ILOAT “Reasonable Doubt” Jurisprudence in Cases Involving the ICC

In my previous post, I explained how ILOAT has always applied the “beyond a reasonable doubt” standard of proof in cases involving alleged misconduct by individuals subject to the Tribunal’s jurisdiction. In this post I want to discuss four ILOAT judgments that specifically involved individuals terminated by the ICC. As you will see, in each and every one ILOAT held that the ICC could not impose a disciplinary sanction unless it was able to prove the allegations of misconduct beyond a reasonable doubt.

Judgment No. 3863 (2017) involved an ICC staff member who was terminated for leaking confidential information. ILOAT upheld the dismissal but awarded the staff member 25,000 euros in moral damages for violations of due process. Regarding the standard of proof, the tribunal held the following (Consideration 8):

The applicable legal principles can be stated briefly. The executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed.

In Judgment No. 4362 (2020), which also involved the leak of confidential information, an OTP staff member was terminated after the Court’s Disciplinary Advisory Board (DAB) submitted a report to the Prosecutor [Fatou Bensouda] finding “that there was sufficient evidence to conclude beyond reasonable doubt that the complainant was guilty of serious misconduct” (pg. 3). ILOAT affirmed that “[t]he relevant legal standard is beyond reasonable doubt” (Consideration 7) and stated that “[t]he likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants” (Consideration 8). It nevertheless set aside the OTP staff member’s termination on two interrelated grounds and awarded her 55,000 euros in damages.

The first ground was that, in upholding the Disciplinary Advisory Board’s recommendation, the Prosecutor had not adequately reviewed the DAB report or the underlying evidence (Consideration 9):

The impugned decision of the Prosecutor of 3 August 2018 was substantially based on the consideration and analysis of the evidence by the Disciplinary Advisory Board.  While the Prosecutor said she had undertaken a careful consideration of the available evidence, that was in the context of also saying she had undertaken a careful consideration of the Board’s report. No independent analysis of the evidence was undertaken by the Prosecutor in the impugned decision.

The second ground was that the Disciplinary Advisory Board itself had failed to clearly find beyond a reasonable doubt that the OTP staff member had engaged in misconduct (Consideration 16)

16. Unfortunately, however, the Board makes no explicit detailed findings about these communications and to whom the confidential information was sent, other than to say that it was sent to external parties. In the letter of 3 August 2018 containing the impugned decision to dismiss the complainant, the Prosecutor says:

“I am satisfied that it is proven beyond a reasonable doubt that you (i) did communicate confidential information to [Mr O.], his team and [Mr T.], and (ii) did have an unauthorised meeting with [Mr O.] and [Mr T.].”

The difficulty with this approach is that there was no finding by the Board that the complainant communicated confidential information to Mr T. unless an inference was drawn, applying the appropriate test of beyond reasonable doubt, that the complainant knew that by communicating to Mr O., he would pass on the information to Mr T. But no such finding was made either by the Board or the Prosecutor. This is an important omission.

Judgment No. 4749 (2024) involved an ICC staff member who was terminated for engaging in financial fraud and misusing an official Court vehicle. The Disciplinary Advisory Board had dismissed the vehicle-misuse allegation because it “had not been proven beyond reasonable doubt” (pg. 2) but had found that the financial fraud allegations were so proven. Despite the DAB not recommending summary dismissal, the Registrar terminated the staff member. On appeal, after noting that “[i]n disciplinary matters, the Tribunal has consistently found that the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed” (Consideration 5), ILOAT upheld the Registrar’s termination decision on the ground that the Registrar “was undoubtedly entitled to conclude beyond a reasonable doubt that the complainant intended to mislead the organisation in circumstances where the ultimate aim of the falsified invoices was precisely to justify an amount missing from the ICC financial account” (Consideration 6).

Judgment No. 5102 (2026), issued just last month, involved the termination of the Chief of the Counsel Support Section (CoCSS), a P-5 position  in the Registry, for failing to disclose a conflict of interest concerning the appointment of Defence Counsel and for leaking confidential information to him. The IOM found the complaint credible and the Disciplinary Advisory Board agreed, although the DAB did not recommend summary dismissal. The Registrar nevertheless terminated the CoCSS because “he was satisfied beyond reasonable doubt” that the allegations were true (pg. 5). On appeal, ILOAT agree with the Registrar’s conclusion that the allegations against the CoCSS were proved “beyond a reasonable doubt,” noting that the Registrar had produced a 50-page analysis of those allegations (Considerations 5 and 6):

5. The impugned decision took the form of a one-page letter setting out four findings of fact of misconduct of the complainant. They were described as matters in respect of which the Registrar was satisfied beyond reasonable doubt. Also set out was the sanction. Attached to this letter was a document of 50 pages entitled “Final Decision”. As just noted, also attached to the letter was the Disciplinary Advisory Board report of 24 pages.

6. In the “Final Decision” document the Registrar analyzed, and made findings about, the evidence directed to the conduct of the complainant. This was, in part, in furtherance of answering the question of whether the alleged misconduct was proved beyond reasonable doubt. It is not easy to gainsay the Registrar’s conclusion that the alleged misconduct was proved beyond reasonable doubt.

ILOAT did, however, set aside the CoCSS’s summary termination. It did so because the Registrar had not adequately explained why he had rejected the DAB’s recommendation of a disciplinary sanction less onerous than termination (Consideration 8):

In the present case, the Disciplinary Advisory Board recommended two sanctions which were, at least arguably, within the range of available sanctions for the misconduct of the complainant. So too was the sanction actually adopted. The ICC’s answer to this argument appears to be that it was clear the executive head, namely the Registrar, adopted a more severe sanction which impliedly explained the rejection of the recommended sanctions of the Disciplinary Advisory Board. But that is not enough. Internal appeal and disciplinary bodies play an important role in the internal system of justice for international civil servants. It has long been settled that recommendations they make can be rejected. But the role of such bodies is fortified by the obligation of the decision maker to explain her or his rejection of those recommendations (see, for example, Judgments 4832, considerations 31 and 32, and 4697, consideration 5). The Registrar failed to do this in the present case. In the result his decision is, in this respect, unlawful and will be set aside.

Let me make clear once again, because I have seen incorrect suggestions otherwise: I am not commenting on the current investigation of the Prosecutor, and I am not taking a position on the merits of the Panel report. I am simply explaining why the Panel had no choice but to apply the “beyond a reasonable doubt” standard to the allegations it was considering.