The truth of the matter is that you always know the right thing to do. The hard part is doing it.
Robert H. Schuler
The International Criminal Court (ICC) Prosecutor, Karim A. A. Khan KC, should take the honorable step of resigning – posthaste.
There is no way to soften the truth or the distastefulness of the situation. What the public now sees resembles the unraveling of a spy novel—competing narratives of misinformation and disinformation, suggestions of double agents, questionable witnesses, whispered talk of a honeytrap, and more. Some of this may be accurate; much of it likely not. But that is beside the point. The collateral damage already inflicted upon the ICC is unmistakable. A court that aspires to serve as the court of last resort now risks appearing as a parody of its own ideals.
The allegations against Khan, however they ultimately resolve, have already compromised his stature. Accusations of sexual assault or rape almost inevitably inflict enduring reputational injury, even if exoneration follows. Yet this is only part of the problem. The latest revelations concerning efforts to target or discredit the complainant – even without any evidence that Khan was directly or indirectly involved, whether personally or through intermediaries – cast an even deeper shadow over the institution, particularly over the Office of the Prosecutor (OTP). Taken together, the Khan affair and the reported behind-the-scenes maneuvers aimed at pressuring or undermining the complainant constitute not merely an unfortunate distraction but a profound blow to the integrity, professionalism, and credibility expected of the Court’s chief prosecutor.
None of this requires prejudging Khan. He remains entitled to the presumption of innocence, full due-process protections, and a thorough, impartial investigation – one that must run its course and whose findings must be made public with transparency and candor. But it is precisely for the good of the ICC that he should now resign. It is difficult to see how he can recover the authority, independence, and moral standing required of the ICC Prosecutor–qualities the Rome Statute demands in both letter and spirit.
Before proceeding further, let me clarify what I mean by transparency and then turn to Former ICC Judge Cuno Tarfusser’s 20 October 2025 letter to the ASP and the Bureau.
Transparency
To avoid misunderstanding, “transparency” does not mean that the investigation should unfold in public or that each step, name, or witness statement should be revealed in real time. Quite the opposite. Like any credible investigation, especially where serious ethical breaches are concerned and professional reputations can be unjustifiably stained, causing irreparable harm, it must be conducted confidentially, with strict regard for the rights, security, and dignity of all involved. At this stage, I have no basis to evaluate the quality of the investigation – positively or negatively – and I take no position on how well it is being carried out.
What does matter, however, is that once the process is complete, a full and coherent account of the investigation –its mandate, methodology, and evidentiary foundation – should be made public, subject only to necessary protective measures (pseudonyms will suffice). As I have often cautioned, an outcome cannot be legitimate if the process that produced it is opaque or unfair. Fairness is not a destination; it is a method. Without transparency after the inquiry concludes, we are left to speculate about everything that preceded it. To be clear: I am not advocating a public investigation. I am advocating for the public to be able to assess, afterwards, whether the investigation met the standards of fairness the institution owes to all parties.
Tarfusser’s Letter
Judge Tarfusser’s letter leans heavily on ethos and pathos but offers strikingly little logos—sustained legal reasoning. Substantively, it consists of insinuations, suppositions, and unverified assertions, culminating in the broad claim that the process is “unregulated, improvised, and wholly incompatible with the rule of law,” lacking safeguards and inconsistent with the fundamental guarantees of fairness.
One passage in particular captures the accusatory thrust:
What has developed under the current leadership of the ASP is not a process governed by law, but rather an improvised mechanism, created ad hoc and tailored to one individual, Mr Karim Khan, with the obvious aim of getting rid of an overly independent Prosecutor. There is no precedent, no procedural framework, no published mandate, and no respect for the guarantees that underpin any fair proceeding.
To unpack each claim would require a separate post; that is not my purpose here. I take Judge Tarfusser to be well-intentioned. His letter reflects deep personal conviction and relies heavily on his prior service – former ICC Vice President, former Italian Public Prosecutor and Attorney General – to establish moral authority and credibility. He also commends Khan’s courage and independence. Yet this sits uneasily beside pointed insinuations about the motives, integrity, and coordination of the complainant(s) and witnesses, including statements such as:
It is equally evident that complainants, directly or through intermediaries, have coordinated a sustained public assault on the Prosecutor’s reputation.
and:
A parallel media campaign designed to intimidate investigators and shape public perception has been allowed to proceed unchecked… The timing and selectivity of leaks… all point to a coordinated effort to exert pressure on those involved in the inquiry.
As I noted in Part I, I share the concern that Khan’s identity should not have been disclosed. That disclosure was regrettable. But it does not follow that the investigative architecture is unlawful or that the rule of law is in free fall, or, more seriously, that the investigation is unwarranted. The rationale for outsourcing the investigation has been explained in Part 1, and in my view, is both reasonable and necessary when allegations concern a sitting Prosecutor. Powerful individuals – especially those at the apex of an institution – cannot credibly be investigated internally without raising concerns of deference, conflict of interest, or institutional self-protection.
Indeed, the more senior the official under scrutiny, the more essential it becomes to ensure genuine independence. Far from undermining the rule of law, that principle vindicates it.
This is not to dismiss all of Judge Tarfusser’s concerns. He raises legitimate questions—such as the appointment of “legal experts” to advise on matters that one would expect judges themselves to be capable of addressing. But even those points that might merit discussion lose force amid the hyperbolic rhetoric, sweeping conjecture, emotive overstatements, and ad hominem insinuations. But don’t take my word for it, see for yourself. I’ve attached it as an annex following the postscript.
At this juncture, what the institution needs is not polemics but completion. The investigation must be concluded promptly, without delay or drift, and its findings—redacted only as necessary to protect individuals—must be made public. Only then can the ICC, and those committed to its mission, assess the integrity of the process and restore confidence in the Court’s capacity to police itself with rigor and fairness.
The Conundrum
Has the time come for Prosecutor Khan to resign, despite the investigation’s unresolved status and even if the allegations ultimately prove unfounded? Yes.
At first glance, this may seem to contradict what I argued in Part 1. It may also appear counterintuitive coming from a defence lawyer who places the highest value on due process and who has repeatedly emphasized Khan’s presumption of innocence and entitlement to fair procedure. Yet both propositions can be true, and one need not negate the other. The tension between an individual’s due-process rights and the institutional integrity of the ICC is real. It is within that tension that the argument must be made. And all the more so given recent disclosures of a Qatar-linked intelligence operation reportedly aimed at discrediting the complainant. Khan has categorically denied any involvement, and we should take him at his word. But the question inevitably follows: who benefits? Or, to borrow from Cicero (who borrowed from Lucius Cassius), cui bono?
It has taken me some time to reach the conclusion that Khan’s continued presence as ICC Prosecutor would be toxic. Reality is harsh, but that is precisely why it is called reality. Only weeks ago, I commented in response to a LinkedIn post by Kenneth Roth urging the Assembly of States Parties (ASP) to proceed with appointing a replacement for Khan. Kenneth Roth, the former executive director of Human Rights Watch (1993-2022) and a visiting professor at Princeton’s School of Public and International Affairs, along with Antonia Mulvey, executive director of Legal Action Worldwide (both respected figures in international criminal justice matters) laid out a thoughtful and balanced argument in Foreign Policy (11 September 2025) explaining why the ICC requires a fully empowered chief prosecutor rather than a deputy serving in an acting capacity. At the time, I disagreed. Absent the recent spy-gate revelations – which any objective observer, based on what is publicly reported, could reasonably view as redounding to Khan’s benefit – I would still stand by my comment to Roth and Mulvey:
There should be no rush to judge or to replace Prosecutor Karim Khan permanently. The sexual assault investigation remains ongoing, and its findings have not yet been released. Allegations, however severe, are not proof of misconduct. They warrant careful and independent scrutiny, but they do not establish guilt in themselves. Throughout this process, both the complainant and Prosecutor Khan are entitled to dignity and due process.
The wiser institutional move (as I’ve previously noted) would have been to appoint an interim prosecutor with full authority for a limited period, rather than defaulting to one of the deputies. That said, with the inquiry reportedly nearing its conclusion, the Assembly of States Parties should maintain the current arrangement and allow the process to run its course. What is urgently needed now is transparency: clarity about the expected timeline for the investigation’s conclusion would help preserve the credibility of the ICC, and in particular the Office of the Prosecution, and the rights of all involved.
But facts matter. And when facts change, so must opinions. I am not suggesting I know the truth. Is Mossad behind the operation, as some, including Khan, have claimed? Possibly. It is also possible the KGB is involved, given the charges against President Vladimir Putin. Both services are capable of such operations. But until there is – actual evidence rather than speculative claims or seductive innuendo in media outlets like the Daily Mail – we should treat these theories with caution. (For what it is worth, the Israeli media-advocacy group HonestReporting has publicly debunked the Daily Mail claims; readers may draw their own conclusions.)
In November of 2020, I published a post titled Electing The Next ICC Prosecutor: Politics v. Pragmatism, listing the professional and personal attributes essential for that position, which, incidentally, is the most demanding position at the ICC. On reflection, the criteria remain sound. Nothing substitutes for deep experience – domestic and international – combined with a grounded understanding of how courts function, and of the responsibilities borne not only by those on the front lines but also by those at the top. Wisdom, judgment, prudence, rectitude, and humility are indispensable traits. Style without substance is weakness. Leadership requires example, constancy, and integrity. The Prosecutor must earn trust, not demand it. S/he must command respect not only inside the OTP but also before the judiciary, states parties, diplomats, international organizations, civil society, and the public at large.
With one caveat: I would add now, more emphatically than ever, that the Prosecutor must maintain a harassment-free, zero-tolerance environment and, much like Caesar’s wife, remain above suspicion throughout the entire nine-year tenure.
Whether Khan met the criteria I set out is a matter of opinion. But that is not the point. What matters is that, for all practical purposes, his reputation—and by extension his effectiveness—has suffered irreparable harm. Even if he is fully exonerated of all allegations, and even if it is shown that neither he nor his associates attempted in any way to interfere with the investigation or influence witnesses, he can no longer lead with the moral, professional, and ethical authority required of the ICC Prosecutor.
The ICC deserves better. And it needs better now. To uphold the interests of the States Parties, safeguard the integrity of the Court, and restore the credibility of the OTP, Khan would do well to take personal responsibility and step down with dignity, for the good of the institution he was entrusted to lead. Should he choose not to do so, the ASP must consider whether its own collective duty now requires decisive action. The ICC cannot afford to be mired in uncertainty or distraction at a moment when its legitimacy is under unprecedented strain. A clear course – whether voluntary resignation or orderly replacement – would allow the ICC, and particularly the OTP, to move forward, recommit to its mission, and begin the necessary work of repairing the confidence of staff, stakeholders, and the global public it serves.
POSTSCRIPT
This has been an exceptionally difficult post to write. Karim Khan is more than a professional colleague; he is someone with whom I spent over three years in the trenches of trial practice, and with whom I have shared many moments of collegiality—and, truthfully, friendship. I like Khan as a person, and I respect him as an astute and skilled trial lawyer. As Prosecutor I have not always agreed with his decisions, but I understood and, in the main, appreciated his process — although perhaps not some of the grandstanding. In this blog, and elsewhere, I have praised him when deserving, and called him out when I thought he erred. The allegations against Khan are extremely serious, but as I said, I accord him the presumption of innocence and due process to which all are entitled. Nor do I take lightly the implications of the resignation I urge. Even if for the institutional reasons I have discussed in these posts, or for personal reasons, such a decision would unfairly be misinterpreted by many as a tacit admission. Writing candidly about a friend, especially in circumstances as sensitive and consequential as these, is not a task I undertook lightly. It is certainly not a recipe for preserving personal relationships. Yet candor, particularly where due process, institutional integrity, and ethical governance are at stake, is not optional. It is a professional obligation. And if that obligation has any meaning, it must apply with equal force whether the subject is adversary, acquaintance, or friend.
In addressing this matter, I have tried to hold myself to the same standards I would expect of any jurist or counsel: to avoid reflexive judgments, to resist the comforts of partisanship, and to examine what is known, what remains uncertain, and what the principles of procedural fairness and institutional stewardship require. I have grounded this analysis in facts as they currently stand, in the governing ethical frameworks, and in the norms that must guide any institution seeking to maintain public trust. I am not adjudicating guilt or innocence—that is neither my aim nor my mandate. What I can do, and what I believe is necessary, is insist on clarity, transparency, and accountability. These are not abstractions. They are the bedrock on which prosecutorial legitimacy must rest, especially in an institution as scrutinized—and as fragile—as the ICC.
I hope the full truth will emerge in due course, unvarnished and unpoliticized. Until then, I will continue to withhold judgment, according both the complainant and Khan the respect, dignity, and fair-mindedness that any legal process demands. Friendship does not justify silence, and criticism need not exclude respect. My intent here is simply to remain consistent in calling matters as I see them, guided not by sentiment, but by the professional standards to which all of us—every advocate, every officer of the court—should be held.
About Author
Here’s a question for you, as a defence attorney who faults Judge Tarfusser for not providing legal reasoning in his letter for his arguments: what is the legal basis for the President of the ASP to outsource the investigation to OIOS, given that the Rules of Procedure and Evidence were amended not long ago to give the IOM exclusive authority over all accusations of misconduct; that the IOM’s mandate, adopted by the ASP by consensus, reflects that exclusive authority; and that the President never asked the ASP as a whole to approve the outsourcing?