One week in the past, a number of shops reported on a consequential growth within the disciplinary case relating to the alleged sexual misconduct by the Worldwide Prison Courtroom (ICC) prosecutor, Karim Khan. In a confidential report addressed to the Bureau of the Meeting of States Events (ASP), the judicial consultants tasked with assessing the United Nations probe’s factual findings unanimously concluded that no misconduct or breach of responsibility by Khan may very well be established underneath the authorized framework.
It’s now for the 21 ICC states represented on the bureau to determine whether or not to uphold or depart from the panel’s authorized conclusion. If the bureau had been to search out misconduct of a much less critical nature, it might impose sanctions on Khan. A discovering of great misconduct would result in a plenary ASP vote on the doable elimination.
A minority of bureau members have reportedly been pushing for the judicial consultants’ report back to be put aside and for the bureau to substitute its personal conclusions for these of the panel. This could be a precarious step. We’re involved that it could undermine the standard of subsequent choices in Khan’s case and critically injury the integrity of the ICC’s governance framework. It might additionally elevate critical questions in regards to the state events’ credibility and their dedication to the rule of legislation in governing the courtroom.
This place is in step with our unequivocal perception that there should be zero tolerance for sexual and different types of office abuse in any organisation — public or personal — particularly these devoted to worldwide justice and the combat towards impunity for essentially the most critical crimes, and that accountability for any such abuse is non-negotiable.
On the similar time, notably in politically delicate circumstances, strict adherence to due course of, the best requirements of decision-making, and the rule of legislation is of paramount significance to stop ill-founded choices, political interference, and abuse of energy. These convictions should not in stress. For us, the ends don’t justify the means.
It’s true that the bureau just isn’t legally certain by the panel’s conclusions: the consultants carried out an advisory operate, and their report just isn’t formally binding. Their mandate was to help the bureau in reaching a reputable and well-founded determination on the authorized evaluation of the factual findings reached within the UN investigative report.
The query earlier than the panel was strictly authorized. It was to provide a authorized characterisation of details established by UN investigators. Factual findings are distinct from the allegations or the proof on which they’re based mostly, and, so far as might be judged from media stories, the panel didn’t cross that line.
Diplomats ought to chorus from assuming the position of judicial consultants at this stage, notably now that such judicial skilled recommendation has been issued. As a political physique, the bureau initially recognised that it was not well-placed to make this authorized willpower by itself — understandably so, given the dangers of politicisation of the method and the diminished credibility of any final result. It mandated a nonpolitical, quasi-judicial physique — a panel of judicial consultants with related subject-matter experience and expertise — to hold out that evaluation. This was a sound determination.
The integrity of the courtroom and of the Rome Statute system is at stake as by no means earlier than. Given the seriousness and complexity of this matter, it was applicable that the authorized evaluation be entrusted to an unbiased and neutral physique of judicial consultants. In politically charged contexts, such our bodies are greatest positioned to help political decision-makers in reaching conclusions which might be each well-founded and credible – and, as a lot as doable, insulated from political affect.
That is exactly what the bureau got down to obtain. It developed a novel process to be utilized to this case and itself selected and appointed the judicial consultants. As revealed by The New York Instances, the panel was composed of three extremely regarded senior judges with impeccable monitor information and expertise serving on the best nationwide and worldwide courts. Tasked with the authorized evaluation of the UN investigators’ factual findings, it did the job it was meant to do – the place such findings had been made.
However now that the method has run its course and the panel has reached its conclusions after three months of intensive work, some states and rights advocates are able to ignore them as a result of they disagree with the end result. Why pursue a quasi-judicial course of within the first place if its final result can so readily be dismissed?
We’re satisfied that, given the present stage and the character of the method that was adopted to get there, the panel’s report must be accorded due deference by the bureau and brought critically, not dismissed calmly, by ICC states. Ought to states substitute their very own conclusions, nonetheless, the result could be much more problematic than if no panel had been established within the first place.
Disregarding the report will create the impression that the panel was solely wanted to help states in reaching one particular conclusion. Can the impression be averted then that the judicial skilled panel’s report has misplaced all worth within the eyes of meeting officers and bureau states, who had devised and supported this course of, as soon as its conclusions proved unwelcome? The spectre of a present trial looms giant.
Moreover, if states disagree with the panel, one should ask: based mostly on what factual findings and based mostly on whose authorized evaluation? The bureau would wish a really stable basis to depart from the judicial consultants’ conclusions. However it may realistically neither conduct a follow-up investigation to gather extra proof and evaluation of details to resolve the remaining uncertainties, nor have interaction of their authorized consideration de novo.
In our view, dismissing the judicial skilled report and substituting the bureau’s personal judgement could be deleterious to the rule of legislation, due course of, and the integrity of the authorized willpower as to the existence or in any other case of misconduct by Prosecutor Khan. It might additionally undermine the authority of the judicial panel mechanism now codified within the ICC guidelines for any such conditions sooner or later.
Political decision-making shouldn’t be allowed to switch and displace a authorized evaluation carried out in accordance with the best requirements of judicial competence, independence and impartiality, which the political physique itself insisted on upholding.
The implication that authorized type was used merely as a canopy for arbitrary energy could be laborious to flee. We concern that this could plunge the ICC system deeper into an already present disaster, with out providing the reduction some might hope for. The ICC states know full nicely that this can be a price they can’t afford, notably at this juncture.
The views expressed on this article are the authors’ personal and don’t essentially replicate Al Jazeera’s editorial stance.
