“… many accounts of bullying behaviour amounting to harassment in all Organs of the Court though particularly the OTP … complaints that the culture of the Court’s workplace was adversarial and implicitly discriminatory against women. … a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates.”(para. 209.)
Independent Expert Review
Throughout its history, the International Criminal Court (ICC) has struggled with workplace harassment – not as an occasional lapse, but as a recurring, deeply rooted institutional problem. The issue is neither marginal nor conjectural. As the Assembly of State Parties (ASP) commissioned Independent Expert Review (discussed here), concluded in its 30 September 2020 Final Report, harassment – sexual and otherwise – was pervasive across the ICC and, within the Office of the Prosecutor (OTP), virtually systemic. That the OTP emerged as the “gold medalist” in this ignominious category surprised few insiders at the time.
Yes, reforms have been undertaken, and yes, some progress has been made. But when a culture of harassment becomes embedded – tolerated, normalized, and allowed to proliferate – optimism must be tempered by realism. Eradicating a deep-rooted institutional malaise requires far more than rewritten policies or aspirational memos. It demands vigilance, transparency, and a willingness to confront misconduct at every level, including the highest.
This brings us to the present and the allegations against Prosecutor Karim A. A. Khan KC (discussed here). To be clear, these are allegations; nothing has been proven. However, they include conduct that, in some national jurisdictions, could be classified as sexual assault or even rape. The possible permutations are limited: the encounter was consensual; it started consensually but became non-consensual; or it never happened and was fabricated. There are also claims of attempts to improperly influence the complainant and witnesses – conduct that, if true, could have Article 70 implications.
Regardless of which scenario ultimately proves true, the stakes are high. Due process, institutional trust, and ethical governance are all at risk. None of this comes at a good time for the ICC, which is already under intense scrutiny, facing political pressure and sanctions. Also, after more than 20 years in existence, when it comes to operational success, it still lags behind the International Criminal Tribunal for the former Yugoslavia (ICTY). Perhaps an unfair comparison considering their different remits and the ICTY’s legitimacy being established by the UN Security Council, but in almost every category, the ICTY operated at a much higher standard. The ICC has improved – slowly and unevenly – but still underperforms despite polished press releases, sleek media kits, and celebratory meetings.
So why is this investigation taking so long?
Before going further, it’s helpful to revisit how the investigation started and who is now responsible for it. In October 2024, ASP President Päivi Kaukoranta forwarded the investigation to the UN’s Office of Internal Oversight Services (OIOS). Why outsource it? After all, the ICC has its own investigative unit, the Internal Oversight Mechanism (IOM). A few months ago, two former judges publicly questioned this decision and also criticized the revelation of Khan’s identity, arguing that it infringed on his privacy and might have compromised his due process rights (here). Those concerns are not trivial. However, they should be weighed against other reported facts – some unproven, others seemingly well-founded.
Rumors were circulating. The complainant confided in a coworker, who likely shared the information with others. In the gossip-prone environment of the ICC, it was only a matter of time before the issue became public. This is undoubtedly unfair. But the idea that this matter could have remained secret is not credible, especially considering the highly visible and publicity-seeking nature of Khan’s prosecutorial élan. A cover-up would have been the obvious accusation, further damaging the ICC at a particularly sensitive time – on the heels of U.S. sanctions imposed following Khan’s decision to seek arrest warrants for Israeli Prime Minister Netanyahu and Defense Minister Gallant. Whether that strategic choice was wise – more cautious prosecutors might have proceeded through the chain of command rather than starting at the top – is a separate debate. While not relevant to the sexual assault allegations – unless, as Khan claims (without tangible proof), Israeli intelligence orchestrated a hoax to discredit him – the point remains that the ICC faces image, credibility, and viability problems. Simply, keeping the investigation internal with the IOM would have raised more questions than answers.
The primary reason for outsourcing is simpler: the complainant did not trust the IOM to investigate the matter properly. Those concerns were justified, legitimate. Investigations of this type at the ICC have a tendency to drag on indefinitely and often focus more on protecting the institution – especially senior officials – than on vindicating victims, who remain too often treated as “complaints” rather than complainants.
The IOM initially investigated the allegations based on requests from a third party and from Khan himself. It seemed the case was likely to be quietly dismissed due to the complainant’s reluctance to cooperate with IOM investigators. Transferring the investigation to OIOS was therefore wise: it protected the ICC from accusations of a cover-up and recognized, as Kaukoranta reportedly said, “the particular circumstances of the case, including the IOM’s victim-centered approach and perceptions of possible and future conflicts of interest.”
As ASP President – and the official who commissioned the OIOS inquiry – Kaukoranta should now be advocating for answers, starting with when the investigation will finish and when the findings will be made public. She, after all, has the authority to request updates from OIOS and to inform States Parties, the ICC, the complainant, Khan, and the public.
The inquiry should have finished months ago. At first, there was one complainant; later, another appeared. Still, nothing about the factual matrix justifies such a long delay. The ICC’s reputation is on the line. The complainants’ rights are at risk. And so is Prosecutor Khan’s due-process right not to have unresolved allegations hanging over him indefinitely like the proverbial Sword of Damocles.
Competent, diligent investigators could have completed this inquiry quickly, transparently, and professionally. Instead, we receive silence: no interim updates, no timeline, no explanation – only opacity. Is the evidence more complex than anticipated? Is the investigation adrift? Or is it being quietly slow-walked in the hope Khan will resign, thereby avoiding the discomfort of publicly issuing conclusive findings? Would a discreet resignation allow the issue to fade into the background under the pretense of shielding those involved or protecting the institution itself? Resignation or not (see Part 2), the findings must be made public for scrutiny.
The current vacuum invites suspicion – not necessarily of wrongdoing, but of institutional self-preservation. The longer the delay, the more convincing the perception (fair or not) that the investigation is driven by optics rather than justice. And perception, for an institution whose legitimacy depends on public trust, is never insignificant. Transparency is not optional; it is foundational. Accountability is not discretionary; it is the cornerstone of the Court’s mandate.
To be clear, I am not alleging a cover-up. However, the longer the investigation lingers without explanation, the stronger the perception of stonewalling, face-saving, or strategic silence becomes. That perception is corrosive. It undermines the credibility the ICC urgently needs at this juncture. Whatever the explanation, the current posture is untenable. Delay serves no one. Silence serves only suspicion. Every additional month of inaction fuels the narrative of institutional defensiveness – if not an effort to bury unwelcome findings.
Ultimately, the ICC’s legitimacy depends not only on the cases it prosecutes but also on the ethical standards it upholds. These standards call for urgency, clarity, and resolution. The complainants deserve a clear answer. The Prosecutor deserves closure – whether through exoneration or censure. And the ICC deserves the chance to demonstrate that it can confront serious allegations of misconduct at its highest level with the same rigor it expects from states and accused individuals.
Opacity is the degree to which something blocks light, meaning it is the opposite of transparency. In this matter, what the ICC desperately needs now is light. If the investigation into l’affaire Khan continues to be interminably shrouded in the mists, the real indictment may ultimately be of the Court itself.
NEXT
PART 2 – WHAT OF THE QATAR-LINKED “SPY-GATE” TO DISCREDIT THE COMPLAINANT? Has the time come for ICC Prosecutor Khan to resign or be eased out?
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I found your thoughts here very insightful.