{"id":5874,"date":"2026-03-23T13:27:55","date_gmt":"2026-03-23T12:27:55","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=5874"},"modified":"2026-03-23T13:34:25","modified_gmt":"2026-03-23T12:34:25","slug":"non-exoneration-exoneration","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2026\/03\/23\/non-exoneration-exoneration\/","title":{"rendered":"THE NON-EXONERATION EXONERATION: When Process Produces Ambiguity by Design"},"content":{"rendered":"

<\/div><\/p>\n

No matter how one slices it or dices it, shakes it or stirs it, fries it or bakes it, two points emerge\u2014and they are not seriously contestable\u2014from what has thus far been leaked to the press regarding the findings of the \u201cexperts\u201d (or \u201cjudges\u201d) tasked with examining the allegations against ICC Prosecutor Karim A. A. Khan, KC:<\/em><\/strong><\/p>\n

(a) This is not an exoneration<\/strong><\/p>\n

Let\u2019s dispense with the headline spin.<\/p>\n

Despite the early and somewhat enthusiastic claims\u2014most notably from Middle East Eye<\/em><\/a>, and eagerly echoed by those inclined to defend\u2014the report does not exonerate Khan. Not in any meaningful sense of the word. Not if what is reported in The Guardian<\/em><\/a>, which has the report in its possession, and in my opinion, offers an impartial analysis.<\/p>\n

To be clear, this is not a finding of guilt. But neither is it a finding of innocence. What we are left with\u2014based on what has been leaked\u2014is something far less satisfying: an inconclusive outcome.<\/p>\n

And that inconclusiveness is not incidental. It is baked into the process.<\/p>\n

\"\"<\/p>\n

The examiners, as described, were not permitted to hear witnesses. They did not test credibility. They did not probe inconsistencies. They were, it seems, confined to a body of material presented to them\u2014much of it second-hand\u2014without the ability to interrogate its reliability or reconcile it against independent indicia of truth.<\/p>\n

In other words, they were asked to answer a question of fact while being denied the ordinary tools of fact-finding. Under those conditions, the result is not just unsurprising\u2014it is inevitable.<\/p>\n

So where does that leave matters?<\/p>\n

Precisely where they began. The allegations remain unproven. But they are also not disproven. The report does not resolve the issue; it suspends it. L\u2019affaire Khan<\/em>\u2014to borrow a convenient shorthand\u2014remains just that: an unresolved affair.<\/p>\n

Now, I have already expressed elsewhere <\/a>that, regardless of legal responsibility, Khan should consider resigning for the good of the institution. That is a separate issue\u2014one of judgment, optics, and institutional integrity. But even by its own standards, this report does not give him the clean bill of health that some are eager to claim.<\/p>\n

At most, it offers something more modest: room to maneuver. Institutional breathing space. And if past practice is anything to go by, perhaps a pathway\u2014should matters come to that\u2014toward a carefully managed exit, complete with the usual diplomatic courtesies.<\/p>\n

But let\u2019s not confuse that with vindication.<\/p>\n

(b) The process appears designed to fail elegantly<\/strong><\/p>\n

\"3If the outcome raises eyebrows, the process should raise more.<\/p>\n

Because it is difficult\u2014very difficult\u2014to look at the structure of this exercise and not conclude that it was calibrated to produce precisely the kind of ambiguity we now have.<\/p>\n

No conspiracy is required. Design alone will do.<\/p>\n

Consider the architecture.<\/p>\n

First, the standard of proof: \u201cbeyond reasonable doubt.\u201d One might pause here. This is not a criminal trial. No indictment was issued. No liberty was at stake. And yet, the highest standard known to the law was apparently imported into what is, at its core, an internal, administrative inquiry.<\/p>\n

Why?<\/p>\n

One struggles to find a principled answer. The more appropriate standard\u2014if one were genuinely interested in truth-seeking\u2014would have been something along the lines of \u201cclear and convincing evidence,\u201d or at the very least a flexible evaluative threshold suited to the context.<\/p>\n

But even that is only part of the story.<\/p>\n

More striking\u2014indeed, more problematic\u2014is the apparent prohibition on hearing witnesses.<\/p>\n

Not cross-examination. Not even limited questioning. Not even judicial probing. Nothing.<\/p>\n

The fact-finders were, in effect, asked to assess serious and contested allegations on the basis of an investigative file they could not test. No opportunity to observe demeanor. No chance to explore inconsistencies. No ability to press where answers were incomplete or evasive.<\/p>\n

Since when does any credible adjudicative process\u2014particularly one dealing with allegations of this gravity\u2014operate in such a vacuum?<\/p>\n

Even in systems that rely on investigative judges, such as the French model, the process does not dispense with scrutiny. Evidence is examined. Witnesses are engaged. The record is developed, not merely received.<\/p>\n

Here, by contrast, the fact-finders appear to have been handed a file and told, in effect, do your best\u2014without touching the evidence.<\/em><\/p>\n

And all of this under a standard approaching certainty. The result was preordained.<\/p>\n

A constrained evidentiary record, an elevated burden of proof, and no mechanism for testing reliability: if one were tasked with designing a process to produce an inconclusive outcome while preserving institutional face, one might struggle to improve on this model.<\/p>\n

Put differently: ambiguity was not an accident. It was a feature.<\/p>\n

To bring it closer to home\u2014imagine, for a moment, an ICC trial in which the Prosecution is told that it may rely only on its investigative file, may not call witnesses, may not test evidence in court, and must nonetheless prove its case beyond a reasonable doubt. It would not be a trial. It would be a rout. A banquet for the defence.<\/p>\n

There is a reason why evidence is tested. Not because it is convenient, but because it is necessary.<\/p>\n

I do not suggest impropriety. But I do question whether this process was ever capable of delivering what it purported to seek: a credible determination of contested facts.<\/p>\n

Where this leaves matters<\/em><\/strong><\/p>\n

For now, the situation is both simple and unsatisfactory. We have a report that resolves nothing, presented through selective leakage\u2014as though it resolves everything. That cannot stand.<\/p>\n

The report must be made public. Not in fragments. Not through carefully curated summaries. And certainly not through leaks that allow narratives to crystallize before scrutiny begins. In full\u2014subject, of course, to appropriate redactions. Only then can those concerned with procedural integrity, professional ethics, and institutional credibility make a process assessment.<\/p>\n

I, for one, would want to examine the entire case file as well as the procedural history that led to the design and adoption of the procedure. I certainly want to see what lessons can be learned by examining:<\/p>\n