A half-truth is often a great lie.
– Benjamin Franklin
Just when I thought there was nothing more to say about L’Affaire Khan it appears there is one more point worth making.
I could, of course, spend time examining the decision by the now-on-leave Prosecutor, Karim A. A. Khan KC, to grant an interview to media personality Mehdi Hasan of Zeteo while disciplinary proceedings remain ongoing – an unusual choice for someone ostensibly committed to allowing the process to run its course. One might reasonably ask whether such engagement is intended simply to explain or whether it risks exerting more subtle pressure on the Assembly of States Parties: to accept a particular framing of the process or risk later criticism framed in the language of institutional failure for violating the rule of law. But I won’t.
I could also examine his counsel, Sareta Ashraph’s, decision to give an interview to Opinio Juris, a platform closely connected to Khan’s professional orbit. It was founded in part by his Special Adviser1, Professor Kevin Jon Heller, who remains an active contributor. That the same adviser – an outspoken defender of Khan in this matter – also conducted the interview may invite its own questions, not least about whether the exercise resembles a curated exchange more than an independent inquiry. The alignment of roles is, at the very least, striking: counsel advancing her client’s position in a forum shaped by a close professional associate who has himself been among its more visible public advocates. This is hardly a matter of coincidence but rather of convergence – of roles, interests, and platforms – producing what appears less an exercise in scrutiny than in affirmation, and less an interview than a carefully staged performance presented under the veneer of independence.2 But I won’t.
I could – speaking of coincidence and convergence – comment on the precise sequencing of these media appearances: one following closely on the other, each reinforcing the next, all as the disciplinary proceedings edge toward a decisive moment. Correlation, as the saying goes, does not necessarily imply causation. Yet, set against the broader pattern of sustained and coordinated public messaging, the alignment begins to look less incidental than intentional – a pattern that appears carefully calibrated to shape the narrative at the precise moment it is most susceptible to influence. But I won’t.
I could – speaking of sustained and coordinated public messaging – further explore the increasingly confident claims of “exoneration” circulated by Khan and his more ardent defenders ad nauseam, as though repetition might substitute for verification, since the expert panel’s report was issued – conveniently, one might note, without the report itself being open to public scrutiny – despite the rather accommodating limits of the process invoked to sustain those claims. Or explore the conspicuous absence of any verifiable evidence supporting the oft-repeated assertion of a coordinated political plot against him. But I won’t.
And I could observe that the complainant has, at least publicly, conducted herself with a degree of restraint and professional discipline that is difficult to ignore, maintaining a posture marked by dignity despite clear asymmetries in power, resources, and influence – and despite being the subject of sustained public commentary not of her own making. She has declined to engage in the kind of sustained public contest or narrative gamesmanship that might otherwise be expected in a matter of this profile, even as the surrounding discourse has, at times, taken on a more forceful and strategically expansive character. Set against that posture is a coordinated and well-executed media presence on the other side, disciplined in messaging and broad in reach. The contrast is not merely stylistic. It goes to the conditions under which narratives take shape – whether through measured restraint or through sustained efforts to define the terms of the debate in advance. But I won’t.
Instead, I will focus on the one point that matters most: the findings being described as “exoneration” were reached without any testing of the evidence. It is not a minor procedural detail. It is the entire point.
Calling this an “exoneration” is not merely imprecise. It is not merely overstated. It is, quite plainly, a characterization the process itself cannot sustain.
To claim there is “no evidence” of sexual assault or rape because there was no eyewitness is to misunderstand – whether inadvertently or otherwise – how such allegations are assessed. Sexual assault rarely occurs in the presence of third parties. The absence of an eyewitness is not proof that nothing happened, just as the allegation itself is not proof that something did.
From what has been publicly disclosed or leaked, there appears to be no question that the evidence, when viewed in the light most favorable to the accuser, even under the high burden of proof being applied here, is sufficient to sustain her claims. However, that is not the end of the inquiry. That evidence then needs to be tested and weighed against any evidence to the contrary and defenses. None of which happened here. No amount of assertion otherwise changes that fact.
There was no testimony from the complainant under oath. No cross-examination. No adversarial testing of competing accounts. No opportunity for Khan to present evidence subject to scrutiny and confrontation. No structured evaluation of credibility by judges observing demeanor, consistency, and plausibility in real time. In short, none of the mechanisms courts use to distinguish assertion from proof.
This is not a criticism of the procedure that was followed. It is a recognition of its limits. But those limits matter. Findings reached without testing the evidence are not the same as findings reached after testing it. And they cannot credibly be presented as though they are.
If the ASP chooses to rely on those findings, it is entitled to do so. But it should do so with clarity about what those findings are and what they are not. They are not an exoneration in any sense recognized by courts. At most, they reflect an assessment based on an untested record. This distinction is not semantic. It goes to the integrity of the process itself.
No matter the outcome, the underlying allegations will not dissipate under the weight of a public relations campaign. If anything, premature declarations of vindication tend to invite scrutiny rather than resolve it. Even in the most favorable scenario for Khan, the result may prove pyrrhic. The reputational impact – both personal and institutional – has already taken hold. Confidence, once strained in this way, is rarely restored by assertion alone.
But that broader institutional question can wait. For present purposes, the issue is narrower: what would ordinarily be required before findings of this kind could be made?
Evidence Evaluation – What Was Missing
I will not rehearse the entire law of evidence. A few basic observations will suffice, observations that underscore precisely what is absent here.
In any serious adjudicative process, evidence is not assessed in fragments or in the abstract. It is evaluated using a disciplined method. Each piece is examined individually for its reliability, consistency, and coherence before being tested against the broader record. Only then is the totality assessed.
Judges do not begin with conclusions. They arrive at them.
That process typically unfolds in two stages: a granular analysis of individual pieces of evidence, followed by a holistic assessment of how those pieces interact. Crucially, the process depends on testing.
Without testing, what remains is not a judicial finding, but an impression formed from an untested record. Impressions, however confidently expressed, are not the same as proof.
What follows is not academic. It is the kind of scrutiny that would normally precede any serious claim of “exoneration”:
-
-
- Is the evidence authentic, reliable, and relevant?
- What exactly does it prove, and to what degree?
- Is it direct or circumstantial, and are alternative explanations reasonably available?
- Is it corroborated, internally consistent, and externally consistent with other evidence?
- If hearsay, does it carry sufficient indicia of reliability, and can it be meaningfully tested?
- What are the potential biases, motivations, or limitations of the source?
-
Witness testimony, in particular, is not accepted at face value. It is evaluated using indicators such as consistency, plausibility, demeanor, bias, motive, contradictions, and reliability over time.
Competing narratives are not accepted or rejected based on preference but through structured comparison: which account is more detailed, coherent, consistent, corroborated, and ultimately more persuasive when measured against the totality of the evidence.
Documentary evidence is no different. Its weight depends on origin, authorship, purpose, timing, authenticity, completeness, and its relationship to other materials in the record.
None of this is theoretical. It is what separates evidence from assertion, and it is precisely what the panel of judges was unable to do before issuing their report.
Why the “Exoneration” Narrative Does Not Hold
These principles are not aspirational. They are the minimum requirements for findings that carry legal weight. They require testing, probing for inconsistencies, and real-time scrutiny. Without that process, what remains, however carefully presented, is not an exoneration. It is, at most, a preliminary assessment lacking the discipline that gives conclusions their legitimacy.
This inevitably returns us to the questions set aside at the outset.
If the evidence remains untested and the process isn’t complete, why the rush to declare exoneration now? Why is there a coordinated media campaign? Why choose this timing? Who benefits from it?
Is the intended audience the ASP? The broader public? Or, more strategically, does this reflect an effort to shape the terrain in advance—through a blend of emphatic misstatements, deflective messaging, assertions of procedural illegitimacy, and a distinctly combative rhetorical posture—so that any eventual outcome is received through a pre-conditioned narrative?
These are not conclusions. They are questions that arise when an assertion appears to outpace adjudication. They also raise a more difficult concern.
When one side has the capacity to engage in sustained, sophisticated public advocacy – through interviews, aligned platforms, and amplified messaging – what does that mean for the balance of the process? What does it mean for the complainant, who does not appear to have comparable access to resources, visibility, or institutional reach? And what does it signal, more broadly, to others who might consider coming forward in similar circumstances?
None of this determines what happened. It does not resolve the underlying allegations. But it does underscore what is at stake. In the end, the question is not simply whether claims of exoneration are premature. It is whether the conditions are being shaped so that evidence – if and when it is properly tested – can be assessed without distortion.
Until that happens, the more confidently exoneration is proclaimed, the more necessary it becomes to ask whether what is being advanced is a legal conclusion or a narrative in search of one.
About Author
- According to the interview introduction, Professor Heller just resigned that position. [↩]
- I believe the term of art in public relations vernacular is spin. [↩]
