Governance as Legitimacy: A Further Reflection on the Removal of the ICC Prosecutor (Part I)

[Ezequiel Jimenez Martinez is an Adjunct Professor at the Pompeu Fabra Law Faculty, and a Senior Fellow at the Center for International Law Research and Policy. He is the author of Governing the International Criminal Court: the History and Practice of the Assembly of States Parties to the Rome Statute (Brill, 2025).

Sergey Vasiliev is a Professor of International Law at the Open University of the Netherlands and co-convened, with Prof. Niels Blokker (Leiden), the project on the governance of international courts and tribunals.]

Disciplinary power … is exercised through its invisibility; at the same time it imposes on those whom it subjects a principle of compulsory visibility. In discipline, it is the subjects who have to be seen. … In this space of domination, disciplinary power manifests its potency, essentially, by arranging objects. The examination is, as it were, the ceremony of this objectification.

Michel Foucault, Discipline and Punish: The Birth of the Prison

Introduction

Yuval Shany and Maria Varaki have offered a thought-provoking take on the Assembly of States Parties’ decision of 24 July 2026 to remove from office the third Prosecutor of the International Criminal Court. The gist of their argument is that the dismissal of Karim Khan cannot be read merely as a narrow quasi-judicial determination of his guilt or innocence in respect of alleged misconduct, but must also be understood as a measure meant to salvage the Court’s legitimacy at the time of (poly)crisis. According to them, this measure was proper and justified, given that the Rome Statute entrusts the Assembly with protecting institutional legitimacy when it exercises its disciplinary powers to enforce prosecutorial accountability. 

For Foucault, power operates by making those who are disciplined constantly visible. We postulate that disciplinary power itself must be visible if it is to continue making a plausible claim to legitimacy. In engaging with the issues highlighted by Shany and Varaki, we propose shifting perspective from viewing the ASP as the disciplining actor and the guarantor of the ICC’s accountability and legitimacy to scrutinising the ASP itself against the parameters of good governance of international courts. In exercising its governance responsibilities, including its disciplinary power, vis-à-vis the ICC, the Assembly and its executive organs, such as the Bureau, are subject to binding standards—in particular, the institutional independence of the Prosecutor—that limit the political universe in which the ASP may operate. Judicial governance is not—or should not be—a freewheeling exercise beyond any accountability and responsive to ad hoc political desiderata at any given moment, but rather an enterprise strictly subordinated to basic legal principles and the rule of law. This is all the more important when a disciplinary process is devoid of even the bare minimum of transparency, leaving too many questions about its integrity unanswered, and the applicable rules are improvised and not clear, as was the case before and during the removal in question.

We are unable to assess whether Khan’s dismissal was substantively justified, insofar as the underlying materials, including the evidence and its assessments by the OIOS, the ad hoc panel of judicial experts, and the ASP Bureau, remain confidential. By contrast, the propriety of that measure in the sense of the quality of the process that led to it, as well as the ASP’s own performance legitimacy, can and should be made the subject of broader discussion, which is only beginning. Unlike Shany and Varaki, we accord much less to room for political considerations in the exercise of the ASP’s disciplinary responsibility vis-à-vis the Court, and we are less sanguine about the ASP’s handling of this matter and its long-term implications. 

Locating the Governance Practice

The 2-year long Khan saga should not be seen in isolation but should instead be placed in the context of the critical analyses of the longer-term practice and performance of the Assembly of States Parties as the Court’s international judicial governance institution (injugovin). That experience throws up many questions about States Parties’ collective capacity or willingness to engage in the enlightened and serene weighing of considerations relating to the Court’s accountability and legitimacy that Shany and Varaki read into the final chapters of the Khan affair. The twenty-four years of the Assembly’s operations cast doubt on whether the removal of the Prosecutor and the process leading up to that decision were indeed underpinned by a holistic reading of Article 46 of the Statute and a careful calibration of procedural legality against institutional legitimacy. The reality was much messier. 

One systemic issue with placing unqualified trust in the Assembly’s competence and expertise to safeguard the legitimacy of the Court is the Assembly’s nature and ever-changing composition. Given the rules of diplomacy and their function within the ASP, State Party representatives must be ready to shift their positions as their national interests require. Individuals representing States Parties in the Bureau or the Assembly, with the exception of the President and two Vice-Presidents, tend to rotate frequently and combine their ASP roles with responsibilities in relation to other international organisations in New York and The Hague. Many delegates not only lack a background in the law of international organisations, international administrative law, or international criminal law, but also initially have only very limited knowledge and understanding of the nature, work, and needs of the international court they are entrusted with governing.

This creates challenges for specialization and continuity. According to Bergsmo et al., the combination of insufficient skills to oversee a ‘multi-faceted international criminal jurisdiction’ and the diplomatic practice of rotating personnel has adversely affected the quality of the governance of the Court. In fact, individuals making decisions presumably in the best interests of the Court answer to their capitals rather than acting under a broader mandate from the Assembly. With respect to the removal procedure and vote, Schabas has argued that the Bureau ‘cannot be trusted to make an impartial assessment of evidence in such cases’. We share this concern. These claims are borne out by two decades of Bureau and Assembly practice in such diverse matters as amendments to the ICC’s Rules of Procedure and Evidence, the election of judges and the Prosecutor, negotiations on and approval of the budget, and disciplinary investigations into elected officials. 

The Assembly’s governance capacity is constrained in two additional structural respects. First, the Bureau, the 21-member representative executive body discharging the Assembly’s functions intersessionally, has no standing source of independent legal advice, as the ASP Secretariat is neither resourced nor structured to supply it. The legal expertise and experience of Secretariat officials cannot substitute for an independent legal advisory function. Having access to independent advice on the legal implications and potential pitfalls of different policy options could help insulate Court governance from political agendas brought to bear on it by individual States or groups of States. 

Second, the Independent Oversight Mechanism (IOM), established under Article 112(4), took a decade to become operational, was initially resisted by the first Prosecutor, and has never been resourced commensurately with its mandate. Tasked with investigating, evaluating, and inspecting performance across the Court’s organs, the IOM is meant to assist governance decision-making and enhance accountability in the spirit of organizational improvement. However, by 2024, it operated with a staff of merely five, although its investigatory caseload alone had risen to 61 matters. These constraints were anticipated by States during the brief negotiations on what became Article 112. Moreover, the 2020 Independent Expert Review reported to the Assembly the existence of an atmosphere of ‘mutual distrust and suspicion’ between the Court and States Parties, which has not fully dissipated since then. 

Even if one accepts that the end result of removing the third Prosecutor was warranted, one cannot conclude with confidence that States Parties voted for that outcome solely or predominantly to protect the Court’s legitimacy. One cannot exclude the possibility that votes for dismissal were motivated by national interests as well as by dislike of Khan personally, disapproval of the discretionary choices he made while in office, his defence tactics, or general frustration with the predicament in which the Court found itself as a result of the serious misconduct allegations and the lengthy and contested disciplinary process. 

As the special session was held in private and the ballot was secret, it is impossible to reconstruct what States Parties, individually or collectively, regarded as the full range of reasons for removal and the extent to which those reasons coincided in each case. This is all the more so given that the available material, comprising a large volume of evidence, was transmitted to States Parties only a few weeks before the session. It is doubtful that all delegations could had adequate time to familiarise themselves with the materials and procedural history of the case, leaving greater room for extra-disciplinary sentiments to influence their votes. Thus, the ASP practice over the last two decades may point to mixed motives and considerations shaped, not least, by the broader geopolitical context. 

Protecting Legitimacy

Shany and Varaki’s assertion that it ‘is not that institutional legitimacy displaced legality, but that the Rome Statute itself entrusts the ASP with protecting institutional legitimacy when exercising its legal powers over prosecutorial accountability’ is worth probing. One should ask whether the Statute indeed grants such a legitimacy protection mandate to the Assembly of States Parties and, if so, what legal constraints govern the exercise of the ASP’s disciplinary powers for that purpose. Article 112(2)(b), contained in Part 11 of the Statute, confers on the Assembly the function of management oversight of the administration of the Court, as well as budgetary authority under Article 112(2)(d). Neither provision speaks of legitimacy as an object of protection, and neither supplies a standard against which conduct may be assessed. In fact, it could be argued that these two powers of the Assembly have instead been used to constrain and even impair the Court in the past, thereby affecting its performance and legitimacy. This is illustrated, for example, by the manner in which States Parties have deployed their budgetary authority. 

Article 112(2)(d), read together with Articles 49, 113 and 116, vests budgetary authority in the Assembly, which exercises it with the assistance of the Committee on Budget and Finance under Article 112(4). Since 2002, States Parties have approved more than twenty budgets totalling more than €3 billion, with a cumulative gap of more than €80 million between what the Court requested and what was approved. The distribution of that gap matters more than its size. After Japan’s accession to the ICC Statute in 2007, the largest contributors, France, Germany, Italy, Japan, and the United Kingdom, pursued policies of zero growth and efficiency savings, shaping the language and tactics of the annual budget approval process. For example, in 2018, the budget was approved with reductions exceeding those the Committee had recommended and did not keep pace with inflation in the Netherlands; in 2021, it was further reduced in nominal terms. Over the same period, the Office of the Prosecutor operated with a budget some €8 million lower than its counterpart at the International Criminal Tribunal for the former Yugoslavia at the height of its activity. 

In this regard, both Prosecutors Moreno Ocampo and Bensouda frequently warned States Parties of the outsized impact of underfunding on their ability to discharge their mandate. As noted, the Independent Expert Review found deep mistrust on this matter, with Court officials complaining of micro-management and States Parties doubting whether they received value for money. Prosecutor Karim Khan inherited a depleted budget but was able to replenish it quickly as the Situation in Ukraine mobilized additional resources for the Court, in particular from European States Parties. While Article 42 grants the Prosecutor full control over administrative and budgetary decisions, Article 112(2)(d) and Part 13 do not allow States Parties to earmark their assessed contributions for specific situations. 

The point of principle is that resourcing decisions bear on prosecutorial discretion, affecting the material capacity to exercise the prosecutorial mandate independently in accordance with Article 42. In practice, a situation not investigated for want of investigators is just as effectively put on hold as one not pursued for purely legal or evidentiary reasons. As Wiebelhaus-Brahm and Ainley have shown, States Parties’ (un)willingness to fund the Court has impacted investigations in Palestine, Afghanistan and Georgia, in turn affecting its legitimacy. 

Part II will analyse the removal proceedings against the third Prosecutor by the Assembly to further probe the claims of legitimacy in the governance function of States Parties.