ICC could be ordered to reinstate prosecutor if it removes him, judge argues

ICC could be ordered to reinstate prosecutor if it removes him, judge argues Submitted by Sondos Asem on Wed, 05/20/2026 - 12:28 Former ICJ judge says any disciplinary process against Karim Khan would likely be overturned on appeal, with court also required to pay out substantial compensation Karim Khan told MEE earlier this month he would appeal to an International Labour Organization tribunal if removed from his job (AFP) Off The International Criminal Court (ICC) could be ordered to reinstate its chief prosecutor, Karim Khan, and pay up to €1.5 million ($1.74m) in compensation should the court's governing body remove or sanction him, a senior international judge has warned. In a legal opinion shared with ICC member states earlier this month, Abdul Koroma, a former International Court of Justice judge, said that the prospects of a successful appeal by Khan against dismissal or any disciplinary action were considerable. Koroma called on the bureau of the Assembly of State Parties (ASP), the ICC’s executive governing body, to adopt the conclusion of a judicial panel that concluded that a UN investigation into misconduct allegations by Khan had not established any wrongdoing. The seven-page opinion, seen by Middle East Eye, examines whether the disciplinary procedure adopted by the ASP would withstand challenge before the International Labour Organization Administrative Tribunal (ILOAT), the body to which ICC staff may appeal employment decisions. Koroma argues that it is likely an appeal by Khan would be successful. In the event the bureau proceeds against the prosecutor, he writes, Khan would be entitled to reinstatement and compensation. The ASP bureau’s 21 members are due to convene on Wednesday, where they may vote on Khan’s fate, more than a month after a majority backed a motion stating that he may have committed some form of misconduct. Exclusive: ICC prosecutor Karim Khan details 'dangerous' attempt by states to remove him Read More » Khan told MEE in an interview earlier this month that he would appeal to the ILOAT if the ASP sought to remove him. MEE has asked Khan for comment. The misconduct probe has left the court in an unprecedented state of limbo amid uncertainty surrounding Khan's future and leaks to the media about the allegations that he faced. Allegations of sexual misconduct emerged in May 2024. The complainant refused to cooperate with the ICC’s own investigative body, prompting the ASP to commission an outsourced UN-led investigation. The findings of that investigation were then delivered to a panel of judges, who were tasked with advising the ASP bureau on whether Khan has committed serious misconduct, less serious misconduct, or no misconduct at all. That panel of judges found that the report contained "insufficient evidence” of misconduct according to the standard of proof required by the process. The ASP bureau’s 21 states are now expected to vote on whether they believe Khan committed misconduct.  If they decide he is guilty of serious misconduct, the larger 125-member ASP will vote on the findings, with a two-thirds majority required to uphold that decision. A second vote would then take place to remove him. Beyond reasonable doubt The panel of judges followed the “beyond reasonable doubt” standard, the highest standard of proof in criminal law and the one adopted by the ICC in misconduct cases. Some civil society groups and ICC states have criticised this standard as too high in the context of a non-criminal case. In his opinion, Koroma backs the panel's application of the "beyond reasonable doubt" standard, which ILOAT has held to be the appropriate threshold in disciplinary proceedings against international civil servants, given the severe consequences for the staff member.  'Any attempt to re-open litigation of the matter would undermine the integrity of the Institution and the rule of law' - Abdul Koroma, former International Court of Justice judge He notes the panel found that investigators had failed to make conclusive determinations on contested issues, and that one of its judges expressed "serious doubts" that the evidence could ever meet that threshold. He describes the panel's report as "thorough, clear and well-reasoned", and concludes that if the bureau does not come to a unanimous recommendation, any resulting decision by the wider ASP would face a "considerable likelihood" of being overturned. Koroma also identifies what he characterises as multiple procedural violations, saying the bureau was incorrect to deny the panel more time to deliberate or conduct additional fact finding. He argues that the bureau erroneously adopted a procedure that allowed an “initial determination” of possible misconduct before the prosecutor had any opportunity to respond. A successful appeal would likely result in Khan's reinstatement or payment of substantial compensation, Koroma writes. With four years left of his term, Khan would be entitled to total compensation in the range of €800,000 to €1m in damages, which could cover reputational damage, the delay in the proceedings, breach of duty of care and injury to health. Koroma further argues that exemplary damages - which the ILOAT reserves for exceptional cases where bias, ill will, malice or bad faith have been shown - have a good prospect of success, particularly given the bureau’s apparent unwillingness to accept the panel's recommendations. With exemplary damages included, he estimates the total award could exceed €1.5m. Koroma concludes that the bureau should adopt the panel's report and close the matter. “It is my considered view that the Bureau should adopt the Report of the independent Judicial Panel bringing the matter to a close in the interest of all concerned and the Institution,” he writes. “Any attempt to re-open litigation of the matter would undermine the integrity of the Institution and the rule of law.” Koroma served as a judge of the International Court of Justice (ICJ) from 1994 to 2012, was previously a member of the UN International Law Commission, and has sat on the administrative tribunals of the World Bank and the African Development Bank. Uncertain future Uncertainty surrounds Khan's future as chief prosecutor. Last month, MEE revealed that a group of predominantly western and European states had voted to disregard the opinion of the judges' panel and to make their own assessment based on the evidence presented in the UN-led report. The report presented evidence and counter-evidence from complainants and Khan but, according to the  panel, “either did not reach conclusive factual determinations or concluded that such determinations were impossible based on the evidence collected”. Exclusive: Staff in Karim Khan's office write in support of his return to ICC Read More » The panel also said the UN report did not indicate which witnesses' testimonies were credible and which were rejected, did not resolve "narrative inconsistencies and discrepancies", and did not "thoroughly test witnesses' motive or bias". It added that the report relied on hearsay evidence in the absence of direct evidence of misconduct, which they assessed as carrying less evidential weight. Accordingly, the panel said it found itself "compelled to the conclusion that on the materials disclosed, there is insufficient evidence to support a finding of misconduct measured against the standard of proof of beyond reasonable doubt". The allegations against Khan have unfolded in parallel with a campaign to disrupt his office's efforts to pursue a war crimes investigation against Israeli officials over the genocide in Gaza. In an interview with MEE earlier this month, Khan said that the process against him had taken the court into "unchartered territory" and risked creating a "dangerous precedent" in which elected officials could be undermined and removed by political pressure. "If a process can be suborned, if it can be subverted, if it can be undermined, because state appointees and diplomats, for whatever reason, think they know better, then this is a template for getting rid of any elected official, now or in the future, on spurious or flimsy or fabricated or unfounded grounds," said Khan. ICC arrest warrants News Post Date Override 0 Update Date Mon, 05/04/2020 - 21:19 Update Date Override 0