Tayab Ali@tayab_ali_
Statement by Tayab Ali, solicitor, and Sareta Ashraph, counsel, for Karim A. A. Khan KC, Prosecutor of the International Criminal Court
Hague / London: We are aware of widespread media reporting suggesting that a majority of States in the Bureau have expressed the political view that the Prosecutor has committed some form of misconduct.
The Prosecutor has not been informed of any decision by the Bureau.
If these reports are accurate, they give rise to serious concern. This statement is issued to correct the public record.
It is alarming and places the Bureau outside of the law that governs it, if political representatives have sought to substitute their own assessment for that of an eminent independent Judicial Panel. That Panel, comprising three highly distinguished international judges and appointed by the Bureau itself, reviewed the entirety of the evidential record over a period of three months and reached a unanimous and unequivocal conclusion: that the material does not establish any misconduct or breach of duty of any kind.
That conclusion was reached applying the applicable standard of proof and the same legal framework used in comparable proceedings, as stipulated by the Bureau itself. Given the paucity of the underlying evidence, we are far from convinced that a lower standard of proof would have yielded a different outcome.
By contrast, the investigator’s report of the Office of Internal Oversight Services, which was reviewed in full by the Judicial Panel together with all the underlying evidential material, did notmake determinative findings of any misconduct or breach of duty within their 137 actual findings. It compiled material, including allegations, which required legal evaluation. As the Judicial Panel made abundantly clear there were no findings by OIOS against Mr Khan. The Judicial Panel explained that a finding is not the repetition of an allegation or a reference to evidence or information; it is the result of subjecting that material to rigorous scrutiny and legal analysis. That is precisely what the Judicial Panel undertook.
Contrary to what is being reported, there are no witness accounts to corroborate these unsubstantiated allegations; to the contrary, the independent Judicial Panel identified contradictory evidence. Contrary to reports, neither the OIOS nor the Judicial Panel made any findings of retaliation against any staff.
It is also necessary to address the circulation by the Bureau of the “OIOS Summary” document prepared months after the underlying report. That summary is not accepted by the Prosecutor as fair or accurate. It does not reflect the definitive report and risks mischaracterising both the evidential position and the investigative conclusions.
There is a fundamental distinction between investigative material and a judicial determination. Any process which treats them as equivalent departs from basic legal principle. The Panel’s report, based on a detailed review of the evidence and resulting in a clear, reasoned, and unanimous decision, should properly have guided the Bureau and led to the closure of this matter. An investigator’s report does not have the same weight as a Judicial Panel finding in any rule of law system.
If it is the case that this conclusion has instead been set aside, it raises cogent and troubling questions about whether political considerations have been allowed to displace legal judgment. Any such outcome would risk presenting what is, in substance, a political determination as if it were a factual one.
The Prosecutor has consistently denied any wrongdoing or any misconduct of any kind. The Prosecutor rejects any politicisation of this process and will take all necessary steps to vindicate the Judicial Panel’s clear and unanimous findings, including by formally challenging any such decision before the Assembly of States Parties.
We have for some time raised concerns regarding apparent alignment between elements of the Bureau process and media reporting. The consistency and timing of recent coverage will inevitably reinforce those concerns and require careful scrutiny.
We are bound by strict confidentiality obligations and will continue to respect them. It is, however, a matter of concern that those obligations do not appear to have been uniformly observed.
We have no further comment at this stage.
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