An Interview with Sareta Ashraph, Lead Counsel for Karim Khan KC

What follows is a long written interview I conducted with Sareta Ashraph, a barrister at Garden Court Chambers in London and the co-founder of ATLAS Women, “a global community of female-identifying lawyers, activists, and jurists with expertise in various facets of public international law.” Ashraph is currently serving as Lead Counsel for Karim Khan, the Prosecutor of the ICC, in the ongoing misconduct investigation.  The interview builds on an op-ed Ashraph published two weeks ago in Al Jazeera English in which she raised profound concerns regarding misinformation being placed in the public domain amidst ongoing attempts by various activists and NGOs to convince the Bureau of the Assembly of States Parties (ASP), a group of diplomats representing 21 ICC member-states, to disregard the findings of an impartial and independent three-judge Judicial Panel appointed by the Bureau that cleared Prosecutor Khan of wrongdoing. The politicised campaign to clear a path to removing Khan has, as Ashraph explains in the interview, persistently misrepresented not only the report issued by the Judicial Panel and the expertise of the Judges themselves, but also the (non-)findings of the OIOS report the Panel was called upon to review.

As a personal but relevant aside: I recently resigned my position as Special Adviser to the ICC Prosecutor on War Crimes. For the record, my decision had nothing to do with the allegations against the Prosecutor. But that is a story for another day.

Sareta, you are Lead Counsel for Karim Khan KC, the ICC Prosecutor, who is facing allegations of sexual misconduct and abuse of authority. Why did you take this case?

I was retained in January to represent Mr. Khan in this matter and specifically tasked with conducting a gender-competent of analysis of the evidence and drafting the Defence submissions. I’ll speak a bit more about that later.

As to why I took the case, I have always been concerned about how justice systems, and particularly those built to deal with a small group of cases – or in this case, one specific complaint – abide by due process and rule of law. This is a theme across my work, for example at the Special Court for Sierra Leone, and in my writing about hybrid tribunals.

Very soon after the allegations became public – which happened in quite an unusual way – it became clear to me, including in conversations I was personally a part of, that there was very little true adherence to the presumption of innocence in some corners of the diplomatic world and of the public square. I take extreme umbrage at the prejudgment of guilt, to the belief that wrongdoing has occurred without any impartial and independent analysis of the evidence. Such prejudgment is corrosive to the fundamental principles of justice and cannot be countenanced.

Defence Counsel play an integral role in holding systems of justice to account and ensuring that they are functioning correctly and with full respect of the fundamental rights of the accused. When it comes to ad hoc justice systems created for a very small number of cases, my view is that the need for scrutiny is far greater because there is a greater risk that the success of the enterprise becomes linked, primarily, to whether it validates the accusations made.

I took the case because it was clear that justice in this case, in particular, required a strong defence capable of ensuring that this was a genuine process, one that arrived at an outcome based not on politics and pressure, but on an impartial and independent analysis of the evidence.

One question I’ve heard from many people is why an avowedly feminist barrister would represent someone accused of sexual misconduct. What about #BelieveWomen?

The basis of this question, in part, speaks to importance of ensuring that the presumption of innocence, the cornerstone of justice, is understood as substantive and real, and not just a collection of words.

Still, I understand the question. I want to highlight three things.

First, ensuring due process is an intersectional feminist issue. Ensuring justice processes are fair, certain, and are not being continuously re-shaped to reach a pre-determined outcome is an intersectional feminist issue. This is the job of all actors within justice systems, including judges, legal officers, prosecution counsel, victims’ counsel, and defence counsel. The idea that one cannot be a feminist who is also defence counsel, or a feminist who is defence counsel on cases which involve sexual misconduct, is perhaps superficially compelling, but is not well thought out, in my view.

Second, it is correct that justice systems, writ large, have very often failed to recognise and respond to harms against women and other marginalised groups. The ongoing push for gender-competent processes in those justice systems owes much to intersectional feminist movements and to feminist lawyers, among others. That again includes defence lawyers who play a pivotal role in how cases are argued, and who have changed how advocacy in cases of sexual misconduct is conducted. That includes ensuring that there is no unilateral reliance on arguments centring, for example, on the complainant’s mental health or history of repeat reporting – though if the complainant or prosecution make assertions on those bases, the Defence does have the right to raise those issues in rebuttal.

Third, if one turns a blind eye to, or even advocates for, reworking a process to better ensure of finding of guilt because one believes that Person X definitely did it, despite not having any access to the evidential record beyond perhaps the allegation, one risks becoming an agent of both an immediate and a wider injustice.

Corrosion of due process will allow the overarching power structure to deliver to a mob the justice they want in one particular case, but very quickly that precedent, that now-accepted model of a corrupted justice system, will turn itself towards undercutting the due process and fair trial rights of marginalised individuals and communities. The protection of justice systems from power and politics requires looking beyond one’s personal (and non-evidence-based) beliefs about one case.

Speaking about beliefs, you mentioned #BelieveWomen. This influential and necessary campaign arose because of the outrageous non-responsiveness of law enforcement and justice systems to women and girls who reported being the victims of (predominantly cis-male) violence, and specifically sexual and physical violence. The lack of a serious institutional response and the ease with which cases fell out of the system at various stages suggested that harms committed against women and girls were not taken seriously and in many cases were not visible in any meaningful way to masculinist power structures. While #BelieveWomen is a relatively recent campaign, it draws from a deep well of feminist activism, aimed at transforming institutions, systems, and attitudes so that the experience of women and girls are heard, valued, and acted upon.

The #BelieveWomen campaign centres on ensuring justice systems do not marginalise or render invisible those women and girls who allege harm and who seek the system’s pathways and protection. It does not mean that any allegation made by a woman should not be investigated or subject to assessment. It is not a campaign aimed at rendering the entire concept of a justice system obsolete or suggesting that a facade of justice prior to conviction is acceptable.

In this matter, a very serious allegation has been made. While the  disciplinary system will continue to evolve, in hopefully increasingly gender-competent ways, there is no doubt that the Bureau of the Assembly of States Parties (ASP), the ICC’s executive oversight body, has taken this allegation seriously and has proved very responsive to this complaint. In my life, I’ve not seen a bureaucracy produce such a vigorous and fast response, which included setting up an ad hoc process involving a 13-month external investigation followed by a three-month evidential review and legal analysis carried out by independent high-ranking Judges, all of whom were appointed solely for this complaint.

Let me now turn to the investigation itself. Why are you able to speak to me at all about it?

As I noted in my recent op-ed for Al Jazeera English, while I signed a confidentiality agreement as a condition of receiving the disclosure that bars me from discussing the evidence, I am permitted to respond to any inaccurate or misleading information placed into the public domain. I can respect those obligations while discussing the underlying evidence.

Not everyone has followed the investigation as closely as you and I have. Can you summarise the important milestones that have been publicly reported?

In May 2024, a report of sexual misconduct by the Prosecutor against a female staff member was made by a third party and the Court’s Independent Oversight Mechanism (IOM) opened the investigation. The alleged victim, who was not aware that the report had been made, declined to cooperate. Without further evidence being available that was capable of substantiating the report, the matter was closed.

In October 2024, following information, including the identity of the alleged victim, being placed in the public domain by the anonymous X account @ICCLeaks, the matter was referred to IOM for a second time by the Prosecutor. Ultimately, though, the President of the ASP tasked the United Nations Office of Internal Oversight Services (OIOS) with the investigation of allegations of sexual misconduct and abuse of authority.

OIOS began its investigation in November 2024. It ran for over a year, ending in December 2025. All parties had lengthy interviews and were able to submit, at any point in the investigation, material that they considered relevant. OIOS investigators also interviewed many others and independently collected material. Contrary to what has been reported with regard to the allegation of sexual misconduct, there are no corroborating witnesses. The material collected ran to over 5,000 pages.

While the OIOS investigation was underway, the ASP’s Bureau selected and appointed a Judicial Panel comprised of three eminent judges and charged them with legally characterising any facts found by OIOS in the course of its investigation.

The appointment of an independent and impartial Judicial Panel was strongly advocated for by civil society organisations that were following the process. For example, in May 2025, the International Federation for Human Rights (FIDH) and Women’s Initiatives for Gender Justice produced an explainer in which they emphasised that the “legal assessment must be conducted by experts and cannot be undertaken by a political body. It is imperative that an independent body, distinct from the ASP Bureau, conduct the legal assessment of the OIOS’ factual findings to ensure fairness, impartiality and institutional credibility.”

Starting in December 2025, and over the following three months, the Judicial Panel undertook an in-depth review and analysis of the OIOS Report and the mass of underlying material.

In March 2026, the Judicial Panel delivered its 85-page Report, recounting the evidence collected by OIOS and providing a lengthy analysis of the underlying evidence, before arriving at a unanimous conclusion that the facts do not establish misconduct or breach of duty, including retaliation.

What has been the focus of your work on the Prosecutor’s case?

As I said, I was retained by the Prosecutor to undertake a gender-competent analysis of the evidence and to draft the Defence submissions to the Judicial Panel. As part of that I immersed myself in the OIOS Report and in the thousands of pages of underlying information and evidence. Only a handful of people have had access to the underlying material and ever fewer have studied it in depth. No one has spent as much time analysing the entirety of that evidence and the OIOS Report as the judges appointed to the Judicial Panel.

Were you surprised by the Panel’s unanimous conclusion?

As I’ve stated previously, the finding of the judges did not surprise me. The evidence does not come, in my view, remotely close to the facts being established beyond a reasonable doubt, the standard of proof used in all such disciplinary cases under the governing jurisprudence. I also remain very far from convinced that even a significantly lower standard of proof would have yielded a different result, such was the state of the evidence.

I want to ask you about your view that there have been efforts by a coterie of political and civil society actors to justify the Bureau – which is, after all, a political body – disregarding the Judicial Panel’s conclusions. Let’s start with the idea – widely reported in the media – that OIOS “found” both non-consensual sexual misconduct and retaliation against the individuals who reported it.

OIOS did not make conclusive factual findings of sexual misconduct or retaliation. The OIOS Report, in its concluding – and operative – section entitled “Findings,” made 137 individual findings. Conclusive findings were made on uncontested matters – the jobs people held, for example. On the contested allegations, however, the OIOS Report did not reach conclusive findings but instead set out a series of conflicting facts. This state of affairs was repeatedly referenced by the Judicial Panel, which, as has been publicly reported, stated that “the investigators in the present matter either did not reach conclusive factual determinations or concluded that such determinations were impossible based on the evidence collected.”

The judges further noted that it was not OIOS’s role to apply the standard of proof and that this legal assessment of the evidence presented by OIOS fell within the remit of the Judicial Panel.

So there is a difference between a finding of fact and evidence?

There is seemingly a great deal of confusion among advocates and the media about the difference between evidence of an allegation and a finding of fact. That is how every case starts: with an allegation of wrongdoing which forms part of the evidential record, often (though not always) in the form of a statement from a complainant. In some cases – though not in this case – the evidence of the allegation may flow from or be compounded by corroborating witnesses or documentary evidence. Any information which asserts the allegation is evidence, albeit untested. But that evidence is not a finding. If it were, we would essentially have dispensed with the need for a justice system. A finding is – or isn’t – reached only when all admissible evidence, including but not limited to evidence which first raises the allegation, is analysed against the relevant standard of proof.

If OIOS did not make conclusive factual findings of misconduct or retaliation and the Judicial Panel determined the facts did not establish misconduct or retaliation, why do you think various individuals and organisations are so strongly demanding that the Bureau disregard the Panel’s report?

The arguments posited for why the analysis and conclusion of the Judicial Panel ought to be disregarded have waxed and waned, but so far have included the following: that the standard of proof of beyond reasonable doubt is too onerous and a lower standard of proof should now be imposed; that OIOS’s gathering of evidence of an allegation equates to a factual finding that the alleged conduct occurred; that if OIOS did not reach conclusive findings in its 13-month-long investigation, then a new investigation should be conducted until conclusive findings are reached; that the Judicial Panel lacked the appropriate experience and the gender competence to review such a case; that the Judicial Panel, in their three months of review and analysis, missed making a determination on the allegations of abuse of authority or retaliation; that the Judicial Panel did not know how to treat hearsay evidence; and that the Judges themselves failed to recognise that victims of sexual misconduct do not always act in commonly expected ways in a process beset by misogyny.

Let’s start with the standard of proof. “Beyond a reasonable doubt” is a high standard, one generally used in criminal cases. Should the investigation use a lower standard?

The Bureau established an ad hoc process specifically for this complaint and determined the form it would take. The Defence had no input into the process’s form. Under the governing jurisprudence of the Administrative Tribunal of the International Labour Organization (ILOAT), recognised as applicable by the Bureau when it defined the Judicial Panel’s Terms of Reference, the standard of proof in disciplinary cases is that of beyond reasonable doubt. To propose lowering the standard of proof for this case specifically and/or after receiving the Judicial Panel’s finding of no misconduct and no breach of duty is alarmingly disingenuous and antithetical to the rule of law. Nor can one seek to re-run investigations or adjust the process until one gets the result one wants. No system of justice based on the rule of law works that way.

Disregarding the conclusion of the Judicial Panel would also place the Bureau outside of the jurisprudence which binds it. The principle of deference to the findings and recommendations of advisory bodies such as the Judicial Panel has repeatedly been emphasised in ILOAT jurisprudence, covering the full spectrum of administrative decisions by international organisations, including disciplinary decisions in cases of alleged misconduct. In a judgment from February of this year, for example, ILOAT upheld a decision of an appeal committee with an advisory remit, holding that “considerable deference was to be afforded to that appeal committee’s report” because “the Committee properly performed the review that it was required to perform and sufficiently substantiated its opinion.”

The closest we have come to designing a meaningful justice system is to ensure there is a genuine investigation in which all parties can participate and are treated with dignity, and in which the due process rights of the subject are respected before the full evidential record is thoroughly analysed by qualified, impartial judges (or juries directed on points of law and procedure by a judge) and a predetermined standard of proof is applied. That is what has happened here. The process should be supported.

What about criticisms of the Judicial Panel itself?

Those criticisms hint darkly at some activists’ willingness to make ungrounded assertions in pursuit of outcome-securing advocacy. The Judges, whose identities were also leaked, are eminently qualified. Hailing from different geographic regions, each of the three Judges has sat on some of their country’s (and in some cases, their world region’s) highest courts. They have weighty experience in multiple fields of relevant law, including labour, administrative, and human rights law. One is renowned for her transformative rulings on women’s rights and gender equality.

The Judicial Panel meticulously recounted and analysed evidence of all allegations made, and the judges reached a clear determination that the facts found by OIOS did not establish either misconduct or breach of duty under the applicable legal framework. In their analysis, the judges clearly set out how hearsay evidence should be treated, making reference to jurisprudence. They also explicitly recognised and took into account that individuals alleged to be victims of sexual violence may act in ways that are not commonly expected, including for example maintaining amicable relationships with those who they later accuse.

Shifting terrain slightly, what do you think of the anonymous letter FIDH posted on LinkedIn, in which a group claiming to be ICC staff members say that they are opposed to the Prosecutor’s return?

I’m not a proponent of anonymous letters writ large and, frankly, they have no bearing on this process. Predictably, there was then a second anonymous letter, again purportedly from ICC staff members, but this time supporting the Prosecutor’s return. FIDH did not repost the second letter – and their choice of what to lend their name to and what not suggests a greater desire to support a campaign to remove the Prosecutor than to support an evidence-based independent legal process.

And that desire, you think, is behind efforts to render acceptable any move by the Bureau to disregard the Judicial Panel’s report?

I think there was a prejudgment of guilt by a number of individuals and organisations, none of whom had access to the underlying evidence and all of whom supported the Judicial Panel’s work prior to the judges’ reaching their finding. That prejudgment set the stage for the view that the only acceptable outcome is one in which misconduct is determined. So now what we have, from some quarters, is support not for an evidence-based justice process before impartial judges, but for one desired outcome and a re-worked process capable of delivering it. Thus began, in my view, some of the advocacy efforts urging the state-appointed diplomats on the Bureau to disregard the reasoned analysis and unanimous conclusion of the Judicial Panel.

Will any of the activists who have argued – unconvincingly – that the Judicial Panel lacked the subject-matter experience and gender competence required to legally assess the evidence raise similar concerns of state-appointed diplomats in the Bureau, should the Bureau disregard the Judicial Panel’s findings? I have reasonable doubts.

I also have reasonable doubts, had the Judicial Panel come back with a finding of misconduct or breach of duty, whether the Judges and process would have faced similar criticisms or the process would still be going on nearly two months later.

You wrote in your Al Jazeera English op-ed that setting aside the Judicial Panel’s conclusion would be inconsistent with the rule of law. Can you expand on that?

The delay and dismay that have characterised the reaction of some individuals appear to flow from some conviction, arrived at despite their not having access to or having studied the full evidential record, that the only correct finding in this matter would have been one in which serious misconduct is determined. This is not what justice is. In fact, it’s an anathema to justice, based as it is on discarding the presumption of innocence and a Trumpian desire for political actors to effectively substitute their judgment for that of impartial and expert judges who spent months analysing the evidence.

That it is even possible a coterie of state-appointed diplomats in the Bureau would disregard the finding of the Judicial Panel, despite the judges’ rigorous and lengthy review of evidence and lengthy written analysis, their impartiality, and the fact that the they were selected and appointed by the Bureau to provide reasoned legal assessment, should shock the conscience of those who root themselves in meaningful justice processes. And that possibility should serve as a warning about where a prejudgment of guilt – arrived at by those with neither access to evidence, nor the relevant expertise, nor the impartial mindset – may lead.

The spectre of diplomats seeking to push aside the findings of impartial judges and effectively substitute their finding is dangerously anti-rule of law. Political actors removing or even sanctioning an ICC Prosecutor after he was exonerated by an independent Judicial Panel would raise grave questions about the independence of the Office of the Prosecutor, particularly when that Office has broadened the reach of the Court beyond geopolitically weaker states.

This possibility raises the question of whether this is a fair, impartial process leading organically to an outcome or what we are witnessing is the powerful few, disappointed by the impartiality of the judges they themselves appointed, now seeking a process that will deliver to them their desired outcome.

Any final thoughts before we end?

To cheer on a justice process where political actors cast aside the reasoned findings of impartial and independent judges is to create a monster. It is dangerously naïve to think that one can keep that monster in a box and only unleash it against individuals one has prejudged as guilty.

Should the Bureau, a political entity, disregard the rigorous analysis and unanimous conclusion of the eminent Judicial Panel – and in so doing, contravene the jurisprudence that binds the Bureau – it would raise profoundly troubling questions about the impartiality and independence of a process that will determine the future of the ICC Prosecutor and, with it, the direction and integrity of the Court.

After a yearlong investigation and a three-month evidential review, the Judicial Panel provided its lengthy, reasoned judgement and unanimously determined that OIOS’s factual findings do not establish misconduct or breach of duty, including retaliation, on the part of the Prosecutor. This is the outcome based on the evidential record, and it is just.

Justice actors must speak up to defend justice processes based on rule of law and due process, and must underline the cascading dangers, now in our midst, of so readily discarding the presumption of innocence.

The Bureau, for its part, must uphold the Judicial Panel’s considered findings and declare the matter closed.

Thank you for taking the time to conduct this interview, Sareta.