Strengthening Internal Accountability at the International Criminal Court? The 2025 Amendments to the Rules of Procedure and Evidence

[Ezequiel Jimenez Martinez 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. 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)

While the International Criminal Court faces the disintegration of the known rules-based global order and becomes a victim of the latest Trumpian whim, the Office of the Prosecutor remains leaderless. As one of the recognized organs in the Rome Statute system, the conclusive result of the ongoing external investigation into the head of the OTP, Prosecutor Karim Khan, is still pending despite a promise to obtain a pseudo ruling by a novel ad hoc panel within 30 days, a date that expired in mid-January. The ad hoc panel was created solely to decide whether factual allegations reach the threshold for removal or sanction as per the Rules of Procedure and Evidence. This process bypassed the established role of the Independent Oversight Mechanism, a subsidiary body of the Assembly of States Parties actually referenced in Article 112(4), which is exactly in charge of handling investigations of alleged wrongdoing of elected officials. In no uncertain terms, the current legal framework of the Court demands the IOM undertake this role, except in this case, for reasons not sufficiently developed by the Bureau President.

As argued before, the ongoing case is totally bespoke. This author has no issue with evolving procedural rules to seek internal accountability insofar decisions and their reasoning are provided with absolute respect to due process for all parties affected. Changing the rules as such a delicate situation evolves goes against every stalwart of a court of law. In a context where little academic attention goes to studying the Assembly of States Parties and its elected Bureau, the 24th Session in The Hague in December 2025 amended the underlying legal framework that provides the guardrails to investigate and remove elected officials. The Rules of Procedure and Evidence and the Assembly Rules of Procedure were amended at an unknown speed and by consensus.

These changes clearly depart from an established institutional principle not to amend procedural rules while they are heavily under scrutiny. Yet Rules of Procedure 26-30 and Rules of Procedure of the Assembly 81 and 82, all regarding the removal or sanction of elected officials, suffered substantial modifications. However, given the lack of public engagement by the Bureau on elementary questions and other important procedural matters in this situation, it is still unknown which set of Rules of Procedure and Evidence apply. In what appears to be another mismatch between the expectations of the governance role of the Assembly and the Bureau and their actual practice, the amended Rules greatly improve the legal framework albeit only with a future application. In other words, the original Rules are at a disadvantage to all parties involved in the ongoing misconduct investigation. A closer look comparing the original Rules and the amended framework reveals States Parties and the Court did take seriously the Independent Expert Review recommendations (specially R108) on this aspect but applied their willingness to improve internal accountability at a wrong pace, place and without the opportunity to learn from the current process. While Article 51(4) in the Rome Statute prohibits the retroactive application of amended Rules of Procedure and Evidence, it does so when the new Rule is ‘to the detriment of the person who is being investigated or prosecuted or who has been convicted’. Provided the amendments to the Rules of Procedure Subsection 1 – Removal from Office and Disciplinary Measures are a qualitative improvement over the original version, it can be argued the Assembly has now created an expectation these should apply to the present case given the original Rules are now detrimental to all parties of this situation. More so, because the resolution containing the amendments was passed by States Parties before the ad hoc panel began its deliberations whether the facts of the case warrants removal or disciplinary measures, the new, better and updated legal framework, as amended last December and entered into force automatically, should apply. In sum, the amendments by the Assembly have added a new layer of procedural questions to the already complex situation. Thus, the original question remains for States Parties: why then rush to amend the core of removal and sanction provisions in these foundational documents? Why not learn from the situation to then amend accordingly?

A lot could be written here about the internal governance steps that ended in these amendments, from the role of the Study Group on Governance, to the facilitation on the Independent Oversight Mechanism, to the responsibilities of the Working Group on Amendments, to the final sign-off by the Assembly itself. Each of these governance layers are supposed to serve as space for constructive dialogue between the Court, States Parties and civil society. They should also function as a venue to avert possible issues with changes to legal frameworks from the Rome Statute to the Rules of Procedure and Evidence. Beyond the nature of the amendments at hand, that the process moved ahead as one of the Court organs remained leaderless should have been enough reason to move with caution, more so, when the changes proposed were directly linked to the current Prosecutor’s situation. Surprisingly, while the practice of the Assembly shows States Parties have been overly cautious when taking amendments because of the a fear of legal fragmentation which might result in unintended consequences, in this particular case the speed of decision making was notable. Yet the risk remains. Modifying procedural rules on internal accountability as these are heavily scrutinized and used might very well end with further litigation at the Administrative Tribunal of the International Labour Organization, which has jurisdiction over labour disputes at the International Criminal Court. Moreover, although it is certainly true the Assembly has a direct and unequivocal role to provide ‘management and oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court’, which does include the obligation to uphold the highest ethical standards, the expectation is that it would do so by adhering to the same standards of high moral character and integrity. Sadly, in this saga, the role of some Bureau members and the overall lack of transparency in setting up the ad hoc panel and its terms of reference, further calls into question the timing of the 2025 amendments.

In sum, the amended Rules of Procedure and Evidence and Rules of Procedure of the Assembly provide better guarantees of due process, clarify roles and responsibilities between bodies involved, and aligns fully with recommendation 108 from the Independent Expert Review calling for internal accountability improvements. The amendments are definitely better than their original version. However, the issue remains: the parties to the ongoing external investigation are at a clear disadvantage compared with the new rules. Looking at these comparatively, Rules 26 and 27 are worth focusing on, as the table below shows.

Section IV, Subsection 1 – Removal from Office and Disciplinary Measures

The original Rule 26(4) entrusted the Independent Oversight Mechanism with investigating complaints and transmitting its findings in full to the Assembly of States Parties and other competent organs. While this allocation aligned with Article 112(4) of the Rome Statute, the original rule was sparse in regulating how such investigations should unfold, particularly regarding confidentiality, access to evidence, and procedural fairness for the persons concerned. By contrast, the amended framework introduces a far more articulated procedural architecture. New provisions, such as Rule 26 ter on confidentiality and the expanded Rule 27 on procedural fairness, clarify roles, processes, and rights at each stage. Crucially, these provisions codify guarantees that were previously implicit or entirely absent, thereby reducing discretion and the risk of arbitrary procedural innovation.

One of the most significant disadvantages under the original rules concerns the right to be informed and to effectively participate in proceedings. Original Rule 27(2) merely stated that the person concerned ‘shall be afforded full opportunity’ to present and receive evidence and make submissions. While normatively sound, this formulation lacked operational detail and enforceability. There was no explicit obligation to provide the person concerned with the final investigation report or its underlying evidentiary basis. In practice, this weak articulation compromised equality of arms and the ability to meaningfully challenge allegations. The amended Rule 27(14) and (15) remedy this deficiency by explicitly guaranteeing the elected official’s right to respond to allegations, present evidence, nominate witnesses, and critically, receive the final report of the ad hoc panel, the investigation report, and its underlying evidence. These additions align more closely with general principles of due process reflected in Article 67 of the Rome Statute, even if the context is internal accountability rather than criminal proceedings stricto sensu. A person investigated under the original rules is therefore disadvantaged by the absence of a clear entitlement to full disclosure and structured participation.

Confidentiality is another area where the original framework falls short. The original rule did not regulate confidentiality with any precision, leaving unresolved tensions between transparency, reputational harm, and investigative integrity. The amended Rule 26 ter(10) establishes a clear confidentiality regime, including anonymisation and protection against indirect identification, while still ensuring institutional reporting to the Assembly. This balance protects both the integrity of the process and the rights of the person concerned. Under the original rules, the lack of such clarity exposed investigated individuals to heightened reputational risk without corresponding procedural protections.

Finally, the introduction in the amended Rules of an explicit power and obligation to take ‘any further steps necessary to ensure procedural fairness’ marks a qualitative shift in the internal accountability framework, which is particularly salient in the context of the ongoing external investigation into the Prosecutor. Under the original Rules, procedural fairness was framed narrowly, articulated mainly as a set of static rights (to submit observations, to answer questions) without an accompanying duty on investigators or decision-makers to actively correct procedural imbalances as they emerged. This rigidity is especially problematic in complex, high-stakes investigations involving elected officials, reputational harm, and overlapping institutional competences. In the current investigation, the absence of such an open-ended fairness mandate has allowed the creation of a bespoke ad hoc panel, the marginalisation of the Independent Oversight Mechanism, and uncertainty regarding applicable procedures, all without a clear legal basis to recalibrate the process in favour of fairness once deficiencies became apparent. Under the amended Rules, by contrast, investigators and decision-makers would be expressly empowered to intervene to cure procedural defects: for example, by clarifying applicable rules, ensuring timely disclosure, extending response deadlines, or rectifying institutional conflicts of interest. This matters because procedural fairness, particularly in internal accountability contexts, cannot be fully codified ex ante. The amended framework recognises this reality. The original framework did not. As a result, the persons concerned in the current investigation are disadvantaged by a system that lacked both the flexibility and the legal mandate to actively safeguard fairness as the process unfolded.

Thus, the original question remains: what was the reason the Assembly felt these amendments needed to be in place now when their application seems to be solely prospective? Why not await the outcome of the current process to learn from its positive and negative outcomes to then calibrate the internal accountability procedures accondingly? If the spirit was to abide by the Independent Expert Review findings, not embedding learnings into rules seems, at minimum, a missed institutional opportunity. Unfortunately, the whole saga has revealed governance deficiencies as information and legal reasonings have been mostly absent to address the apparent gaps. Yet, even when confronted by these deficiencies, the Bureau and the Assembly still have an opportunity to commission a lessons learned report as it has done for multiple issues in the past, including the election process that ended with Khan as Prosecutor. This exercise would require to keep an open mind in further amending the internal accountability framework, but most importantly, it should reveal the decisions taken by the Bureau leadership in advising and conducting a porous process altogether. Governing the International Criminal Court demands States Parties act with integrity, even when they make mistakes. In a context where the Court is seriously looking at its demise, the Assembly cannot afford to weaken internally what it demands externally.

Photo Attribution: “ICC – The International Criminal Court – The Hague” by Tony Webster is licensed under CC BY 2.0