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THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence

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. Continue reading “THE ELECTIONEERING OF A DISCIPLINARY PROCESS: Ex Parte Advocacy Before ASP Review of the Evidence”

L’AFFAIRE KHAN: Why the ASP – Not the Bureau – Must Decide

These are serious, but not desperate times. The law sees people that some want to erase. So the question is not whether the ICC is perfect, but whether the world can be better with it.

– Karim A. A. Khan KC

The longer L’Affaire Khan continues, the clearer it becomes that the issue before the International Criminal Court (“ICC”) is no longer confined to the underlying allegations against Prosecutor Karim A. A. Khan KC. The controversy has evolved into something far broader: a test of institutional legitimacy, constitutional competence, and the ICC’s capacity to confront allegations against one of its senior officials with coherence, credibility, and public confidence.

Whatever one ultimately believes about the allegations themselves, the Rome Statute framework was designed to ensure that controversies of this magnitude would not be resolved through managerial discretion, improvised procedural innovation, or the temporary political composition of a subsidiary organ. They were meant to be addressed by the Assembly of States Parties (“ASP”) acting in its plenary constitutional capacity. Continue reading “L’AFFAIRE KHAN: Why the ASP – Not the Bureau – Must Decide”

THE EXONERATION EXPRESS: All Show, No Substance

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. Continue reading “THE EXONERATION EXPRESS: All Show, No Substance”

THERE IS NO “NORMAL” VICTIM: Why Sexual Misconduct Complaints Cannot Be Judged by Stereotype

The most dangerous myths are often the ones people mistake for common sense.

Why This Question Matters

In my last post, I wrote about an uncomfortable institutional question: whether power itself can begin to shape the conditions under which accountability is supposed to occur within the International Criminal Court (ICC). This post turns to a second question, no less consequential: whether assumptions can begin to shape judgment before accountability is formally tested.

Even where a disciplinary mechanism is formally allowed to proceed and no overt interference can yet be shown, allegations of sexual misconduct involving senior officials can still be distorted by something far more ordinary than politics. They can be distorted by assumption. Not a legal assumption, but a human one. Continue reading “THERE IS NO “NORMAL” VICTIM: Why Sexual Misconduct Complaints Cannot Be Judged by Stereotype”

WHEN POWER PROTECTS ITSELF: Sexual Misconduct Allegations, Institutional Influence, and the ICC’s Hardest Test

It’s not just the abuse of power that’s the problem. It’s the power to abuse.

–Stefan Molyneux

When an Institution Must Judge Itself

Institutions created to judge power are often least prepared to confront it when it resides within their own walls.

That is the paradox now confronting the International Criminal Court (ICC). An institution established to challenge impunity abroad is now forced to confront a more uncomfortable possibility at home: whether power, once lodged within the institution, can begin to shape the terms of accountability from within. At moments like this, the central question is no longer only whether misconduct occurred. It is whether an institution founded on law can preserve confidence in its own processes when authority itself becomes part of the equation.

At international institutions, power rarely disappears when allegations of sexual misconduct arise. More often, it simply changes form. Continue reading “WHEN POWER PROTECTS ITSELF: Sexual Misconduct Allegations, Institutional Influence, and the ICC’s Hardest Test”

Logos in Action: Building Persuasive Legal Reasoning

Persuasion is effected through the speech itself when we have proven a truth or an apparent truth by means of the persuasive argument suitable to the case in question.

—Aristotle

Introduction

In an earlier post (here), I distinguished between dialectic and rhetoric: the former as a method for testing propositions in pursuit of truth, the latter as a craft aimed at persuading others of what is most likely true. Dialectic, in the Socratic tradition, interrogates assumptions; rhetoric operates under conditions of uncertainty, where conclusions must be argued rather than discovered. For the advocate, the task is not to establish truth in the abstract, but to construct reasoning; logos that compels belief within a contested space.

In practice, logos is not reducible to formal logic or abstract syllogism. It is reasoning shaped for decision-making under constraint. Courts do not ask whether an argument is philosophically airtight; they ask whether it satisfies a burden of proof, coheres with the evidentiary record, and fits within an accepted legal framework. The advocate therefore operates in the space between logical validity and persuasive sufficiency: selecting, structuring, and presenting arguments that are not only internally sound but compelling to a particular audience. Logos, in this sense, is disciplined reasoning in context, anchored in the record, calibrated to legal standards, and directed toward judgment rather than abstract truth. Continue reading “Logos in Action: Building Persuasive Legal Reasoning”

INSTITUTIONAL PROTECTION AND INVESTIGATIVE FAILURE: Confronting Sexual Misconduct at the Highest Levels

At the heart of this process lies a fundamental procedural mismatch. According to public reporting, the OIOS was mandated to conduct fact-finding, not adjudication. The ad hoc Judicial Panel was tasked with legally characterising OIOS’ findings, but had no authority to address their deficiencies considering the seriousness of this matter, including the failure to assess witness credibility or resolve material narrative inconsistencies.

Association of International Criminal Law Prosecutors (AICLP)

No, I am not suggesting that there is an ongoing cover-up in L’Affaire Khan, nor that there is institutional indifference at the International Criminal Court (ICC). Nor am I attributing the process for handling allegations of sexual assault, witness interference, and retaliatory conduct attributed to ICC Prosecutor Karim A. A. Khan KC to incompetence on the part of the Bureau (all laid out in the Rules of Procedure and Evidence (RPE) and the Staff Regulations, save for the standard of proof issue). Continue reading “INSTITUTIONAL PROTECTION AND INVESTIGATIVE FAILURE: Confronting Sexual Misconduct at the Highest Levels”

THE ICC AT AN INFLECTION POINT: But Which One?

Individuals alleging sexual violence often don’t report because they perceive – in many cases, correctly – the justice system as not being genuinely responsive to them.… In the case of Mr Khan, however, the bureau established an ad hoc process specifically for this complaint, and worked to ensure there was a victim-centred approach in a system that also respected due process. That is apparent in both the OIOS investigation and in the lengthy reasoned analysis of the eminent panel of jurists. If the Bureau starts to step away from the reasoned and unanimous analysis of the judges, they open up a conversation about whether the process that they established is founded upon law and due process, or on politics and power.

— Sareta Ashraph, lead counsel for Karim A. A. Khan

Perhaps it is a touch indecorous to weigh in on L’Affaire Khan now that the matter has moved into disciplinary territory and beyond the rather transparent lobbying by Ashraph and assorted proxies urging the ICC Bureau to adopt, without reservation, the findings of the three judicial experts.

With the Assembly of States Parties (ASP) now effectively holding the reins, the question presents itself in the terms Ashraph has framed it: is this an inflection point? Will any deviation from the panel’s findings “open up a conversation” about whether the process is grounded in law and due process—or in politics and power?

A debate will be had. That much is inevitable. And, frankly, healthy.

But an inflection point? An existential moment for the ICC? I think not. That characterization owes more to advocacy than analysis. Continue reading “THE ICC AT AN INFLECTION POINT: But Which One?”

Disciplined Pathos: The Art of Restrained Emotional Persuasion Before Judges

The orator must not only teach, delight, and persuade; he must also move. — Cicero

The most powerful moments of persuasion in a courtroom are rarely the loudest. Whether before a jury, a single judge, or an appellate bench, they tend to be quiet, controlled, and precise. They do not overwhelm. They settle in. Through deliberate rhetorical choices, an advocate can shape not only how a case is understood, but how it is experienced—without ever stepping outside the discipline the bench (chamber) demands. It is in these moments, as Cicero reminds us, that advocacy truly moves its audience.

This is especially so in international criminal tribunals, where persuasion unfolds before judges drawn from different legal systems, cultures, and professional traditions. In such a setting, advocacy requires more than doctrinal fluency. It requires an acute awareness of how arguments resonate across those differences. Continue reading “Disciplined Pathos: The Art of Restrained Emotional Persuasion Before Judges”

THE NON-EXONERATION EXONERATION: When Process Produces Ambiguity by Design

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. Continue reading “THE NON-EXONERATION EXONERATION: When Process Produces Ambiguity by Design”