The integrity of an inquiry into sexual misconduct allegations against the chief prosecutor of the international criminal court could be jeopardised by his ties to the body tasked with the investigation, court staff have said.
The Guardian understands a number of court officials have raised concerns about Karim Khan’s links to the UN watchdog being lined up to investigate the claims.
Some of the concerns, which have been raised at the highest levels of the court, relate to the prosecutor’s wife, a human rights lawyer who previously worked as an investigator at the UN watchdog, the Office of Internal Oversight Services (OIOS). Dato Shyamala Alagendra is also alleged to have acted inappropriately after the claims against her husband had been made, including contacting the alleged victim.
Several ICC sources said the concerns about potential conflicts of interest also related to the chief prosecutor’s links with the OIOS’s head of investigations, whom Khan is understood to have hired as one of his top officials when they worked at the UN.
On Monday, the court’s governing body, the assembly of state parties, announced an external inquiry into the allegations after relieving an internal body of re-examining the matter due in part to “perceptions of possible and future conflicts of interest”.
The assembly did not disclose who would conduct the investigation, but diplomatic sources said it has asked the OIOS to do so and was finalising an agreement.
The scope and formation of the inquiry has been the subject of protracted closed-door negotiations between the ICC’s member states as they grapple with a deepening crisis for the court amid acute geopolitical sensitivities.
The external inquiry will examine the allegations against Khan, which, the Guardian reported last month, include claims of unwanted sexual touching and “abuse” over an extended period, as well as coercive behaviour and abuse of authority.
Lawyers for Khan, 54, have said he denies all the allegations and that he “looks forward to engaging fully” with the inquiry. The alleged victim, an ICC staff member in her 30s who worked directly for the chief prosecutor, has declined to comment.
According to several ICC sources, the woman has told court authorities she would be willing to cooperate with the investigation provided it was sufficiently independent, but is said to have expressed concerns about the OIOS.
Khan is facing a backlash among many of his staff over his decision to ignore advice from senior officials that he should take a leave of absence until the inquiry is resolved, four sources in the prosecutor’s office said.
“Staff are boiling that he has unilaterally decided to stay on,” one source said. Khan’s senior staff, they added, had conveyed to his two deputy prosecutors that he should temporarily step aside “to prevent a chilling effect on witnesses and protect the integrity of the inquiry”.
Claims about Alagendra’s actions
As some of Khan’s senior staff began to press for an external inquiry into the allegations last month, it emerged internally that the OIOS – a watchdog responsible for internal investigations, audits and inspections of UN agencies – was in the running to carry out the investigation.
Within days, concerns began to be raised among senior ICC officials, the staff union, and with the presidency of the assembly about Khan and his wife’s connections to the OIOS, sources familiar with the discussions said.
Alagendra, a high-profile international lawyer who specialises in sexual and gender-based crimes, worked at the OIOS from 2019-20 as a senior investigator focused on sexual harassment and abuse.
Dato Shyamala Alagendra with Karim Khan in July. Photograph: Sadiq Asyraf
One former UN official said Alagendra has “deep connections” at the watchdog. “She was an investigator and knows many of [its] investigators,” they said.
Alagendra’s OIOS ties have raised concerns among a group of Khan’s staff who learned in recent weeks of how she is alleged to have responded to the claims against her husband.
According to four sources aware of the situation, within days of Khan being informed of the allegations against him in early May, Alagendra contacted and spoke to the alleged victim and an ICC staff member, a longstanding adviser to the prosecutor who had reported the allegations internally days earlier.
The sources said the timing and nature of her contacts with both people were regarded as unusual and highly inappropriate.
At the time, an internal oversight body at the court was conducting an initial inquiry to assess the allegations. Within five days of learning of the claims, internal investigators decided against opening a full investigation.
Alagendra contacted the alleged victim shortly after Khan had been told the allegations would be formally reported, according to several ICC sources. She suggested they meet the following day when she would be in the court for a previously arranged official meeting with her husband.
Sources briefed on the situation said the alleged victim subsequently told colleagues she found the situation involving Khan’s wife, which included two further approaches, to be alarming.
In a statement, Alagendra said: “I have never discussed these allegations or any related inquiry with an alleged victim or with anyone from OIOS. Nor have I ever attempted to discourage, threaten or intimidate anyone at all, let alone an alleged victim or an OTP [office of the prosecutor] staff member, from pursuing or reporting any complaint.”
She added: “These allegations are extremely hurtful to me because all spheres of my life have been devoted to defending and upholding the rights of the vulnerable and disadvantaged. This includes my work in prioritising the prosecution of sexual and gender-based crimes as well as crimes against children. My commitment in this regard has always been, and continues to be, unwavering.”
Khan’s ties with senior watchdog investigator
The second concern among Khan’s staff about his ties to the UN watchdog surfaced when it became known that the director of its investigations division previously worked closely with Khan at the UN.
It is understood the senior investigator served as one of Khan’s top officials from 2018-21 when he ran a UN body that investigated crimes committed by Islamic State militants.
It is unclear whether the official, who did not respond to the Guardian’s request for comment, will recuse herself from any involvement in the inquiry into Khan. There is no suggestion of any wrongdoing by her.
Lawyers for Khan said he had not discussed the allegations with the UN watchdog or its investigations chief and “he has had no communication with that official or for that matter the OIOS itself for some years”.
The president of the assembly of state parties declined to comment when asked what steps it was taking to ensure the independence of the OIOS investigation. A diplomat familiar with the plan to appoint the OIOS suggested it had “inbuilt mechanisms to deal with any potential conflicts”.
The assembly is understood to be working with the watchdog to establish how the inquiry will operate.
The investigation comes at a sensitive moment for Khan as a panel of ICC judges continues to consider his applications for arrest warrants against the Israeli prime minister, Benjamin Netanyahu, and his former defence minister, Yoav Gallant, for alleged war crimes and crimes against humanity in Gaza.
Khan has suggested the sexual misconduct allegations may be part of a campaign against him, referring to “a wide range of attacks and threats”, however the Guardian reported on Monday that officials close to him do not believe the allegations are connected to any kind of plot by hostile external actors.