The truth of the matter is that you always know the right thing to do. The hard part is doing it.<\/p>
\nRobert H. Schuler<\/em><\/span><\/p><\/blockquote><\/p>\n
The International Criminal Court (ICC) Prosecutor, Karim A. A. Khan KC, should take the honorable step of resigning \u2013 posthaste.<\/p>\n
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\u2014competing 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.<\/p>\n
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 \u2013 even without any evidence that Khan was directly or indirectly involved, whether personally or through intermediaries \u2013 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\u2019s chief prosecutor.<\/p>\n
None of this requires prejudging Khan. He remains entitled to the presumption of innocence, full due-process protections, and a thorough, impartial investigation \u2013 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<\/em> ICC Prosecutor\u2013qualities the Rome Statute demands in both letter and spirit.<\/p>\n
Before proceeding further, let me clarify what I mean by transparency<\/em> and then turn to Former ICC Judge Cuno Tarfusser\u2019s 20 October 2025 letter to the ASP and the Bureau.<\/a><\/p>\n
Transparency<\/em><\/strong><\/p>\n
To avoid misunderstanding, \u201ctransparency\u201d does not<\/strong> 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 \u2013 positively or negatively \u2013 and I take no position on how well it is being carried out.<\/p>\n
What does<\/em> matter, however, is that once the process is complete, a full and coherent account of the investigation \u2013its mandate, methodology, and evidentiary foundation \u2013 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<\/em> the inquiry concludes, we are left to speculate about everything that preceded it. To be clear: I am not<\/strong> 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.<\/p>\n
Tarfusser\u2019s Letter<\/em><\/strong><\/p>\n
Judge Tarfusser\u2019s letter<\/a> leans heavily on ethos<\/em> and pathos<\/em> but offers strikingly little logos<\/em>\u2014sustained legal reasoning. Substantively, it consists of insinuations, suppositions, and unverified assertions, culminating in the broad claim that the process is \u201cunregulated, improvised, and wholly incompatible with the rule of law,\u201d lacking safeguards and inconsistent with the fundamental guarantees of fairness.<\/p>\n
One passage in particular captures the accusatory thrust:<\/p>\n
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.<\/em><\/p>\n
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 \u2013 former ICC Vice President, former Italian Public Prosecutor and Attorney General \u2013 to establish moral authority and credibility. He also commends Khan\u2019s 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:<\/p>\n
It is equally evident that complainants, directly or through intermediaries, have coordinated a sustained public assault on the Prosecutor\u2019s reputation.<\/em><\/p>\n
and:<\/p>\n
A parallel media campaign designed to intimidate investigators and shape public perception has been allowed to proceed unchecked\u2026 The timing and selectivity of leaks\u2026 all point to a coordinated effort to exert pressure on those involved in the inquiry.<\/em><\/p>\n
As I noted in Part I<\/a>, I share the concern that Khan\u2019s 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<\/a>, and in my view, is both reasonable and necessary when allegations concern a sitting Prosecutor. Powerful individuals \u2013 especially those at the apex of an institution \u2013 cannot credibly be investigated internally without raising concerns of deference, conflict of interest, or institutional self-protection.<\/p>\n
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.<\/p>\n
This is not to dismiss all of Judge Tarfusser\u2019s concerns. He raises legitimate questions\u2014such as the appointment of \u201clegal experts\u201d 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\u2019t take my word for it, see for yourself. I\u2019ve attached it as an annex following the postscript.<\/p>\n
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\u2014redacted only as necessary to protect individuals\u2014must 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\u2019s capacity to police itself with rigor and fairness.<\/p>\n
The Conundrum \u00a0<\/em><\/strong><\/p>\n
Has the time come for Prosecutor Khan to resign, despite the investigation’s unresolved status and even if the allegations ultimately prove unfounded? Yes.<\/p>\n
At first glance, this may seem to contradict what I argued in Part 1<\/a>. It may also appear counterintuitive coming from a defence lawyer who places the highest value on due process and who has repeatedly emphasized Khan\u2019s 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\u2019s 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<\/a> 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?<\/em><\/p>\n
It has taken me some time to reach the conclusion that Khan\u2019s 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<\/a> post by Kenneth Roth urging the Assembly of States Parties (ASP) to proceed with appointing a replacement for Khan. Kenneth Roth<\/a>, the former executive director of Human Rights Watch (1993-2022) and a visiting professor at Princeton\u2019s School of Public and International Affairs, along with Antonia Mulvey<\/a>, executive director of Legal Action Worldwide (both respected figures in international criminal justice matters) laid out a thoughtful and balanced argument in F<\/em>oreign<\/em> P<\/em>olicy<\/em><\/a> (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 \u2013 which any objective observer, based on what is publicly reported, could reasonably view as redounding to Khan\u2019s benefit \u2013 I would still stand by my comment to Roth and Mulvey:<\/p>\n
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.<\/em><\/p>\n
The wiser institutional move (as I\u2019ve 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\u2019s conclusion would help preserve the credibility of the ICC, and in particular the Office of the Prosecution, and the rights of all involved.<\/em><\/p>\n
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 \u2013 actual evidence rather than speculative claims or seductive innuendo in media outlets like the Daily Mail<\/em><\/a> \u2013 we should treat these theories with caution. (For what it is worth, the Israeli media-advocacy group HonestReporting<\/a> has publicly debunked the Daily Mail<\/em> claims; readers may draw their own conclusions.)<\/p>\n