Today, the court faces a precipice of its own making: a decision to be made by states on whether to remove the public face of the International Criminal Court (ICC), the prosecutor.
Since the first news was made public in October 2024 that Karim Khan, the ICC’s prosecutor was being accused of sexual misconduct, there has been a confusing process of investigation. Very little has been made public officially. But stunning leaks have emerged in the media, of an alleged inappropriate relationship between the prosecutor and one of his subordinates – that he denies. And of additional allegations of retaliation or interference in the probe, again denied by Khan. Last but not least, the matter has become entangled in speculation on a connection between the allegations and the court’s issuance of arrest warrants against senior Israeli officials. To make matters worse, the lack of clarity about the procedure launched by the main ICC oversight body – the 21-person Bureau of the Assembly of States Parties (ASP) – has led to worry about its fairness.
What is happening now
In November 2024, the president of the ASP Finnish ambassador Païvi Kaukoranta told states that “given the particular circumstances of this case”, and because of “perceptions of possible and future conflicts of interest”, she had commissioned “[an] external investigation into the matter”. The court’s own Independent Oversight Mechanism, which had looked into the matter during 2024, had for its part reported that since they had not had the cooperation of the alleged complainant, it could proceed no further.
Since then, in June 2025, an ad hoc panel of judges was appointed to examine the results of the external investigation – done by the oversight division of the United Nations (OIOS) and report back to the ASP President within 30 days. The three judges were initially due to submit their report in January, but their mandate was extended to 9 March.
The president of the ASP is therefore due to receive their report this Monday.
“This is a highwire act”
Justice Info has been provided with information from all parties showing that this investigation is at risk of being seen as seriously flawed.
“This is a highwire act,” emphasises one diplomat, speaking on background, “any decision to remove the prosecutor must be seen as not political and not create a precedent of interference in the court’s independence”.
“Nothing like this has happened before” says Ezequiel Jimenez, a senior fellow at the research institute CILRAP, author of one of the few books to examine the ICC’s oversight mechanisms. “All of this procedure is novel, unprecedented, and bespoke,” he adds.
However, according to documents seen by Justice Info, the procedure the ASP bureau and its president will be using from today onwards is outlined: “Should the Bureau determine that potential misconduct had been established, the prosecutor would be informed in writing and granted a right to respond”. He would then “have 30 days to provide written submissions”. Further it says that “[s]hould notice be served on the prosecutor, States Parties would receive a confidential summary of the investigation”.
In addition, “following receipt of the prosecutor’s submissions, the Bureau would decide within 30 days whether less serious or serious misconduct has been established. In the event of less serious misconduct, the Bureau would determine any disciplinary measure” but “in the event of serious misconduct, the Bureau would make a recommendation to the Assembly, which would decide whether removal from office would be warranted.”
This decision should therefore be made during the first part of this year.
“The standard is ‘beyond reasonable doubt’. If they go for serious misconduct, the full Assembly of States Parties needs to vote on removal. Removing the prosecutor requires a majority, and that would be via a special session, with only one item in the agenda”, says Jimenez. However, “if we look at the less serious case of ‘some misconduct’, the bureau has other alternatives, including an economic sanction”.
How did we get here
In the design of the ICC, from the start, how to deal effectively with alleged misconduct on the part of senior officials has never been robustly outlined.
Alix Vuillemin, from the NGO Women’s Initiatives for Gender Justice, which is monitoring the process, notes that “it looks to an outside observer that the states running the court have been negligent in applying a better system for these kinds of matters. It’s taken them too long to implement reforms.”
Only at the last annual meeting new rules on investigating misconduct were approved. It is now clear from the document quoted above and from the limited information that has been made public that some aspects of those new rules are already being applied to this situation – for example the outsourcing of the investigation, and creation of the ad hoc panel.
Jimenez says that “over the last 18 months, the differences between what is in the statute and what has been practiced are unprecedented”. But at no point have any officials articulated publicly that they are using the new rules nor why. “The whole process has been, to some extent, developed as we go, and is in part, not transparent,” says Vuillemin.
Deploying “swift, rigid decisions, and mixing different procedures from past rules with the new rules means they don’t deploy either regime effectively”, says Jimenez.
During the process, the prosecutor’s lawyers have argued the president and vice president of the ASP and one other ambassador elected member of the bureau be recused for bias, but “unsuccessfully so far”, say sources with knowledge of the investigation.
UN Independent investigators
During 2025, the UN’s OIOS took statements from all individuals concerned, mainly court members. Some of those interviewed - who have asked not to be named by Justice Info - said that they felt it was a fair interrogation. But those who have seen the OIOS report, who have also asked not to be named, say “the report is very weak” and suggest that the UN staff involved “lacked experience”. “It’s very difficult to establish facts and to reach the threshold for misconduct when the investigation is very much a hearsay report,” a source continues.
One of the critiques from Khan’s camp is that the OIOS report “does not reach any conclusions about the credibility of the complainant or respondent”. And some of those who have seen the report say, “it also paints a picture of a super disorganized, extremely difficult place to work with characters who think they’re God”.
Khan’s lawyers were permitted to submit a 60-page response to the report, telling the bureau that “it cannot possibly be used to justify a finding of misconduct, even of the less serious variety,” according to sources close to the prosecutor.
Also contacted by Justice Info, the alleged victim did not wish to comment. Similarly, Khan and his legal team did not provide comment nor information about the process.
Ad hoc panel of judges
The UN report was then handed over to the ad hoc panel of judges, in December 2025.
The panel was provided with terms of reference from the bureau. According to those, seen by your correspondent, they advise the ASP bureau via a “review [of] the factual findings presented in the OIOS investigation report”. They shall “analyse these findings” and “legally characterize the facts determined”. But the panel “shall not have the authority to reopen or conduct its own investigation” nor “shall not conduct any additional fact-finding.”
What exactly they have done, and why they needed to extend their original mandate from January to March is not known. “It’s going to be interesting to see what legal arguments they have managed to marshal against the prosecutor’s very heavy legal team. On the ethical, moral side the battle is lost,” says one commentator who asked not to be named.
At this stage of the process - under the new rules - the alleged victim or any others whose allegations may be being investigated - no longer plays any role. Vuillemin though is concerned that the role of any alleged complainant should be clarified and exactly what duty of care should be provided. But, she notes, “it’s still in the process of being developed”.
Jimenez says it is difficult to assess fairness to all sides in this context: “The alleged victim deserves justice, and deserves to be heard, and deserves to be treated fairly in the process.” But “I cannot assess that, because I don’t know what rules apply”, he adds. And “we have a bureau that at least some members are already alleged compromised in the investigation, that they have met with the alleged victim according to reports which have not been denied”.
Onto the states
Diplomats in The Hague express worry that an “inconclusive” finding would end with the prosecutor “unable to fulfil his function” but whose continued presence would be “damaging to the court”. And a commentator suggests that “the bureau already knows that it wants Khan to be found in serious misconduct. They already have the briefing ready for the Assembly State Parties”.
But “what does the Assembly receive? Do they receive a summary of the findings, or do they receive the underlying evidence plus the ad hoc original report? At the moment, it seems that the bureau decides,” says Jimenez.
According to the document outlining procedure for the bureau after it received the UN report, referenced above, states themselves will not get any of the primary reports or underlying evidence. Just a summary of the investigation. A decision described as “ridiculous” by one commentator on background, who find it strange that states would take such a momentous decision without full possession of the facts.
“Politically, I am not sure if they want to have a vote”, says Jimenez. So, probably, he speculates, “there will be a lot of negotiation in the background in which a lot of the votes can be predicted, so there will be a lot of saving face, and stage management of the moment. The prosecutor may be able to engage, at least to present his case in which, you know, he might say why he agrees or disagrees with the recommendation transmitted from the bureau. But if the bureau goes for removal, the Assembly has to vote”.
“It is going to be extremely damaging for the ASP if this goes to a vote” says Jimenez. “You don’t want states to be debating whether or not the head of your prosecuting unit has committed something so grave in a context in which you have at least the Duterte case ongoing, but also in the context in which the court is under threat of further sanctions”.
If prosecutor were removed
“If the prosecutor is found to be serious misconduct and is removed, that’s immediate,” says Jimenez, and that would trigger automatically a search for the election of now the fourth prosecutor. “That fourth prosecutor will need to have a new 9-year term, unless the ASP evokes a special rule, he says. But, he notes, “the process of search and election of a new prosecutor will be difficult” because “there’s been no good process so far. It was traumatic, crazy last time, and they didn’t follow their own procedure”. Not to mention that, given the upheavals in the world, good candidates are unlikely to be rushing to the ICC gate.
