ICC states should not ignore judicial experts’ conclusions in Khan’s case

It is now for the 21 ICC states represented on the bureau to decide whether to uphold or depart from the panel’s legal conclusion. If the bureau were to find misconduct of a less serious nature, it could impose sanctions on Khan. A finding of serious misconduct would lead to a plenary ASP vote on the possible removal.

A minority of bureau members have reportedly been pushing for the judicial experts’ report to be set aside and for the bureau to substitute its own conclusions for those of the panel. This would be a precarious step. We are concerned that it would undermine the quality of subsequent decisions in Khan’s case and seriously damage the integrity of the ICC’s governance framework. It would also raise serious questions about the state parties’ credibility and their commitment to the rule of law in governing the court.

This position is consistent with our unequivocal belief that there must be zero tolerance for sexual and other forms of workplace abuse in any organisation — public or private — especially those dedicated to international justice and the fight against impunity for the most serious crimes, and that accountability for any such abuse is non-negotiable.

At the same time, particularly in politically sensitive cases, strict adherence to due process, the highest standards of decision-making, and the rule of law is of paramount importance to prevent ill-founded decisions, political interference, and abuse of power. These convictions are not in tension. For us, the ends do not justify the means.

It is true that the bureau is not legally bound by the panel’s conclusions: the experts performed an advisory function, and their report is not formally binding. Their mandate was to assist the bureau in reaching a credible and well-founded decision on the legal assessment of the factual findings reached in the UN investigative report.

The question before the panel was strictly legal. It was to give a legal characterisation of facts established by UN investigators. Factual findings are distinct from the allegations or the evidence on which they are based, and, as far as can be judged from media reports, the panel did not cross that line.

Diplomats should refrain from assuming the role of judicial experts at this stage, particularly now that such judicial expert advice has been issued. As a political body, the bureau initially recognised that it was not well-placed to make this legal determination on its own — understandably so, given the risks of politicisation of the process and the diminished credibility of any outcome. It mandated a nonpolitical, quasi-judicial body — a panel of judicial experts with relevant subject-matter expertise and experience — to carry out that assessment. This was a sound decision.

The integrity of the court and of the Rome Statute system is at stake as never before. Given the seriousness and complexity of this matter, it was appropriate that the legal assessment be entrusted to an independent and impartial body of judicial experts. In politically charged contexts, such bodies are best placed to assist political decision-makers in reaching conclusions that are both well-founded and credible – and, as much as possible, insulated from political influence.

This is precisely what the bureau set out to achieve. It developed a novel procedure to be applied to this case and itself chose and appointed the judicial experts. As revealed by The New York Times, the panel was composed of three highly regarded senior judges with impeccable track records and experience serving on the highest national and international courts. Tasked with the legal analysis of the UN investigators’ factual findings, it did the job it was meant to do – where such findings had been made.

But now that the process has run its course and the panel has reached its conclusions after three months of intensive work, some states and rights advocates are ready to ignore them because they disagree with the result. Why pursue a quasi-judicial process in the first place if its outcome can so readily be dismissed?

We are convinced that, given the current stage and the nature of the process that was adopted to get there, the panel’s report should be accorded due deference by the bureau and taken seriously, not dismissed lightly, by ICC states. Should states substitute their own conclusions, however, the outcome would be even more problematic than if no panel had been established in the first place.

Disregarding the report will create the impression that the panel was only needed to assist states in reaching one specific conclusion. Can the impression be avoided then that the judicial expert panel’s report has lost all value in the eyes of assembly officials and bureau states, who had devised and supported this process, once its conclusions proved unwelcome? The spectre of a show trial looms large.

Furthermore, if states disagree with the panel, one must ask: based on what factual findings and based on whose legal analysis? The bureau would need a very solid foundation to depart from the judicial experts’ conclusions. But it can realistically neither conduct a follow-up investigation to collect additional evidence and analysis of facts to resolve the remaining uncertainties, nor engage in their legal consideration de novo.

In our view, dismissing the judicial expert report and substituting the bureau’s own judgement would be deleterious to the rule of law, due process, and the integrity of the legal determination as to the existence or otherwise of misconduct by Prosecutor Khan. It would also undermine the authority of the judicial panel mechanism now codified in the ICC rules for any such situations in the future.

Political decision-making should not be allowed to replace and displace a legal assessment carried out in accordance with the highest standards of judicial competence, independence and impartiality, which the political body itself insisted on upholding.

The implication that legal form was used merely as a cover for arbitrary power would be hard to escape. We fear that this would plunge the ICC system deeper into an already existing crisis, without offering the relief some may hope for. The ICC states know full well that this is a cost they cannot afford, particularly at this juncture.

The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial stance.