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

[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]

Part I of this post discussed the institutional and political context for the upcoming ASP meeting. It also considered issues of due process and argued that the front door to removal and suspension through ASP Rule 81 was in fact closed.

The Back Door to Removal

The ASP has, however, also created a back door to removal and possibly suspension through the amended ASP Rule 82 on disciplinary measures. This provision, supposedly, would concern only other disciplinary measures than removal and suspension already expressly regulated in Rule 81. Not so. Article 82(1)(a) reads:

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 hoc panel together with the investigation report and its underlying evidence, if applicable, upon receipt of: (a) in the case of the Prosecutor, advice of the ad hoc panel that the factual findings by the Independent Oversight Mechanism or the external investigator, as applicable, legally characterize as misconduct of less serious nature or establish no misconduct or breach of duty […]

Under this cunningly crafted provision, even a finding of “no misconduct or breach of duty” by the professional bodies, like in the Khan case, opens the back door wide open for removal and other disciplinary measures regardless. Perhaps with one exception: Suspension from office is not mentioned in ASP Rule 82, only in Rule 81.

The Suspension of the Prosecutor Seems to have been Unlawful

The amended RPE Rule 28(4) provides the Bureau with the power to suspend the Prosecutor. However, the exercise of that power must be carried out in compliance with Rules 81-82, and only Rule 81(5) concerns suspension. This can only happen, according to Rule 81, if the requirements of Rule 81(1) have been met, which is not the case here. The suspension of the Prosecutor by the Bureau thus seems to have been unlawful in violation of ASP Rule 81.

Whether an unlawful suspension may have legal repercussions also for the fairness of the ensuing removal process at the ASP meeting, is another question. First, that may depend on how the suspension affects the Prosecutor’s opportunity to defend himself. Second, suspension may undermine the credibility of the Prosecutor in the eyes of States Parties that are not so much engaged in the finer details of the process against the Prosecutor.

Already by choosing New York as the venue for this special ASP meeting – in the very country that has threatened and sanctioned the Prosecutor to the worst effect by unlawfully interfering directly in the administration of justice at the ICC – the Bureau has implicitly expressed contempt for the rights of the elected Prosecutor and the proper administration of justice at the Court. There cannot be much doubt that the US government and US legislators have unlawfully been:

“intimidating […] an official of the Court for the purpose of forcing or persuading the official not to perform his or her duties”,

and/or “retaliated against […] [the Prosecutor] on account of duties”, see Article 70(1)(d) and (e) of the Statute.

The Removal Process under ASP Rule 82

Be this as it may regarding suspension, the Bureau has formally, strictly spoken at least, been entitled to proceed with the removal process under ASP Rule 82. Rule 82(2)(c) provides that the Bureau may adopt a decision to recommend removal if it determine that serious misconduct (or serious breach of duty) has occurred “in disagreement with the advice of the ad hoc panel”. The Bureau made such a decision by qualified majority and referred the disciplinary proceedings to the ASP in its meeting of 8 June 2026.

From a legislative point of view, this kind of drafting legal provisions is extraordinarily since removal and suspension from office is already regulated by Rule 81. Rule 82(2)(c) expresses in fact that the conclusions of the ad hoc panel is of little value if the Bureau holds other views. I assume that next time around independent legal expert may hesitate to participate in such a process.

Rule 82 is thus not only unjust because it lacks proper safeguards for the Prosecutor, but it also opens for abuse of political power. Yes, formally the President and the Bureau had a legal basis in Rule 82 to proceed despite a negative finding by the panel, but this was only possible because the rules and the procedures are inherently unjust, contradictory, and lack safeguards.

A New Factual Basis for Misconduct

Furthermore, according to Middle East Eye and Professor Kevin Jon Heller at Opinio Juris, the Bureau has now based its recommendation to the ASP for removal of the Prosecutor on a new factual basis for misconduct. This alternative was apparently never investigated and assessed by the independent professional bodies and not even asserted by the alleged victim. The proposal by the Bureau majority to the ASP, if the reporting is correct, now only concerns a consensual, but imbalanced, sexual relationship.

All allegations put forward by the alleged victim thus seem to have been dropped before the ASP meeting. Instead, they have been substituted with a different allegation generated by the Bureau while the Prosecutor has consistently denied any kind of sexual relationship. Whether an amended basis for a factual and legal finding of serious misconduct is lawful at this stage or not remains an open question. Clearly, however, this plot twist only reinforces the perception of a flawed process where the aim of removal justified the means.

What States should do at the ASP

With respect to the important issues at the ASP meeting on the 24^th of July one may distinguish between lawfulness and prudence. The States Parties should act wisely, while it must act in accordance with the law and the institutional architecture of the ICC. Let us start with what they ought to do.

States friendly to the Court, which hopefully constitute a majority at the States Parties, should not let themselves be bullied by the ASP Presidency or majority of the Western States Parties and their allies connected through US-related security concerns. They should protect the integrity of Court, as advised earlier by the Norwegian Deputy Foreign Minister. Politization of disciplinary matters will undermine the Court´s reputation as a Court of law. Furthermore, States Parties should forget about finding the substantive truth in the allegations against the Prosecutor at the ASP and reject the idea that the truth was found by the Bureau. Instead, States Parties should accept the findings and conclusions of the ad hoc panel, which provided an important safeguard in this unusual process.

States Parties ought to communicate clearly to other States Parties that they will take a principled rule of law approach. They should thus in all discussions at the ASP refer primarily to the legal assessments and advice provided by the ad hoc panel of independent and impartial legal experts, namely, that no misconduct or breach of duty had been reliably proven. States ought to defer to the panel’s conclusion. If the political bodies apply their own assessment whenever they disagree with the independent and professional mechanisms, the only real safeguard for the elected Prosecutor becomes illusory.

Furthermore, a perception from the outside of a political approach to the case against the Prosecutor without safeguards will not serve the Court well. The institutional responsibility of States Parties on the 24^th of July is thus great, while the sustainable solution is quite simple: Just apply the conclusions of the independent and impartial ad hoc panel when voting.

What States must do at the ASP: Pursue a Two-Step Procedure  

From a traditional legal perspective, lex lata, States Parties at the ASP must decide to hold two different votes on a possible removal of the Prosecutor. Ezequiel Jimenez Martinez and Sergey Vasiliev has referred to this as a two-step procedure. First, a vote regarding whether the Prosecutor has committed serious misconduct. Second, depending on the outcome of the first vote, a new vote to decide if the Prosecutor should be removed. The ASP is the only competent decision-maker in both respects.

Under the current institutional architecture of the legal framework of ICC, the Bureau cannot bind the Assembly to a finding of misconduct. The Bureau also cannot supplant the power of the Assembly, see Article 112(3)(c) of the Statute on the assisting role of the Bureau in the discharge of the Assembly’s responsibilities.

The competent decision-maker is neither the Bureau nor each State Party, but the Assembly as a collective body. Article 46(1)(a) of the Statute contemplates that the Prosecutor is “found” to have committed serious misconduct or a serious breach of his or her duties, meaning such a finding by the Assembly in accordance with the RPE.

Importantly, RPE Rule 29(6) clearly supposes that it is the competent decision-maker on a potential removal decision – in other words the same collective body, the Assembly – that must first decide on the question of serious misconduct. If a positive finding is made by the Assembly in that respect, the outcome of the removal decision may still not necessarily be removal. The Assembly may nevertheless decide against removal, as clarified in RPE Rule 29(6) through the phase “but decides not to remove the elected official from office”. Nobody can dispute that it is only the ASP as such that can remove the Prosecutor, see both Article 46(2)(b) of the Statute and RPE Rule 29(4). It is stated nowhere that it is the Bureau that is the final decision-maker instead of the collective Assembly with regard to serious misconduct. The Bureau can formally recommend removal upon determination of serious misconduct, see ASP Rule 82(2(c), but not bind the Assembly on any point.

This means that the proposal by the Bureau of only one vote at the ASP must be rejected up front by the States Parties at the meeting. Having only one vote on a potential removal would be illegal. It is not something the Assembly lawfully can choose to do even if proposed by the Bureau.

Qualified and Absolute Majority

While the first decision by the Assembly on possible serious misconduct requires a two-thirds majority of those present and voting for a positive finding, see ASP Rule 63, an absolute majority of the States Parties (at least 63 votes) is required in a second vote for removal of the Prosecutor in accordance with Article 46(2)(b) of the Statute.

If the Assembly on the first decision 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”, see RPE Rule 29(7). That decision-maker is the Bureau, see RPE Rule 30(3). Removal is then ruled out, but other disciplinary measures are legally possible if decided by an absolute majority of the Bureau. Otherwise, the case shall be closed, see RPE Rule 29(8).

Conclusion

If the Bureau gets the case back from the Assembly, the Bureau should finally decide to close the whole matter, in accordance with and in deferral to the assessments and conclusions of the panel of independent and impartial experts. The Bureau representatives should listen carefully to – hopefully – the majority of States Parties and apply the finding of the panel that no misconduct or breach of duty had been proven. That would be prudent.

There is still a possibility to save the integrity and reputation of the Court.