Failing the Institution? The Assembly of States Parties’ Management of the Investigation into the Prosecutor

[Ezequiel Jimenez has a PhD in International Law (Middlesex University, United Kingdom), works at Amnesty International and is Senior Fellow at the Center for International Law Research and Policy. His forthcoming book about the history and practice of the Assembly of States Parties to the Rome Statute will be published in December 2025. All comments and feedback welcome at ezejim@gmail.com, @ezejim7 and @ezejim.bsky.social]

Almost a year since the President of the Assembly of States Parties announced an unprecedented external investigation into the Court’s chief Prosecutor for alleged misconduct, no result has been published. Only at the last Bureau meeting in September was there an indication that the report commissioned by the United Nations Office of Internal Oversight Services (OIOS) will be finally published in October. The context, timeline and legal framework of this investigation have been reflected upon before. So has the overriding need for integrity at all levels of the International Criminal Court, States and Court officials alike, when finding the viable path to resolve this magnitude of a crisis. Both entries were written more than half a year ago, after seeing materially no change in the paralysis of this case. At this stage in the ongoing saga, it is proper to question the role of the Bureau of the Assembly and their management of the investigation, the novel and equally worrying next steps planned after the receipt of the findings and the larger context surrounding a case that should have been dealt in an exemplary way but has found itself tangled in the geopolitics of the situation of the State of Palestine before the Chambers. At a time when powerful States have decidedly taken action to end the work of the Court, States Parties seem unfussed by the degree of institutional turmoil this situation has created. Not only is the Office of the Prosecutor’s main administrator on leave of absence, the whole leadership is under sanctions from the Trump administration. More so, the stream of media articles linking or questioning the relationship between the arrest warrants in the Situation of Palestine case and the chief Prosecutor’s alleged misconduct should prompt States Parties to seek clarity, transparency and finality in the treatment of these serious and grave claims. Action rests on States Parties as governors of the Rome Statute and their action could not be more wanting. Needless to say, the same urgency applies for those seeking redress from this situation.

For the accustomed reader of the seemingly eternal crises at the Court, this new episode contrasts in the agility and procedural steps taken by the governors of the Rome Statute – its States Parties – when the Court faced severe backlash about its performance in 2018-2019, which led to a fully-fledged independent expert review that lasted several years. This time the action by States Parties, and in particular its Bureau, is gravely different. Part of the reasoning might reside in the governance of the Court: rolling diplomats with scant experience or willingness to manage the affairs of the Court besides their national and regional interests. The limits of overly relying on diplomatic methods for decision-making versus a necessary professional and institutional policy-making structure are quite telling. But, more importantly, the reason might stem from the inaction of the Assembly in providing the Independent Oversight Mechanism (IOM) with proper capabilities, including staff and funding, and an adequate legal framework to take on investigations of this calibre. In fact, since the mid-2010s the Assembly has consecutively postponed its decision to review and strengthen the investigation mandate of the Mechanism, which was blocked initially by the first Prosecutor. States Parties, and its Bureau in particular, could have fast-tracked changes to the operational mandate of the IOM nested in Resolution 6 from the 19th session of the Assembly. Nothing would have impeded a Bureau member State to table a modification in the investigative power of the Mechanism to add a third-party option. Doing so would have removed any doubt and strengthened the governance oversight of the Assembly over the subsidiary body and a possible enhanced investigation into elected officials, like the Prosecutor.

Another avenue, albeit more complicated, would have been to amend Section IV of the Rules of Procedure and Evidence by invoking Rome Statute Article 51 (including by the Prosecutor) and even Articles 46 and 47 via the amendment procedure for institutional changes under Article 122. While these steps render a technical, lengthy and probably implausible solution, they do denote a solution within the existing legal framework. The current approach to contract an external body to apply a framework outside their organizational and institutional domain risks incoherence of findings and lack of due process for all staff employed at the Court. More so, the Bureau’s decisions occurred at a time when key policy staff positions were vacant or individuals had just taken over their role, namely the Head of the Independent Oversight Mechanism and the Director of the Secretariat of the Assembly. In this relative expertise vacuum, the Bureau opened the external investigation into the Prosecutor.

When accounting for the modus vivendi of the Bureau’s actions in this case, it is also worth recalling that the role of this executive body is to ‘assist the Assembly in the discharge of its responsibilities’ (Article 112(3)(c)). Meaning: while empowered to chart the day-to-day relationship and priority setting for the Court, the Bureau also has a duty to communicate its actions with the larger Assembly. Nothing in the public record, including statements by member States during the Special Session in July and meeting records of the Bureau, show or explain a process used to keep the Assembly abreast of the latest developments of the investigation. While it is sensible that the content of such communications will remain confidential and privileged, the lack of speedy resolution and mounting pressures on the Court calls into question the silence of States Parties outside the Bureau-dispersed meeting minutes. It is not unreasonable to expect members of the Rome Statute via its President to keep the public, not least key stakeholders like victim groups, appraised of the outcomes of such an important disciplinary procedure.

It should be clear that when the integrity of the main official in charge of prosecuting highly complex cases is questioned, action for resolution for affected parties requires robust action. Yet, close to 12 months since the launch of the investigation, private correspondence from civil society and public reporting seems to indicate that, at least, two members of the Bureau, one holding the Vice-Presidency, have compromised the investigation by involving themselves directly with those in dispute and undermined the outcome of the external review. Namely, a Polish official allegedly provided advice to the individual in dispute with the Prosecutor and a Ugandan representative conclusively resolved ‘Khan will not be coming back’. Provided that the private and public record show a degree of prejudice into this process, it would be expected the President of the Bureau to address the matter by assuring its integrity, the investigatory process and the necessary safeguards for due process. However, to date, this elemental strategic communication has not materialized. Instead, the interested observer can glimpse from the monthly Bureau meeting minutes only that the investigation was ‘proceeding according to the plan’.

Without public details about what the ‘plan’ might entail, the Bureau noted in May 2025 the necessity to recruit an external ad hoc panel made up of ‘judges’ in order to clarify the ‘procedure for legal characterisation of the facts of the…report since the mandate of the OIOS did not extend to such legal characterization’. In other words, given that the OIOS exists within the United Nations legal framework, the applicable rules to the Prosecutor within the Rome Statute, Rules of Procedure and Evidence, and Staff Rules will be substantially and legally different. The Bureau has correctly concluded that an external body to the Rome Statute is not best placed to judge whether its rules have been breached. This is a good example of the limitations of the Bureau’s original decision to externalize the investigation. More so, rather than seeking clarity and evolution of the IOM’s own legal mandate for investigations, the Bureau added yet another novel and potentially problematic step by further externalizing the findings of the United Nations to a body made up of three external members. To point to the obvious: the selection of these individuals remains confidential, and so does the process to vet them for integrity, competence, and impartiality. It is known the panel is comprised of ‘African, Caribbean, and European nationalities, and both genders are included’. This is not to say these individuals might be inadequate for the task, but by setting up this external body, the Bureau, and pertinently its President, is eroding its own authority and responsibility to decide whether to apply a penalty or seek the removal of the Prosecutor ‘pursuant to articles 46 and 47 of the Rome Statute and rules 81 and 82 of the Rules of Procedure of the Assembly of States Parties’.

Thus, the Bureau will receive the report, ask the panel to assess its finding within the legal framework of the Court and, presumably, ask the Assembly to make a determination. If tradition serves as an indication, there would be a Bureau paper setting out a recommendation for decision-making for the full Assembly. Just as the Assembly of States Parties has the critical role in electing the principals of the Court, it is equally responsible for guaranteeing their conduct in no way contravenes assigned duties under the Rome Statute. It is also their governance role under Article 112(4), albeit avoiding undue interference with judicial independence as enshrined in Articles 40, 42, and 43. The provisions pertaining to the role of the Assembly in disciplinary measures and removal of elected officials are located primarily across the Rome Statute, Rules of Procedure of the Assembly, Rules of Procedure and Evidence, and the Regulations of the Court, and secondarily in the Staff Regulations and Rules. Crucial across these texts are the principles of confidentiality and due process for any person facing disciplinary measures or removal, which in this case seems to have been breached. If the Assembly finds there is sufficient evidence to remove Khan, it will need to do so by secret ballot of the absolute majority of States Parties as per Article 46(2)(b).

Conversely, the regulation regarding disciplinary measures is located in Article 47 when the action under review amounts to ‘misconduct of a less serious nature’ than the grounds for removal. In this instance, Rules 24 and 25 in the Rules of Procedure and Evidence provide an aid to define acts of serious misconduct and breach of duty and those in this threshold. In fact, Chapter 8 of the Regulations of the Court further elaborates on the steps and due diligence procedure necessary to trigger a removal or impose disciplinary measures. The consequences of a finding under Article 47 are a reprimand or a financial sanction against the person involved. Slightly different from the hierarchy in Article 46(1), the Assembly, through its Bureau, can only reprimand the Prosecutor or impose a pecuniary sanction to both the Prosecutor and Deputy. In other words, the process to resolve this situation is legally, procedurally, and politically complicated. Knowing this, the Bureau still added two extra layers for determining the outcome of the allegations against the Prosecutor. The lesson of the current episode should be to create the capability, trust, and institutional muscle to take on highly complex investigations into elected officials, be it a judge, the Registrar, or anyone at the Office of the Prosecutor.

Finally, it would be amiss not to acknowledge that the external investigation is taking place amidst the most politically charged case in front of the Chambers ever. The arrest warrants against Israel’s Prime Minister and former Defence Minister have not only attracted threats, sanctions, and personal attacks on Court officials but also uncovered the extent of malicious activity by presumably Israeli actors. The intrusion was not exclusive to Khan’s tenure, but they reached another level of intensity since the announcement of the arrest warrants, including alleged personal threats. A recent New Yorker article poses the question about the context in which the allegations surfaced and the ongoing criminal case against Israeli leadership. This post will not entertain any theories or affirm to know the political pressures at hand. However, it is because of this very same reason that the author finds the Bureau’s inaction inexplicable. With the United Nations probe concluding, the damage the lack of procedural clarity has caused to the Court will be difficult to repair even with a friendly U.S administration. The level of anxiousness and worry inside the Court is palpable to the extent a former ICC judge has called those involved in accusing the Prosecutor as ‘traitors’ (source with author). No institution, be it an international criminal court or a neighbourhood charity, can survive if the rules that govern them are inconsistent and applied partially depending on the crisis at hand.

The Assembly of States Parties will be meeting in The Hague in December for the 24th session. The decision over the Prosecutor’s fate must conclude by then. The process, terms of reference, and reasoning of the ad hoc panel must be public and the Bureau must provide explanations as to why it decided to pursue an external investigation before strengthening the IOM. At a minimum, States Parties need to conduct a post-mortem evaluation of the management of this investigation with a clear mandate to reform the IOM and send the irrefutable signal that no misconduct will be tolerated at the International Criminal Court. Whatever the outcome, the Assembly needs to wake up to its governance responsibilities, even if that means disagreeing with the Bureau and seeking fresh leadership to lead its day-to-day relationship with the Court. If it comes to reforming the Bureau, other critical areas of reflection might find an opening to resource the Assembly and the Court with adequate tools to fight for its survival, not least in terms of the budget, non-cooperation, and the relationship with powerful non-party States. If anything positive can emerge from this, let it be a renewed focus on the role and responsibility of States Parties in governing the Court.