The suspended chief prosecutor’s lead counsel tells FMT the court’s governing body sidelined three eminent judges, raising troubling questions over due process and judicial independence.
That question now lies at the heart of an extraordinary dispute over the future of Karim Khan, the British barrister whose decision to seek arrest warrants against Israeli leaders thrust the world’s permanent international criminal court into the geopolitical crossfire over Gaza.
In written responses to FMT, Khan’s lead counsel, New York-based lawyer Sareta Ashraph, argues the answer is an emphatic no.
She says the court’s governing body abandoned the findings of three eminent judges after they unanimously concluded that the evidence did not establish misconduct or breach of duty under the ICC’s legal framework.
For Ashraph, this is no longer simply about allegations of sexual misconduct.
It is about whether an institution founded on the rule of law is prepared to disregard its own legal process when the outcome proves inconvenient.
A court built on law
The ICC prosecutes individuals accused of genocide, crimes against humanity, war crimes and the crime of aggression.
Its chief prosecutor occupies one of the most powerful legal offices in the world, deciding which atrocities merit international prosecution and which political leaders may face justice in The Hague.
That is why the disciplinary proceedings against Khan carry consequences far beyond one individual.
The outcome will help define how the court applies the rule of law to itself.
Three judges, one conclusion
The dispute centres on two very different institutions within the ICC.
The first was an independent judicial panel established by the Bureau of the Assembly of States Parties, the court’s governing body, to examine whether Khan had committed misconduct.
The second is the bureau itself, a group of diplomats elected by ICC member states to oversee the assembly’s work between its annual sessions.
Ashraph says the conflict began when those two bodies reached different conclusions.
The judicial panel was chaired by Justice Seymour Panton, a judge of the United Nations International Residual Mechanism for Criminal Tribunals and former president of Jamaica’s Court of Appeal.
He was joined by Justice Paul Lemmens, formerly Belgium’s judge at the European Court of Human Rights, and Justice Bess Nkabinde Theron of South Africa’s Constitutional Court.
Over three months, the judges examined the United Nations Office of Internal Oversight Services investigation, reviewed more than 5,000 pages of evidence and considered witness statements, messages and supporting documents.
Their conclusion was unanimous. The evidence, they found, did not establish misconduct or breach of duty by Khan under the applicable legal framework.
Ashraph believes that should have ended the matter.
“The unanimous legal determination of the independent judicial panel should have marked the end of the matter,” she told FMT.
Instead, she says, the bureau chose another path.
Judges set aside
Ashraph’s criticism is directed at the diplomats who later reached a different conclusion after the judicial panel had completed its work.
According to Ashraph, the bureau effectively substituted its own assessment for that of judges it had appointed because of their legal expertise, independence and impartiality.
“What is transparently the case,” she said, “is that the 13 diplomats on the bureau disregarded the meticulous analysis and the unanimous reasoned conclusion of the judges because the judges did not deliver to them the outcome they wanted.”
She argues that the judges’ report was not an advisory exercise to be accepted only if it proved politically convenient.
It was the product of a process the bureau itself had established.
“Consequently, the work of the eminent judges has been cast aside, like a malfunctioning rubber stamp.”
Whether one agrees with that assessment or not, Ashraph’s argument raises a broader institutional question.
How does an organisation dedicated to the rule of law behave when its own legal process produces an inconvenient answer?
That question now extends well beyond Khan. It goes to the credibility of the ICC itself.
A vote unlike any other
The Assembly of States Parties, which comprises representatives of the ICC’s 125 member states, will meet in New York on July 24 to decide Khan’s future.
The vote comes days after the Malaysian lawyer, identified publicly only as Sarah, abandoned her anonymity to speak to CNN about the sexual misconduct allegations she has made against Khan.
Her interview did not add to the evidence before member states, who already had access to her statements and the wider evidential record.
It did, however, ensure that public attention shifted from confidential legal proceedings to the complainant’s own televised account of those allegations.
The assembly’s decision will not determine whether the allegations against Khan are true or false. Nor will it amount to a criminal trial.
Instead, member states must decide whether the conduct alleged against Khan justifies removing an elected chief prosecutor under Article 46 of the Rome Statute.
For Ashraph, however, the more fundamental issue comes first.
She says member states must first answer a fundamental question: why are diplomats being asked to revisit evidence that three independent judges have already examined and unanimously concluded did not establish misconduct?
Beyond one prosecutor
The dispute unfolds against one of the ICC’s most politically charged periods.
In May 2024, Khan sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant, alongside senior Hamas leaders, over alleged war crimes and crimes against humanity arising from the Gaza conflict.
The move drew fierce opposition from Israel and the United States.
Months earlier, a group of Republican senators had warned Khan: “Target Israel and we will target you.”
Khan proceeded anyway.
Ashraph does not claim that the allegations against her client were manufactured or directed by governments.
Instead, she argues that once an independent judicial panel had completed its work, the bureau should have accepted its conclusions rather than revisit the evidence through a political process.
“The work of the judicial panel offered a sober and rigorous legal process that led towards a reasoned and impartial outcome,” she said.
“What we are witnessing is the powerful few, disappointed by the impartiality of the judges they appointed, now seeking to shape a process that they hope will deliver their desired outcome.”
Whether that criticism is justified will ultimately be for the Assembly of States Parties to decide.
Its vote on July 24 is not simply about the future of Khan. It will also answer a wider question facing ICC:
When judges and diplomats disagree over the same evidence, whose judgment should prevail? - FMT
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