Institutional Design and Disciplinary Legality at the International Criminal Court

[Thairi Moya Sánchez is Professor of Public International Law at the Complutense University of Madrid]

In Aeschylus’ tragedy Eumenides, the transition frompersonalvengeance to adjudication before a newly constituted court dramatizes a foundational intuition of the rule of law, namely that even the gravest conflicts ought to be resolved through a visible, constrained and reasoned institutional sequence rather than by discretionary power. In this sense, recent developments concerning allegations against Karim Khan have placed the International Criminal Court (ICC) at the center of a difficult institutional moment. The situation has triggered debates on the Court’s internal disciplinary process (see: here, here, here). This analysis focuses not on the merits, but on the procedural structure that governs them. Its purpose is to ask whether the institutional framework is sufficiently structured to sustain legitimacy. This post advances a central claim, the ICC’s disciplinary regime reflects a structural asymmetry between an increasingly juridified investigative phase and an insufficiently constrained decisional phase. When assessed in light of fundamental guarantees of legality, independence, impartiality, and legal certainty, the weaknesses of the ICC’s decisional framework appear difficult to reconcile with rule of law commitments.

The Problem Is Not the Evidence—It Is the System That Must Decide It

The debate surrounding the Prosecutor has largely been framed as a question of evidence, whether allegations of sexual misconduct have been sufficiently substantiated. The core difficulty  lies not in evidentiary sufficiency, but in the absence of an institutional structure capable of adjudicating such allegations free from undue political interference, as required by the rule of law. While the investigation of allegations against senior officials has become increasingly formalized, the final decisional framework remains fragmented. Article 46 of the Rome Statute entrusts removal to the Assembly of States Parties, while Article 47 and the Rules of Procedure and Evidence —in particular Rule 30 — assign lesser disciplinary measures to the Bureau.  This reveals that the problem is fundamentally one of the institutional design.

The system has evolved in a way that partially juridifies the investigative phase, while leaving the decisional phase open, insufficiently constrained, and potentially exposed to political dynamics. It contains multiple layers of rules that do not fully connect. These regimes are distributed across different organs and normative levels, without a fully articulated connection between them. The key concern is that this legal structure does not clearly regulate how that discretion should be exercised, as neither the Rome Statute nor the applicable procedural rules provide sufficient guidance. They do not adequately specify how investigative findings must be translated into final legal consequences, what weight should be accorded to investigative recommendations, or how the competent organ must articulate its legal characterization of the facts. 

The Court has recognized the relevance of the International Labour Organisation Administrative Tribunal (ILOAT) within its internal justice framework, particularly for the standard of proof in disciplinary matters. Within the Court’s broader internal legal environment, the jurisprudence of the ILOAT provides a substantial and difficult-to-ignore reference point, strongly supporting the view that disciplinary sanctions should rest on proof beyond a reasonable doubt. Yet ILOAT jurisprudence  does not, by itself, resolve every issue arising under Articles 46 and 47 of the Rome Statute. The  existing ICC framework does not specify with sufficient clarity how such a standard is to be operationalized in proceedings involving elected officials, particularly at the point where fact-finding gives way to legal characterization and final decision.

This imbalance is reflected in the uneven development of the system’s procedural stages. It has corrected, with increasing sophistication, the entry point of the case, but has not equivalently structured the exit point. Since 2013, the Independent Oversight Mechanism (IOM) has been authorized to investigate misconduct involving elected officials, Following the 2018 amendment to Rule 26, complaints are no longer channeled primarily through the Presidency. They are transmitted to the IOM, which may also initiate investigations on its own motion, while the Presidency may receive a copy only for information purposes.

However, the critical transition—from investigation to final decision—appears to remain insufficiently determined. Rule 26 now provides greater clarity as to who receives and investigates complaints, but it does not resolve with equivalent precision how investigative findings are to constrain the competent decisional organs at the final stage. The unresolved problem is not simply whether a standard of proof exists, but how and by whom that standard is institutionally applied. There is a substantial basis for concluding that, where disciplinary sanctions are contemplated, the relevant standard is proof beyond a reasonable doubt. Yet the current framework still leaves insufficiently specified the legal weight of investigative findings, the status of advisory assessments, and the way the competent decisional organ must connect the evidentiary record to the ultimate legal characterization of the conduct.

In the current framework, the fact-finding record, established through an external investigation by the United Nations Office of Internal Oversight Services (OIOS),  does not terminate in the ad hoc panel (ICC-ASP/24/26). Instead, the matter returns to the competent decisional track, which for the Prosecutor runs through the Bureau and, depending on the legal characterization of the conduct, may culminate either in action by the Bureau under Rule 30 or in Assembly action under Article 46. The panel thus inserts an additional advisory layer between investigation and decision, while leaving final authority in non-judicial intergovernmental organs.In current practice, the Presidency of the Assembly, in consultation with the Bureau, has relied on external expert review to assist the Bureau’s consideration of next steps, a development that reinforces rather than resolves the structural question raised here.

In cases of alleged serious misconduct, the structural difficulty may be deeper than a simple gap between investigation and decision. Even a determination of serious misconduct by the advisory panel is not binding on the Assembly of States Parties. The Assembly remains the competent decision-maker for removal under Article 46 and may reassess both the characterization of the conduct and its legal consequences. In practice, this results in a layered decisional sequence in which the same factual record may be subject to renewed legal characterization across successive institutional stages, including separate determinations as to the existence and gravity of misconduct and, where applicable, removal.

This structural configuration reveals a deeper institutional tension. The relevant organs are not judicial bodies in the strict sense, yet they are required to perform functions that are closely analogous to adjudication, including the assessment of evidence, the legal characterization of conduct, and the determination of consequences affecting the tenure of elected officials. Where the decisional architecture is not fully aligned with those functions, the result may be precisely the kind of fragmentation and indeterminacy identified here.

To borrow only by analogy from the continental public law tradition, the framework thus risks fragmenting what should operate as a sufficiently unified decisional sequence. Once non-judicial intergovernmental organs are called upon to assess evidence, characterize conduct, and determine consequences affecting tenure, minimum requirements of legal certainty, coherence, and decisional integrity become difficult to avoid. From a rule of law perspective, that fragmentation weakens predictability, duplicates the legal characterization of the same factual record, disperses decisional responsibility across non-judicial intergovernmental organs, and ultimately undermines the coherence and finality that disciplinary proceedings should deliver before authority is exercised in the name of law.

What Rule of Law Requires: Lessons from Human Rights Jurisprudence

This situation raises concerns under rule of law principles  developed in international human rights jurisprudence.  The case law of the European Court of Human Rights has repeatedly linked fairness to institutional design, emphasizing that even the appearance of bias, overlaps between investigative and decisional roles, and the absence of clear temporal limits can undermine independence and legal certainty (Piersack v. Belgium, 1982; Oleksandr Volkov v. Ukraine, 2013). The lack of a clearly articulated temporal framework risks delays that weaken institutional functioning, and in the current situation involving the Prosecutor it directly affects procedural clarity and credibility.  A similar approach can be observed in the jurisprudence of the Inter-American Court of Human Rights, which has emphasized the need for pre-established criteria, legality, independence, and safeguards against arbitrariness in disciplinary contexts (Apitz Barbera et al. v. Venezuela, 2008; López Lone et al. v. Honduras, 2015).  Taken together, they point toward what may be described as a transversal standard of disciplinary legality, understood as a recurring set of minimum guarantees, such as clear rules, independent decision-makers, and structures that exclude both actual and perceived arbitrariness, including structural vulnerability to bias. Although this is not a formally unified doctrine, it functions as a common baseline with particular force for international institutions whose legitimacy depends on perceived neutrality.

Article 21(3) of the Rome Statute, which requires consistency with internationally recognized human rights, is usually read in connection with judicial proceedings, but its underlying rationale is one of institutional coherence. Processes that determine the responsibility, integrity, and continuation in office of senior officials should not be structured in a way that is materially inconsistent with internationally recognized guarantees of legality, independence, impartiality, and legal certainty the Court has chosen as normative reference points. In that sense, the ICC cannot bracket off its disciplinary architecture from the human rights standards it invokes externally without incurring a deficit of coherence.  Consistent with the rule of law, the Assembly and the Bureau should operate under principles equivalent to those that safeguard fundamental  rights,  because both complainant and respondent are holders of those rights. The issue is not hierarchical subordination to external courts, but coherence within the international legal order.  A system that aspires to administer international justice cannot, in parallel, operate disciplinary mechanisms that are perceived as less constrained by the same guarantees.

Against this background, the ICC’s current decisional design reveals a structural tension in which non-judicial intergovernmental organs exercise broad discretion in matters that should be tightly bound to rule of law guarantees. The concern is not merely a lack of procedural details, but the risk that the disciplinary framework for elected officials falls below standards of institutional fairness already consolidated in international human rights law.

What Follows: Closing the Gap Without Repeating the Same Mistakes

The question, therefore, is not whether States act in bad faith, but whether the system is designed in a way that allows outcomes to depend on factors beyond the law. Where investigative findings are not clearly linked to legal consequences, and where final decisions remain insufficiently constrained, the risk is structural. It risks producing outcomes that are formally valid yet institutionally contested.

The solution does not require redesign, but coherence. Many of the necessary elements already exist. What remains is to clarify and integrate the applicable standard of proof into the procedural path followed in cases involving elected officials, and to define the legal effects of investigative findings and advisory assessments. The central question is whether the ICC possesses a procedural architecture capable of resolving such cases as a matter of law.

At present, the answer remains uncertain, and that uncertainty carries systemic consequences. The link between investigation and decision remains unstable because the institutional framework does not clearly determine how that standard is to be applied, by whom, and with what legal effect. The authority of the International Criminal Court depends not only on jurisdiction or enforcement, but on fidelity to rule of law principles; where institutional design allows legal outcomes to be perceived as politically contingent, even implicitly, the authority of the Court is structurally weakened. The greater risk is not that the Bureau may reach an incorrect decision, but that even a legally correct decision may appear politically conditioned.

Ultimately, the crisis does not reveal the absence of procedure, but the insufficiency of a procedural sequence capable of closing, in legal terms, the transition from investigation to decision. That transition remains open to States Parties—and, therefore, to non-legal dynamics. At that stage, the issue becomes institutional legitimacy—and, by extension, of the credibility of international criminal justice itself.