{"id":5898,"date":"2026-04-06T03:17:28","date_gmt":"2026-04-06T01:17:28","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=5898"},"modified":"2026-04-06T03:20:20","modified_gmt":"2026-04-06T01:20:20","slug":"icc-at-inflection-point","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2026\/04\/06\/icc-at-inflection-point\/","title":{"rendered":"THE ICC AT AN INFLECTION POINT: But Which One?"},"content":{"rendered":"

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

Individuals alleging sexual violence often don\u2019t report because they perceive \u2013 in many cases, correctly \u2013 the justice system as not being genuinely responsive to them.\u2026 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.<\/p>
\n

\u2014 Sareta Ashraph, lead counsel for Karim A. A. Khan<\/p><\/blockquote><\/p>\n

Perhaps it is a touch indecorous to weigh in on L\u2019Affaire Khan<\/em> now that the matter has moved into disciplinary territory<\/a> 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.<\/p>\n

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\u2019s findings \u201copen up a conversation\u201d about whether the process is grounded in law and due process\u2014or in politics and power?<\/p>\n

A debate will be had. That much is inevitable. And, frankly, healthy.<\/p>\n

But an inflection point? An existential moment for the ICC? I think not. That characterization owes more to advocacy than analysis.<\/p>\n

Take, for instance, some of the recent coverage, particularly what has circulated under the banner of international news in outlets like Middle East Eye<\/a>. Without denigrating the broader work of the press, this was, at its core, a one-sided, agenda-driven opinion piece dressed up as reporting. It conflated the allegations against Khan with his issuance of arrest warrants against Benjamin Netanyahu and Yoav Gallant, while hinting, none too subtly, at shadowy forces, intelligence services, and geopolitical retribution. The underlying thesis practically writes itself: Khan, having been \u201cexonerated\u201d of what are implied to be politically motivated allegations, should be restored \u2013 swiftly and unequivocally.<\/em><\/p>\n

Perhaps he should be exonerated, but not so quickly. Based on the material reviewed by the panel of independent jurists, the evidence did not meet the standard of proof beyond a reasonable doubt. That seems clear. However, calling that an \u201cexoneration\u201d goes too far and suggests more than what the jurists appeared to conclude. Because that is not what the process determined. And it certainly isn\u2019t the final word on the matter.<\/p>\n

The suggestion advanced by Ashraph and others that any continued scrutiny would necessarily be an exercise in politics and power<\/em> is, at best, premature. At worst, it is a convenient way of foreclosing precisely the kind of institutional reflection that moments like this demand. Nuance, as ever, is getting lost.<\/p>\n

In the current climate where rhetoric tends toward the pyrotechnic and social media ensures that every position is amplified to the point of distortion, there is real value in stepping back, if only to regain some measure of perspective. So, at the risk of appearing as a pesky gadfly, I will offer a different take.<\/p>\n

I have no stake in the outcome. I do not know the complainant. I do know Karim A. A. Khan KC and have long held him in high regard. But that is unimportant. What matters is this: the Bureau was right to move the matter into disciplinary proceedings, for reasons I will come to. And regardless of how those proceedings ultimately resolve (win, lose, or draw) the ICC now finds itself confronting a genuine inflection point.<\/p>\n

Not whether it adheres to the findings of a panel. But whether it is finally prepared to adopt, apply, and enforce \u2013 without hesitation or equivocation \u2013 the kind of ethical standards and institutional procedures that are not only expected, but long overdue. Because at some point, process must do more than produce reports. It must produce clarity, accountability, and confidence in the institution itself.<\/p>\n

More on this below, but first, it is worth taking a closer look at the process itself; before we accept the now-familiar refrain that any deviation from the panel\u2019s conclusions would mark the triumph of politics and power over law and due process.<\/em><\/p>\n

\"Eric<\/p>\n

Let me start by reiterating what should be obvious, but increasingly seems to require restating. As serious as these allegations are \u2013 and as damaging as some of the reported facts may be \u2013 allegations are not proof of guilt. The presumption of innocence remains fundamental. It is not Khan\u2019s burden to prove his innocence.<\/p>\n

According to reports largely based on leaks, the jurists concluded that the evidence did not meet the standard of proof beyond a reasonable doubt. That is a criminal standard. A high one. And notably, not the lower \u201cclear and convincing evidence\u201d standard typically applied in misconduct contexts at the UN where termination is a possible outcome (see<\/em> Molari<\/em><\/a>, <\/em>paras. 1-2). It also seems to be higher than the standard applied to defence counsel, who may face serious professional consequences, up to and including a permanent ban from the list.<\/p>\n

Was the ICC bound to apply the reasonable doubt standard here?<\/em><\/strong><\/p>\n

Defenders of the process such as Professor Kevin Jon Heller<\/a> \u2013 special advisor to ICC Prosecutor Khan \u2013 point out that the ICC is required to apply the beyond reasonable doubt standard in misconduct proceedings because the ICC\u2019s Staff Regulations<\/a> grant the International Labour Organization Administrative Tribunal (ILOAT) appellate jurisdiction over the ICC\u2019s administrative decisions regarding staff<\/em> (Regulation 11.2), and beyond reasonable doubt is the ILOAT\u2019s standard for misconduct findings. As he points out, in 2022, the ICC reviewed its internal justice system<\/a> and considered resorting to the UN Appeals Tribunal (UNAT) over ILOAT as recommended by the Independent Expert Review for cost and efficiency reasons<\/em>. Without drawing any conclusions or recommendations, the ICC\u2019s report notes that the UNAT expressly rejected the ILOAT\u2019s high standard, stating that \u201cDisciplinary cases are not criminal.\u201d But to date, to my knowledge, the ASP has not acted on revising the ICC\u2019s internal justice system.<\/p>\n

Why the disparity between ILOAT and UNAT? Perhaps the answer is mundane: different statutes and procedures, different legal cultures of administrative law, and different judges. Fair enough. But it is a point worth flagging, because it goes directly to how the panel\u2019s findings are now being characterized. More importantly, it raises a structural question about the process that was adopted.<\/p>\n

But back to Heller \u2013 he misses a critical distinction in unequivocally arguing that the beyond reasonable doubt standard applies to the Prosecutor. The ICC Prosecutor is not a \u201cstaff member\u201d but an elected official. The ICC\u2019s own review of its internal justice system considered that removal and disciplinary proceedings fall outside the ILOAT\u2019s competence (see<\/em> here<\/a>, para. 16) and are rather governed by Article 46 of the Rome Statute and Rules of Procedure (neither of which provide for ILOAT jurisdiction). Rather, the ASP is ultimately in charge of the process. The procedure under Rule 27 is such:<\/p>\n

after written notification that removal or disciplinary measures are under consideration, the concerned person \u201cshall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her<\/em>.\u201d<\/p>\n

The ASP then decides whether to remove the Prosecutor or impose disciplinary measures by absolute majority (see <\/em>Article 46(2)(b) of the Rome Statute and Rules 29 and 30).<\/p>\n

In short, nothing in the ICC\u2019s legal framework appears to mandate the ASP to apply ILOAT\u2019s standards to the Prosecutor. Notably, defence and victims counsel (who are also not ICC staff) are not covered by the Staff Rules, nor do they have recourse to ILOAT in challenging any ICC administrative decisions such as disciplinary actions. In fact, none of the Disciplinary Board or Appeals Board decisions<\/a> regarding counsel reference the ILOAT standard of proof beyond a reasonable doubt for finding misconduct. Generally, these decisions discuss the evidence heard during the disciplinary hearing before making \u201cFindings\u201d (which on review do not appear to be based on a beyond reasonable doubt standard).<\/p>\n

The legal framework is certainly not entirely clear; however, I disagree with Heller\u2019s definitive conclusion that: \u201cThe ICC is subject to the jurisdiction of ILOAT and ILOAT jurisprudence is unequivocal: an international organization like the Court cannot impose a disciplinary sanction on someone unless it proves every element of the alleged misconduct beyond a reasonable doubt<\/em>.\u201d<\/p>\n

The process <\/em><\/strong><\/p>\n

It is worth pausing here to clarify what this process was \u2013 and what it was not. The Bureau did not<\/em> convene a Disciplinary Board. It did not<\/em> empanel a body<\/a> with full adjudicative powers, capable of compelling testimony, hearing witnesses in open session, or subjecting evidence to adversarial testing in the manner one would expect in either criminal proceedings or serious disciplinary hearings. What appears to have been established instead was a form of expert review: a panel tasked with examining an investigative record and rendering an assessment against a specified standard. That distinction is not a technicality. It goes to the heart of how much weight the resulting report can properly bear.<\/p>\n

If, as it appears, the panel\u2019s task was limited to a review of the case file assembled by investigators, then one is entitled to ask: how does one meaningfully determine whether evidence meets a criminal standard of proof without testing it?<\/em> Given the gravity of the allegations in this case against the ICC Prosecutor \u2013 and the chosen standard of proof of beyond a reasonable doubt<\/em> \u2013 the Bureau should have empowered the panel to hear witnesses and test the credibility of their oral testimony through questioning and contradiction \u2013 not just simply read a dossier and draw a conclusion. This would have allowed both the victim to be fully heard and provided Khan with a full and fair opportunity to rebut the allegations against him.<\/p>\n

That matters.<\/p>\n

Because without that kind of evidentiary testing, what the panel has produced, however careful and well-reasoned, cannot reasonably be understood as a full adjudication of the underlying allegations. It is, at most, an assessment of whether the material as presented clears a criminal threshold.<\/p>\n

But that is what was agreed, you may say, so is it not changing the rules and procedure and standard because the result is unwelcoming? From what I have gleaned (here<\/a> and here<\/a>), I am at a loss to conclude that the jurists were forbidden to do a proper assessment, which would have included hearings, testimony, questioning, observation of demeanor, confrontation on contradictions, and inconsistencies.<\/p>\n

Which brings us back to the current tendency to describe the report as a complete and unimpeachable \u201cexoneration.\u201d I see it very differently.<\/p>\n

This was not a finding of innocence. It was a finding that the available untested evidence did not establish guilt beyond a reasonable doubt. That is a narrower \u2013 and far more conditional \u2013 conclusion.<\/p>\n

None of this is to suggest that the jurists failed in their task. I have no reason to doubt that they approached the material with care and seriousness. But if the process constrained them \u2013 if, for example, they were not empowered to hear witnesses or otherwise test the evidence \u2013 then their ability to reach definitive conclusions was necessarily limited.<\/p>\n

If that limitation was built into the process from the outset, then so be it. The report must be accepted on its own terms. But it must also be understood for what it is and what it is not. Which leads to the more consequential set of questions.<\/p>\n

What is the legal effect of this report? Is it the final word? Is it binding on the ICC Bureau? Is it binding on the ASP? Did the Bureau, in structuring this process, effectively narrow the range of options available to the ASP? Or, put more directly: is the ASP required to treat this report as dispositive? I suggest not. In fact, Articles 46 and 47 of the Rome Statute explicitly vest the ASP with deciding to remove or impose disciplinary measures on the Prosecutor by vote<\/em>. And neither the Statute nor the Rules appear to bind the ASP to any reports from any investigative or quasi-judicial body it creates.<\/p>\n

The ASP is not sitting as a criminal court. Its role is not to determine guilt or innocence. Its function is institutional: to safeguard the integrity, credibility, and proper functioning of the ICC. That task does not require proof beyond a reasonable doubt. <\/strong>And here lies the deeper concern: the real risk is not that <\/em>politics and power will override <\/em>law and procedure (as Khan\u2019s defence counsel suggests); it is that the language of law \u2013 \u201cbeyond a reasonable doubt,\u201d \u201creasoned analysis,\u201d \u201cunanimous findings\u201d \u2013 will be used to shut down a fundamentally different, and necessary, institutional judgment.<\/em><\/p>\n

An analogy, albeit imperfect but illustrative, can be drawn from the O. J. Simpson murder case. Simpson was acquitted in criminal court, where the standard of proof was beyond a reasonable doubt, but was later found financially liable in civil court under the lower standard of preponderance of the evidence. The point is not to compare the facts or burdens, but to highlight the different legal frameworks: different forums apply different standards because they ask different questions or because the stakes \u2013 such as liberty versus financial or employment risks \u2013 are different.<\/p>\n

\"Burdens<\/p>\n

Here, if anything, we are confronted with the reverse situation. A criminal standard has been applied in what is, functionally, an administrative and institutional context. That does not bind the ASP to adopt the same standard in deciding whether Khan should continue to serve as Prosecutor. I am not suggesting what standard it should apply, but merely that it is up to the ASP to decide.<\/p>\n

The question before the Assembly of States Parties, as I see it, is not whether Khan is guilty of a criminal offence. It is whether the nature, gravity, and credibility of the allegations \u2013 considered in light of the evidentiary record as a whole \u2013 cast sufficient doubt on his continued leadership of the Office of the Prosecutor (OTP). That is a different question. And it allows for a different answer.<\/p>\n

Ultimately, the ASP must determine whether \u2013 irrespective of the standard of proof applied \u2013 Khan can continue to effectively discharge the full scope of his responsibilities and meet the expectations inherent in the role: to serve not only as chief prosecutor, but as the ICC\u2019s public face, its voice, and, in many respects, its institutional conscience on the international stage \u2013 before heads of state, victim communities, and bodies such as the United Nations Security Council.<\/p>\n

What this necessarily entails is a broader inquiry, one that extends beyond the narrow confines of the allegations themselves. It requires consideration of factors that some may be inclined to place within the realm of \u201cpolitics and power<\/em>,\u201d but which are, in truth, inseparable from the governance of any international institution. Questions of credibility, authority, perception, and institutional confidence are not extraneous; they are integral.<\/p>\n

This is not to suggest that unproven allegations should be treated as determinative, nor that due process should yield to expediency. Rather, it is to acknowledge that conduct at the highest levels of an institution \u2013 even where it does not meet a criminal threshold \u2013 may nonetheless bear directly on its functioning, its reputation, and its ability to command trust.<\/p>\n

In that sense, the ASP\u2019s task is not to revisit the findings of the panel, nor to substitute its own determination of guilt or innocence, but to assess carefully and with due restraint whether the totality of circumstances warrants a course of action aimed at preserving the integrity, credibility, and effective operation of the ICC.<\/p>\n

And now, to the inflection point that really matters:<\/p>\n

Whether the ICC is finally prepared to adopt and enforce a genuine zero-tolerance policy at the highest levels of the institution, or whether it will revert to something closer to business as usual, notwithstanding the cumulative damage such an approach inflicts on its integrity and moral standing.<\/em><\/strong><\/p>\n

Supervisors, particularly those at the top, should not be engaging in sexual relationships with subordinates. Full stop. Whether characterized as consensual or not is, in many respects, beside the point. The issue is structural: power, dependency, pressure \u2013 subtle or otherwise. That dynamic is incompatible with the integrity of any professional institution, let alone one that purports to uphold the highest standards of justice.<\/p>\n

I am not proposing retroactive application here, nor am I suggesting that any such policy be crafted with a single individual in mind. But neither can this be divorced entirely from context. Khan is seasoned, experienced, and deeply embedded in international institutional practice. He would have been, or certainly should have been, acutely aware of the ethical boundaries that govern relationships within hierarchical structures. This is not unfamiliar terrain.<\/p>\n

Indeed, the OTP has, in the past, been the subject of reporting<\/a> and internal scrutiny, pointing to a workplace culture in which issues of harassment and inappropriate conduct were not merely hypothetical concerns. Against that backdrop, any suggestion that lines might be blurred, or that judgment might falter, carries consequences that extend well beyond Khan.<\/p>\n

That is precisely why clarity matters.<\/p>\n

As a forward-looking principle, a zero-tolerance approach is neither radical nor novel. It is already embedded across a wide range of public, private, and international institutions. And yet, it raises a persistent and uncomfortable question: why do these issues continue to surface at the ICC, repeatedly, each time producing reports, investigations, and headlines, but little systemic change?<\/p>\n

At some point, awareness must translate into discipline. Experience must translate into restraint. And institutional responsibility must mean more than reacting after the fact. It must mean drawing a line in advance and ensuring that those who cross it, however senior, however accomplished, however valuable, understand that the consequences are not theoretical, but real.<\/p>\n

Yes, there is a reference to a \u201czero-tolerance\u201d policy on the Administrative Instructions on the Prevention of Sexual Exploitation and Abuse<\/a> and Discrimination, Harassment, Including Sexual Harassment, and Abuse of Authority<\/a>. But when it comes to elected officials, the relevant language suggests something rather different: it allows for discretion where clarity and consequence ought to be mandatory. The procedure<\/a> referenced in these Administrative Instructions explicitly excludes elected officials such as the Prosecutor \u2013 and no procedure is set out in other Administrative Instructions, the Rome Statute, or the Rules of Procedure and Evidence for handling these types of cases against elected officials.<\/p>\n

That ambiguity matters.<\/p>\n

I am not suggesting that due process be compromised, nor that standards be lowered to mere probabilities. Far from it. But when there is a significant imbalance in power \u2013 where a supervisor has the authority not only to promote and mentor but also to sideline or quietly end a subordinate\u2019s career \u2013 the institutional response must be clear and decisive. When professional advancement becomes entangled with personal dynamics, the policies governing such relationships need to be transparent, effective, and strictly enforced.<\/p>\n

This is not a novel insight. It is, in fact, grounded in a rather old understanding of human nature.<\/p>\n

John Locke observed that human beings are driven not only by reason but also by passions and desires that must be restrained. Reason, in other words, is aspirational; it is not always active. James Madison, writing in Federalist No. 10, applied that insight to institutional design. He recognized that individuals will inevitably be drawn toward factions driven by self-interest and noted that there are only two ways to address this problem: remove the causes or control the effects<\/em>. The former, he acknowledged, is largely unrealistic. The latter is the work of governance.<\/p>\n

The same logic applies here.<\/p>\n

It is not particularly controversial to recognize that people in positions of power can, sometimes, misuse that power, including in relationships with those they oversee. Not every such relationship is exploitative. Some may start as consensual and can be genuinely so. However, consent in a hierarchical setting is rarely permanent. It can weaken. It can be revoked. And what might begin as a voluntary relationship can, over time, become much more problematic. That, too, is human nature.<\/p>\n

The challenge is that most of these interactions happen privately, outside the view of immediate scrutiny. When disputes occur, they often turn into a straightforward he said, she said<\/em> stalemate that high standards of proof can\u2019t easily resolve, especially when one side has more institutional power, credibility, and support. Professional achievements are cited. Reputations are defended. Doubt is increased.<\/p>\n

In such a system, ambiguity does not promote fairness; it deepens imbalance. Ethical rules cannot realistically eradicate predatory instincts, nor can they enforce virtue. But they can influence behavior. They can set boundaries in advance. And they can eliminate the grey areas that allow harmful conduct to be justified afterward.<\/p>\n

As it stands, there seems to be enough room within current frameworks to argue that consensual relationships between supervisors and subordinates are acceptable. Maybe they are \u2013 until they are not. Until one person pulls back. Until the power shifts. Until what was once mutual becomes coercive in practice, if not in appearance. By then, the harm is already done.<\/p>\n

If the goal is meaningful reform – reform that is preventative rather than reactive – then the focus must be on controlling the effects. This demands clear, unambiguous language that is enforced without hesitation. It involves eliminating discretion where reliance on it is predictably problematic. It also requires recognizing that, in hierarchical environments, the responsibility for restraint must rest with those in power. Anything less risks maintaining the very conditions that these policies aim to resolve.<\/p>\n

A clearly articulated, unambiguous, and strictly enforced zero-tolerance policy applicable to elected officials would do more than just signal intent; it would establish a firm boundary that cannot be crossed. More importantly, it would send a clear message to those in authority: that the privileges of their positions are tied to the required discipline, and that any slight deviation from that standard will result in non-negotiable consequences.<\/p>\n

Will the ASP seize this moment to establish and enforce a clear, enforceable, zero-tolerance standard for those in positions of authority, or continue letting those in power hide behind unclear, convoluted procedures and high legal thresholds? This is the question that truly defines this moment.<\/p>\n

If the ICC cannot clearly, firmly, and unequivocally draw that line, then the more troubling question is not whether politics and power<\/em> have influenced law and procedure<\/em>, but whether this international judicial institution has yet to internalize the very principles of accountability it is meant to uphold.<\/p>\n

Because ultimately, institutional credibility isn\u2019t maintained by process alone. It\u2019s upheld by the clarity of its standards and the willingness to enforce them confidently, transparently, and unhesitantly.<\/p>\n

\"Don't<\/p>\n","protected":false},"excerpt":{"rendered":"

Perhaps it is a touch indecorous to weigh in on L\u2019Affaire 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 … Continue reading “THE ICC AT AN INFLECTION POINT: But Which One?”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[35,31,18],"tags":[36,32,4],"class_list":["post-5898","post","type-post","status-publish","format-standard","hentry","category-current-events","category-ethics","category-icc","tag-current-events","tag-ethics","tag-icc"],"yoast_head":"\nTHE ICC AT AN INFLECTION POINT: But Which One? - michaelgkarnavas.net\/Blog<\/title>\n<meta name=\"description\" content=\"An analysis of the ICC\u2019s use of the reasonable doubt standard in disciplinary proceedings, and why institutional accountability may require a different evidentiary approach.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/michaelgkarnavas.net\/blog\/2026\/04\/06\/icc-at-inflection-point\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"THE ICC AT AN INFLECTION POINT: But Which One? - michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"og:description\" content=\"An analysis of the ICC\u2019s use of the reasonable doubt standard in disciplinary proceedings, and why institutional accountability may require a different evidentiary approach.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/michaelgkarnavas.net\/blog\/2026\/04\/06\/icc-at-inflection-point\/\" \/>\n<meta property=\"og:site_name\" content=\"michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"article:published_time\" content=\"2026-04-06T01:17:28+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2026-04-06T01:20:20+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/quotefancy.com\/media\/wallpaper\/3840x2160\/7140271-Eric-C-Sinoway-Quote-Inflection-points-come-in-all-forms-positive.jpg\" \/>\n<meta name=\"author\" content=\"Michael G. 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