The Bureau’s “Serious Misconduct” Bait and Switch

For two years, selective leaks of information have led to a deluge of breathless media reports about the serious misconduct the Prosecutor allegedly committed against a member of his staff. I won’t repeat those allegations here — you can find them for yourself — but they have always focused on nonconsensual sexual conduct, including sexual assault and rape. The Bureau asked OIOS to investigate nonconsensual sexual conduct. OIOS notified the Prosecutor it was investigating nonconsensual sexual conduct. The Panel of Judges unanimously concluded that nonconsensual sexual misconduct had not been proven. The Bureau’s preliminary determination of serious misconduct focused on nonconsensual sexual conduct.

As most readers will know, the Bureau recently voted by a qualified majority (2/3 of the Bureau) to seek the Prosecutor’s removal from office because he engaged in serious misconduct. But here’s the kicker: the Bureau did not find that the Prosecutor engaged in any nonconsensual sexual conduct with the complainant. Instead, according to a blockbuster report by Sondos Asem for Middle East Eye, the Bureau has found that the Prosecutor committed serious misconduct by engaging in a consensual sexual relationship with the complainant that, by virtue of the superior/subordinate relationship, was inappropriate (emphasis added):

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.

The bureau’s decision of 8 June did not make a finding of misconduct related to any of the retaliation allegations.

Instead, the confidential decision seen by MEE states that the bureau found “the evidence establishes beyond reasonable doubt” that Khan “engaged in a sexual relationship” with the complainant, and argued that “in the context of that power imbalance a sexual relationship could never be appropriate”.

It added that “the conduct of the Prosecutor constitutes the improper use of a position of influence, power or authority” against her.

Khan denied the existence of any sexual relationship, while the complainant’s account centred on allegations of non-consensual conduct.

The bureau’s decision appeared to reframe the nature of the sexual misconduct, in an apparent departure from the sexual assault allegations that have been the centrepiece of the investigation as well as media leaks about the case.

Put more simply: the Bureau wants the ASP to remove the Prosecutor from office based on conduct that it did not ask OIOS to investigate, that OIOS did not inform the Prosecutor could be the basis for his removal, that neither OIOS nor the Panel of Judges found, and that — perhaps most important of all — the complainant herself has always denied.

Let that sink in. All we have heard for the past two years, both officially and unofficially, is that the Prosecutor engaged in nonconsensual sexual conduct with the complainant. That’s it.  That has always been the focus, officially and unofficially, of the investigation. And now… nothing. No finding of nonconsensual sexual conduct. None.

I am not easily shocked, but I am shocked by this.

Non-Bureau states on the ASP should be shocked as well. And they should immediately demand that the Bureau explain why the ASP is being asked to remove the Prosecutor based on “serious misconduct” that was never charged, never investigated, and never even mentioned until the Bureau issued its final decision setting aside the unanimous conclusion of the judges it appointed.

My own theory is simple. Some states on the Bureau, primarily Western, wanted to find serious misconduct on the basis of nonconsensual sexual conduct. Other states agreed with the Panel’s unanimous conclusion that nonconsensual sexual conduct could not be proved but were troubled by the possibility of a consensual sexual relationship between a superior and subordinate, even though that possibility had never been part of the investigation and had always been denied by the complainant. So the two groups of states, enough to form a 2/3 majority, compromised by finding that the consensual relationship was misconduct sufficiently serious to warrant the Prosecutor’s removal.

If I am right — and I’m quite sure I am — this is the most striking example to date of the Bureau’s politicisation. The professional UN investigators asked to investigate nonconsensual sexual conduct failed to find that such conduct took place, and the professional judges appointed by the Bureau to review the investigation unanimously concluded that nonconsensual sexual conduct had not been proven. That result was unacceptable to many states on the Bureau, particularly the Western ones. So those states decided to engage in a classic bait-and-switch, not only substituting their political judgment for the legal determination of the judges the Bureau appointed, but also seeking to remove the Prosecutor based on uncharged, uninvestigated conduct that the complainant herself says did not happen.

It doesn’t get more political — or more problematic — than that.