By Dr Cyril Laucci, Lead Counsel for the Defence before the ICC

On 24 July 2026, the decision was handed down. 82 States Parties concluded that the Prosecutor of the International Criminal Court (“ICC”), Karim Khan, had committed serious misconduct and a serious breach of his duties. This decision brought to a close the outlandish proceedings concerning the investigations into allegations of sexual harassment against him. By this vote, the Assembly of States Parties (“ASP”) terminated his mandate, a first in the history of the Court. The decision paves the way for the election of a new Prosecutor, although no timetable has yet been announced.

On the same day, the ICC took note of the vote of the ASP and observed that the two Deputy Prosecutors would continue to ensure the leadership and management of the Office of the Prosecutor (“OTP”) on an interim basis, “as they have done since Mr Khan took a leave of absence in May 2025 and following his suspension from duty on 8 June 2026.” The Court’s statement further recalled that “throughout this process, the Court has continued to carry out its mandate and activities, thanks to the professionalism and dedication of staff members.” No further measures or consequences were announced.

The removal of Karim Khan, however, cannot be reduced to a mere episode in the life and functioning of the ICC, one for which the institution would supposedly be equipped to cope while continuing to fulfil its mandate as though nothing had happened. In many respects, it constitutes a major institutional trauma occurring against the backdrop of United States and Russian sanctions against the Court and the subsequent announcement of the withdrawal of five States Parties – Burkina Faso, Mali, Niger, Chad and Venezuela – from the ASP’s 125 members. Without in any way suggesting the existence of a causal link between the sanctions, the withdrawals and the Prosecutor’s removal, the combination of these developments can scarcely be described as anything other than the gravest crisis the Court has faced since its establishment, one that is capable of threatening its very existence. Even those most reluctant to resort to superlatives would acknowledge that the moment is grave and that the crisis runs deep.

A crisis calls for one of two possible responses. The first is to lower one’s head and carry on as before, enduring in the hope that the crisis will eventually pass. Unless more is cooking, that is the strategy which the Court’s minimalist statement appears to suggest. It rests on the assumption that the ICC is sufficiently resilient and sufficiently supported to weather the storm until calmer times return. The second response is to take the necessary measures to identify the causes of the crisis and actively engage in finding and implementing solutions while strengthening the institution so as to increase its resilience. It is this alternative course that the present contribution advocates.

Without descending into catastrophism, the removal of the ICC Prosecutor against a backdrop of international sanctions and State withdrawals gives rise to legitimate concern regarding the Court’s survival and its independence. This calls for action.

The sanctions imposed by the United States and Russia – including those now targeting the ICC President, nine judges of the Court, its two Deputy Prosecutors, the Prosecutor removed on 24 July, and a staff member who is a candidate for election as an ICC Judge – have thus far elicited only cautious and minimalist support from the States Parties. To date, none has committed to pursuing the principal avenues of legal response, namely instituting proceedings before the International Court of Justice or invoking Article 16 of the Rome Statute before the United Nations Security Council in relation to the Situation in Palestine (see my previous contributions, “US Sanctions Against the ICC: From Stupor to Action” of 19 December 2025 and “United the ICC Stands” of 13 April 2026). Beyond a handful of press releases, the Court and its targeted officials remain largely alone.

It would almost be reassuring to interpret the withdrawal of States as merely one aspect of the United States sanctions. The statement made by United States Secretary of State Marco Rubio on 13 July 2026 – in which he announced the United States’ determination to dismantle the ICC, “if necessary, brick by brick,” and called upon States Parties to withdraw from the Rome Statute – invites such an interpretation. There may indeed be such a connection in the case of Venezuela, insofar as the sovereign character of its government has been called into question since the United States intervention of January 2026. However, to reduce the withdrawal of States such as Burkina Faso, Mali, Niger and Chad to a mere response to the United States’ call for withdrawal overlooks two essential realities. First, these four States are sovereign States that determine their foreign policy and their participation in treaties and international organisations in the full exercise of their sovereignty. Secondly, in the case of at least the first three, their withdrawal had already been announced in 2025, well before the United States Secretary of State’s speech of 13 July 2026. It would therefore be both erroneous and dangerous to regard withdrawals from the Rome Statute as merely a secondary consequence of United States sanctions.

The twists and turns of the proceedings that culminated in the Prosecutor’s removal have already generated extensive commentary and opinion, including my own (“The Independence of the ICC Under Friendly Fire?”, 7 April 2026). Although the full reasons for, and circumstances surrounding, his removal remain far from being fully established, three essential facts remain beyond dispute, irrespective of one’s perspective.

First, the ordinary investigative procedure provided for under the Court’s legal framework when the matter arose in 2024 – which required the Independent Oversight Mechanism (“IOM”), established by the ASP pursuant to Article 112(4) of the Rome Statute for precisely this purpose, to conduct the investigation – did not function in this case. Secondly, the ASP was forced to improvise in order to compensate for the failure of its IOM and established a new procedure adopted in December 2025. Thirdly, the Prosecutor was removed without any judicial or disciplinary panel having concluded, following adversarial proceedings, that his guilt in relation to the allegations against him had been established “beyond reasonable doubt.” Let us briefly examine each of these three facts in turn.

1. The Failure of the Independent Oversight Mechanism

In the summer of 2024, the IOM received allegations of sexual harassment concerning the Prosecutor of the Court. According to publicly available information, the matter was closed without further action because the alleged victim did not lodge a formal complaint.

At first sight, this outcome was consistent with the IOM’s established practice, as summarised in each of its annual reports to the ASP: “The IOM also continued to meet with individuals who wished to discuss potential complaints and seek the IOM’s guidance in terms of the applicable process should a formal complaint be made. If such a consultation does not lead to a formal complaint it is not recorded as a ‘case’ in its system, but is nevertheless logged in the IOM’s internal systems.” (from IOM Annual Report ICC-ASP/22/21, 16 November 2023, para. 7). It is worth noting that the French version of the same report varies from the English version by stating that, in the absence of a complaint, the case is closed and is not logged in the IOM’s records (Rapport du MCI ICC-ASP/22/21, 16 novembre 2023, para. 7). The IOM’s stated practice is thus not as clear as it seems.

Yet this practice of the IOM was not in accordance with the wording of its Mandate, the version in force in 2024 having been adopted by ASP Resolution ICC-ASP/19/Res.6, Annex II, of 16 December 2020. Paragraph 9 of the Mandate indeed specified that “the IOM shall also be the only body authorized to receive and investigate complaints of misconduct and serious misconduct against any elected official”. Paragraph 10 also confirmed that the IOM was competent to investigate – though with respect to former elected officials – without a complaint, showing that the filing of a formal complaint was not invariably a condition for the IOM’s exercise of its investigative functions. Judgments issued by the ILOAT on ICC-related cases also show precedents in which the IOM investigated cases without being seized by a complaint, as, for instance, in Judgment 4949, although that case concerned a staff member under paragraph 8. It was precisely the IOM’s decision not to try to exercise investigative discretion in 2024 that gave rise to the institutional psychodrama whose conclusion was reached on 24 July 2026. Two years of improvisation, uncertainty and procedural expedients resulted for one simple reason alone: the IOM refused to perform the function entrusted to it. Why did the IOM decline to open an investigation into the allegations against the ICC Prosecutor in 2024 in the absence of a formal complaint, despite the fact that the allegations were manifestly serious and detailed and paragraph 10 of its Mandate expressly authorised it to do so? The answer to that question will probably never be known. The subsequent determination of the States Parties to pursue the removal proceedings to their conclusion does not support the assumption that the IOM, operating under the authority of the ASP, intended to shield the Prosecutor in 2024. The explanation lies elsewhere.

It is worth recalling that, since its establishment in 2013, the IOM has repeatedly been criticised for failing to ensure that its Mandate, adopted by resolution of the ASP, was incorporated into the Court’s internal regulatory framework. In February 2018, the International Criminal Court Bar Association (“ICCBA”) published a legal analysis entitled “ICC Internal Accountability Mechanisms and Policies”, which observed that, in the absence of such implementation, the IOM lacked the legal basis necessary to exercise its mandate, particularly in relation to investigations: “This lack of an implementing directive has direct and concrete consequences on the internal accountability scheme of the Court, because the pre-existing disciplinary procedural rules have not been adapted to include the establishment of the IOM, which remains un-provided for in the procedural regime. The step of implementing the ASP Resolution establishing the IOM is yet to be completed. As long as this is not achieved, the existence and activities of the IOM might be challenged by persons who are subject to IOM investigations and / or litigants as to their lack of legal basis.” Nothing has been done since then to remedy this deficiency. Nor was the 2020 Assembly resolution amending the IOM’s Mandate implemented within the Court’s internal legal framework; the same is true of the 2025 amendments discussed below. The President of the ICCBA in February 2018 was undoubtedly aware of the legal analysis published under his authority. The President of the ICCBA at that time happened to be no one other than… Karim Khan.

Did the IOM simply retreat in the face of the obstacle? When called upon to investigate allegations against the Prosecutor, did it fear that it would be confronted with the absence of any implementation of its Mandate within the Court’s internal regulatory framework? The former Prosecutor’s reputation as a formidable procedural advocate, coupled with the virtual certainty that he was fully aware of this regulatory deficiency – one identified during his own presidency of the ICCBA – makes this explanation plausible in the absence of any other. Plausible though it may be, however, it offers no justification for the IOM, which has still done nothing to remedy the deficiency. What should it have done? Demand that the Court’s Presidency adopt a Presidential Directive to implement its mandate. Nothing particularly complicated, really. Nothing that could not have been done since the IOM was established in 2013 or since the ICCBA highlighted this shortcoming in 2018.

2. The Substitute Procedure

Once the IOM – “the only body authorized to receive and investigate complaints of misconduct and serious misconduct against any elected official” under paragraph 9 of its Mandate – had declined to fulfil its function, the ASP faced two options: either accept the IOM’s decision to close the matter without further action or improvise an alternative procedure. The sequence of events and the reasons that led the ASP to choose the latter course are not publicly known. Attempting to reconstruct them would amount to little more than speculation. They may one day be clarified; until then, there is little point in debating them.

The ASP therefore improvised. It entrusted the investigation to a substitute body, in clear departure from paragraph 9 of the IOM Mandate. That substitute was the United Nations Office of Internal Oversight Services (“OIOS”), the UN counterpart of the IOM. According to publicly available information, the OIOS conducted its investigation throughout 2025 and submitted its report in December of that year. The report and its conclusions remain confidential, although various leaks – none of which can be verified with certainty – have purported to reveal their contents.

At the same time, the ASP sought to regularise the alternative procedure it had adopted in order to compensate for the IOM’s failure to investigate the Prosecutor. These efforts resulted in ASP Resolution ICC-ASP/24/Res. 1, amending Rules 26 to 30 of the ICC Rules of Procedure and Evidence (“RPE”), and ASP Resolution ICC-ASP/24/Res. 2, amending paragraphs 9, 11, 17 and 18 of the IOM Mandate (Annex II) and Rules 81 and 82 of the Rules of Procedure of the ASP (“RP-ASP”) (Annex III), and adopting the Terms of Reference of an ad hoc Panel of independent judges tasked with providing an opinion on the findings of investigations concerning elected officials of the Court (Annex I). These amendments provided an opportunity to resolve the apparent inconsistency between the appointment of the OIOS to investigate the allegations against the Prosecutor and the IOM’s exclusive mandate to conduct such investigations. The new Rule 26(2) of the RPE provides that, “where strictly necessary”, an investigation may be entrusted to an external investigator. The new paragraph 11 of the IOM Mandate elaborates on this possibility by authorising outsourcing “in case of actual, potential or perceived conflicts of interest, or due to insufficient IOM resources”. Was the decision to entrust the investigation to the OIOS motivated by a conflict of interest or by insufficient resources within the IOM? This was not the official justification initially provided to the public, which was rather the lack of a complaint. It was only in November 2024 that the ASP President referred for the first time to “perceptions of possible and future conflicts of interest”. Whatever the true reason, this justification was plainly ex post facto. In 2024, when the IOM refused to investigate, no such outsourcing mechanism existed.

Once the new substitute procedure and the Terms of Reference of the ad hoc Panel had been adopted, all that remained was to implement them, which the ASP duly did. The ad hoc Panel was appointed in December 2025, and the OIOS investigation report was transmitted to it. The Committee delivered its opinion in March 2026. That report also remains confidential and has never been made public, save for a number of unverifiable leaks according to which the three judges concluded that the investigation did not establish “beyond reasonable doubt” that the Prosecutor had committed misconduct. If accurate, that conclusion revealed, with the benefit of hindsight, the Assembly’s error in selecting the OIOS rather than the IOM to conduct the investigation. As the investigative body of the United Nations, the OIOS operates within the legal framework and under the jurisdiction of the United Nations Dispute Tribunal and United Nations Appeals Tribunal (“UNDT/UNAT”), rather than under the jurisdiction of the Administrative Tribunal of the International Labour Organization (“ILOAT”), which governs the ICC. The two judicial systems apply different standards of proof in disciplinary proceedings. Within the UN system, disciplinary adjudication before the UNDT applies the standard of “clear and convincing evidence,” understood as a standard “lower than the criminal standard of ‘beyond a reasonable doubt’ […] interpreted as it being ‘highly probable’ that the facts and circumstances underlying the misconduct exist or have occurred” (see United Nations, Administrative framework with respect to disciplinary matters, para. 20). OIOS investigations, however, determine whether reasonable grounds (probable cause) exist to believe that misconduct occurred. By contrast, under the jurisprudence of the ILOAT, the applicable standard remains proof “beyond reasonable doubt” (see ILOAT Judgment No. 5133, para. 7). The ad hoc Panel was evidently aware of this distinction. The OIOS, however, appears not to have adapted its investigative methodology to satisfy the more demanding evidentiary standard imposed by proceedings falling under the jurisdiction of the ILOAT.

The ad hoc Panel’s opinion was, however, merely an opinion. The ASP Bureau was the decision-making authority with regard to initiating the removal procedure on the basis of the findings of the inquiry and the ad hoc Panel. New Rule 26bis(5) of the RPE, adopted in December 2025, provided that the ASP Bureau, as the “competent decision-maker”, could depart from the opinion issued by the ad hoc Panel in two circumstances: it could conclude, contrary to the ad hoc Panel’s advisory opinion finding the existence of serious misconduct or a serious breach of duty, that the conduct in question did not constitute serious misconduct or a serious breach of duty, pursuant to the new Rule 29(7) of the RPE; or it could reclassify less serious misconduct identified in the ad hoc Panel’s opinion as serious misconduct or a serious breach of duty, pursuant to the new Rule 30(5) of the RPE. The Bureau’s discretion not to follow the ad hoc Panel’s opinion was therefore limited to circumstances where the Panel concluded that there had been serious misconduct or a serious breach of duty, or that there had been less serious misconduct. The Bureau’s discretion did not extend to finding serious misconduct where the ad hoc Panel had found that none was established beyond reasonable doubt. The amendments adopted in December 2025 made no mention whatsoever of the ASP Bureau’s power to override the ad hoc Panel’s conclusion and initiate removal proceedings in such a case.

On the contrary, new RP-ASP Rule 81(1), also adopted in December 2025, provided for the submission of the investigation report and the opinion of the ad hoc Panel to the Bureau only in the event that the latter concluded “that the factual findings by the Independent Oversight Mechanism or the external investigator, as applicable, legally characterize as serious misconduct or serious breach of duty in the case of the Prosecutor”, in other words, when the ad hoc Panel concluded that misconduct had taken place. In the absence of established misconduct, new RP-ASP Rule 81(1) made no provision; in other words, the Bureau should never have been called upon to rule on a negative opinion from the ad hoc Panel, which was in accordance with the letter of the new Rules 29(7) and 30(5) of the RPE.

There may be a discrepancy on this matter between new RP-ASP Rules 81(1) and 82(1)(a): under the first provision, the ASP President transmits the ad hoc Panel’s recommendation to the Bureau for further action only when it concludes “that the factual findings by the Independent Oversight Mechanism or the external investigator, as applicable, legally characterize as serious misconduct or serious breach of duty in the case of the Prosecutor”; whereas the second provision reads “the factual findings by the Independent Oversight Mechanism or the external investigator, as applicable, legally characterize as misconduct of less serious nature or establish no misconduct or breach of duty”. But that discrepancy should have been resolved in light of the newly amended RPE, which stand higher in the hierarchy. Under new RPE Rule 26bis(5), the Bureau’s discretion to depart from the ad hoc Panel’s recommendation applied when it had concluded either that serious misconduct had taken place, thus triggering new RPE Rule 29(7), or that misconduct of a less serious nature had been committed, leading to the application of new RPE Rule 30(5). When the ad hoc Panel found, as in the present case, that the available evidence failed to establish any misconduct – serious or less serious – under the relevant standard of proof, new RPE Rule 26bis(5) left no discretion to depart from that finding. The discrepancy between new RP-ASP Rule 81(1) and new RP-ASP Rule 82(1)(a) should have been resolved in this light.

However, the President of the ASP disregarded this and forwarded the investigation report and the ad hoc Panel’s opinion to the ASP Bureau so that it could decide whether or not to initiate removal proceedings before the ASP, thereby paving the way for the final act in this story. By doing so, the ASP President interpreted new RP-ASP Rule 81(1) in a sense that went beyond its plain wording and was difficult to reconcile with the plain meaning of RPE Rules 29(7) and 30(5), adopted simultaneously.

3. The vote on the Prosecutor’s removal from office

Having considered the opinion of the ad hoc Panel, the ASP Bureau decided, on 1 April 2026, by 15 votes to four, with two abstentions, to initiate the procedure for a vote on the removal of the Prosecutor of the Court, recommending to the ASP, pursuant to the last sentence of new Rule 81(1) of the RP-ASP, that it should not follow the opinion of the ad hoc Panel. An extraordinary session was convened on 24 July 2026 in New York for this purpose. The reasons for choosing New York, rather than The Hague, for this crucial extraordinary session are not known. It is only regrettable that these reasons prevented the Prosecutor, who had been accused of serious misconduct and a serious breach of duty, and whose removal was to be put to a vote, from being present to plead his case one last time, as a result of US sanctions.

The vote was clear: 82 States in favour of removal from office, well above the absolute majority required by the new Rule 29(4) of the RPE among the 125 States Parties.

The consequence is even clearer: the Prosecutor is removed from office with immediate effect. Any appeal that Karim Khan might decide to lodge has no suspensive effect. The ICC no longer has a Prosecutor. The ASP must organise a new election for this post.

Nevertheless, the decision to terminate the Court’s Prosecutor’s mandate on the grounds of serious misconduct and serious breach of duty is not a decision taken by a judicial or disciplinary authority. The most judicial aspect – which is not, in fact, judicial, as it is a non-binding opinion under the new Rule 26bis(3) of the RPE – is the report of the ad hoc Panel. That opinion concluded, according to information made public, that there was no evidence meeting the applicable standard of proof beyond reasonable doubt, and the ASP Bureau recommended that the ASP should not follow it, which it did by its vote of 24 July 2026. The decision was taken on the basis of the findings of an investigative report issued by a body whose authority to investigate was only regularised retrospectively in December 2025 by the amendment of Rule 26(2) of the RPE and paragraph 11 of the IOM’s Mandate; contrary to the opinion of the ad hoc Panel appointed pursuant to new Rule 26 of the RPE; on the basis of a referral by the ASP Bureau which contravenes the letter of the new Rule 81(1) of the RP-ASP; and on the basis of a recommendation exceeding its discretion to act contrary to the opinion of the ad hoc Panel, as provided for in the new Rules 26bis(5), 29(7) and 30(5) of the RPE.

Learning Lessons and Moving Forward

Faced with this bleak picture, doing nothing and simply bowing to pressure whilst waiting for the crisis to pass does not seem an appropriate course of action. Against the broader backdrop of sanctions against the Court and the withdrawal of States, the crisis arising from the investigation into the allegations against the Court’s Prosecutor and his dismissal calls for urgent measures. These should ensure, at the very least, that such a scenario can never be repeated and that a clear and independent procedure that respects the guarantees of fairness towards all parties is in place and followed. The political body – the ASP – should be authorised to intervene only at the very end, once a judicial or quasi-judicial body has examined the evidence and found, based on that fair process respectful of everyone’s rights and beyond reasonable doubt, that misconduct was committed. The ASP may then intervene to draw the consequences of that finding and decide on its consequences. Without this, any elected official of the Court – whether President, Judge or Prosecutor – will remain at the mercy of a repeat of the fiasco that was the handling of the allegations against Karim Khan, or some variation thereof. The only person who is more or less safe is the Registrar, whose removal depends on a vote by the Court’s judges under the new Rule 29(2) of the RPE. Apart from this safeguard, however, the shortcomings of the investigative procedure affect him just as much as they do the others.

Three urgent reforms are required in order to learn the lessons from the removal of the Court’s Prosecutor.

First measure: the mandate of the IOM, as amended and adopted in Annex II to ASP Resolution ICC-ASP/24/Res. 2, must be incorporated into the Court’s regulatory framework, so that the legality of its actions is fully guaranteed and beyond any dispute. This requires, pursuant to section 2.1 of Presidential Directive ICC/PRESG/G/2003/001 of 9 December 2003, the adoption by the President of the Court, in consultation with the Prosecutor, of a Presidential Directive incorporating the IOM’s mandate, as adopted by the Assembly, into the Court’s internal framework. On the basis of this implementing Presidential Directive, the Registrar will subsequently be able to issue the Administrative Instructions necessary for the proper functioning of the IOM and for adapting the Court’s procedures to its mandate. The need for this initial measure was identified by the ICCBA as early as February 2018; it falls within the broader scope of Recommendation R12 issued in 2020 by the Independent Experts Review (“IER”) mandated by the ASP. It has still not been implemented. Its implementation will prevent a repeat of the IOM’s refusal to overcome an obstacle, which was the point at which the proceedings against the former Prosecutor of the Court derailed, and will ensure that investigations are conducted by the IOM within the framework of, and in full compliance with, the law and standards of evidence applicable before the ICC.

Second measure: the disciplinary procedure against elected officials must be amended. It must ensure that no disciplinary action is taken without the involvement of an independent judicial or disciplinary panel, comparable to the ad hoc Panel, and applying all the procedural safeguards of fairness to all Parties. The rights of the defence, just as the rights of victims, must be guaranteed and protected by this procedure. The establishment and terms of reference of the ad hoc Panel in December 2025 comply with Recommendation R108 of the IER, concerning the creation of an ‘ad hoc investigation panel’, which explains the non-binding nature of the opinions it issues. However, what the Court actually needs is a judicial or quasi-judicial committee to ensure the fairness, independence and impartiality of disciplinary proceedings against its elected officials. This is the measure set out in IER Recommendation R109, which has not been implemented. Its urgent implementation, which can be achieved by amending the RPE in the same way as was done in December 2025 to implement IER Recommendation R108, will safeguard the independence of the Court and its elected members from any risk of disciplinary measures lacking the essential safeguards of fairness, independence and impartiality.

Third measure: the ASP’s vote must only take place once the procedure referred to in the second measure above has been completed. The ASP must confine itself to receiving the Disciplinary Committee’s decision. In the event of an acquittal, it must take note of this without being able to impose any disciplinary measures against the elected official. In the event of a conviction, the ASP must rule on the applicable penalty under the new Rule 29 of the RPE. This measure goes hand in hand with the second and constitutes the implementation of the same IER Recommendation R109. It was expressly referred to in paragraph 243 of the IER Report. Nor has it been implemented. It will ensure that disciplinary measures against the Court’s elected officials are taken only following a judicial or disciplinary process offering every guarantee of fairness, independence and impartiality, without there being any suspicion that they are motivated by political or other considerations incompatible with the independence of the Court and its elected officials.

These three measures are merely a first step towards bringing the Court out of the crisis it is currently facing. They are urgent and essential, but they are not sufficient. It will be up to the Court’s elected officials, including its future elected Prosecutor, to embark the institution on a long series of reforms that are essential to strengthening its internal functioning and its resilience to the inevitable attacks to which its mandate exposes it. Some of these were already identified in my 2020 contribution on Judicial Integrity published by the Nuremberg Academy. By demonstrating its integrity, independence and resilience, the Court will then be able to prove that it is equal to the universal and permanent mandate entrusted to it by 120 States in Rome on 17 July 1998, and to convince the 28 other States – then 7 against, 21 abstentions – that still harbour doubts about it. All the efforts of the Court and those who support it must be directed towards this end.