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Exclusive: UK government lawyer warned ICC bureau its Khan disciplinary process 'unlawful'
Exclusive: UK government lawyer warned ICC bureau its Khan disciplinary process 'unlawful'
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Sondos Asem
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Thu, 07/09/2026 - 10:07
The executive body of the ICC ignored advice that its proceedings lacked the judicial safeguards needed to protect the court's integrity, document shows
Sir James Eadie KC (seen speaking to the UK parliament in September 2019) warned the ICC that its disciplinary process was flawed months before Karim Khan was suspended (Screengrab)
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The United Kingdom's most senior government lawyer last year warned the executive body of the International Criminal Court (ICC) that its proposed process for disciplinary proceedings against Prosecutor Karim Khan was legally flawed, Middle East Eye can exclusively reveal.
The legal advice, submitted in a private capacity in November 2025 to the president and the Bureau of the Assembly of States Parties (ASP), was drafted by Sir James Eadie KC, the UK's first treasury counsel and the government's standing counsel.
Eadie warned the case risked undermining the integrity of the court if “fair process” was not followed in light of “political pressures” surrounding Khan over his office’s investigation into Israeli war crimes.
Eadie was instructed by Khan's legal team to "assist and inform" the bureau during its consideration of the process.
The 21-page document, obtained by MEE through diplomatic sources, criticised the “restrictive mandate” provided to the three-judge panel by the bureau to make a legal determination regarding the misconduct allegations facing Khan.
It argued that the bureau had stripped the judges of the adjudicative power necessary for a fair process, and warned against denying the panel any fact-finding role.
This, Eadie warned, would leave “no judicial, or independent, fact-finding phase at all” and would be “unlawful, unsustainable in principle”.
The bureau disregarded the advice, and proceeded with its ad hoc procedure.
The judicial panel was part of the process authorised by ASP President Paivi Kaukoranta in November 2024, when she decided to outsource the misconduct probe to the UN Office of Oversight Services (OIOS), after the complainant against Khan refused to cooperate with the ICC’s own investigative body.
The four allegations under investigation, authorised by the bureau, comprised a complaint by a woman in Khan’s office regarding “unwelcome conduct of a sexual nature” and abuse of authority, as well as three allegations of retaliation against members of his office. Khan denied all allegations of misconduct or breach of duty.
For more than a year, the OIOS was tasked with gathering and weighing evidence against Khan to enable the panel of judges appointed by the bureau to provide authoritative legal advice on whether the prosecutor had committed misconduct, applying the standard of proof "beyond reasonable doubt".
'It would be entirely inappropriate in principle for the investigator (in effect the prosecutor of the misconduct charges) also to be the judge'
– Sir James Eadie KC
On 11 December 2025, the UN investigators submitted their 150-page report and 5,000 pages of evidence to the panel. The judges then spent nearly three months examining the OIOS probe before reaching their conclusion in March.
In a report seen by MEE, the panel concluded unanimously that the facts presented in the UN investigation "do not establish misconduct or breach of duty under the relevant framework".
But a few weeks after the judges' panel report, a majority of bureau members, representing 21 states, backed a motion to disregard it, suggesting that Khan may have committed misconduct. The vote prompted concerns that the process could be politicised.
After giving Khan and the complainants a final opportunity to make further submissions, the bureau then moved to formally suspend him on 8 June and referred the matter to the ASP.
The 125 member states of the ICC are due to convene for a special session on 24 July at the UN headquarters in New York to vote on the misconduct allegations and whether to remove Khan from office.
'Entirely inappropriate'
In his opinion, Eadie argued that the role of the OIOS, based on its own communications with the prosecutor, should be confined to “simply collating and recording what may appear from documents and who said what in the course of the investigation”. The subsequent determination of what actually happened should be left to the judges, he added.
“It would be entirely inappropriate in principle for the investigator (in effect the prosecutor of the misconduct charges) also to be the judge,” he wrote.
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The opinion emphasised that the minimum required process should be judicial in nature and must lead to an oral hearing before a panel of judges in order to test the allegations and determine which facts could be proven beyond reasonable doubt.
“It is entirely inappropriate for the determinative function to be undertaken by executive or political bodies,” Eadie wrote.
He added that, where facts were disputed, the panel should be empowered to test the credibility of witnesses through cross-examination or an equivalent process involving live evidence.
Khan’s legal team formally requested such a process in a letter to the ASP president on 30 July 2025. But MEE understands the bureau declined to incorporate those requirements in the misconduct probe, including the request for an adjudicative hearing before the panel.
Additionally, the bureau refused to grant the panel an extension it requested to examine the prosecutor’s submissions.
Eadie noted that the proposal by the ASP president sought to treat the OIOS report as factual findings without an adjudicative process, and to lead to a hearing before the bureau involving the prosecutor only. The approach would threaten the independence and integrity of the ICC, he added.
The allegations against Khan have unfolded in parallel with a campaign by the US and its allies to disrupt his office's efforts to pursue a war crimes investigation into Israeli officials over the genocide in Gaza.
Eadie noted that the sensitivities surrounding the Israel investigation were another reason why the process needed to be seen to be fair.
'Political pressures'
He cited “political pressures” and the sanctions imposed by the US government on Khan and other ICC staff following the decision to seek arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, as well as Hamas officials, as “an obvious and powerful example”.
“If such officials can be removed or disciplined without a proper adjudication of the allegations against them, against that political context, the integrity of the ICC and its perceived integrity will be fundamentally undermined,” Eadie wrote.
Khan, a British barrister, was elected in February 2021 by the ASP as the ICC’s chief prosecutor. He is the third person to hold that position since the court’s founding in 2002.
His office has since investigated serious international crimes allegedly committed by state leaders from across the world, including seeking arrest warrants for Russia’s President Vladimir Putin, Israel’s Benjamin Netanyahu, Myanmar’s junta leaders and the Taliban in Afghanistan.
His work prompted retaliatory US sanctions by the Trump administration in February 2025, as well as a trial in absentia and an arrest warrant issued by Russian courts. The US, Russia and Israel are not members of the ICC, but it has jurisdiction over crimes committed by their nationals on the territory of ICC member states.
The sanctions were later expanded to target two deputy prosecutors and eight ICC judges involved in the Palestine and Afghanistan investigations, the UN special rapporteur on Palestine, and Palestinian NGOs that provided evidence to the court.
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