Justice must not only be done, but must also be seen to be done.
— Lord Hewart
When the world’s criminal court faces allegations against its own leaders, the issue is no longer just personal. It becomes a test of whether the institution upholds the accountability it expects from others.
Courts are built on trust. Brick by brick, decision by decision, they build reputations that may take decades to earn and only moments to destroy. When the world’s permanent international criminal court—the institution responsible for prosecuting the most serious crimes known to humanity—finds itself facing allegations against its own chief prosecutor, the issue is no longer just personal. It becomes institutional.
And institutions, unlike individuals, cannot afford the luxury of ambiguity.
The International Criminal Court (ICC) now faces a critical moment. What started as allegations involving its Prosecutor, has quietly grown into something bigger: a test of whether the ICC truly believes in the principles it was established to uphold.
As Justice Info’s Janet H. Anderson recently observed in a thoughtful piece examining the controversy, the ICC stands at “a precipice of its own making.” That is a careful and measured way of putting it. But the way I see it, the situation may be even starker than that. This is not simply a difficult personnel matter. It is a credibility test. And credibility, once cracked, is notoriously difficult to repair.
The Problem No One Wants to Name
Since the allegations surfaced, observers have witnessed an oddly familiar institutional choreography: fragments of information appearing here and there, procedural adjustments made along the way, timelines that seem elastic, and public communication that can best be described as minimal. Clarity has been scarce. Transparency even more so.
Based on public reports, we understand that the allegations involve not just sexual harassment but potentially conduct that—depending on the jurisdiction and facts—could amount to sexual assault or rape. This alone classifies the issue as serious institutional misconduct.
But the seriousness of the allegations is just one part of the story. The other part is how the institution reacts. Because when an institution built on accountability appears to struggle with that principle internally, people naturally start asking tough questions. And those questions tend to linger.
Accountability cannot be a one-way street. Courts that demand it from the world must be willing to practice it at home. The ICC was created precisely to embody that idea: that power does not place anyone above the law. Presidents, generals, ministers—all may one day find themselves subject to its jurisdiction.
Yet, that moral authority relies on a straightforward premise: that the ICC itself upholds the standards it claims to follow.
A Word About Prosecutor Karim Khan KC
It is important to say something clearly at the outset. Karim Khan is a lawyer of enormous experience and accomplishment. His career in international criminal law is distinguished. His tenure as Prosecutor has included bold prosecutorial decisions in some of the most politically sensitive situations the Court has ever confronted. In short, this is not a story about an obscure official or an inconsequential office. It is precisely because Khan occupies one of the most powerful and visible legal positions in the international system that the current controversy carries such weight (see my earlier posts here, here, and here).
Respect for the office—and for the person who holds it—demands honestly addressing the institutional implications. Sometimes, institutions must make decisions that go beyond individual reputations. Courts, especially, cannot base their credibility on the fate of a single person. The ICC is larger than any prosecutor. Protecting this institution often requires making tough choices.
The Hard Question
One uncomfortable truth about allegations of workplace misconduct—particularly those involving asymmetrical power dynamics—is that they rarely disappear neatly once an investigation concludes. Even when legal liability is not established, doubt can linger like smoke after a fire.
Which raises the difficult questions quietly circulating within the international legal community:
What occurs if the investigation finds that the evidence doesn’t meet the criminal standard of proof beyond a reasonable doubt but still rises to the level of civil liability of clear and convincing evidence, not merely the 51%/49% probability of preponderance of evidence?
Or
What if the investigation merely uncovers conduct that raises serious concerns under professional or workplace rules?
Could the chief prosecutor of the world’s permanent international criminal court—whose office prosecutes rape, sexual violence, and abuses of authority—continue to occupy that position under such circumstances? That is not a simple argument to make. This is not about presuming guilt. The investigation must run its course and the evidence must be examined carefully and fairly. But leadership sometimes requires asking a different question: What outcome best protects the institution itself?
Sometimes, loyalty to an institution calls for standing firm. At other times, it means stepping aside. Ultimately, that judgment rests with Khan. However, the ICC cannot and should not shy away from addressing the larger institutional stakes. Honestly and transparently.
The Real Institutional Failure
The core issue exposed by l’affaire Khan isn’t the emergence of allegations but the response to them. Human institutions consist of people, and individuals can sometimes behave poorly. No organization, regardless of its noble goals, is exempt from this truth. The real measure of an institution’s strength lies in how it reacts. In this situation, the ICC appeared uncertain from the outset—despite longstanding reports of sexual harassment within the Office of the Prosecutor (OTP), which were revealed by an independent review conducted by experts commissioned by the ICC Assembly of State Parties (see here).
What we have seen so far resembles less a clearly defined accountability mechanism and more a process assembled on the fly. Procedures seem improvised. Deadlines appear flexible. Public communication has been limited. None of this inspires confidence. Courts derive authority not from force but from trust.
Judicial legitimacy is a fragile asset. Once it starts to decline, even the strongest court finds its authority quickly diminishing. The ICC already faces a politically hostile environment. Some states accuse it of bias, while others outright reject its jurisdiction. Many nations cooperate only grudgingly. In this setting, the ICC cannot afford even the appearance of institutional evasiveness, because critics will inevitably ask a devastatingly simple question: If the ICC cannot ensure accountability within its own leadership, how can it demand accountability from others?
The Worst Possible Outcome
There is a scenario that should concern anyone who believes in international justice. The investigation concludes. A report is prepared. The report quietly gets hidden away under institutional confidentiality. The public receives vague assurances that l’affaire Khan has been addressed. And life at the ICC continues as if nothing unusual has happened—Khan is back, leading the ICC OTP.
If that is how this story ends, the damage to the ICC’s credibility will be profound. Justice institutions cannot operate like private clubs when facing allegations against their own leadership. Justice that avoids scrutiny quickly loses its authority to demand it from others. The ICC already exists in a glass house. It spends its time judging the conduct of states, armies, and political leaders. That role demands moral authority. And moral authority cannot survive institutional secrecy.
Transparency Is the Only Exit
Investigations into sensitive allegations must protect privacy and confidentiality. This is clear and crucial. However, transparency and confidentiality are not mutually exclusive. Courts around the world handle this balance daily. Evidence is summarized, reasoning is clarified, and judgments are made public. The ICC should do the same.
When the investigation ends, the ICC should publish the report with appropriate redactions for truly sensitive material. Allow the international legal community to examine the reasoning. Let observers evaluate whether the process was fair. Let sunlight perform its age-old function. Because secrecy won’t protect the ICC; it will only fuel speculation. In today’s world, secrecy rarely lasts long. Documents leak. Fragments surface. Narratives multiply. When that happens, institutions lose control over their own story. It is much better to release the truth intentionally than to watch it leak out through cracks in the wall.
The Moment of Choice
The ICC now stands at an inflection point.
Handled well, l’affaire Khan could demonstrate that the ICC possesses the institutional maturity to confront difficult problems openly and honestly. Handled poorly, it will reinforce the suspicion—held by many skeptics—that international institutions demand accountability from others while practicing discretion for themselves. That is not a perception the ICC can afford. Because the ICC was created to embody a radical idea: that law can restrain power even at the highest levels of global politics. But that promise rests on credibility. Without credibility, law becomes rhetoric. And without transparency, credibility evaporates.
A Cassandra’s Warning: Why Transparency Is the Only Way Forward
A court that demands accountability must first be accountable itself.
The ICC was created to embody a simple but powerful principle: that no one—no matter how powerful—is beyond accountability. It exists to investigate and prosecute the gravest crimes known to humanity: genocide, crimes against humanity, war crimes, and increasingly, the complex patterns of sexual violence that so often accompany them. When an institution with such a mandate confronts allegations involving its own leadership, the world quite reasonably expects it to demonstrate the same commitment to accountability that it demands from states, generals, and political leaders.
This is not a moment for bureaucratic hesitation. It is a moment for institutional clarity.
Because the ICC demands accountability from others, it must be willing to practice it internally. Like Caesar’s wife, the Court must remain above suspicion. It cannot preach the virtues of sobriety while quietly operating a distillery in the basement.
History offers many warnings. Institutions have often mistaken silence for stability and secrecy for wisdom, only to discover—too late—that legitimacy had quietly slipped through their fingers. The ICC still has time to avoid that fate. But moments like this do not linger indefinitely. Sooner or later, the Court will have to decide whether transparency is a principle it truly believes in—or merely a virtue it prefers others to observe.
Institutions devoted to justice cannot afford the luxury of ambiguity. In the end, the world’s criminal court faces a simple choice:
Either it demonstrates that accountability begins at home, or it teaches the world that even the guardians of justice retreat to the shadows when the light turns inward.
I offer these reflections not as an adversary of the Court, but as someone who believes deeply in the project of international justice.
Criticism from enemies can be dismissed. Warnings from friends deserve attention.
About Author
Should the investigation into the allegations against the Prosecutor not met the criminal legal standard of proof beyond a reasonable doubt, to file criminal charge against him, there is an alternate option. Administrative charges could be lodged. The proof required is preponderance of evidence or 51%. If such a case can be made, then the Prosecutor should loose his job.
As a former ICTR Prosecutor and former Chief of UN Internal Investigations. I’m familiar with both types of investigations.
For the good of the organization, if the evidence supports either Criminal or Administrative charge it must be applied. I don’t see why this is even a question.