Independence of the International Criminal Court under Friendly Fire?

 In December 2025, I wrote a first post on US sanctions targeting the International Criminal Court (“ICC”) in retaliation for the issuance of arrest warrants in the Afghanistan and Palestine situations. In that post, I regretted the limited support that States Parties appeared to be offering the Court - at least based on publicly available sources - to protect its independence. The independence of the sanctioned judges, the Prosecutor, and the Deputy Prosecutors seemed to constitute the sole bulwark safeguarding the institution’s independence. I explored possible avenues for States Parties to genuinely support and assist the Court; nothing public was done… until, according to media reports (such as here, here or there), April Fool’s Day 2026.

A note of caution is warranted. Pursuant to Rule 26ter of the ICC Rules of Procedure and Evidence (“RPE”), the entire investigation mentioned below is confidential. The information discussed in this post derives from public media reports and from a letter apparently authored by the ICC Prosecutor’s legal advisers published on 2 April 2026. It has not been possible to verify this information against the actual case documents, which remain classified.

According to these sources, on April Fool’s Day 2026, a majority of 15 States Parties (Belgium, Bolivia, Brazil, Chile, Cyprus, Ecuador, Finland, Italy, Japan, Latvia, New Zealand, Poland, Slovenia, South Korea, Switzerland), opposed by four (Kenya, Senegal, Sierra Leone, South Africa), with two abstentions (Bosnia and Herzegovina, Uganda), sitting on the Bureau of the ICC’s Assembly of States Parties (“ASP”), voted against the unanimous finding of an independent ad hoc panel of three judges that the investigation into ICC Prosecutor Karim Khan disclosed no basis for further disciplinary action. In other words, diplomats overturned the unanimous finding of judges whom they themselves had appointed, in order to pursue disciplinary action against the Prosecutor. If accurate, and not, as the date might suggest, an April Fool’s prank, this vote would amount to a serious and unprecedented attack on the Court’s independence by those expected to protect it: the ASP and its Bureau.

To grasp the full significance of this development, it must be placed in context.

The reported vote arises in the context of allegations of sexual harassment brought against the ICC Prosecutor by two complainants. By lack of information, this article obviously cannot take a position on these allegations, except to note that they are serious and warranted a proper, thorough, and fair investigation. Such an investigation was essential not only to protect the respective interests of the complainants and of the accused Prosecutor, but also to preserve the integrity of the ICC as a whole. Failure to conduct a proper and fair investigation risks fueling suspicions of manipulation: either that allegations might be dismissed without due process to protect the Prosecutor, or that disciplinary action might be pursued without sufficient basis to remove a Prosecutor whose work had provoked the ire of, inter alia, the United States, Israel, and Russia, triggered US sanctions against the Court, and even led to him being sentenced to 15 years imprisonment by a Moscow tribunal, with eight ICC judges sentenced from 3.5 to 15 years as well. Media reports linking the allegations of sexual harassment to the issuance of arrest warrants in the Palestine situation on the basis of their contemporaneity do not, in themselves, undermine the credibility of the complainants, whose claims deserved proper investigation. If anything, such a coincidence heightened the imperative for fairness and integrity in the process.

Yet, as if governed by Murphy’s Law, where the demands for fairness and integrity were greatest, the process appears to have gone awry, and indeed it did. The difficulties began with the body responsible for investigating such allegations: the Independent Oversight Mechanism (“IOM”), established by and operating under the authority of the ASP, which declined to open an investigation. This development will not surprise those familiar with earlier analyses of ICC accountability mechanisms that I authored for the ICC Bar Association several years ago, which are again and unfortunately fully confirmed.

To resolve the IOM’s initial failure, the ASP devised an ad hoc investigative procedure, entrusting the investigation to an external body: the United Nations Office of Internal Oversight Services (“OIOS”), which conducts similar investigations within the UN system. The OIOS was mandated to carry out the investigation in June 2025. Subsequent amendments to the ICC RPE and to the ASP Rules of Procedure, adopted on 5 December 2025, retroactively endorsed this improvised mechanism, created solely to circumvent the IOM’s refusal to perform its mandate.

From the outset, the integrity of this ex post facto procedure attracted criticism, including from former ICC judges. Had the procedure at least been properly followed, it might still have been possible to conclude that, overall, the process met minimum standards of fairness given the IOM’s initial failure. However, publicly available information suggests that even this improvised procedure was not respected.

The procedure comprised several steps.

First, an investigation was to be conducted and a report drafted by the IOM or, “where strictly necessary” (new Rule 26(2) of the RPE), by an external investigator. In this case, the investigation was entrusted to the OIOS without clear public explanation as to why this was “strictly necessary.” The OIOS began its work in June 2025 and completed its report in December 2025. Although numerous media outlets appear to have accessed and commented on its contents, the report remains confidential under Rule 26ter(1) of the RPE. This constitutes a first breach, though far from the most serious, despite repetition.

Second, the investigation report was to be reviewed by an independent ad hoc panel of judicial experts appointed by the Presidency of the ASP Bureau pursuant to new Rule 26bis(1) of the RPE. While media reports refer to a “panel of judges,” these individuals are not ICC judges but specially appointed judicial experts. In this case, they were highly distinguished: Justice Leona Theron of the South African Constitutional Court; Mr Paul Lemmens of Belgium, former judge of the European Court of Human Rights and current President of the Administrative Tribunal of the Council of Europe; and Judge Seymour Panton of Jamaica, of the International Residual Mechanism for Criminal Tribunals (“IRMCT”). If there is one aspect of the improvised procedure beyond reproach, it is the eminence, expertise, and independence of these panel members.

This distinguished panel, appointed in December 2025, fulfilled its mandate and reportedly concluded that the OIOS investigation had not established any misconduct or breach of duty by the Prosecutor. This conclusion appears to have been unanimous and was reported in the media on 29 March 2026. Given the steady stream of leaks, accurate or otherwise, since June 2025, which had shaped public expectations of the Prosecutor’s culpability, this outcome was surprising. The panel’s conclusion, reached after a full and authorized review of the evidence, stands as a testament to its independence from public opinion.

What should have happened next?

Under the improvised procedure endorsed in December 2025, the panel’s conclusion constituted legal advice and was not formally binding on the Bureau or the ASP. Thus, had the panel found grounds for misconduct, the Bureau could, in principle, have declined to proceed, provided it justified departing from the panel’s advice. However, where the panel found no basis for disciplinary action - as here - the procedure did not contemplate further steps. Nevertheless, the Bureau majority reportedly voted on 1 April 2026 to proceed with disciplinary action. In doing so, it not only disregarded the panel’s unanimous opinion but also appears to have violated the very procedure it had established.

Under new Rule 81(1) of the ASP Rules, “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 advice of the ad hoc panel that the factual findings by the Independent Oversight Mechanism or the external investigator, as applicable, legally characterize as serious misconduct or serious breach of duty in the case of the Prosecutor” (emphasis added). Accordingly, the Bureau is to be seized only where the panel advises that the facts legally amount to serious misconduct or breach of duty. Where the panel reaches the opposite conclusion, like in the present case, the rules provide no basis for further action or a vote. Accordingly, submitting the matter to a vote appears to have been contrary to the plain wording of the rule.

Interpreting Rule 81(1) of the ASP Rules as allowing the Bureau to overturn the panel’s advice even in such circumstances would amount to a contra legem interpretation, that is, one contrary to the rule’s clear and plain wording, adopted less than six months earlier for this very situation, according to which the Bureau should only vote when the ad hoc panel finds that the investigation report and evidence offers a basis for disciplinary action.

More fundamentally, it would allow a political body of diplomats to overturn the legal determination of independent judicial experts specifically appointed for that purpose. Once such experts concluded that no misconduct had been established, the Bureau should have had no authority to revisit that conclusion. By doing so, it disregarded both the procedure and the principle of judicial independence.

What might be the next steps following the 1^st April vote of the majority of the Bureau? New ASP Rule 81(1) provides a clear answer: “After having gathered, in accordance with the common provisions on procedural fairness under rule 27 of the Rules of Procedure and Evidence, the relevant information for the purpose of deciding on the complaint, the Bureau shall recommend to the Assembly whether to follow the advice of the ad hoc panel, including its reasoning for any disagreement, if applicable.” At this stage, the defendant is afforded an opportunity to present arguments pursuant to new Rule 27(2) of the RPE. Rule 27(2) of the RPE further reads that “the competent decision-maker(s) and the ad hoc panel may take any further steps necessary to ensure procedural fairness at any stage for any persons directly affected, including the elected official concerned”, but the exact scope of that rule remains unclear. Regardless of what the defendant may say or submit, paragraphs (2) and (3) of ASP Rule 81 provide that the entire case file shall then be transmitted to an extraordinary session the ASP for a vote on whether he should be removed from office.

It is at this point that the process goes fundamentally astray. Forget the procedural irregularities identified thus far, it isn’t much, compared to the following.

The ASP is not a judicial body; it is a political organ in which diplomats vote in accordance with instructions received from their respective capitals. These instructions bear no relation to the requirements of a fair trial, due process, or proof beyond a reasonable doubt. This is simply not the nature of the determinations made within such a forum. The sole compass guiding diplomats’ votes is the perceived interests of their States, and they cannot be faulted for acting accordingly. They are neither mandated nor equipped to render judicial determinations based on evidentiary standards. Moreover, Assembly votes do not entail, and indeed exclude, reasoned decisions, unlike judicial rulings. The two are fundamentally different in nature. Consequently, irrespective of the findings of the OIOS, of the available evidence, of the conclusions of the ad hoc Panel, or of the defence eventually presented by the Prosecutor at this late stage, the decision whether to remove him from office will be made without any judicial determination.

Such a decision will bear no relation to the merits of the case, the voices of the complainants, who may feel vindicated, though vindication is not justice, or the persuasiveness of the defence. Instead, it will depend on whether States Parties perceive an advantage in removing the current Prosecutor from office. It is hardly speculative to suggest that considerations such as the Prosecutor’s decisions in the Afghanistan and Palestine situations, the resulting consequences in terms of US sanctions, and the desire of States Parties to preserve their relations with the United States will weigh heavily in this determination. To suggest otherwise would be culpably naïve. If States Parties perceive an interest, such as appeasing Washington, in removing the Prosecutor, they will do so irrespective of the merits of the case. Indeed, removing the Prosecutor may ultimately be seen as a means of resolving the US sanctions imposed on the Court. When I wrote that the States Parties had to take action to protect the independence of the Court from US sanctions, this is not exactly what I had in mind…

But even in the extraordinary scenario in which these political considerations were set aside and played no role in the voting of State representatives, their decision would still not constitute a judicial determination applying the standard of proof beyond a reasonable doubt: it would remain a vote by diplomats.

Should this scenario materialise, the Prosecutor, in his personal capacity, is entitled to have recourse to judicial review before the ILOAT. Although he is not formally a staff member, the Tribunal has previously affirmed its jurisdiction over complaints brought by ICC elected officials and former elected officials (e.g. ILOAT Judgment 3359). The Tribunal’s case law on disciplinary matters is unequivocal: “The Tribunal has consistently held that a staff member accused of wrongdoing is presumed innocent and is to be given the benefit of the doubt (see Judgments 4858, consideration 17, 4491, consideration 19, and 2913, consideration 9). The burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed (see Judgments 4858, consideration 17, and 4364, consideration 10)” (ILOAT Judgment 5156 at 24). Applying this standard, the ILOAT would likely conclude that the Prosecutor was removed absent a finding of guilt beyond a reasonable doubt. The conclusions of the ad hoc Panel will no doubt be given much weight in that determination. It is highly probable that the removal decision would be set aside and that substantial financial compensation would be awarded to the former Prosecutor for his unlawful removal from office.

In the end, the Prosecutor, as an individual, may obtain justice for himself. However, the complainants, who were effectively denied justice through the ASP procedure, will have to cope with that reversal. Meanwhile, the Court would have seen its Prosecutor removed through a political process, most likely driven by the short-term interests of States Parties seeking to appease the United States, with no clear path to restoring its compromised independence. The damage, once done, may prove difficult, if not impossible, to reverse.

Precedent does not diminish the gravity of this development. No disciplinary action was taken against the first ICC Prosecutor even after a final judgment publicly detailed alleged rape (ILOAT Judgment 2757, para. 4). In another instance, the ASP deferred action against the third ICC Registrar pending ILOAT review, and ultimately no action followed despite findings of abuse of authority (ILOAT Judgment 3907, para. 26). In those two cases, a judicial determination was made that the relevant ICC Elected Officials breached the law, but the diplomats decided to cover up. Here, by contrast, a unanimous finding by three eminent judges that no misconduct existed is overridden to proceed with an ASP vote on removal from office, in breach of well-established ILOAT case law applicable to the defendant.

This post is not about defending the Prosecutor. One may dislike the ICC Prosecutor; one may be personally convinced of his guilt; one may even agree that he should be removed from office to appease the United States, in the hope, however hazardous, that doing so might bring an end to US sanctions against the Court. However, none of these personal views or opinions can justify sacrificing the independence of the International Criminal Court. Whatever the Prosecutor did or did not do, the handling of the allegations, beginning with the IOM’s inaction, has been deeply unsatisfactory. It leaves a bitter taste for those concerned with the rights of victims, including victims of sexual violence and abuse of power, as well as for those committed to the rights of the defence, the presumption of innocence, and the guarantees of a fair trial. Above all, it profoundly undermines confidence in the independence of the Court.

The impeccable credentials of the ad hoc panel could not cure the earlier irregularities, i.e. the IOM’s failure to act, numerous breaches of confidentiality, and the application of an ex post facto procedure. However, it offered hope that the process might still conclude fairly and lead to meaningful institutional reform: implementing the IOM’s mandate within the internal legal system of the Court, improving reporting mechanisms and protections against retaliation, establishing an ethics office, ensuring compliance with confidentiality rules, and creating disciplinary procedures for Elected Officials free from diplomatic interference. The Bureau’s vote of 1 April deals a serious, if not fatal, blow to that hope and risks resolving this matter at the expense of the Court’s independence.

Once upon a time, States Parties declared themselves “Determined […] for the sake of present and future generations, to establish an independent permanent International Criminal Court” (Rome Statute, Preamble, para. 9). The only hope that this commitment endures is that the reported vote of 1 April 2026 proves to be nothing more than an ill-conceived April Fool’s prank, and that States Parties will focus their efforts on protecting the Court’s independence, including in the face of US and Russian sanctions, rather than undermining it in the future.    

Dr Cyril Laucci, 7 April 2026.