No matter how one slices it or dices it, shakes it or stirs it, fries it or bakes it, two points emerge—and they are not seriously contestable—from what has thus far been leaked to the press regarding the findings of the “experts” (or “judges”) tasked with examining the allegations against ICC Prosecutor Karim A. A. Khan, KC:
(a) This is not an exoneration
Let’s dispense with the headline spin.
Despite the early and somewhat enthusiastic claims—most notably from Middle East Eye, and eagerly echoed by those inclined to defend—the report does not exonerate Khan. Not in any meaningful sense of the word. Not if what is reported in The Guardian, which has the report in its possession, and in my opinion, offers an impartial analysis.
To be clear, this is not a finding of guilt. But neither is it a finding of innocence. What we are left with—based on what has been leaked—is something far less satisfying: an inconclusive outcome.
And that inconclusiveness is not incidental. It is baked into the process.
The examiners, as described, were not permitted to hear witnesses. They did not test credibility. They did not probe inconsistencies. They were, it seems, confined to a body of material presented to them—much of it second-hand—without the ability to interrogate its reliability or reconcile it against independent indicia of truth.
In other words, they were asked to answer a question of fact while being denied the ordinary tools of fact-finding. Under those conditions, the result is not just unsurprising—it is inevitable.
So where does that leave matters?
Precisely where they began. The allegations remain unproven. But they are also not disproven. The report does not resolve the issue; it suspends it. L’affaire Khan—to borrow a convenient shorthand—remains just that: an unresolved affair.
Now, I have already expressed elsewhere that, regardless of legal responsibility, Khan should consider resigning for the good of the institution. That is a separate issue—one of judgment, optics, and institutional integrity. But even by its own standards, this report does not give him the clean bill of health that some are eager to claim.
At most, it offers something more modest: room to maneuver. Institutional breathing space. And if past practice is anything to go by, perhaps a pathway—should matters come to that—toward a carefully managed exit, complete with the usual diplomatic courtesies.
But let’s not confuse that with vindication.
(b) The process appears designed to fail elegantly
If the outcome raises eyebrows, the process should raise more.
Because it is difficult—very difficult—to look at the structure of this exercise and not conclude that it was calibrated to produce precisely the kind of ambiguity we now have.
No conspiracy is required. Design alone will do.
Consider the architecture.
First, the standard of proof: “beyond reasonable doubt.” One might pause here. This is not a criminal trial. No indictment was issued. No liberty was at stake. And yet, the highest standard known to the law was apparently imported into what is, at its core, an internal, administrative inquiry.
Why?
One struggles to find a principled answer. The more appropriate standard—if one were genuinely interested in truth-seeking—would have been something along the lines of “clear and convincing evidence,” or at the very least a flexible evaluative threshold suited to the context.
But even that is only part of the story.
More striking—indeed, more problematic—is the apparent prohibition on hearing witnesses.
Not cross-examination. Not even limited questioning. Not even judicial probing. Nothing.
The fact-finders were, in effect, asked to assess serious and contested allegations on the basis of an investigative file they could not test. No opportunity to observe demeanor. No chance to explore inconsistencies. No ability to press where answers were incomplete or evasive.
Since when does any credible adjudicative process—particularly one dealing with allegations of this gravity—operate in such a vacuum?
Even in systems that rely on investigative judges, such as the French model, the process does not dispense with scrutiny. Evidence is examined. Witnesses are engaged. The record is developed, not merely received.
Here, by contrast, the fact-finders appear to have been handed a file and told, in effect, do your best—without touching the evidence.
And all of this under a standard approaching certainty. The result was preordained.
A constrained evidentiary record, an elevated burden of proof, and no mechanism for testing reliability: if one were tasked with designing a process to produce an inconclusive outcome while preserving institutional face, one might struggle to improve on this model.
Put differently: ambiguity was not an accident. It was a feature.
To bring it closer to home—imagine, for a moment, an ICC trial in which the Prosecution is told that it may rely only on its investigative file, may not call witnesses, may not test evidence in court, and must nonetheless prove its case beyond a reasonable doubt. It would not be a trial. It would be a rout. A banquet for the defence.
There is a reason why evidence is tested. Not because it is convenient, but because it is necessary.
I do not suggest impropriety. But I do question whether this process was ever capable of delivering what it purported to seek: a credible determination of contested facts.
Where this leaves matters
For now, the situation is both simple and unsatisfactory. We have a report that resolves nothing, presented through selective leakage—as though it resolves everything. That cannot stand.
The report must be made public. Not in fragments. Not through carefully curated summaries. And certainly not through leaks that allow narratives to crystallize before scrutiny begins. In full—subject, of course, to appropriate redactions. Only then can those concerned with procedural integrity, professional ethics, and institutional credibility make a process assessment.
I, for one, would want to examine the entire case file as well as the procedural history that led to the design and adoption of the procedure. I certainly want to see what lessons can be learned by examining:
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- how this sui generis procedure was devised, and by whom;
- what evidentiary constraints were imposed, and why;
- and how the fact-finders reasoned their way to an inconclusive result on a matter of such seriousness.
Currently, the only thing that seems to be resolved is the fact that L’affaire Khan appears to have been resolved. If the ICC is to handle internal allegations—particularly those involving its most senior officials—in a manner that commands confidence, it must do so with transparency and rigor.
Anything less risks compounding the very damage it seeks to contain.
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Insightful analysis!