By Francesco Seatzu, Professor of International Law at the University of Cagliari, Italy
On 9 June 2026, the Bureau of the Assembly of States Parties made a decision with regard to the ongoing crisis involving the personal conduct of ICC Prosecutor Karim Khan, having spent many months dealing with various allegations raised regarding his behavior and the Office of the Prosecutor (OTP)’s handling of the allegations. [1]. The involvement of the Bureau in addressing the problem of the ICC Prosecutor represents an exceptionally uncommon occurrence in the institutional life of the ICC, suggesting that the main political body of the ICC Treaty regime found it necessary to intervene where other institutional mechanisms were failing. It is within this context that this contribution discusses that it is now time for the ICC to recognize that the most significant institution-building challenge it faces is not related to the Court per se, but rather to its OTP.
Most of the debate about the Khan case thus far has focused on the following issue: Is there enough evidence of misconduct by the Prosecutor, and does the Court have enough means of dealing with this problem? [2] Such an approach is quite natural considering the seriousness of the charges and their precedent character. Yet it is not quite right.
As this debate progresses, it will be shown that the actual issue arising here is, primarily, an institutional one, and not the incompetence of the Court, as some may have thought. Indeed, as will be seen later, the actual deficiency here pertains to the capacity of the Office of the Prosecutor, and not to that of the Court. And yet, this particular aspect of the problem might be overlooked precisely because of the tendency to view things from an exclusively personal angle.
The purpose of the Rome Statute was to shield the Prosecutor from any form of political interference from the outside. [3] Under Article 42 of the Statute, the Prosecutor must be independent and free from receiving any orders from any external party. This independence has always been regarded as one of the core aspects of the legitimacy of the Court. [4] If decisions made by the Prosecutors were to be interfered with politically, the ICC would not be able to probe into sensitive political issues.
At the same time, however, the Rome Statute provides means to ensure accountability. In particular, under article 46 of the Statute, the Prosecutor may be removed for any serious misconduct or serious breach of his or her obligations, and, according to article 47, disciplinary actions may be taken in respect of Court officials. Thus, the issue is not the total lack of mechanisms of accountability. It is the ambiguity of the procedural framework for dealing with issues related to the Prosecutor which creates a problem.
The current post explores the institutional lessons that could be derived from the dispute. First of all, the focus will be on the structure of the ICC accountability system, including the problems associated with the allocation of oversight powers within the Court. Next, the post highlights the lack of a clear evidence standard and its potential impact on institutional legitimacy and integrity. Additionally, the problem of confidentiality and reputation management will be discussed. Finally, the post offers reflections on the implications of the whole scandal for the ICC prosecutors in general.
From this perspective, the core issue of the present-day debate surrounding the Khan affair can be described as follows: while the ICC has several mechanisms designed to ensure accountability, the problem arises when it comes to having a clear and predictable framework in place to guarantee proper balance between accountability and prosecutorial independence. In other words, one may conclude that the core question lies beyond simple existence of the respective mechanisms.
The ICC’s Accountability Architecture and Its Gaps
The responsibility of responding to cases of wrongdoing within the top echelons of the ICC falls to a number of bodies, mainly the Independent Oversight Mechanism (IOM) [5] the Presidency, [6] and the Assembly of States Parties (ASP). [7] The IOM was created specifically to handle cases of misconduct at the ICC, and it acts according to its mandate granted by the ASP.
Yet, the interrelationship among all the relevant bodies is not entirely clear. Both the Rome Statute and the existing structure do not contain provisions that clearly outline the criteria that need to be satisfied before an investigation into senior staff members of the OTP can take place. The case of the Bureau’s decision of 9 June 2026 highlights this issue. Despite the fact that an OIOS investigation, which had been evaluated by a panel of judicial experts and was concluded to be inconclusive, took place, the Bureau suspended the Prosecutor and referred the case to the ASP without following an established procedure.
This uncertainty is particularly relevant in cases where the Prosecutor is personally accused of wrongdoing. In contrast to other senior personnel who form part of the Court’s internal organizational structure, the office of the Prosecutor holds a unique constitutional position, since any decision made under the discretionary power granted by the Rome Statute has ramifications for the conduct of existing wars, foreign relations between the States Parties and third countries, as well as military and political interests of governments whose citizens or rulers may be under investigation. The lack of an effective procedure to deal with the problem in such a situation is thus not only a matter of inefficient administration, but a structural weakness in the most politically sensitive spot of the whole criminal legal process.
It follows that the disciplinary process may well become entangled in a larger geopolitical struggle. This is not to suggest that there is any actual political interference involved in the undergoing proceeding. Rather, as long as the procedure remains unclear, the likelihood of politicization increases significantly.
At bottom, this is an issue of legitimacy and the rule of law. Constitutional orders are legitimate not just because of the results that they achieve, but because of the process through which the results were obtained.
Evidentiary Thresholds and Procedural Uncertainty
A further source of uncertainty relates to the absence of clearly defined evidentiary thresholds. The current system has hardly offered any insight into the burden of proof that should apply at different stages of the process, starting from the initial evaluation stage up to the stage where institutional measures can be undertaken. This has presented considerable challenges in terms of predictability and fairness of the process itself.
There are at least two problems with this.
First, it compromises predictability. The officials under scrutiny must be able to know what procedural standards apply in relation to the assessment of their behavior. If not, then any decision to begin or intensify the proceedings will come across as arbitrary or poorly founded in legal criteria.[8]
Furthermore, possibly even more importantly, uncertainty of procedure brings institutional vulnerability, especially under conditions of great political sensitivity. The accusations leveled against Prosecutor Khan coincided with several politically sensitive investigations being undertaken by the Office of the Prosecutor at that time. These included Ukraine, Afghanistan, Sudan, and Palestine. In each case, there are questions of high political sensitivity, as they relate to conflict situations as well as accusations of international crimes. Under such circumstances, even well-founded accountability procedures could come across as political maneuvers when the standards and procedures are unclear and unpredictable.
In situations like this, even actions that are procedurally appropriate may create impressions of the political manipulation of accountability processes. Consequently, the question of legitimacy is not just about the possible impropriety, but the institutional inability to prove that the process is legally sound.
This issue is particularly delicate in cases where the measures undertaken in a preliminary way impact the performance of the Office of the Prosecutor prior to the determination being made concerning their findings. The situation involving Prosecutor Khan clearly highlights this challenge. Throughout the proceedings relating to the case and the institutional measures that were taken, Prosecutor Khan took himself out of his responsibilities, something that would inevitably lead to concerns regarding the continuity and the independence of the Office while it is undertaking very sensitive investigations. While this might not have been the intention of the allegations, it highlights the challenges that can arise even prior to the identification of any responsibilities. These steps not only have an impact on the work of the Office of the Prosecutor but also on the image of the institution conducting its investigations independent of any other influences.
Confidentiality, Reputation, and Fairness
The case of Khan further highlights the challenge faced by organizations in maintaining confidentiality while remaining transparent in cases that involve top-ranking international officials. Accusations that are raised against the Prosecutor of the ICC are bound to have an immediate effect on the person’s reputation irrespective of whether they are proved or not.
On the other hand, secrecy is not without its own dangers. Secret processes can give the appearance that the organization is trying to defend itself and shield its members from any scrutiny at all.
The comparison with Article 67 of the Rome Statute is even more revealing. Article 67 establishes the rights of the accused in the proceedings of the International Criminal Court, including the right to a fair and public hearing, presumption of innocence, reasonable time and facilities for preparing his or her defense, legal aid, confrontation, interpretation, and non-compulsion to testify. This is why Article 67 can be regarded as the article that best demonstrates the principles of due process enshrined in the Rome Statute. However, it is hard to identify a similar, equally detailed legal framework in respect of the internal disciplinary and/or pre-disciplinary procedure conducted with regard to senior officials of the International Criminal Court. In this case, it should be noted that it is not necessary for a senior official to be viewed as the accused in a criminal case; what matters is that an institution relying on the legitimacy provided by the guarantees of fair trials should apply appropriate standards in respect of internal accountability.
The importance of this asymmetry cannot be understated on an institutional level. The ICC sees itself as being committed to the principles of legal justice and fairness. [9] As such, it is impossible for its procedures to be completely isolated from these same principles.
Prosecutorial Independence Under Geopolitical Pressure
Nothing about any of this suggests that accountability needs to be compromised in any way. On the contrary, accountability is crucial to institutional legitimacy. The issue is preventing accountability mechanisms from becoming tools for undermining prosecutorial independence.
The prosecution of international crimes is never politically impartial. It is carried out within the context of international relations characterized by geopolitical rivalry, legitimacy issues, and jurisdictional issues. In such situations, discipline action taken against a high-ranking prosecutor become instantly politically charged.
Thus, the case of Khan is indicative of a larger problem in the institution of the ICC, one that goes far beyond the particular allegations against Khan. In the last two decades, there has been a great deal of focus on improving the abilities of the ICC to conduct investigations and prosecutions relating to the core international crimes of genocide, crimes against humanity, war crimes, and more recently, aggression. [10] Yet, not much thought has been given to the process of developing a constitution for the ICC that would allow for reconciliation between accountability, justice, and prosecutorial autonomy.
Securing prosecutorial independence alone is not enough. An accountability process must be combined with procedural guarantees which will be strong enough to secure a fair process without giving the impression that a prosecutor can be threatened through accountability procedures to make certain decisions. In the Khan case, this issue was brought into sharp focus. The incident clearly highlighted a lot of uncertainty in terms of the handling of allegations against a prosecutor, especially in regard to who was supposed to do what, how much evidence had to be brought forward at each stage of the procedure, and what were the effects of the actions undertaken by the institution before the conclusion of the accountability process in terms of determining responsibility. In light of the temporary suspension of Prosecutor Khan from his duties, there was an indication that the accountability process had far-reaching consequences before any resolution of the matter. The critical question in this situation is not whether the allegations should be investigated; rather, it is whether the processes in question are predictable, fair, and independent enough to protect the ICC’s institutional integrity.
Conclusion
The Khan affair is first and foremost a constitutional test rather than an example of personal misconduct. The case has laid bare the shortcomings of the governance structure that was put in place under the Rome Statute to govern the functioning of the OTP office. Tensions between the need to guarantee prosecutorial independence, which is the cornerstone of the OTP’s setup, and institutional accountability have always existed within the Statute, and recent events made it impossible not to see them.
Specifically, three deficiencies of the current governance structure in handling allegations against the OTP have become especially evident. The first one is related to the division of competence between the IOM, the Presidency and the Bureau of the ASP. In the Khan case, the system has needed to invent a set of procedures for each stage of the process due to the lack of any established mechanism. The second deficiency is caused by the absence of threshold evidence levels to move from a preliminary investigation to disciplinary proceedings. Finally, the lack of provisions concerning confidentiality and communication of interim measures makes the Court vulnerable even if the case ends positively.
However, none of these deficiencies can be solved through personal measures alone; what is needed is institutional change. In particular, the upcoming special session of the Assembly of States Parties should make sure that these problems receive thorough attention. Specifically, the following needs to be done: creation of a clear procedural code for investigations of high-ranking OTP officials, including threshold evidentiary requirements for each phase of such investigations; establishment of guidelines on confidentiality and communication of interim measures; and clarifying competences of the IOM, Presidency and Bureau of ASP to prevent similar improvisation in future cases.
Ultimately, the credibility of international criminal law depends not only on fair trial procedures but also on effective internal governance mechanisms. The Khan affair may prove a golden opportunity for improvement in this respect.
———————————————————————
[1] ICC Presidency, Statement on the Decision of the ASP Bureau in the Disciplinary Proceedings against the ICC Prosecutor (June 9, 2026), https://www.icc-cpi.int/news/statement-presidency-decision-asp-bureau-disciplinary-proceedings-against-icc-prosecutor)
[2] See, e.g., Judges Say ICC Prosecutor in Sexual Misconduct Inquiry Can Potentially Resume Work, Documents Show, Associated Press (Mar. 2026), reporting on allegations of sexual misconduct against ICC Prosecutor Karim Khan and the ensuing institutional investigation; Allegations Against ICC War Crimes Prosecutor Still Under Review, Memo Says, Reuters (Mar. 22, 2026)..
[3] Rome Statute of the International Criminal Court art. 42(1), July 17, 1998, 2187 U.N.T.S. 90 (“The Office of the Prosecutor shall act independently as a separate organ of the Court.”); see also art. 42(2) (“A member of the Office shall not seek or act on instructions from any external source.”).
[4] Rome Statute of the International Criminal Court arts. 42(1)–(2), July 17, 1998, 2187 U.N.T.S. 90; see also Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, ICC-01/04-169, Appeals Chamber, ¶ 52 (13 July 2006)
[5] Presidency: https://www.icc-cpi.int/about/presidency
[6] Assembly of States Parties (ASP): https://asp.icc-cpi.int
[7] Assembly of States Parties, Independent Oversight Mechanism, ICC-ASP/8/Res.1 (26 Nov. 2009), available at ICC Independent Oversight Mechanism Mandate
[8] See Rome Statute of the International Criminal Court, arts 21, 42 and 67; European Convention on Human Rights, art 6; International Covenant on Civil and Political Rights, art 14; Human Rights Committee, General Comment No 32, ‘Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial’ (23 August 2007) UN Doc CCPR/C/GC/3
[9] Rome Statute of the International Criminal Court, Preamble and art. 21(3), July 17, 1998, 2187 U.N.T.S. 90
International Law Blog 