These are serious, but not desperate times. The law sees people that some want to erase. So the question is not whether the ICC is perfect, but whether the world can be better with it.
– Karim A. A. Khan KC
The longer L’Affaire Khan continues, the clearer it becomes that the issue before the International Criminal Court (“ICC”) is no longer confined to the underlying allegations against Prosecutor Karim A. A. Khan KC. The controversy has evolved into something far broader: a test of institutional legitimacy, constitutional competence, and the ICC’s capacity to confront allegations against one of its senior officials with coherence, credibility, and public confidence.
Whatever one ultimately believes about the allegations themselves, the Rome Statute framework was designed to ensure that controversies of this magnitude would not be resolved through managerial discretion, improvised procedural innovation, or the temporary political composition of a subsidiary organ. They were meant to be addressed by the Assembly of States Parties (“ASP”) acting in its plenary constitutional capacity.
Much of the public discussion surrounding this increasingly theatrical and polarizing affair has obscured a relatively straightforward institutional question: under the Rome Statute framework, who decides whether a sitting Prosecutor accused of serious misconduct should remain in office?
In my view, the answer is clear. The Bureau may supervise aspects of the process: appoint mechanisms, receive reports, coordinate procedures, formulate recommendations, and facilitate institutional continuity. However, when allegations potentially engage Article 46 of the Rome Statute – namely removal for serious misconduct, serious breach of duty, or inability to perform the functions of office – the ultimate constitutional judgment rests with the ASP.
I. This Is No Longer Merely A Disciplinary Matter
It is important to recognize how far this affair has expanded beyond the initial allegations.
The controversy now encompasses allegations of retaliation, witness interference with potential Article 70 implications, competing media narratives, political lobbying of States Parties, disputes over standards of proof, criticisms of the Panel process, accusations of selective leaking, and increasingly public efforts to frame disagreement as ignorance, bias, misogyny, hostility to accountability, or hostility to the ICC itself. It has also generated speculative narratives situating the affair within broader geopolitical struggles surrounding the ICC. Nor does the matter necessarily appear institutionally confined to the allegations presently in the public domain. Reports indicate the existence of at least one additional complaining witness, and experience in cases involving allegations of this nature often suggests that other complainants or witnesses may emerge over time. Looming in the background, too, is the possibility of future criminal complaints or related proceedings, whether ultimately pursued or not. In short, this affair likely has institutional and legal consequences extending well beyond the immediate procedural questions presently before the Bureau.
This broader reality only reinforces the central issue addressed in this post: whether a controversy of this magnitude can be legitimately resolved through managerial processes alone, or whether it ultimately belongs before the ICC’s full membership acting through the ASP.
At some point, the cumulative effect ceases to be merely optics and becomes an institutional problem. The ICC’s legitimacy depends not on abstract appeals to accountability but on confidence that allegations against powerful insiders are handled consistently, independently, and without fear or favor.
The handling of this affair has already caused reputational damage, regardless of one’s view of the underlying allegations. Confidence in the institution has been shaken. As the process unfolds amid procedural improvisation and politicized discourse, it becomes increasingly difficult to treat it as an ordinary disciplinary matter. This is why L’Affaire Khan now requires broader institutional ownership. This is not merely internal discipline; it is a constitutional question about the governance of the Rome Statute system.
Before you save the world, make sure your own house is in order.
― Charles F. Glassman
II. What The Rome Statute Framework Actually Provides
The Rome Statute clearly distinguishes between ordinary disciplinary matters and those serious enough to warrant removal. Article 42 requires the Prosecutor to possess “high moral character.” Article 46 governs removal for serious misconduct, serious breach of duty, or inability to perform functions under the Statute. Article 47 addresses lesser disciplinary sanctions.
This distinction is fundamental. Allegations that may lead to removal engage the ASP’s plenary authority, not routine administrative management. The Rules of Procedure and Evidence reinforce this structure. Rule 24 defines “serious misconduct” broadly. Rules 26bis, 26ter, and 29 establish mechanisms for investigations, advisory input, transmission of reports, and consideration by the competent decision-maker. The competent decision-maker is determined by constitutional allocation, not administrative convenience.
The Bureau plays an important role in governance: appointing mechanisms, coordinating processes, managing continuity, and receiving reports. But it is not a constitutional chamber capable of displacing the ASP under Article 46, read together with Article 112. The Bureau is temporary and managerial; the ASP is plenary and constitutional.
Article 112 confirms this hierarchy by designating the ASP as the ICC’s “management oversight and legislative body.” The Bureau exercises delegated authority and does not possess an independent constitutional mandate. Delegation cannot become displacement. This distinction is critical when allegations implicate not only misconduct but also the Prosecutor’s continued fitness for office.
What makes this affair particularly striking is how far the process has already deviated from the Statute’s ordinary structure. It was never designed to handle allegations of this magnitude through successive procedural improvisations, yet that is what has occurred.
Rather than relying primarily on the ICC’s Independent Oversight Mechanism, the Bureau outsourced the investigation to the UN Office of Internal Oversight Services (“OIOS”), which operates under a different administrative framework. No clear public justification was offered. Because OIOS operates outside the Rome Statute system, the Bureau then constituted an ad hoc panel to characterize its findings under ICC law. One procedural innovation thus necessitated another.
This layering reflects a process that evolved reactively rather than through a predefined constitutional pathway. Each adjustment appears to have been an attempt to resolve difficulties created by the previous stage, achieved through institutional improvisation under structural conditions for which the Statute was not designed.
This does not invalidate the process, but it underscores why the final judgment cannot rest with managerial discretion or advisory mechanisms. The more improvised the process becomes, the more essential it is that final authority remain with the ASP.
III. The Panel’s Original And Expanded Mandate – And Why Its Conclusions Cannot Be Dispositive
None of this requires dismissing the Panel’s work or assuming bad faith, but it does require acknowledging serious structural and methodological concerns about the Panel’s role.
The original rationale for the Panel was relatively narrow. Its purpose was to provide a legal characterization of the OIOS findings within the Rome Statute framework. The Panel was not constituted as a trial chamber or judicial bench exercising adjudicative authority under the Statute. It could not hear witnesses directly, conduct adversarial testing of evidence, cross-examine complainants, or independently determine contested facts through judicial proceedings.
The Panel was, by design, an advisory mechanism that operated on the basis of an investigative record generated elsewhere. This distinction matters profoundly. Judicial findings – especially those that effectively amount to exoneration or definitive rejection of allegations – ordinarily require procedural safeguards associated with adjudication: direct evidentiary testing, adversarial scrutiny, witness examination, procedural equality between parties, and judicial powers expressly grounded in the institution’s legal framework.
The Panel possessed none of those features. Yet portions of its reported reasoning appear to move beyond legal characterization and into substantive reassessment of witness credibility, factual reliability, evidentiary sufficiency, inferential weight, and behavioral interpretation. Whether justified or not, this creates the appearance that an advisory mechanism gradually evolved into something much closer to quasi-adjudication, lacking the safeguards ordinarily associated with such a role.
The deeper institutional concern is not whether the Panel reached the correct conclusions, but whether an advisory mechanism created through successive procedural adaptations can, in practice, acquire quasi-adjudicative authority without the safeguards ordinarily associated with judicial decision-making under the Statute.
This concern is especially significant because the Panel’s conclusions are increasingly being treated in parts of the public discourse as a final judicial exoneration by a duly sworn-in panel of judges – a narrative actively encouraged by Khan himself through a series of recent public interviews, including one rather performatively titled Dirty Tactics! that circulated across media outlets on the eve of important disciplinary filing deadlines. The obvious danger is that advisory conclusions are becoming politically and rhetorically entrenched as if they were judicial findings, and are therefore being treated as effectively dispositive before the ASP has exercised the independent constitutional judgment contemplated by Article 46.
More concerning still, this framing does not operate only at the level of general public perception or ASP deliberation. It also functions as a form of institutional pressure on the Bureau itself – particularly those States Parties who remain undecided – by creating an atmosphere in which even the procedural decision to allow the matter to proceed to the ASP can be portrayed as an attack on due process or the rule of law. In that sense, the narrative risk is not merely that the ASP is politically pre-empted, but that the gatekeeping function of the Bureau is subtly constrained by reputational and rhetorical pressure not to “escalate” the matter at all.
More fundamentally, this dynamic reflects – and risks reinforcing – a serious misunderstanding and misrepresentation of both the Panel’s limited mandate and the constitutional structure of the Rome Statute framework.
First, there remains a question of whether the Panel crossed from legal characterization into factual adjudication, which it could neither realistically nor legitimately perform.
Second, procedural asymmetry appears to have developed. If accurate, Khan and his team had broader participatory rights than the complainants. The issue is not intent but whether the process appears balanced enough to sustain confidence.
Third, controversy surrounds its treatment of credibility and circumstantial evidence, including workplace power dynamics. Reasonable disagreement on these issues is precisely why non-binding conclusions cannot be treated as final.
Fourth, there is a dispute over the standard of proof. The Panel appears influenced by ILOAT jurisprudence and a beyond-reasonable-doubt standard. Yet the framework governing elected officials may instead point to clear-and-convincing evidence. This dispute reinforces why the matter cannot end in an advisory process.
Simply put, the ASP cannot serve as a passive recipient of a pre-digested institutional conclusion. The Rome Statute does not contemplate a system in which managerial bodies and advisory mechanisms effectively narrow the ASP’s constitutional choices before the ASP has meaningfully engaged with the record itself. Article 46 presupposes the exercise of independent judgment by States Parties acting collectively in their plenary capacity.
The Panel’s function was to advise on the legal characterization of investigative findings, not to serve as the de facto final arbiter of the Prosecutor’s continued fitness for office. It was not constituted to replace the ASP’s institutional responsibility. Thus, treating its conclusions as effectively dispositive risks transforming an advisory mechanism into something the Statute neither expressly created nor contemplated. The same principle applies to the Bureau. It remains a subsidiary organ operating under delegated authority pursuant to Article 112. Its authority is delegated, not original. Oversight responsibilities do not displace constitutional authority.
Indeed, the procedural evolution of this affair demonstrates precisely why ASP involvement is indispensable. What began as fact-finding gradually evolved into layered procedural improvisation, encompassing expanded mandates, legal reinterpretations, procedural innovations, and contested standards. The further the process drifted from its original structure, the more essential it became that final institutional authority remain with the ASP. To conclude otherwise would permit constitutional substitution through managerial improvisation, establishing a precedent under which controversies involving senior ICC officials could be resolved effectively outside the Statute’s plenary accountability mechanisms.
IV. The Danger Of Procedural Managerialism
One of the more troubling aspects of how L’Affaire Khan has been handled is the gradual erosion of the distinction between managing a process and resolving a constitutional question. The Bureau’s role within the Rome Statute system is undeniably important, but importance is not constitutional finality.
The risk of prolonged managerial handling of crises of this magnitude is that procedural administration gradually supplants plenary institutional judgment. This appears increasingly evident here: what began as an investigation evolved into layered procedural improvisation.
At a certain point, procedural management ceases to stabilize institutional legitimacy and instead begins to absorb it. That is precisely why Article 46 ultimately vests responsibility in the ASP rather than in a temporary managerial subset of States Parties. To reemphasize, this point extends beyond the present affair. Ultimately at stake is not simply the fate of one Prosecutor but the institutional precedent being set for future allegations involving senior ICC officials. Governance precedents established during moments of crisis rarely remain confined to the crises that produced them.
If disciplinary matters involving senior ICC officials gradually migrate away from the ASP through improvised procedural layering, the constitutional balance established by the Rome Statute risks erosion over time. The danger is not merely procedural confusion in a difficult case. It is the normalization of governance through ad hoc managerial adaptation rather than through the institutional design contemplated by the Statute. This should concern anyone interested in the ICC’s
V. Why The Asp Must Receive The Full Record — And Exercise The Final Judgment
The strongest argument for ASP involvement is not political but constitutional as reflected in Articles 46 and 112.
Under the current structure, the Prosecutor and his legal team appear to have had access to substantially more material than the broader ASP. Yet Article 46 entrusts the ASP – not the Bureau, not the Panel – with ultimate responsibility for determining whether removal is warranted. This creates a troubling institutional asymmetry.
In practical terms, the current structure risks producing the paradoxical outcome that the subject of the proceedings has greater access to the evidentiary record than the plenary body constitutionally tasked with deciding the ultimate question. This asymmetry is difficult to reconcile with procedural fairness, institutional logic, or the broader governance structure established by the Rome Statute framework.
Rules 26bis and 26ter appear to create tension precisely on this issue. One rule contemplates the transmission of investigative materials to the competent decision-maker, while another appears to limit broader dissemination primarily to summaries. But when tensions arise between procedural mechanisms and constitutional authority, the governing principle remains straightforward: the Rome Statute is lex superior.
Under Article 46, the ASP cannot meaningfully discharge its constitutional responsibilities unless it is sufficiently informed to exercise independent judgment. The Bureau’s role is managerial and facilitative, not gatekeeping. It may supervise procedures, formulate recommendations, coordinate institutional continuity, and assist the ASP in exercising its powers. But it cannot serve as the effective constitutional filter that determines whether the ASP may meaningfully exercise authority expressly entrusted to it by the Statute. Otherwise, the constitutional architecture collapses into procedural managerialism.
Nor is this merely a technical procedural matter. None of this means the ASP must remove Prosecutor Khan, prejudge the allegations, or disregard due process protections. The point is narrower but institutionally critical: the ASP is the only body with the plenary constitutional legitimacy to resolve a controversy of this magnitude on behalf of the ICC as a whole.
The Bureau, by contrast, is a temporary and, in many respects, a serendipitous composition of States. Its members happen to hold managerial positions at a particular moment. That is not criticism. It is simply an institutional reality. Controversies capable of reshaping confidence in the ICC’s institutional integrity should not and cannot be resolved solely through the discretionary management of a temporary subset of States Parties.
This is especially true when allegations, investigative findings, procedural controversies, governance improvisations, and public fallout collectively implicate not only individual misconduct but also the broader credibility of the ICC’s leadership structure. The Rome Statute system was created precisely because legitimacy in matters of international justice depends not merely on outcomes but on confidence in the integrity and transparency of the processes through which those outcomes are reached. The same principle must apply internally to the ICC itself.
Prosecutor Khan himself observed that “the question is not whether the ICC is perfect, but whether the world can be better with it.” This aspiration cannot be sustained by procedural opacity, institutional improvisation, or the concentration of constitutional judgment in subsidiary managerial organs. Institutions become stronger not by avoiding scrutiny but by demonstrating that even profound internal crises can be addressed through transparent, principled, and collectively legitimate processes.
Whatever the ultimate outcome of these proceedings, one conclusion seems difficult to avoid: when allegations against a sitting Prosecutor escalate into a crisis that could undermine the credibility, independence, and legitimacy of the ICC itself, the Rome Statute system requires the Assembly of States Parties – not merely the Bureau – to confront that question directly.
POSTSCRIPT
Some will no doubt accuse me of prejudging the matter, misapplying standards, or speaking outside my lane. That is neither surprising nor especially troubling. Public disagreement is inevitable, and one can expect particularly acerbic responses from certain quarters closely associated with Khan’s defence in public discourse – individuals whose connection to these proceedings is not entirely detached from their outcome. So be it.
As a defence lawyer, I understand the assumption that one instinctively sides with the accused. But defence advocacy is not blind loyalty to individuals or indifference to institutional integrity. One can defend due process while criticizing seemingly questionable tactics that appear designed not only to test evidence but also to shape narratives, pressure decision-makers, and influence perception.
To borrow Mehdi Hasan’s phrase from his Zeteo interview with Khan, I do not have a dog in this fight. My interest is institutional, professional, and legal. My criticism is not confined to any single group. I have scrutinized judges, prosecutors, defence counsel, and ICC structures alike when warranted. That reflects not hostility, but seriousness about institutional accountability. I may be wrong about aspects of fact or law. Reasonable disagreement is inevitable. But the increasingly politicized handling of this affair has made silence hard to justify.
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Shorter Karnavas: a non-adjudicative political body should override a panel of judges and refer the situation to another non-adjudicative political body because the judges engaged in “factual adjudication.” And it must do so because the President of both of those non-adjudicative political bodies disregarded the law that governs the Court to create an ad hoc process that didn’t give the actual judges sufficient adjudicative power.
You can’t make this stuff up. And yes, Karnavas really is a defence attorney.
(Also, Karnavas is either lying or woefully misinformed about asymmetric participation rights, which no one until now has claimed were anything but completely equal — hence the absence of a link to anything in that paragraph — and about the burden of proof, which the Bureau has openly acknowledged is beyond reasonable doubt.)