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.

[INTRO TUNE]

 Asymmetrical haircuts. Justice Update with Janet Anderson and Stephanie Vandenberg.

Janet: 00:09  Hi, Steph.

Stephanie: 00:10  Hi, Janet.

Janet: 00:11  Well, what a way to go into our summer break. For me, this is maybe the most difficult subject we’ve ever had to cover. And, in case you haven’t noticed, people listening out there, it’s the removal of an ICC prosecutor.

Stephanie: 00:26  Yeah, it’s absolutely a first. It’s also one of the most, I mean, to use very Reuters words, one of the most challenging stories I’ve had to cover for the past two years. And frankly, I’m not quite sure what I’m going to do with my time now that this saga has somehow come to somewhat of a conclusion, but I’m sure there’ll be enough to occupy me.

Janet: 00:45  Oh, I think so. By the time we get to the end of this podcast, I think we will be clear that there is still much to absorb, your occasional furtive attempts to find someone to talk to you on background about bits and pieces, and I will be back in the Netherlands to join you in this attempt to see who we can find to say what. But anyway, for today, where do you want to start?

Stephanie: 01:09  Well, I know you want me to Stephapedia everything that’s happened.

Janet: 01:13  Yes, I do. You can sum it up, Steph, can’t you? I mean, it just takes two lines, doesn’t it? I mean, there’s so little to say.

Stephanie: 01:20  I mean, in a news sense, I kind of can. And real dedicated followers of the ICC will probably be outraged, and all the academics will have a lot more to say about everything that went on. But in news terms, what happened is that on Friday, the member states of the International Criminal Court voted to dismiss the Prosecutor Karim Khan for serious misconduct.

Janet: 01:42  Yeah, so what?

Stephanie: 01:44  Yeah, now the court has to find a new prosecutor. And so, in a very news sense, that is what happened.

Janet: 01:52  Okay, so what have we left out of that, in your view?

Stephanie: 01:56  The entire process that led up to it.

Janet: 01:59  Agreed. We’ll do the entire process. I would say what’s also left out of it is, I mean which we’ve hinted at there, is how incredibly traumatising and divisive this all is. And what else?

Stephanie: 02:11  And how to move on. If you look at a very newsy Reuters thing, I had to write a story today about – we love to have these ‘whither ICC’ stories – and so my story today is: ‘The International Criminal Court faces a challenging search for a new prosecutor after Karim Khan was dismissed against the backdrop of a U.S. diplomatic campaign to undermine the court and a rise in states withdrawing from the institution,’ which is very, very bare-bones basics. But in a news sense, that is now what we’re looking to. The news is not going to dissect what happened with Khan. But on this podcast, we can, a little bit.

Janet: 02:51  Yeah, we can a bit. My story also out today, you know, starts off with succession politics, because I think that’s what it’s all about now. And it’s amazing the extent to which I remember being asked about succession politics about maybe 14/15 months ago and me saying it’s far too early to start doing that. And it really is only now, the day after, that really, that hots up because right to the last minute, we didn’t know exactly how everything would go. Right to the last minute, there was almost no point starting succession politics until this was, quote unquote, wrapped up. 

Stephanie: 03:32  But I found it quite – I don’t want to say unbelievable, but I guess it was, in a sense, unbelievable to me – because, of course, as you said, I spoke to a lot of different sources for this. And of course, if you’re preparing for this vote, you know that there’s the possibility that he’s going to be voted out, and that was a, you know, that was a fair possibility. We all prepped for voted in or voted out, or something happening in between. And so you ask diplomats about what is the succession going to be like? How’s it going to be set up? And nobody wanted to say anything on the record, everybody was really like, or even off the record, or speculate about how it was going. Everybody was just: we’re just going to go to the vote.

Janet: 04:13  Well, that started already. I disagree with you that now – I mean, come Saturday onwards – it’s perfectly acceptable to ask the question and to get a whole load of speculation back.

Stephanie: 04:24  Okay, good. You got maybe more speculation than I did.

Janet: 04:28  Well, I was just catching up with you, Steph that’s all, because I’ve been off this. I’ve been moving house. I’ve been off this for a while, so I just decided on Saturday to plunge in and to ask people. But let’s start with the thing that I mentioned first, which is this the, what I would talk about, this kind of really traumatising and divisive part of it. And of course, I mean that for me, personally. I feel our whole world is very split by different reactions to this in the community. I know what my role is as a journalist, and that’s to report, but I’m also quite close to a lot of different individuals, as both friends and colleagues with people. And people are on very, quote unquote, different sides in this whole debate. And I, I think it has been really tough. How has it been for you?

Stephanie: 05:20  I also really was surprised at the way this was so divisive, in a way that we’ve also seen a little bit with the Israel-Palestine conflict. But this was closer to home. 

Janet: 5:34  You know where you stand on Israel-Palestine. I mean, you did, you know, for me at least, I know where I stand and I know how far I’m gonna go. This one is like, oh, this is a tough one. I know where I stand on sexual misconduct, but I also know where I stand on process.

Stephanie: 05:52  Yes.

Janet: 5:53  And believing that process matters. 

Stephanie: 5:55  The problem here is that you can have constructive criticism, but there, I feel there is a line, and I do feel that some people got quite carried away on both sides.

Janet: 06:08  Yeah, I agree. But it is the kind of subject that gets people very, very engaged, and people do believe that they are right. It’s also, we’re engaging in a world full of lawyers, and lawyers are the kind of people who have incredibly strong perspectives on things. They are relatively inflexible in comparison, I find, with, let’s say, diplomats – being married to one – or politicians who can, you know, change on a dime. Lawyers get very dug in.

Stephanie: 06:37  They do. And I feel also, I mean, I got a lot of sometimes veiled, sometimes not-so-veiled criticism for reporting. And if you look at the stories, I feel that they’re quite balanced. And so I got flak from one side for not mentioning X and Y. I also got flak from the other side for not mentioning X and Y.

Janet: 06:57  Yeah. Welcome to the BBC. You’re the BBC, just like I am, Steph. This is, quote unquote, success: being criticised from both sides.

Stephanie: 07:06  Yeah. But the hint of people that there is, like, personal motives, or being influenced by somebody to write the stories that you do, it’s kind of weird in a way.

Janet: 07:19  It is. And also, it’s also the implied critique that somehow one is not taking a particular issue, like sexual misconduct, as seriously as one should. And that I found quite difficult. In terms of the split within the community and where it goes to now, I would point out that Karim Khan’s lawyers, both Sarita Ashraf, who’s been interviewed, and Tayab Ali, who has put various statements out on social media, are both suggesting that there will be some kind of a way forward. So, as far as I’m concerned, the split is not gone. There will be continued legal activity that will cause continued discussion.

Stephanie: 08:03  Well, Sarita Ashraf, in an interview that I saw, explained the two avenues that they’re looking at. In an interview with Al Arabiya just after the vote, I think she suggested that they might take this to ILOAT, so it’s kind of the labour tribunal for dismissal. Well, there’s also questions I hear from other sides whether he would be able to take the case to ILOAT as an elected ICC official. I don’t know, but that is one avenue that they’re probably looking at. Then she also mentioned that the British Bar Standards Board, which is now suspended Khan, still needs to look at the case on the merits, and that will be more of a judicial process. And they, as lawyers, would have the chance to challenge the evidence, which is something they said they didn’t get in the entire ASP procedure. So that is more a bit like the, a court case, according to her, and they would have a more legal process, and because in her words the ASP is completely political process.

Janet: 09:02  In terms of that process, my judgement of the process is that I believe that it was poorly handled on some levels. I’m not suggesting that I know exactly how they should have done it in order to make it much, much better. But I, I mean, I’m going to run through, and maybe you join in which aspects you think. The first thing was that it was outsourced away from the court itself, which felt like a very sensible decision. But the body to whom it was outsourced, which was part of the United Nations, there was a question mark over the extent to which they were the right body to outsource it to, because what they produced in the end, we understand – I have not seen the detail of what they produced – was a combination of he said, she said, they said, and therefore not actually coming up with something that was completely useful in the end. What else would you say about the process? Or do you want to go on that one first, Steph?

Stephanie: 10:04  Well, I think the main thing about the process that is very obvious to anybody who’s following is that it took an insanely long time. It’s just very, very long before you come up with some kind of process and some kind of solution. And I understand how careful and diligent you have to be, but two years for an investigation is too long for everybody. It’s too long for the process. It’s too long for the accuser. It’s too long for the person being accused. It’s – this is not useful to anybody. It was very unclear what was happening as well. 

Janet: 10:39  Then they outsourced, after the initial thing, to the United Nations. Then they also outsourced to three judges who looked, from the details that I saw, very competent administrative judges. Again, talk about things being public: we never got publicly the terms of reference. I did catch sight of them. But again, those judges apparently were not able to say, on the basis of the United Nations investigation, a judgement of, quote unquote, beyond reasonable doubt, which became one of the kind-of issues that we kept on having to discuss. So the whole thing then opened the gates for Karim Khan himself to claim that he was exonerated. And he went on a bit of a media tour and got a lot of social media capital out of this, to say that he had been exonerated out of this. And it felt really badly handled to me by the Bureau of the ASP, which is 21-member bureau led by president from Finland, that they didn’t manage that narrative particularly well. 

Stephanie: 11:45  No, and I mean, you say, you know, the UN body got a he-said, she-said, they-said line. We have also quoted from that report, and they do say that they find a factual basis for some things. Now, it is also true that this three-judge panel said that they couldn’t find misconduct beyond the legal standard of a reasonable doubt, but they also found that they couldn’t not find misconduct. So the exonerated claim is on the basis of the report that I saw from the judges in the conclusion, I would not say he was exonerated. I would say that they couldn’t make a determination either way. And I think in the ASP decision that I did see, the Bureau also goes against this idea that he was exonerated by this report.

Janet: 12:38  But again, you talk about all these documents that you’ve seen, and that comes to, to part of it, is: some stuff was apparently available to different parts of the media; some parts wasn’t; some things were leaked; some things were not. And we got really a media campaign, which felt to me quite one-sided for a while, until the woman who’s described herself as Sarah, who I have met, in order to not discuss the allegations with her but to understand her perspective on what was going on, at one point maybe a year ago now, I think maybe even longer than that. So, you know, it’s been quite an odd media context in which to work, with documents available and not available. And then we end up with an enormous procedural sort of row, pushback, people saying one thing, saying the other about whether you need two-thirds majority, whether you need simple majority. We did a whole podcast about that last month, or earlier this month, probably. It feels like last year already. So, and then what did we get in the end, Steph? Can you summarise it for what was said in the end in New York?

Stephanie: 13:51  Well, in the end – and this is, here again, I heard from diplomatic sources – they first had a vote on whether they should have two votes or one vote. One state put forward that you should have this two-vote principle that Khan’s backers had said, and that was outvoted, with, I think, 75 states voting – a large number. And when that came through quite early in the process, because I had hunkered down with snacks and whatever and I was prepared to work until midnight, and then it all went a lot faster than we had imagined. So the vote that I was, thought was going to be announced at midnight was actually announced around seven. We got word that they were voting at this moment and, and we would have a result soon so.

Janet: 14:41  Then the result was an overwhelming majority: 82 states, which is actually very near the, quote, two-thirds, unquote, number that they could have needed. 

Stephanie: 14:51  It’s only one state short of the two-thirds. 

Janet: 14:55  And just to read the last, the very last para of the decision.

Stephanie: 15:00  So this is the ‘The Assembly of States Parties finds that Prosecutor Karim Khan has committed serious misconduct and a serious breach of duty as defined in Rule 24 of the Rules of Procedure and Evidence of the Court, and decides to remove Prosecutor Karim Khan from office.’

Janet: 16:16  Dun, dun, dun. So, I mean, you know, it was a political decision. These are politicians, you know, diplomats representing states, and he was appointed by diplomats representing states. He’s a political appointee, and I think it’s extraordinary that we end up with a criticism that this is somehow political, because it is political. 

Stephanie: 15:39  It was never not going to be political in that sense, because it it does go to the ASP, who does elect him. And I, I have a lot of criticism about due process and changing rules in the middle of procedures, and unclarity about what procedures are, but if you look at people who also look very much at ASP governance, they all do agree that the ASP does have the power to do the things that they did. Only, like, it looks bad, but they can do all of this stuff because they can vote to do it. For Karim Khan to now be very upset about the ASP using political power and changing procedures halfway, when we, with a slightly longer memory, know that the procedure to elect a prosecutor was amended by the ASP, which led to his inclusion and eventually him being voted in while he was not even on the shortlist-

Janet: 16:34  Yeah, politics. 

Stephanie: 16:35  And I understand why he would complain about that now, but it’s also a little bit like maybe you are not the ideal person to complain about this. 

Janet: 16:44  And the third element I thought we should pull in is the context, and this is going to absorb, has already absorbed, a lot of our time, and will carry on absorbing a lot of time. So, not only do we have Israel-Palestine – this is a Palestine situation which is being investigated by the court, and there are at least two arrest warrants out, one for the current Prime Minister and one for the former Defence Minister of Israel – but also, as a result of that, the United States has sanctioned individual members of the court: 11 court officials, or do we now say 10 court officials?

Stephanie: 17:21  I think we should say 10 court officials, yeah, because Khan was-

Janet: 17:25  is no longer a court official.

Stephanie: 17:26  But he’s probably still sanctioned. Court officials and ex-court officials. That would be the Reuters fudge.

Janet: 17:33  Yes, exactly. And then what else did we get earlier this week, or last week? We got a threat, by trapezoid window by trapezoid window, to remove the court, no?

Stephanie: 17:43  Brick by brick, by Rubio, and to suggest that the ICC was involved with crazies and lunatics.

Janet: 17:51  Well, we know that. I mean, I could agree with Rubio on that. I mean, you’re involved, I’m involved. Crazies and lunatics we are. 

Stephanie: 17:57  I think there’s a T-shirt in the making there.

Janet: 18:00  Yeah, maybe we’ll put him instead of Khan into our little introduction set of quotes, that we should have ‘crazies and lunatics’ in the voice of Marco Rubio as part of our little quotes at the top. What do you think?

Stephanie: 18:14  I thought of that as well, actually So I think I bookmarked the little the Reuters Instagram story where they have that quote. So let’s give it a shot. 

Janet: 18:23  And then what else has happened in context? 

Stephanie: 18:25  Well, you wrote this script this morning when this was still accurate, and you said: now Venezuela withdraws. Will there be a cascade? And I can immediately answer, because as you were typing that, Chad came out – the African country came out – Chad, with a statement that they have formally deposited their letter of withdrawal with the UN.

Janet: 18:43  And what does Chad say? Chad says: ‘We do not wish to be involved with such a political institution that gets rid of a prosecutor.’

Stephanie: 18:52  No, no, no, that would be too on the nose. They say that the court is disproportionately looking at African states.

Janet: 18:59  Oh, come on, guys.

Stephanie: 19:01  And it hasn’t done very much in these last year. And it says about, you know, they only have six suspects, and most of them are African, and all these things. But I found it very telling that two weeks ago the Deputy Prosecutor, Madam Khan, was in Chad, in N’Djamena. And she visited all these refugee camps where she spoke to Sudanese refugees from the Darfur conflict. And they did a lot of research. They’ve been in Chad a lot to help with the Sudan investigation. And so they didn’t announce it while she was there, but they kind of let her do the whole visit and even brief. The plan was that she would brief the Security Council from N’Djamena. That was then moved for Security Council time reasons, and she in the end, she ended up doing it from The Hague.

Janet: 19:48  So what is your suggestion, Steph? Is it that they were nice to her by delaying it for a while?

Stephanie: 19:54  My suggestion is that they were – I think they were probably planning to do this, but they were kind of waiting-

Janet: 20:01  For the appropriate moment.

Stephanie: 20:02  For this visit to be over with, to do this. My main thing there is this is going to have a big impact to the Sudan investigation, which they just announced these major breakthroughs for. If Chad is going to withdraw and is having, is going to have a more-

Janet: 20:19  More difficult cooperation relationship with the ICC as a result.

Stephanie: 20:22  Well, it’s really problematic for the Darfur investigation.

Janet: 20:27  Let’s see. And let’s see whether my word ‘cascade’ is unfortunately proved to be true, or domino, or whatever other form you want to put it in. 

Stephanie: 20:38  I feel an enormous dad joke coming up, that it could be a Chad-scade.

Janet: 20:43  Oh, God. Right. Now let’s just look ahead and move on from the bad dad joke. With a, and I described it as a poison chalice. It isn’t, of course. I mean, it must be one of the most brilliant jobs to have in lots of ways, in terms of the sense of how important it is to get these decisions right and how much is resting on your shoulders as the prosecutor, to try to deliver some real justice and accountability to millions – honestly, millions of people who are expecting and hoping something can be delivered from this institution in The Hague. What are you hearing? I mean, who might it be? We have two deputy prosecutors who look like they’re potentially first in line, but you say you haven’t heard anything, but I bet you have stuff.

Stephanie: 21:30  First of all, the big question is: who would take this job? I spoke to a friend of the pod, Mel O’Brien, to get some comments on, like, who now for the prosecutor? And she said, yeah, well, you know, who would want to apply for this job when it automatically gets you U.S. sanctions?

Janet: 21:47  Men. Men. A lot of men, I can bet you. 

Stepahnie: 21:51  I spoke also to Kira Wigard, also a friend of the pod who’s been on the pod, and she said, well, you know, you could say the same for judges, but we have the ASP judges election in December and there’s more candidates than ever for those roles, so maybe maybe not everybody gets cold feet. So there’s a couple of things I heard for succession. Of course, the office is now being run by the deputy prosecutors and, in fact, effectively has been run by the deputy prosecutors since Khan stepped aside in May 2025. So it’s already a year that they’ve been running the office. So there is maybe some idea that if you go for one of the deputy prosecutors, or you have them take over, then that is a kind of continuity. But the handful of diplomats I spoke to were all also very convinced that you should have a full, kind of, throated election for the next prosecutor. 

Janet: 22:51  That will take time.

Janet: 22:52  Yeah, so there’s kind of a couple of ways you could maybe finesse that. There’s the question of: is the next prosecutor just filling out Khan’s term, or is it then the start of a new prosecutor term? Or maybe states will agree that, for the remainder of three/four years that Khan is  one of the deputy prosecutors who might want the job could become, like, a consensus candidate-

Janet: 23:18  And then they hold a proper election for the next time.

Stephanie: 23:22  But I can also think that maybe many states would like a full-fledged election. Also because there is all these criticism of political influence on the fact that Khan was removed. Then maybe this way you’ll get a better candidate, but also you leave yourself wide open to new criticism for political wrangling, because that is just the way elections go.

Janet: 23:45  Agreed, it is the way elections go. But I do think that there will be one of, this will be one of the litmus tests of the court, is: what kind of process they put in place sensibly to make this work. Another litmus test will be what exactly happens in the Palestine investigations and how much further forward they go. But yeah, when it comes to these elections, I mean, we know we’ve got judges’ elections, and I’m already looking to see if we can do some interviews around those with individual judges. If you want to put yourselves up for scrutiny by the press, then you are always welcome to chat to us and see whether we can get maybe some organisation to sponsor us to do some interviews with any candidates for prosecutor when we know what the deal is.

Stephanie: 24:34  Yeah, I had a lot of fun with the last time with those interviews. Unfortunately, none of the shortlist that we managed to interview actually became prosecutor. So. 

Janet: 24:44  C’est la vie.

Stephanie: 24:46  So we would also like the ASP to keep to their own-

Janet: 24:49  Choices.

Stephani: 24:50  To their own procedure and their own choices, so that we can make podcasts around it that are more predictable. 

Janet: 24:55  Anyway, we’re off for a short break at the end of the month. We have some repeats coming up, the summer collection chosen by two of our other members of staff, and so look out for those. But in the meantime, I thought it would be really nice to say thank you – we haven’t done this for a while – to those people who have signed up on Patreon to support us. You can sign up for free, as a lot of people do, and that way you get hold of our newsletter and you hear about some of the things that we’ve been writing and some of the picks that we have of different books and things that are going on. Or you can support us more fully and buy us a cup of coffee once a month, and then you get our War Criminals Book Club, where we review books, films, podcasts that make us very happy or very annoyed. I always like the ones that make me very annoyed because, yeah, it’s just more fun to do that.

Stephanie: 25:51  I feel some foreshadowing here.

Janet: 25:53  Let’s just go through the shout-outs. The first one is Anna Neistat, thank you. 

Stephanie: 25:58  And the next one is Luigi, thank you.

Janet: 26:00  Lilla Carree, thank you. 

Stephanie: 26:02  Solia, thank you. 

Janet: 26:04  Matilda Rados, or Rados, I’m not too sure which, thank you.

Stephanie: 26:08  And Friederieke Strickstock, thank you. 

Janet: 26:12  Adriana Orduna, thank you so much. 

Stephanie: 26:15  Heather Tasker, thank you very much.

Janet: 26:18  Britt Gronmeyer, thank you. 

Stephanie: 26:21  And Mr or Mrs J Price, or Ms, I think. Is that? I don’t know. Honorific Jay Price, we’re going to say. Thank you. 

Janet: 26:32  Alisson Marugal, thank you.

Stephanie: 26:34  M28 Investigates, thank you very much. 

Janet: 26:37  And Natalie von Winstinghausen, friend of the pod, thank you so much for signing up again, Natalie. 

Stephanie: 26:43  And finally, we have Sarah Gibson. Thank you so much for supporting us.

Janet: 26:48  Okay, see you in a month’s time. And meanwhile, yeah, stay tuned to the pod and to Sam and Gigi’s picks. Bye.

Stephanie: 26:59  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.