Ethics is knowing the difference between what you have the right to do and what is right to do.
– Justice Potter Stewart
In L’Affaire Khan, however, the issue increasingly appears to involve both.
The question is not merely whether on-leave Prosecutor Karim A. A. Khan KC has the practical ability to privately approach representatives of ICC States Parties before any Assembly consideration of his disciplinary affair. The question is whether doing so is ethically compatible with the integrity, fairness, and institutional seriousness expected of the ICC’s chief prosecutor.
It is not.
I have addressed elsewhere the broader concerns surrounding this matter: the Panel’s limited mandate, the emerging narrative of “exoneration,” the asymmetry in access to information, and the constitutional question of whether the matter properly belongs before the Assembly of States Parties (“ASP”). This post concerns something narrower, but no less troubling: what increasingly appears to be an ex parte-style campaign directed at States Parties.
Reports suggest that Prosecutor Karim Khan is privately – that is, personally – engaging representatives of States Parties ahead of any formal ASP review process, in an effort to persuade them that he has been effectively cleared by the Panel proceedings. In substance, this is not merely a public defence of reputation, but institutional canvassing: diplomatic outreach aimed at shaping institutional perceptions before the constitutionally competent body has examined the evidentiary record.
That raises a serious concern.
The ICC disciplinary framework was never designed to resemble a political campaign in which the subject of proceedings privately courts potential decision-makers in advance to shape the outcome. Yet that increasingly appears to be the dynamic emerging here.
To be clear, Khan is entitled to defend himself publicly. States Parties may also discuss matters informally among themselves. Diplomacy is inherent in the Rome Statute framework. Public defence of reputation is one thing; privately attempting to shape institutional judgment before formal review is quite another.
The issue is narrower: whether it is appropriate for the subject of a pending disciplinary process to privately engage those who may ultimately decide the matter in an effort to secure acceptance of a contested narrative of exoneration before any independent institutional review of the record.
The ICC’s professional codes are instructive here.
Article 62 of the ICC Code of Conduct for the Office of the Prosecutor prohibits ex parte communications with judges or Chambers concerning the merits of proceedings. Similarly, Article 23 of the ICC Code of Professional Conduct for Counsel prohibits counsel from communicating with judges outside proper procedural channels.
Strictly speaking, neither provision directly governs the present situation. Neither the Bureau nor the ASP is a judicial chamber, and Article 46 disciplinary proceedings are not criminal trials in the ordinary sense. But that is not decisive. The ethical principles underlying these ethical provisions remain highly relevant.
These principles exist to protect decisional independence, procedural fairness, institutional legitimacy, and public confidence that outcomes are based on the evidentiary record rather than private persuasion. These concerns do not disappear simply because the forum shifts from judicial proceedings to institutional disciplinary review. Indeed, they may be heightened when States Parties are asked to exercise quasi-constitutional judgment on allegations of extraordinary seriousness involving the ICC’s chief Prosecutor.
Yet before many States Parties have had the opportunity to examine the evidentiary record, the subject of the proceedings appears to be privately engaging them in ways that could shape perceptions in advance. That asymmetry is difficult to ignore. Neither the complainant nor other affected parties possess remotely comparable institutional access, diplomatic reach, or public visibility.
The concern is not merely lobbying – diplomacy inevitably involves lobbying – but the risk that a disciplinary process begins to resemble pre-judgment achieved through private persuasion rather than transparent institutional deliberation.
This concern is compounded by the increasingly public treatment of the Panel’s conclusions as definitive exoneration. The Panel was not a judicial body: it did not conduct adversarial proceedings, hear live testimony, or operate under the procedural safeguards typically associated with binding factual determinations. Its function was advisory. Suggesting otherwise goes beyond embellishment or the gilding of the lily; it risks conferring adjudicative weight on an advisory process never designed to bear it.
Yet that advisory character is increasingly being displaced in public discourse by a narrative of exoneration – a narrative reinforced by Prosecutor Khan himself through media appearances and interviews, which risks reducing a grave institutional affair to a media performance rather than to sober institutional adjudication.
As I have previously noted, this strategy and its attendant tactics risk allowing advisory findings to become rhetorically entrenched as dispositive before the ASP has exercised its independent constitutional function under Article 46. In turn, this risks pressuring States Parties to treat disagreement with the Panel’s conclusions as hostility toward due process or the rule of law itself.
Against that backdrop, the ethical question becomes sharper.
Even if such conduct falls outside the technical scope of formal ex parte prohibitions, the principles these prohibitions embody remain highly instructive. They exist precisely to prevent the perception that outcomes are shaped by asymmetrical access, private influence, and unaccountable persuasion rather than by principled institutional deliberation.
Khan is fully aware of these principles. Having served as both Prosecutor and defence counsel at the highest levels of international criminal practice, he understands perfectly well why ex parte communications are viewed with caution in adjudicative settings and why systems committed to fairness insist that decision-makers assess evidence through structured and transparent procedures.
Which is precisely why the present situation is so troubling.
Increasingly, what is emerging resembles the electioneering of a disciplinary process: private diplomatic outreach aimed at persuading States Parties that the matter has already been effectively resolved and that any refusal to embrace the narrative of exoneration risks appearing hostile to due process or the rule of law. This is not depoliticization. It is politicization in its most concentrated form.
Unlike public statements or formal submissions, these private communications occur in environments that are unmonitored, unaccountable, and untraceable. The representations made, the evidence characterized, and any pressures or assurances conveyed remain entirely beyond scrutiny. This opacity matters.
Confidence begins to erode when the subject of the proceedings appears less concerned with allowing the process to unfold independently than with securing a desired outcome in advance: simultaneously litigating publicly, cultivating diplomatic support behind the scenes, and shaping perceptions among those who may later be called upon to exercise institutional judgment.
Institutional legitimacy is not preserved by winning internal political battles; it is preserved by maintaining confidence that institutional outcomes are achieved through a fair and transparent process.
More fundamentally still, this concerns institutional ethos.
The Prosecutor of the ICC is not merely another litigant defending personal interests. He is the head of an institution that depends on public confidence in fairness, restraint, procedural integrity, and respect for the rule of law. That role necessarily entails obligations that extend beyond narrow technical legality into broader institutional responsibility.
In this light, Justice Stewart’s observation is particularly relevant. Ethics is not merely about technical permissibility. It is also about fidelity to the institutional values that such rules are designed to protect.
The question, therefore, is not simply whether such engagement with States Parties is possible. It is whether it is appropriate, given that those same States Parties may soon be required to exercise constitutional judgment under Article 46.
The answer is no.
The ICC – and more importantly, the ASP – cannot credibly extol its commitment to procedural integrity externally while tolerating internal processes that create the appearance of political canvassing, asymmetrical access, and pre-judgment before the constitutionally competent body meaningfully engages with the evidence. Procedural integrity is not merely rhetorical capital; it is a foundational source of the institution’s legitimacy.
Whatever one ultimately concludes about the underlying allegations, disciplinary legitimacy cannot be strengthened by the appearance of electioneering before the adjudicative process meaningfully begins.
Simply put, Khan should refrain – personally or through intermediaries – from engaging States Parties in a way that risks turning this disciplinary process into something resembling a political re-election or vote-of-confidence campaign rather than an institutional proceeding.
These observations are not personal. They reflect a broader concern that the ICC’s long-term legitimacy depends not merely on legal outcomes but on the restraint, judgment, and institutional discipline exercised by those entrusted with leading it.
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