The Bureau Cannot Bind the ASP to a Finding of Serious Misconduct

There is a rumour circulating in ICC circles that the Bureau is having buyer’s remorse about a paper it drafted and adopted earlier this year concerning the procedure that would apply to the investigation of the Prosecutor. I’ve been told by various journalists that the procedures paper says the ASP must hold two votes, not one, over the Bureau’s recent finding that Prosecutor Khan committed serious misconduct. The first vote would involve the ASP deciding whether the Prosecutor committed serious misconduct, less serious misconduct, or no misconduct. Per Rule 63 of the ASP Rules of Procedure, finding misconduct of any kind would require a 2/3 majority of the states present and voting. If the ASP found serious misconduct, there would then be a second vote to actually remove the Prosecutor. Per Art. 46(2)(b) of the Rome Statute, that vote would require an absolute majority to remove — 63 states.

Apparently, the Bureau has discovered that it may be very difficult to convince 2/3 of the ASP’s 125 members to prefer its rushed and overtly political decision to find serious misconduct over the reasoned and serious decision by the Bureau’s own Panel of Judges — actual lawyers, not diplomats answering to their governments — to find no misconduct whatsoever. So now there are whispers that the Bureau intends to quietly amend its procedures paper to ostensibly eliminate the first vote on misconduct, thus limiting the ASP to a simple majority vote to remove.

If the rumours are true, this is yet another indication that the (majority) of the Bureau is driven solely by the desire to remove the Prosecutor, its own rules and the Court’s rules be damned.

More importantly, though, any attempt by the Bureau to limit the ASP to one vote — the vote to remove — would directly contradict both the Rome Statute and the new Rules of Procedure and Evidence that the ASP adopted by consensus just last December.

Regarding the former, an insider I know told me that some Bureau diplomats believe no ASP vote to determine misconduct is required because Art. 46(2)(b) of the Rome Statute says nothing about such a vote; it simply requires “an absolute majority of the States Parties” to vote for removal. That’s true! Unfortunately for those diplomats, though — and for the Bureau’s rumoured plan — that position cannot be reconciled with Art. 46(1)(a), which provides as follows (emphasis mine):

[T]he Prosecutor… shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence.

Art. 46(1)(a) makes two things clear: (1) a vote to remove the Prosecutor takes place only after there has been a finding of serious misconduct; and (2) the Rules of Procedure and Evidence determine how serious misconduct must be found.

Here is where the new Rules of Procedure and Evidence come into play. The old rules were a bit ambiguous about whether the ASP had to determine that a Prosecutor committed serious misconduct before voting to remove him. Rule 26 gave exclusive authority to the Independent Oversight Mechanism (IOM) to investigate all allegations of misconduct and provided that the IOM “shall transmit the results of any investigation, together with its recommendations, to the Assembly of States Parties and any other competent organ(s) as set out in articles 46 and 47 of the Statute, and rules 29 and 30.” Rule 26 thus could have been read to provide that if the IOM recommended serious misconduct to the ASP, the ASP would proceed directly to a vote to remove the Prosecutor per Art. 46(2)(b). Yet old Rule 29 — entitled “procedure in the event of a request for removal from office — provided that “[w]here the conduct is found not to amount to serious misconduct or a serious breach of duty, it may be decided in accordance with article 47 that the person concerned has engaged in misconduct of a less serious nature and a disciplinary measure imposed.” Rule 29 strongly implied that the ASP was not required to follow the IOM’s recommendation that serious misconduct had been committed and proceed directly to a removal vote. Instead, it could decide for itself on the level of misconduct — a decision that would be governed by the ASP’s normal rule that, in the absence of consensus, decisions on matters of substance require a 2/3 majority of states present and voting.

Fortunately, the ASP adopted new procedural rules by consensus last December that contain no ambiguity whatsoever. On the contrary, new Rule 29 of the RPE explicitly requires the ASP as a whole to find serious misconduct before voting to remove the Prosecutor. Here are the relevant paragraphs of the Rule, which is entitled “[p]rocedure in the event of potential removal from office for serious misconduct or serious breach of duty”:

4. In the case of the Prosecutor, the decision of removal from office shall be taken by an absolute majority of the State Parties, pursuant to article 46, paragraph 2.

6. Where the competent decision-maker finds that the conduct amounts to serious misconduct or a serious breach of duty but decides not to remove the elected official concerned from office, disciplinary measures that are consistent with the seriousness of the misconduct or breach of duty shall be imposed in accordance with rule 30.

7. Where the competent decision-maker finds that the conduct does not amount to serious misconduct or serious breach of duty, the matter shall be referred to the competent decision-maker pursuant to rule 30.

8. Where the competent decision-maker pursuant to rule 29 establishes that no misconduct or breach of duty has occurred, the matter shall be closed.

Paragraph 4 acknowledges — not that it was ever in doubt — that the ASP is the “competent decision-maker” when the issue is removing a Prosecutor. Paragraphs 6-8, in turn, make clear that a vote to remove takes place only after the ASP, as the competent decision-maker, has previously voted to find that the Prosecutor committed serious misconduct instead of less serious misconduct (which would go to the Bureau for disciplinary measures short of removal) or no misconduct at all (which would end the process).

Rule 29 is not the epitome of draftsmanship, but there is no other interpretation. The Bureau might try to claim with its typical modesty that it, not the ASP, is the “competent decision-maker” referred to in Paragraphs 6-8. But that interpretation makes no sense whatsoever.

First, and most obviously, Paragraph 6 explicitly contemplates a situation in which the “competent decision-maker” votes to find serious misconduct but then does not vote to remove the Prosecutor. Only the ASP can vote to remove the Prosecutor, so the ASP must be the “competent decision-maker” referred to in Paragraph 6 — not the Bureau.

Second, Paragraph 7 explicitly contemplates a situation in which the “competent decision-maker” under Rule 29 votes to find less serious misconduct and refers the matter to the competent decision-maker under Rule 30. Rule 30(3), in turn, provides that “[i]n the case of the Prosecutor, any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties,” which makes clear that the Bureau is the “competent decision-maker” concerning less serious misconduct. If the Bureau is the “competent decision-maker” under Rule 29 for whether the Prosecutor has committed misconduct, Paragraph 7 contemplates a situation in which the Bureau finds less serious misconduct and then refers the matter back to itself to impose a disciplinary measure short of removal. That’s obviously absurd — if the Bureau finds less serious misconduct as Rule 30’s “competent decision-maker” for less-serious misconduct by a Prosecutor, it simply imposes a disciplinary measure short of removal. Rule 29 doesn’t come into play at all.

Third, Rule 30(5) provides that “[w]here the competent decision-maker finds that the conduct does amount to serious misconduct or serious breach of duty, the matter shall be referred to the competent decision-maker pursuant to rule 29.” This provision is particularly relevant under the new disciplinary procedures adopted by the ASP, in which a panel of judges makes a recommendation to the Bureau concerning a Prosecutor’s actions and then the Bureau decides whether to characterise those actions as serious misconduct, less serious misconduct, or no misconduct. Rule 30(5) makes clear that when the Bureau finds serious misconduct, it refers that decision to the ASP so Rule 29 can be applied — the rule that requires the ASP to decide for itself whether it agrees that the Prosecutor engaged in serious misconduct and, if it does, whether the serious misconduct warrants removal. (The Paragraph 6 situation.) There is no way around that conclusion: the Bureau cannot be the competent decision-maker under both Rule 29 and Rule 30, because otherwise it would again be making referrals to itself — and giving itself the power to remove, which everyone acknowledges it doesn’t have.

This analysis is, of course, quite technical. The basic idea underlying the new disciplinary process, however, is both obvious and sound: the Bureau cannot have the power to bind the ASP as a whole to its view of a Prosecutor’s alleged misconduct. The Bureau’s role, per Rule 29 of the ASP Rules of Procedure, is to “assist the Assembly in the discharge of its responsibilities.” There is no greater ASP responsibility than determining whether a Prosecutor it elected has engaged in misconduct serious enough to warrant removal. So of course the ASP has adopted rules of procedure and evidence (past and present) that give it, not the Bureau, final say over whether misconduct has been committed. Why would 125 states outsource that decision to 21 states — barely 20% of their total number — that may not be representative of the ASP as a whole?

Indeed, that representation danger is starkly illustrated by the Bureau’s vote on Prosecutor Khan. Consider two aspects of the vote: according to reports, all eight WEOG (Western Europe and Others Group) states voted in favour of serious misconduct; all five states in the African Group either voted against or abstained. WEOG states thus currently constitute 38% of the Bureau, while African states constitute 24%. Compare those percentages to WEOG and Africa’s representation on the ASP as a whole: there are 27 WEOG states, 22% of the total ASP; there are 33 African states, 26% of the total ASP. That means WEOG is currently overrepresented on the Bureau by 76%, while Africa is underrepresented by 10%. Or, put differently, it means that 30% of WEOG states are part of the Bureau, while only 15% of African states are. It’s not difficult to imagine the vote on the Prosecutor coming out very differently had the Bureau’s geographic representation been less skewed toward the states most committed to removing him.

I don’t know whether the Bureau is actually thinking about trying to deny the ASP the right to decide for itself whether the Prosecutor engaged in serious misconduct. I certainly hope not. If it is, though, any such attempt is doomed to fail: although the Bureau may be able to rewrite its own internal documents, it has no power to ignore the Rules of Procedure and Evidence the ASP as a whole adopted by consensus last December.