The Institutional Process against the Prosecutor: What States must do at the ASP (Part I)

[Terje Einarsen is Professor of International Law at the University of Bergen, former Judge at Gulating Court of Appeals and Chairperson of the Norwegian Section of International Commission of Jurists]

When the Assembly of States Parties (ASP) of the International Criminal Court (ICC) meet in New York on the 24^th of July, to decide on the fate of the current elected chief Prosecutor Karim A. Khan, it will be important that the institutional process against the Prosecutor appears to be in accordance with current rules and principles for fair processes. The host State of the meeting, the USA, which is a non-Party State, has through secretary of state Marco Rubio launched a fresh salvo against the ICC with the aim of dismantling it “brick by brick, if necessary,” (see Opinion in Wall Street Journal 13 July 2026). It creates an increased atmosphere of intimidation and threats against the States Parties, obviously in order to have the Prosecutor removed at the meeting.

The ASP must withstand this inappropriate pressure and not let the misplaced US legal critique of the Court influence its work. States Parties must instead control that the process against the Prosecutor has been fair and make lawful and just decisions. These issue are different from the Prosecutor’s possible culpability. I will contend that there are serious questions relating to proper safeguards as well as legal issues that could be decided only one way under the current legal framework.  

The Prosecutor Lacks Sufficient Safeguards against Unjustified Removal

The position as the elected Prosecutor at the ICC is arguably the most important of all positions at the Court, more important than that of a single judge. Without an independent and impartial chief Prosecutor, justice will eventually become selective and denied to many victims for political reasons. It is also crucial that the Prosecutor is seen as politically independent and impartial. This feature may have been underestimated when the rules regarding removal from office was made in the Rome Statute (the Statute).

The safeguards for the Prosecutor in the Statute are significantly less compared to a judge, although the substantive offence, serious misconduct or serious breach of duty, is the same (in the following only serious misconduct will generally be used). If the misconduct occurs outside the course of official duties, which could be sexual misconduct as alleged in the Khan case, it will be considered serious if it is of grave nature that cause or is likely to cause serious harm to the standing of the Court, see Rules of Procedure of Evidence (RPE) Rule 24(1)(b).

Removal of a judge requires as an absolute condition that two-thirds of the other judges recommend removal, in addition to a two-thirds majority of the States Parties for a removal decision, see Article 46(2)(a) of the Statute. Despite the non-binding nature of a “recommendation”, the lack of a positive recommendation by the other judges prevents the ASP from taking a decision on removal. This rule effectively prevents political processes against judges under the guise of disciplinary matters or that a removal process against a judge is based on insufficiently substantiated allegations determined unfairly by a political body. In comparison the removal decision requires only an absolute majority of the States Parties (63 votes) in the case of the Prosecutor, while the Statute is silent on how the assessment by the ASP of possible serious misconduct shall be made, see Article 46(2)(b) (removal decision) and Article 46(1)(a).

The latter provision, which concern both a judge, the Prosecutor, and others, only states that the person must be “found” to have committed serious misconduct. What is clear is that a positive determination of serious misconduct must necessarily be undertaken prior to the removal decision. This is supported by the wording in Article 46(1):

“if a decision to this effect is made [removal] […] in cases where that person […] is found to have committed serious misconduct”

Removal is on the other hand not necessarily the only possible result of a finding of serious misconduct, as we shall see.

Lex ferenda, the same or similar safeguards as for a judge ought to have applied to the elected Prosecutor. Instead, the current rules relating to removal of the Prosecutor – which can be found in the Statute, the RPE, and the Rules of Procedure of the Assembly of States Parties (ASP Rules) – open for wide political discretion on some points and could have been more clearly formulated on other points.

Unfortunately, incomplete safeguards and ambiguous language also creates conditions for abuse of power. If the current process against Khan is broadly perceived as a Western attempt to gain control over the elected Prosecutor now and for the future, the harm to the Court will be immense. Many States Parties will then also get an excuse to leave the ICC in the years ahead.

The Broader Institutional Context

Civil organizations that have so far been silent, and international lawyers, may eventually lose faith or interest in a politicized Court. After all, who will care much about an international criminal court with a prosecutorial office under political rule, led by a weak Prosecutor? In this perspective it is already disturbing that the ICC deputy prosecutors, in the absence of the Prosecutor, have still not applied for any arrest warrant against RSF-leaders in Sudan. They have been widely alleged to be responsible for mass atrocity crimes against civilians, and genocide, while supported by certain Middle East States that are allies of the USA.

This perception of political favoritism and inequality of victims is not without merit. For the last years, Prosecutor Khan and other key legal personnel at the Court have been attacked in speeches by governmental representatives and sanctioned heavily by the USA, the leading State of NATO. The main reason for this conduct has been related to the arrest warrant against Israeli prime minister Benjamin Netanyahu, initiated by the Prosecutor in 2024. While US governmental figures were publicly satisfied with the arrest warrant against Russian president Vladimir Putin, US governments have condemned the warrant against Netanyahu and threatened the Court – while the Israeli mass crimes against humanity and genocide against the Palestinians have been ongoing, as concluded by among others the UN Independent Commission of Inquiry for Palestine and Israel in several authoritative reports.

European governments have not protected the Court against this bullying of ICC prosecutors and judges. To the contrary, the EU has declined to employ its blocking statute which could have been effective against the unlawful US interfere in the administration of justice at the Court. No effective counter-intelligence unit has furthermore been provided to the ICC by the States Parties, despite likely intense surveillance and inappropriate pressures by States unfriendly to the Court. The current ASP leadership has in these respects been a fiasco.

It is in this charged environment of threats, allegations and distrust that the ASP leadership and the Bureau has operated the process against the elected Prosecutor.

Has the Process against the Prosecutor been Fair?

There are at least two stages or issues of importance prior to the upcoming ASP meeting itself that deserve a comment regarding due process.

1. Shifting from IOM to OIOS: When the ordinary process at the ICC, through the Independent Oversight Mechanism (IOM) for handling the allegations against Khan for misconduct, did not produce any positive outcome, in other words a finding of misconduct or similar, the Bureau proceeded instead to invent a new procedure at the Court involving the United Nations Office of Internal Oversight Services (OIOS). Generally, it is not a good idea from a rule of law perspective to create new procedures when the applicable procedures led to nothing. If available procedures turn out to be structurally unfortunate or inadequate, the solution would normally be to amend the procedures and apply the new rules when the next case arises.
   
2. Amending the RPE and ASP Rules to keep the door open for political determination. The ASP proceeded on 5 December 2025 to amend the procedural rules while the Bureau had already in June 2025 appointed an ad hoc panel of legal experts with gender and regional diversity, hoping, probably, that a third professional body would eventually secure the positive legal characterization of the findings of the OIOS. When that did not happen, since the ad hoc panel unanimously did not find misconduct of any kind under the relevant facts and rules in its 85-page report, providing a lengthy analysis of the underlying evidence as described and considered by the OIOS, the ASP Presidency upon receipt of the report 9 March 2026, and later the majority of the Bureau, decided to move forward with the process anyway, based on their own assessment of the culpability of the Prosecutor.

The first problematic issue here does not concern formalities or procedures, but a likely belief at the Bureau that politicians and diplomats somehow are better suited to ‘find the truth’, in a case apparently without a smoking gun that has already been considered by professional fact finders and legal experts. The legal experts on the ad hoc panel, on the other hand, are more likely to understand professionally the concept of evidence and what a factual finding beyond a reasonable doubt means in practice. It is therefore fascinating how the ASP Presidency and the majority within the Bureau seem to have disregarded the report and the conclusions of experienced, independent and impartial legal experts and substituted it with its own assessment – in disfavour of the Prosecutor.

Had the removal process concerned a judge, this would not have been possible since a prior recommendation of removal by two-thirds of the other professional and independent judges is required. The rationale for this rule is lex ferenda just as strong regarding the elected Prosecutor. Principled thinking and safeguards, however, may not have caught the attention of the Bureau-majority.

The result is that different kinds of disguised political interests might have been in the mix at the Bureau. This is no mystery since Bureau representatives are dependent on their governments. The Prosecutor might be seen by many Western politicians as being responsible for the US sanctions directed at ICC key personnel because of the Netanyahu arrest warrant and considered a political problem for Western governments. Extraneous considerations may, therefore, have tipped the narrow majority decision in disfavor of the Prosecutor at the Western-dominated Bureau.

Warnings of a Politized Process

Warnings to States Parties of a politicized process against the Prosecutor have come from the Prosecutor and his lawyers, but also from academics and others, while some others seem to have supported removal because they believe the Prosecutor must be guilty of misconduct when there from the outset seems to have been reasonably credible allegations against him from a female employee at the Court. Here I will not discuss these different views that have been expressed publicly, with one exception.

A warning has also come from the Norwegian Deputy Foreign Minister, Andreas Kravik. Norway is a State Party while not being a member of the Bureau. According to an interview by Sondos Asem in Middle East Eye, published 6 June 2026, Kravik had urged the Bureau to avoid “a perception of politicization of the process” and “respect the procedures” it had put in place to examine misconduct allegations against the prosecutor. He argued in the interview that the opinion of the panel of legal experts should as point of departure carry weight in the decision-making process of the Bureau and at the ASP meeting. After the majority of the Bureau had nonetheless referred the proceedings to the ASP in a decision of 8 June, Kravik reiterated his view in another interview by Asem published 13 June, underlining that the report of the legal expert panel “should be respected” by States Parties and that to disregard it “would hurt the integrity of the court”.

The Front Door to Removal and Suspension was Closed

A second issue prior to the ASP meeting concerns the earlier formal process and the legal bases for decisions taken by the Bureau. ASP Rule 81(1) on “Removal and suspension from office”, states:

The President of the Bureau of the Assembly of States Parties shall convene a meeting of the Bureau and circulate among its members the final report of the ad panel together with the investigation report, and its underlying evidence, if applicable, upon receipt of advice of the ad hoc panel 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. 

The important part with respect to legality is that the President:

“shall convene a meeting of the Bureau […] upon receipt of advice of the ad hoc panel 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”.

An absolute precondition for proceeding with the matter under Rule 81 was thus not met. This rule means that removal or suspension of the Prosecutor by the political bodies of the ICC requires a prior positive determination by the professional bodies involved in the process, as confirmed by the panel of legal experts. Such a rule appears to be in full accordance with rule of law and fair legal and administrative processes. It also to some degree compensates for the lacking institutional safeguards and division of powers in the Statute as compared to a removal process concerning a judge.

In conclusion regarding the legal framework, so far, the front door to further proceedings on removal and suspension through ASP Rule 81 was closed for the ASP President Päivi Kaukoranta and the Bureau.

Part II considers a back door to removal and suspension through ASP Rule 82, and what States Parties should and must do at the ASP meeting.