed as part of the investigative process into her allegations, amount to Khan sexually assaulting her on multiple occasions in multiple locations, including in the residence of Khan’s wife in The Hague, where Khan resides.
Presumption of innocence and due process aside, has the time come for Khan to take a leave of absence from his position at the ICC while this sordid saga runs its procedural course? I think so; probably long overdue.
Opinions vary on whether Khan should, for the sake of the Office of the Prosecutor (OTP) and the ICC as a judicial institution, voluntarily or at the urging of the Assembly of State Parties (ASP), step aside. Allegations often prove false or unproved to the beyond reasonable doubt standard. Often, the best strategy is going on the offense: deny, admit nothing, aggressively press on, go on the attack; heels dug in and with battened down hatches weather the storm out and hope for a lucky break (or the benefits resulting from means and methods of inappropriately massaging the witnesses and evidence). I am not in any camp nor am I privy to any strategic decision-making discussions. Nor am I asserting anything untoward by any of the dramatis personae in the Khan affair. I only know what has been reported in the media.
If what was reported in the WSJ is accurate – the Khan affair is not just about workplace harassment (inappropriate touching or sexual advances) and attempted witness influencing. It is about alleged nonconsensual sex on multiple occasions with a junior staff member of the OTP; essentially, serial sexual assault. These allegations, if proven, are not just sanctionable disciplinary peccadilloes; they describe serious felony crimes, carrying serious prison time if charged, prosecuted, and convicted. As for the allegations of witness intimidation and coverup efforts, according to the WSJ, among the alleged confederates is Khan’s wife, Dato Shyamala Alagendra. Not an ICC employee, Alagendra is on the List of Counsel promoting a high profile on the side of victims.
From what was reported of her intervention, it seems she was indulging in not just loyal support, but active engagement. As a dutiful wife (and one half of the Khan-Alagendra power-couple), the tendency to stand by her husband and lend moral support no matter how she may feel is understandable. This, however, was reportedly not one of those occasions, and certainly not one that would call for her to approach a witness, and as claimed, issue a vailed threat. Her ethical and moral and female victim-centered compass should have directed her to sit this one out – to distance herself from any active engagement of the sort alleged.
To be clear, Khan and Alagendra deny all allegations. Khan seems prepared to fight to the bitter end. It is unknown whether Alegenda will be investigated for witness interference. For now, both are entitled to the presumption of innocence and all associated fair trial rights. As alarming as the reporting in the WSJ is, no conclusions should be drawn as to guilt or innocence. When given an opportunity to breathe, the facts from the evidence gathered – assuming a comprehensive investigation is conducted without fear or favor – will determine which of the two – Khan or the accuser – are lying.
Allegations of a cover-up – efforts of witness intimidation and recantation and confabulation to obscure the truth and frustrate the administration of justice – are serious. Heads should roll if there was any such conduct. Pulling a Nixon, as I call it (it’s not the crime but the coverup that will get you), is a deleterious fungus, a scourge, deserving no quarter in domestic or international criminal proceedings. As a former defence counsel and now as prosecutor, Khan well knows the consequences of perverting or attempting to pervert the ends of justice through witness intimidation and evidence tampering. Alegendra is equally aware.
Circumstantially, witness and evidence tampering lend credence to and play a supporting role in drawing negative inferences when assessing alleged criminal / inappropriate conduct. Nonetheless, rather than dwell on the cover-up allegations by Khan and others, let us focus on the alleged substantive crimes, namely sexual assault. My characterization of his alleged conduct is based on what is the accuser’s claims as reported in the WSJ that Khan forced her to have unwanted sex with him on several occasions.
As alleged, the accuser was in a vulnerable position. She reportedly asserts that she continually expressed unequivocally her rejection to Khan’s unyielding entreats for sex, yet he would not take no for an answer. She claims to have been overwhelmed by Khan’s relentless pressure and physical bearing resulting in being forced to have unwanted, unsolicited, unfriendly sex. If true, this conduct fits the classic definition of the most serious kind of sexual assault.
The accuser is a Muslim women hailing from Malaysia, a country where religious values, conservatism, and proper decorum are instilled in and adhered to as part of daily life. She is also married with a child. As reported by Paris-based WSJ investigative journalist Matthew Dalton:
The woman who is married and has a child, alleges Khan performed nonconsensual sex acts with her on missions to New York, Colombia, Congo, Chad, and Paris. Khan also did so multiple times at a residence owned by his wife where he stayed in The Hague, the headquarters of the ICC, according to her testimony.
I profess no expertise, but to my unsophisticated understanding from my interactions with Muslim men and women and from knowledge gathered in reading about Islam and my extensive travels, a Muslim woman asserting this sort of sexual assault risks humiliation, condemnation, loss of reputation – even ostracization. In other words, victims from this religious and cultural background are victimized further by societal and cultural norms for the “crime” of having been victimized in the first place.
Nothing should be inferred from my referencing the societal and cultural norms associated with the accuser – the environment in which she and her family live in and will continue to live in. Yet, my observation does cut against assertions that the accuser has nothing to lose or fear by publicly claiming, falsely, that she was sexually assaulted. Especially, when the reports are that she was initially reluctant to come forward to press her claims. The context and motivation to expose her alleged victimhood is not proof of any of the alleged conduct, but it may be a factor when assessing the accuser’s credibility.
CAVEAT – Until there are findings of fact and conclusions of law that prove beyond reasonable doubt that Khan sexually assaulted or otherwise committed crimes or professional violations against the accuser, she remains a complainant. I don’t know the accuser. I do not presume to know whether she is telling the truth or not. I do know Khan. I have worked side-by-side with him on a case when we were both defending. I know of him as always behaving correctly. Yet, I do not presume knowing whether he acted as described by the accuser and witnesses as reported in the WSJ.
As a criminal defence lawyer of many decades, I have learned that people are complicated. There is no telling who is capable of what under the vast variables of circumstances we are confronted with in this fast-paced, hyper-stressful, ever-changing environment we live in. Anyone can be capable of losing his/her self, of stepping over ethical and moral and legal lines. More so when we occupy positions that come with power, prestige, elevated profile. So, anything is possible by anyone at any given time under any circumstances. In defending good people who have gone astray or have acted impulsively or due to character flaws transgressed even when aware that their actions are harmful, even criminal, I would try to be understanding and take comfort in accepting that anyone has the potential to act on baser impulses.
Earlier I mentioned that it will come down to who is believed to be telling the truth and who is believed to be lying. The onus of proof in a criminal case is always on the accuser/complaining witness as the embodiment of the prosecution’s case. The accused need not prove anything. But in reality, it has been my experience that in cases where sexual crimes are alleged, there is an instinctive expectation that the accused offer proof of non-guilt (innocence is way too high of a standard), or some plausible explanation to the question: why the accuser – knowing how she will be vilified and attacked and maligned and accused – would publicly make false accusations of being sexually assaulted.
In my opinion, this is the quintessential question that the defence must answer – the elephant in the room that demands a plausible explanation, backed with some proof – irrespective of the burden of proof being solely with the prosecution / accuser. In answering that question, the possibilities in sexual assault cases are generally confined to a few plausible theories of defence:
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- mistaken identity (someone else sexually assaulted the accuser),
- the sex was consensual and the accuser is making false allegations due to some identifiable motive,
- consent was withdrawn at some point prior or during the sexual act, or
- no sexual contact but a false accusation due to an identifiable motive.
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Khan is unequivocally asserting that he did not have sex with that woman – the accuser. In other words, he states that the accuser is falsely claiming that he forced himself on her, that he had any sort of sexual contact with her, that she is lying that she told him on numerous occasions no, and that she is lying about having told him of her suicidal ideations. In refuting any and all allegations made by the accuser, Khan claims that the details of the multiple instances of sexual assault are fictitious and possibly the handiwork of third parties motivated by their displeasure with the arrest warrants he issued for Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant, and Russian President Vladimir Putin. As reported:
Khan has alleged that the sexual-abuse allegations are part of a wider effort to undermine the ICC, As the Palestinian investigation heated up, court officials worried that a team from Mossad, the Israeli spy agency, was operating in The Hague. Russian intelligence agencies were also a concern because of the ICC’s investigation of alleged war crimes committed in Ukraine. In the summer of 2024, the court installed security equipment in the homes of senior prosecutors who were working on those cases.
Two things can be true at the same time. There is no inherent contradiction between the repeated sexual assaults, as claimed by the accuse,r being true, while potentially just as true are Khan’s claims that agents of Israel and Russia were operating in The Hague, gathering information, spreading misinformation, and trying to derail the OTP’s investigative efforts related to Israel and Russia. One does not negate the other; it is not an either / or conundrum.
Based on Khan’s defence of this wider effort to undermine his work, he will need to link the accuser to the spy agencies. Here again the possibilities seem limited to the accuser being manipulated or coerced into making false accusations – either lured to lie about Khan sexually assaulting her for financial gain, or because of compromising information that one or both spy agencies had against her which would jeopardize her employment or safety. Anything is possible. Raising as a defence the hand of spy-craft behind the accuser’s allegations is not beyond the ken; but where is the proof, the linkage? But who knows, maybe Khan has credible evidence tying the accuser to Mossad or the KGB.
What we can rule out with certainty is any sort of entrapment defence. Having categorically denied any inappropriate contact, let alone sex with the accuser (consensual or otherwise), Khan cannot be alleging that the accuser was used by either spy agency to snarl him into a honey trap; entrapping him into throwing caution and civility and correctness to the wind and lose himself because of her charm and beauty and promises of pleasure. This is thought to be a favorite ploy by spy agencies, especially the KGB, but obviously not on the menu of possible defences if Khan sticks with his current denial of any sexual contact.
Where this all ends is anyone’s guess. Smoke, however dense and noxious, does not necessarily prove the existence of fire. I’ve won acquittals with more damaging information against clients, just as I have lost cases with stronger evidence in favor of the client. What is clear, however, is that these allegations and the associated notoriety are harmful to the ICC’s image, the work of the OTP, and to the morale of the OTP staff.
How can an embattled Prosecutor – accused of sexually assaulting a staff member and then alleged to have tried, through proxies, to cover up the conduct – focus on the business of the ICC when consumed with having to defend his integrity, his job, and his liberty? From what is being reported of the statements of the accuser and other witnesses, there seems to be reasonable suspicion to trigger criminal investigations in national jurisdictions for sexual assault crimes. Khan cannot but be aware of the very real possibility of being criminally charged and being civilly sued for damages. This must weigh heavy on his mind – even if he is capable of compartmentalizing the onslaught of press and pressure and public humiliation, while also dealing with all the issues and pressures and decisions associated his demanding, high-profile position.
To stress again, nothing has been proved thus far. As things stand, the best thing Khan can do for his office, for the ICC, and for himself, is to step aside. Were he in any other position at the OTP or Chambers, or the Registry, he would have been forced to step aside, if not outright fired. Taking a leave of absence is not an admission of guilt. But Khan must face reality: he is doing more harm than good by remaining in his position while he is being investigated for serial sexual assault of a subordinate. The allegations come from one of his closest employees who has worked for the ICC several years and continues to work there. Importantly, the strength of the evidence for or against Khan is an aside for now. What is front and center, and the nettles that Khan must grasp, are that his continuing presence and his reluctance to step aside against the backdrop of these serious allegations, which, as I’ve noted amount to allegations of serious crimes, is harming the OTP and ICC.
I close by urging the ICC to be as transparent as possible; to not circle the wagons. To consider whatever means it and the ASP have at their disposal to convince / compel Prosecutor Khan to take a leave of absence until the Khan affair is fully resolved. The ICC/ASP must launch a thorough internal investigation by independent, external experts. Only through such a thorough, impartial investigation can the outcome, whether vindication or conviction, be accepted and respected.
I also urge that an interim Prosecutor be selected from outside the ICC. Neither of the Deputy Prosecutors should step into the breach. They can remain where they are, doing what they are supposed to be doing, without taking on a task that will only tarnish and expose them as their loyalties and motives are questioned. I strongly suggest selecting someone skillful. Someone who has held similar positions, has vast prosecutorial experience – having risen through the ranks in domestic and international prosecutorial offices – has gravitas and respect due to a proven track record, has diplomatic skills, and is a known quantity with the diplomatic corps within the United Nations and ICC States Parties. I am not recommending anyone although I know some who tick all the required boxes. For more on my views on selecting an Interim Prosecutor, check my previous post here where I discussed selecting Prosecutor Fatou Bensouda’s replacement.
Lastly, a potential silver lining: an off-ramp from the debilitating Trump Sanctions which, as reported by The Washington Post today, are crippling the work of the ICC. An Interim Prosecutor with no emotional investment in the Netanyahu and Gallant arrest warrants, would have the opportunity to reassess. Persecutorial discretion varies. Two equally competent and diligent and experienced prosecutors could reasonably arrive at different conclusions or adopt different approaches – jibing instead of tacking, to use a sailing analogy. Khan is already under a cloud of suspicion, as reported and apparently supported by the timeline, that he allegedly precipitated and impulsively rushed (half-baked) to have the arrest warrants issued when he did and with such a spectacular public display, as a diversion to the sexual assault allegations against him that were on the verge of being revealed. Whether the timing was the product of confluence or coincidence matters not. The fact remains that this is a legitimate issue that is both distracting and concerning. In any event, an Interim Prosecutor of the caliber and pedigree that I have suggested, would /should have the authority to take stock, clear the decks, and clean house as he or she deems appropriate. There should be no quid pro quos, no hidden agenda, no conditionalities for being selected. The Interim Prosecutor should be just as independent as the Prosecutor, but as I’ve noted, the occasion of Khan stepping aside and an Interim Prosecutor replacing him for however long, presents an exquisite and elegant off-ramp opportunity. A serendipitous silver lining.
NEXT
In my next post I will address the Stefanie Naouri disciplinary decision and calling attention to what I see as the ICC’s additional self-inflicted quandary: being at moral and ethical crossroads due to the Registry’s seemingly high tolerance of workplace abusive behavior inflicted on subordinate staff across all organs of the court and by independent actors under its supervision.
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Remarkable timing on this post!
I enjoyed reading it. Very eloquently written and a thorough analysis.
Too many of these slugs in powerful posts of business and public administration; unfortunately the same power urges and tricks which these vile people use to slither their way up the greasy pole are the same ones that they exploit for serial sexual depredations…..and then for the cover up.
Good thinking, Michael. Jean
A realistic and comprehensive view based on facts and assumptions detrimental for ICC and the standing of international tribunals.We should not ask who wins the case but strive for coming as close as possible to truth. Transparency and truth are two preconditions for survival of international judiciary. Similar events in the past faded away without clarity. This cannot happen again in the case before us. It would be the end of the wonderful idea of establishing permanently super- or international tribunals in times of globalization as one tool of maintaining checks and balances. Imagine!