Justice, in the ICC prosecutor Khan’s case, resides in the reasoning of judges | ICC

In January, I was detained by International Criminal Court (ICC) prosecutor Karim Khan, who is facing an investigation into allegations of misconduct and abuse of authority. I was tasked with undertaking a gender-sensitive analysis of the then-unknown evidence collected by the United Nations Office of Internal Oversight Services (OIOS), tasked with the investigation by the President of the Assembly of States Parties (ASP).

I would also lead the drafting of defense submissions to the Judicial Panel, consisting of three distinguished judges selected by the Bureau of the ASP, the ICC’s executive oversight body. The Judicial Panel was charged with legally characterizing any facts the OIOS found in the course of its investigation. This process, which is not contemplated in existing court regulations, was designed and implemented by the bureau and established specifically for this complaint.

As a condition of receiving the disclosure, I signed a confidentiality agreement prohibiting me from discussing the testimony. However, I am allowed to respond to any inaccurate or misleading information placed in the public domain. I intend to fulfill these obligations in this article.

The OIOS’ investigation began in November 2024 and lasted until December 2025. All parties had extensive interviews and were able to submit any material they believed to be relevant. OIOS investigators also interviewed many others and collected material independently. Contrary to what has been reported regarding the allegation of sexual misconduct, there are no corroborating witnesses. The material collected ran to more than 5,000 pages.

The Judicial Panel spent three months reviewing the OIOS report and the mass of underlying material. In March, the judges handed down an 85-page report, in which they recounted and analyzed the evidence. In their conclusion, as publicly reported, the judges stated that they were “unanimously of the opinion that the factual findings by OIOS do not establish misconduct or breach of duty under the relevant legal framework.”

This finding did not surprise me. The totality of evidence gathered by the OIOS was, in my view, unable to meet the long-accepted standard of proof beyond a reasonable doubt. I remain unconvinced that a lower standard of proof would have produced a different outcome. The doubt inherent in the evidence was not merely reasonable; they were serious.

So far, so simple. However, when the Judicial Panel’s conclusion became public, a number of intriguing events unfolded.

First, the bureau circulated an “OIOS Report Summary,” which did not summarize the summary operative section of the OIOS report, titled “Findings,” but instead drew from the report’s brief narrative overview in an early section titled “Overview.” That the summary was misaligned with the OIOS’s findings was clear not only from reading the OIOS report’s “Findings”, but also from the Judicial Panel’s analysis of the OIOS report, which repeatedly referred to the lack of conclusive findings of fact made by the OIOS.

The purported summary, which gave the impression that the OIOS had made conclusive findings of fact regarding the sexual misconduct allegations, was promptly leaked.

At the same time, in the public space, a number of individuals and organizations, none of whom had access to the evidence, began to argue that the bureau was disregarding the reasoned analysis and unanimous conclusion of the Judicial Panel. This was contrary to the position taken while the investigation was ongoing.

In May, for example, the International Federation for Human Rights and the Women’s Initiative for Gender Justice issued an explanation in which it emphasized that the “legal assessment must be carried out by experts and cannot be undertaken by a political body. It is essential that an independent body, distinct from the ASP Bureau, conducts the legal assessment of the OIOS’s factual findings to ensure fairness, impartiality and institutional credibility.”

Beneath the surface of these curious events there appears to be a belief, reached despite the relevant individuals and organizations not having access to or studying the evidentiary record, that the only correct finding is one establishing serious misconduct.

Believing that justice resides only in one particular outcome risks injustice. First, and immediately, the presumption of innocence, a cornerstone of due process, is rejected. Spoken arguments and a willingness to deceive are justified in the service of what one has decided is a greater good.

The dangers of a non-evidence-based belief have not been fully recognized. This shockingly opened the door to the possibility that diplomats on the bureau would turn a blind eye to the expertise and analysis of distinguished judges who reached a carefully reasoned and unanimous finding that the facts did not show either misconduct or dereliction of duty. If an ICC prosecutor were to be removed or even sanctioned by political actors after being acquitted by an independent Judicial Panel, it would raise serious questions about the independence of the Office of the Prosecutor, especially when that office has expanded the reach of the court beyond that of geopolitically weaker states.

People often believe that they have an instinct for justice. They don’t. But that belief is key to why individuals’ views about the “right” outcome persist, even though they know they haven’t wrestled with the evidence.

Justice is not a matter of faith, nor can it be found in political expediency.

The closest we have come to designing meaningful legal systems is to ensure that there is a meaningful inquiry in which all parties can participate and are treated with dignity and in which the due process rights of the subject are respected before the full evidentiary record is thoroughly analyzed by qualified, impartial judges or juries and a predetermined standard of proof is applied. This is what happened here.

Should the bureau, a political entity, disregard the rigorous analysis and unanimous conclusion of the distinguished Judicial Panel – thereby violating the jurisprudence that binds the bureau – it would raise deeply troubling questions about the impartiality and independence of a process that will determine the future of the ICC prosecutor and, along with the court.

After a year-long investigation and a three-month review of the evidence, the independent, impartial and distinguished Judicial Panel delivered its long, reasoned verdict and unanimously determined that the OIOS’ findings of fact did not confirm misconduct or dereliction of duty on the part of the prosecutor.

That is the outcome, based on the evidentiary record, and it is fair. The bureau must uphold the Judicial Panel’s considered findings and declare the case closed.

The opinions expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial position.