Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

Justice Update – ICC Special Session Look Ahead

[INTRO TUNE]

 Asymmetrical haircuts. Justice Update with Janet Anderson and Stephanie Vandenberg in partnership with Justice info.net. 

Janet: 0:09  Hi Steph.

Steph: 0:10  Hi Janet.

Janet: 0:11  So, really big news in our world. There will be an extraordinary session of the International Criminal Court’s Assembly of States Parties in about a month, on July the 24th. And I’ve called it extraordinary, but is it extraordinary? Is it special? What is it Steph? What’s going on?

Steph: 0:29  I think it is indeed extraordinary, but I’m sure all of the Twitter and LinkedIn commentators will tumble over me if I said it wrong. It’s at least a non-planned session. This is where the ICC’s 125 member states, and yes, there’s still 125 even though Niger put in its official letter that it’s going to leave the court, but you know that takes a year to actually stick. And they will likely decide on the fate of Prosecutor Karim Khan after the Assembly of States Parties Bureau decision to send the case to the entire Assembly of States Parties after they made a June 8 decision.

Janet: 1:06  Don’t worry if you’re already confused because we’re going to parse that out and describe what all of those elements are. But that particular decision is what’s given you a big profile this week, the week that we’re recording, Steph, because you got some special insight into the decision. You got access to, I think, the written version and based on that, you did a Reuters story.

Steph: 1:29  Yeah, so this is going to be one of those podcasts where I am going to be very careful and I can only say what I and others have reported. So, I’m going to hand this over to Janet to Janetopedia and remind us how we got here.

Janet: 1:43  I’m also going to be pussyfooting around or at least trying to avoid what I get each time I write on this. Some very nice, but often some very detailed “where you are wrong” responses from people. Sometimes, of course, I know that I’m wrong, but everybody in this case is operating in a kind of murky darkness with a lack of transparency and hiding, in my personal view, behind the need to protect identities, which I recognise, protect the rights of alleged victims, which I recognise, protect the rights of alleged accused, which I also recognise. So, we only, in the end, have these basic journalistic reports as how we’re going to understand what is going on. And those are all based on leaks each time, depending on which side somebody has spoken to or which source they’ve got. The ASP Bureau is so mealy mouthed, so unable to explain what it is doing publicly, that the whole affair has really turned into this slamming match, in my view, of contradictory commentary with everybody shaking their heads and shaking their fingers at each other and saying, oh, you know, that’s wrong, but I wish I didn’t have to say it. But there we are.

Steph: 2:57  Now, now, Janet, we’re going to get to the communications fuck up as we go. But first, you have to get back to your Janetopedia job because we need to know how we got here and what we’re actually talking about.

Janet: 3:09  OK, I will restrain the Janet rant for a little bit later again and go back to the agreed lines that we have put together on what has been going on. So we have to head back two years. It was in May 2024. What we now know is that a junior lawyer in Karim Khan’s office first described “sexual misconduct,” and I’m going to put air quotes around that, by her boss, Karim Khan, the chief prosecutor of the ICC. And she told her colleagues, and then her colleagues decided to report it to the court. Now, that allegation, because the colleagues passed it on, was looked at by the court’s own internal oversight mechanism, the IOM. But they closed the case because the alleged victim at the time said that she did not want to pursue a complaint.

Janet: 4:01  And there’s a whole sub-genre of commentary about oversight at the ICC, about the IOM, whether it’s adequate, whether it’s trusted, whether it’s the right body to investigate an elected official. And as we’ll see, there was a decision that it wasn’t quite the right body, and things moved on from there. We need to stress again and again that Karim Khan has strenuously denied these allegations. He continues to deny any allegations of misconduct.

Janet: 4:31  Now, this is another sub-genre of commentary to note that there is a timeline that people have put together paralleling what was going on in this particular investigation with what was happening in the court in general. And this was the time that Karim Khan went on television with an exclusive interview with CNN to announce that he was going to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his then-Defence Minister Yoav Gallant. Now, we don’t suggest any link, again, much for the partisan community on one side or the other does, partly because Israel is also alleged to have bullied, threatened the former prosecutor Fatou Bensouda, specifically on the issues of Israel and Palestine. So that backdrop and that timing has played a massive role in how people frame this issue. You know, who are the heroes? Who are the villains? In this case, depending on where you stand on some of those issues.

Janet: 5:33  So it’s important to note as well that the warrants themselves, after Karim Khan’s office had applied for them, were then confirmed by the ICC’s own independent judges who looked at the evidence and said that there is sufficient evidence here to go ahead. These judges, of course, have since been sanctioned by the United States, just like the prosecutor and his deputy prosecutors by the United States for their roles in really going against US’s allies, i.e. Israel, in this case. Now, the story of alleged sexual misconduct leaked. And everything always does leak, guys. Come on, get used to it. This is the way that the world works.

Janet: 6:15  And eventually it resulted in October 2024, in a big Associated Press investigation, a story by a friend of the pod, Molly Quell, outlining what she knew at that point of the accusations. The court’s governing body, the Assembly of States Parties, remember Steph’s already said it’s the full shebang is still 125 members. But more specifically, in this case, the Executive Bureau, that’s 21 members. These are countries that have been elected by other members of the ASP. These are all ambassadors from different states. They meet together to help run the ICC on a daily basis. And they have a three-person presidency, which is topped by, who’s it topped by?

Steph: 6:57  I believe Finland, Poland and Sierra Leone, but I’m going to fact check that right away.

Janet: 7:02  You are correct. I did fact check it earlier. I just wanted to make sure people still know that Steph is in the room. There we go. So the Bureau itself stepped in after all of this stuff became public. And I remember, I think you were there as well, Steph, at the Assembly of States Parties that year. That was the end of 2024. They announced that they were going to investigate this and it was going to be an independent investigation. Later, they said that they hired UN investigators from the OIOS. I believe that that is the Office of Independent Oversight Services.

Steph: 7:38  Yes.

Janet: 7:39  Yes. Thank you, Steph.

Steph: 7:41  Yes. On the acronyms. Ding, ding, ding.

Janet: 7:44  Ding, ding, ding. Again, much of the commentary that we’ve seen since that time has been over rules, who makes decisions, who receives information. Just in case anybody needs to know, Steph now has a beautiful fan up because it is one of the hottest days of the year and she is looking after herself. Well done, Steph. So that commentary has been about rules and also whether the OIOS is any good at doing its jobs. Do these UN investigators actually deliver? I mean, we’re journalists, guys. We don’t do that kind of deep investigation which involves this kind of level of alleged misconduct. We just report it in the end, you know. So let’s hope that people who know what they’re doing do do a good job. But that’s a lot of the commentary. The UN investigators took months to report. They interviewed absolutely everybody and I mean everybody. Then they produced what is best described as a kind of fact-finding report in November 2025. So you see how long that took. Have you actually seen it, Steph?

Steph: 8:44  I have personally have not seen it but my Reuters colleague has and we reported on parts of it.

Janet: 8:57  So that United Nations OIOS report was sent on to a panel of outside judges by the Bureau and the Bureau again selected those judges. They chose three judges. They gave them a TOR, a terms of reference. I’ve seen that. That’s one of the few documents that I have seen and it asked them to make a legal determination just based on what was reported by the United Nations. I, though, have not seen the judges’ report. Have you, Steph?

Steph: 9:21  No, none of these are public but some parts were leaked and some summaries were leaked. 

Janet: 9:27  So Reuters, which is Steph, and AP, which is Molly, they both reported that these UN investigations had said that there is a quote “factual basis,” unquote, for the allegations and more specifically that Khan had quote “non-consensual sexual contact,” unquote, with the alleged victim.

Steph: 9:49  Well we have to say here that Karim Khan’s lawyers dispute that this is the outcome of the UN report. This finding of non-consensual sexual contact. They point specifically to the panel of judges’ report who said that they couldn’t make any findings based on the OIOS report that would meet the legal standard of quote “beyond a reasonable doubt,” unquote.

Janet: 10:07  Yeah, the Karim Khan camp has presented this as an exoneration of him. I feel that they give the judges a particular capital J here to say these, you know, it’s important. These people are judges, that they found no basis for a misconduct finding. 

Steph: 10:27  Others who’ve seen the report also point out that the judges did not definitely find he didn’t commit misconduct and that they couldn’t find any findings beyond a reasonable doubt.

Janet: 10:39  So you can imagine how confusing this all is for people like us to report on. But there you go, this is what we know. Now all of this documentation, all these different reports went back to the Bureau. They were all watermarked to try to prevent leaks. Good luck with that guys. The Bureau, just to repeat again, is the 21 diplomats. Legal buffs like to point out they’re diplomats rather than judges or rather than legal people. The Bureau met again and again over recent months and they reviewed everything. And on June the 8th, just under a month ago, they decided what, Steph?

Steph: 11:20  Well, here I can talk about this because I can cite from my story, which was based on copies that I saw of the Bureau decision, again leaked to me. And the Bureau says this, quote, “the evidence establishes beyond a reasonable doubt that the prosecutor,” and then they go into his position, I think the text is akin to secretary general level, “engaged in a sexual relationship with the victim who is a P2 level,” end quote. And the copy of the 8th June decision also says that the relationship started in March 2023 and, quote, “escalated over time and that in the context of that power imbalance, a sexual relationship could never be appropriate,” unquote.

Janet: 12:00  What in that Bureau decision, the June the 8th decision, did they say about the judges’ report?

Steph: 12:03  Well, they set aside the advisory opinion by these three external judges and concluded that they did have enough evidence themselves, the Bureau, to make this decision, citing the OIOS report. And on the judges’ panel decision, the Bureau quotes it like this, quote, “while the panel cannot make a definite proclamation on the existence or absence of the alleged misconduct, given its mandate, finds itself compelled to the conclusion that on the materials disclosed, there is insufficient evidence to support a finding of misconduct against the standard of proof of beyond a reasonable doubt,” end quote. And so this says that there is not enough to find anything beyond a reasonable doubt, but it also highlights that they cannot make a definite proclamation on anything.

Janet: 12:53  What did the Bureau decide out of that very legalistic sort of conclusion?

Steph: 12:58  They really focused on this given its mandate thing and said that they felt essentially that the UN investigation report and subsequent submissions by the prosecutor and the victim to the Bureau provided enough evidence for them to make conclusions beyond a reasonable doubt.

Janet: 13:13  What do they finally say in conclusion about Karim Khan in this report that you have seen, their decision from June the 8th?

Steph: 13:24  They say that Khan engaged in serious misconduct and breach of duty and they recommend that the ASP remove him from office.

Janet: 13:30  And the consequence?

Steph: 13:36  Well, if you look at the ICC Rome Statute, court elected official and especially the prosecutor can only be removed from office by a vote at the ASP.

Janet: 13:45  Okay, so here’s where it gets tricky yet again. Everyone and their mother is quoting from the various rules which govern how the court proceeds from here. We have the Rome Statute, which is the founding document of the ICC, article 46, which says, and I’m going to do some quoting, (a) “any decision as to the removal from office of a judge, the prosecutor or deputy prosecutor under paragraph one shall be made by the Assembly of States Parties, by secret ballot” and (b) “in the case of the prosecutor, by an absolute majority of the States Parties.”

Janet: 14:22  But I just want to make sure everybody knows that the ASP itself also has rules and regulations. There was an independent expert review way back when, where they looked at all kinds of stuff at the ICC that wasn’t going very well and concluded, for example, that some of the governance needed updating. And some of those rules have been updated, especially around who does what in the case of investigating and or potentially dismissing an elected official. And it was actually only at the most recent ASP, that was December 2025, that some of those rules got amended. But you may have noted, as well as me, that some of those new rules were already being applied in this investigation. We won’t go too heavily into the weeds, but I think we should reflect on some of what people are arguing.

Steph: 15:13  Online, there is a lot of argument on whether there should be one vote or two votes. We tend to, or Reuters in this case, quoted the Rome Statute and got a lot of pushback because there are those who believe there must be two votes at the ASP. 

Janet: 15:26  We will link to some of these articles that have been written around it. Just as we’re recording, we’re actually waiting for another piece of information around this. So, you know, you never know just towards the end of the podcast, we might manage to bring that in as well. But for the moment, the first one to quote from is Kevin Jon Heller. And this is, quote, “The first vote would involve the Assembly of States Parties deciding for itself whether the prosecutor committed serious misconduct, less serious misconduct, or no misconduct. Per Rule 63 of the ASP Rules of Procedure, finding misconduct of any kind would require a two-thirds majority of the states present and voting. If the ASP found serious misconduct, there would then be a second vote to actually remove the prosecutor. Per Article 46(2)(b) of the Rome Statute, that vote would require an absolute majority to remove, which would be 63 states.” And this is an article from Ezequiel Jimenez Martinez and Sergey Vasiliev. “As prescribed by ASP Rules of Procedure 63, the Assembly must first determine by a two-thirds majority of those present and voting, brackets, (where consensus is not possible), close brackets, whether the material before it establishes serious misconduct within the meaning of the applicable legal framework. This step is confirmed when reading Rule of Procedure and Evidence 29, bracket 6, unbrackets, and ASP Rules of Procedure 82, brackets 2, bracket C. This is step one, and it is a substantive legal determination, not a procedural formality.” Both of those guys are friends of the pod, and also Kevin Jon Heller as well. So, these are people that we know and trust. But, Steph, maybe you want to take over the but from here.

Steph: 17:17  The other side, which comes from a response from FIDH to the Kevin Jon Heller post, sums up the position there. And they say, and I’m going to read this out again because it’s such dense legalese that I don’t want to get anything wrong. But this story posted on LinkedIn says, “in a recent Opinio Juris post, Kevin Jon Heller argues that the International Criminal Court’s amended disciplinary framework requires the Assembly of States parties to hold two votes at its special session on 24 July 2026: first, to characterise the Prosecutor’s conduct; and second, if it finds serious misconduct to vote on removal. On a careful reading of all relevant provisions, only one ASP vote is required. The Assembly makes a final decision on whether to remove the Prosecutor from office, but the initial legal characterisation and routing decision that triggered the former removal proceedings already referred to the Assembly was assigned to the Bureau, not the ASP,” end quote. So, that is the argument for FIDH. They say this discussion about who should decide how to characterise it, that lies with the Bureau. And that is why there should only be one vote.

Janet: 18:27  Yeah. And as we know, the FIDH representative is Danya Chaikel, who’s also a good friend of the pod. And she is not just writing it by herself. She has a lot of other NGOs who are working with her on this. 

Steph: 18:42  There is a lot of very, very detailed legal reasoning that I won’t go into, but you can look at this story. We will link to it in the show notes. I do want to read the last paragraph, which says that, “logically, had States Parties wanted the ASP to be responsible for characterising the conduct, they would have routed the ad hoc Panel’s advice on legal characterisation directly to the ASP as Heller’s two-vote hypothesis would require. They did not. They gave the characterisation and routing to the Bureau, and only removal to the ASP.” So the argument there is, if they had wanted to have two votes, they would have expressly said so. But the Rome Statute says one vote, and this whole rule on another vote is for another procedure, as I understand it. But, I am not a lawyer, as it shows. So back to this discussion.

Janet: 19:35  Beyond the one vote or the two votes, which we don’t know, we’re now recording this at the end of June. There’s still a month to go, more or less, before it will actually happen. So maybe it will become elucidated. But what do we actually know about the upcoming ASP?

Steph: 19:53  It’s in New York. It’s behind closed doors. There will be no NGOs or civil society organisations and no state observers. And there are questions about who can attend. There is a majority of states, obviously, represented in New York, because they’re close to the UN. But we have the US sanctions against the prosecutor and other important ICC personnel.

Janet: 20:15  Okay, before we go into the prosecutor’s sort of presence, not etc. What will states themselves actually have seen beforehand? What do you know that or what do you expect them to have actually seen in order to be able to make some kind of decision?

Steph: 20:33  The Bureau decision outlines that the states will be sent the OIOS reports, the report of the ad hoc judges panel, the Bureau recommendations and their reasoning for it, and additional submissions from the prosecutor and the alleged victim to the Bureau.

Janet: 20:49  Okay, so they’ve got some work to do. Now, I’ve seen some commentary about Karim Khan’s own rights to self-defence. I mean, just to quote Ezequiel Jimenez Martinez on this, he says, quote, “it’s not about the individual, it’s about rules, process and precedence,” unquote. So what are the rules? And could he possibly be there if he’s actually under sanction by the US?

Steph: 21:15  Honestly, I don’t know. And in a way, there’s a lot of focus on these rules and procedures of the ASP. And I think it’s important that we look at them. But also, the ASP is kind of like a political body and like a parliament, it can change and override its own rules on occasion. And it’s not a good look, but they’ve done it before. Notably, when Karim Khan was elected, they didn’t follow the procedure they had lined out for it. And so I’m not sure that if we focus exactly on the rules that we will know what is going to happen. Because many of these rules are untested, it looks like the ASP gets to decide on it themselves to some degree on how to interpret them. And we just don’t know how the ASP will go.

Janet: 22:00  But there is this issue of Karim Khan himself and his ability or rights, let’s say, to defend himself against these accusations. Or is that considered already have been done as such by the additional material that he and the alleged victim sent in to the Bureau?

Steph: 22:18  I can’t really answer that. I don’t know.

Janet: 22:20  Okay, I think we’ve come to the limit of what we know and what we don’t know. But I’m going to try to lead us into even more dangerous territory. Let’s give it a go, Steph. Do we have any predictions? I mean, it is World Cup time. Let’s get a bit of football language creeping in here. You can be Gary Lineker. I don’t know who I’ll be, but I’ll try to kind of bounce off you. Is this all too close to call? What’s the result going to be? What do you think, Steph?

Steph: 22:45  It’s so murky that I really don’t have any idea. I have to prep stories for possible outcomes. And I don’t quite know what to prep. And I also think that for the majority of my readers, the whole legal procedure about one vote, two votes, how this is going to happen, you know, that is not what the general public is interested in, regardless of what all the commentators think. And so my past experience with this whole process is that it never quite turns out the way you would expect based on what you know. And I realise that I have a very limited view on what I know about what’s going on. And that is speaking as one of the people who is quite well informed about everything around it. And I really wouldn’t want to make a prediction because I really just don’t know. There is the, you know, known unknowns and the unknown unknowns, all of this. Plus there is also, will the dynamics change if this is in New York? These are all diplomats that sit in the ASP. The diplomats in The Hague that sit at the ASP are much closer to kind of what happens at the ICC. Those in New York, they will, I’m sure, be informed by their The Hague colleagues, but they’re also a bit more removed from that. Are they really going to have the appetite for all the legal finery? I just don’t know.

Janet: 24:00  Yeah, I mean, there’s other stuff going on in the world in case nobody has noticed that maybe some of the diplomats at the UN are a bit more focused on. If we pull it out a little bit further, though, I mean, and talk through some of the bigger issues going on. I find it really interesting, the framing of this. Khan has said to one media source that he sees this as a, quote, “campaign against him”. And he is concerned as a result that the court by going down this road is into, quote, “uncharted territory.” And he is suggesting that this is a dangerous precedent for removing elected officials through political pressure. That’s something that I’ve explored previously in a piece. And I think it’s something that’s important to recognise as the backdrop. I have another couple of points I wanted to make. What would you like to raise, Steph?

Steph: 24:54  Well, speaking very generally, again, because I can’t speak very much in detail, but because everything is done so behind closed doors and leaked, you could make a lot of accusations about who’s leaking for which reason. But I think that the assumption that everything is leaked from one side for one particular goal is incorrect, because I essentially get sources on both sides talking to me.

Janet: 25:20  I agree. I agree with that. There are some big commentaries out there that have said that this perception of politicisation is going to cause the court some problems, that it will damage kind of the integrity of the court. I think that that’s an issue that the court is going to have to deal with long term. It is a political body as well as a court, but, you know, the independence of its prosecutor has been seen as sacrosanct, and they will want to be able to present whatever decision they make in those terms that they retain that independence for a prosecutor. But there is going to be a critique around that. I think the problem is this is all incredibly damaging to the court, whatever the outcome is. The fact that this process is murky, everything in that sense that’s happening is deeply damaging to the court. And whatever the outcome, because it’s become so polarised, will be questioned one way or the other. So I don’t see how this is not incredibly damaging to the court.

Janet: 26:23  I would say also that what has made it also partly so damaging is that there’s been a very opaque process. That’s just to quote FIDH, it’s quote, “too opaque.” As they’ve noted, the key documents remain confidential or unpublished, leaked, but unpublished. And that has meant that quote, “inaccuracies and political narratives fill up the gap.” And that is part of the problem, I think, of the way that it is being framed. They also point out, FIDH, which I see in myself and in my own way of approaching this, that the complainant herself and her perspective has been lost. She’s been partly cast as part of a conspiracy, but her complaints haven’t necessarily been taken completely seriously. And that feels to me quite wrong.

Steph: 27:13  Interrupting our regular programming just to say, please come and support us on Patreon and get our newsletter. For the price of just a cup of coffee, you can hear Janet and me talk even more about war crimes and books that we like to read and music that we like to read and what we are doing. Come and follow us and support the show. Thank you.

Janet: 27:34  So we’re looking ahead to this decision being made. There’s a sense that I have that at the end of the day, a decision is really what a lot of people want to have. I noted also the presidency of the court’s just called for it to be concluded as soon as possible. Do you get that impression as well, that a decision is a decision? And even though there will be complaints on either side, at the end of the day, the court will just have to struggle on?

Steph: 27:59  I think everybody wants a conclusion to this in that sense. The longer this drags on, this has been two years, it’s incredibly damaging. So whatever happens, it’s better that it happens sooner rather than later.

Janet: 28:16  So I think that the best way we should conclude is say, I am sure we will be back after this decision. We usually take a break in August, so we will probably try to carry on that tradition and then be back in September, probably with quite a wide discussion about the meaning of whatever decision is made, has and what the implications are for the court. Do you agree Steph?

Steph: 28:38  I think we might also pull out the emergency klaxon if there is a clear cut decision on the 24th. But in this entire saga, I have not seen very many clear cut decisions. So I’m not holding my breath. And I’m on holiday a couple of days after that. So let’s see how that turns out.

Janet: 28:54  Let’s hope that you manage to carry on going on holiday and that we either do have something interesting to report or don’t and that there is clarity for everybody. So thanks very much for making the time Steph today and we’ll speak again soon.

Steph: 29:06  Yep. Thank you. Bye bye.

[OUTRO MUSIC]

This was asymmetrical haircuts, your international​ justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.

Stay safe and enjoy your day.