A PERMANENT COURT REQUIRES PERMANENT PROCEDURES: What L’Affaire Khan Reveals About the International Criminal Court’s Unfinished Constitutional Development
Procedure is where principle becomes practice.
Every permanent institution eventually reaches a moment when its own procedures become as important as the substantive work it was created to perform. I believe the International Criminal Court (ICC) has reached that moment. This trilogy explains why.
I have been thinking about this piece for some time.
Not because I have reached any conclusion about the allegations against Prosecutor Karim A. A. Khan KC. I have not. I have neither seen the evidence nor reviewed the investigative file. Like everyone else outside the process, I know only what has entered the public domain. That is rarely enough to form responsible conclusions.
After more than four decades as a criminal defense lawyer, appearing before national and international courts and tribunals as counsel, lecturer, trainer, and observer, I have become deeply suspicious of those who profess certainty without seeing the evidence. One of the occupational hazards of our profession is the temptation to mistake allegations for proof, confidence for accuracy, and repetition for truth. Experience has taught me to resist all three.
That same experience has also made me skeptical whenever institutions start inventing procedures in the middle of a crisis. Good institutions anticipate difficult cases. They do not build the machinery while the train is already moving. More than anything else, that is why I decided to write this trilogy.
But before going any further, let me make one point absolutely clear. The question is not whether allegations of serious misconduct should be investigated. Of course they should. Nor is it whether senior officials of the ICC should be held accountable. They must be. The real question is whether the procedures governing that accountability can inspire confidence – among complainants, respondents, States Parties, ICC staff, and the broader public – before anyone knows the outcome.
That is the issue that concerns me.
This trilogy is not about Khan. Nor is it an attempt to persuade readers that either side should prevail. It is about something considerably more important. My central proposition is that the ICC’s external authority has matured more rapidly than its internal disciplinary architecture. The present controversy has merely exposed this imbalance.
This matters because accountability and judicial independence are often framed as competing values. Properly understood, they are not. Durable institutions require both.
The challenge is not whether accountability should exist, but how it should be structured so that it strengthens, rather than diminishes, the independence and legitimacy of the institution. Stated differently, the issue is not accountability itself. The Rome Statute settled that question long ago. The issue is whether the ICC’s internal disciplinary architecture has become sufficiently institutionalized to reflect the permanence of the institution it exists to protect.
I use the word constitutional deliberately.
Not in the domestic sense. The ICC is not a State, and the Rome Statute is not a constitution in the way we ordinarily use that term in national legal systems. I use it instead to describe the institutional architecture created by the Rome Statute and developed through the practice of the ICC and the Assembly of States Parties (ASP): the framework that defines the ICC’s powers, responsibilities, governance, accountability mechanisms, and the relationships among its constituent organs.
The Rome Statute was and remains an extraordinary achievement. It established the world’s first permanent international criminal court. Yet like every foundational legal instrument, it could not anticipate every institutional challenge that experience would eventually reveal.
Foundational legal instruments – whether national or international – do not emerge fully formed. They mature. They evolve. They acquire refinements as unforeseen problems reveal unforeseen gaps.
The constitutional history of every enduring institution is, in large measure, the history of those refinements. Permanent institutions are not judged solely by the authority they possess but by their willingness to strengthen the procedures by which that authority is exercised.
That is where the ICC now finds itself.
Nearly a quarter of a century has passed since the Rome Statute entered into force. During that time, the ICC has investigated heads of state, military commanders, political leaders, and others accused of the gravest international crimes. It has developed a substantial body of jurisprudence while navigating jurisdictional disputes, political resistance, funding crises, noncooperation, attacks on its legitimacy, and, most recently, sanctions. Whatever its imperfections, the ICC has become an indispensable institution within the international legal order.
Yet institutional maturity cannot be measured solely by external achievements. It must also be measured by whether the ICC has the internal procedures necessary to govern itself when its senior officials face serious allegations. That is where the ICC remains constitutionally underdeveloped.
To be clear, I am referring here to the ICC’s disciplinary architecture, not to justice in its broadest philosophical sense.
Disciplinary proceedings serve a distinct institutional function. They determine whether those entrusted with public authority have complied with the professional and ethical obligations of office. Because these proceedings can profoundly affect complainants, respondents, and the institution itself, they require procedures that command confidence irrespective of the ultimate outcome.
The objective is not merely a just outcome. It is a process that is visibly capable of producing one. In disciplinary proceedings involving senior judicial officials, public confidence derives as much from the integrity of the process as from the correctness of the result.
That may sound harsh, but it is not intended to be. It is simply difficult to avoid that conclusion after watching the institution struggle through the most significant disciplinary matter in its history. Indeed, that is what troubles me most. Not the allegations themselves. Not the personalities involved. Not even the eventual outcome. What troubles me is the unmistakable impression that the institution has been forced to improvise.
Improvisation has its place. Jazz depends on it. Trial advocacy often benefits from it. Institutional governance should not. A permanent international court should not have to invent procedures while navigating a crisis that directly threatens its legitimacy.
Yet that is precisely the impression left by the current affair.
The controversy has revealed uncertainty at almost every stage. Questions have arisen about investigative authority, applicable procedures, standards for proof and review, the legal significance of expert findings, the respective roles of the Bureau and the ASP, confidentiality, public communications, and ultimately the relationship between legal assessment and political decision-making.
None of this is to suggest that those confronted with the present situation have acted in bad faith. Quite the contrary. They appear to have been navigating exceptionally difficult circumstances under considerable institutional pressure. Yet that is precisely the point. Permanent judicial institutions should not be required to improvise in the face of foreseeable crises.
Good faith may explain ad hoc decision-making, but it cannot substitute for durable institutional design. Good people cannot permanently compensate for an incomplete constitutional architecture. Permanent institutions should depend not on goodwill but on rules established before the crisis, understood before they are needed, and applied regardless of personalities.
The rule of law, after all, is not measured by how institutions perform when everything goes according to plan. It is measured by how they perform when the unexpected occurs. Procedures that must be invented in response to a crisis may be understandable, but they should never become the institutional ideal.
Predictability is an institutional safeguard. It reassures complainants that allegations will be examined under established standards rather than through improvised responses. It reassures respondents that responsibility will be determined through known procedures rather than shifting expectations. And it reassures the public that institutional confidence rests on law rather than personalities. That is what mature institutions do.
And there is an irony here that is hard to ignore.
The ICC exists because the international community concluded that certain crimes are too serious to be left to political expediency. It was created to ensure that evidence is tested, witnesses are protected, accused persons receive due process, victims are heard, and judgments are rendered according to law rather than by power.
Those principles have become the ICC’s defining identity. That naturally raises an uncomfortable question: Shouldn’t those same principles govern when the institution comes under scrutiny? Surely they should. If anything, they should apply with even greater rigor.
The legitimacy of a court is never measured solely by the standards it imposes on others. It is also measured by its willingness to subject itself to standards of comparable integrity. Institutions earn confidence not by claiming fidelity to principle, but by demonstrating that principle governs them as well.
A court derives its authority not merely from the judgments it renders, but from the confidence it inspires that it adheres to the same standards it expects others to respect. That confidence is not built by declarations. It is built by procedure.
Disciplinary proceedings involving senior judicial officials occupy a unique constitutional space. They do not merely determine individual responsibility. They also communicate institutional values. Every procedural decision signals institutional commitments to independence, accountability, equality before institutional rules, and public confidence. For that reason, disciplinary architecture should never be regarded as a matter of internal administration alone. It is an essential component of institutional legitimacy.
This is precisely why I have resisted treating the present controversy primarily as a personality dispute. Personalities pass. Institutions endure. The constitutional questions exposed by one controversy almost invariably outlive the controversy itself.
Procedure is where principle becomes practice.
Without procedure, principles become aspirations. This is why I continue to resist the temptation to make this about Khan. Whatever ultimately becomes of the allegations – and I genuinely have no view because I do not know the evidence – the institutional questions will remain.
The present controversy did not expose a failure of accountability. It exposed the absence of a fully developed framework for exercising accountability predictably. This distinction matters. One concerns whether allegations are taken seriously. The other concerns whether the institution has procedures capable of addressing them consistently, transparently, and independently. That difference may appear subtle. Good intentions and good governance are not synonymous. The former concerns institutional culture. The latter requires institutional design.
Suppose tomorrow comparable allegations involved a judge, the Registrar, a Deputy Prosecutor, or another elected official of the ICC. Would anyone seriously contend that the present framework provides a sufficiently clear, predictable, and transparent roadmap from complaint to final disposition? I am not persuaded that it does.
That is not an attack on the Rome Statute. It is a recognition that institution-building did not end in Rome in 1998, nor when the Statute entered into force in 2002. The ICC has continued to evolve in countless ways. Its Rules of Procedure and Evidence, jurisprudence, administrative practices, evidentiary doctrines, and understanding of victims’ participation have matured alongside the institution itself. Why, then, should its disciplinary architecture remain comparatively underdeveloped?
That question becomes even more compelling when one recalls that the ICC was not created in a vacuum. It was preceded by the ad hoc tribunals for the former Yugoslavia and Rwanda. It benefited from decades of experience within the United Nations system. It had examples – both good and bad – from domestic judiciaries, professional disciplinary bodies, independent commissions, and other international organizations.
Some of those institutions responded admirably to allegations of misconduct. Others did not. Some favored transparency. Others favored quiet transfers, internal management, or institutional protection. The lessons – both positive and negative – were available for study.
The ASP’s 2020 Independent Expert Review likewise underscored many of these concerns. Among its findings were troubling observations about workplace culture within parts of the Office of the Prosecutor, including unacceptable levels of harassment and abuse of authority.
Those findings should have prompted more than reflection. They should have accelerated institutional reform. Instead, the present controversy has shown that the ICC remains uncertain not only about how to investigate serious allegations involving its highest officials but also about how such allegations should ultimately be adjudicated.
There is a distinction that matters.
Investigation and adjudication are not the same. Investigators gather facts. Judges test them. One assembles evidence. The other determines whether that evidence withstands challenge. One seeks information. The other renders judgment.
The distinction is neither technical nor semantic. It lies at the heart of procedural justice. Every mature legal system recognizes that collecting evidence and adjudicating contested facts serve fundamentally different functions, require different procedural safeguards, and serve different institutional purposes.
Confusing the two risks satisfying neither objective.
An investigator is not an adjudicator. Nor should an investigative report be mistaken for an adjudicated decision. That is not a criticism of investigators. It is a recognition of their proper role. Nor is it criticism of the panel of distinguished legal experts who were asked to review the investigation. I suspect they performed the task they were given with professionalism and integrity.
My concern lies elsewhere.
The legal experts – even if judges in their respective jurisdictions from which they came – were asked to assign legal significance to investigative findings without many of the procedural tools that courts ordinarily regard as indispensable when credibility is genuinely contested.
They lacked many of the procedural tools traditionally associated with adjudication. They could neither compel live testimony nor resolve contested facts through adversarial proceedings, observe witnesses under examination, or assess credibility within a fully developed judicial process. They were, in effect, asked to perform an adjudicative function without the procedural architecture that adjudication ordinarily requires.
This observation should not be misunderstood. I do not suggest that the panel exceeded its mandate. Rather, I question whether any panel – however distinguished its members – could realistically conduct what amounted to an adjudicative assessment without the procedural safeguards that adjudication ordinarily requires. The limitation was structural, not personal.
That is not a criticism of the panel. It is a criticism of the framework within which the panel was asked to operate. The distinction matters because institutional legitimacy depends not only on who makes decisions but also on the procedural authority under which those decisions are made. Even the most respected decision-maker cannot supply procedural safeguards that the governing framework does not provide.
The result was almost inevitable.
Now, different observers argue not only about the allegations but also about the report itself. What exactly did the panel determine? Was the standard of proof correctly understood? What legal weight should its conclusions carry? How binding are they? What remains for the Bureau? What remains for the ASP?
Reasonable lawyers have reached remarkably different answers to those questions. That, in itself, should give us pause. One should not need a secondary debate over what the disciplinary process actually accomplished. Nor should institutional legitimacy depend on competing interpretations of procedural ambiguity.
When experienced lawyers acting in good faith cannot agree on the legal effect of a process after it has concluded, the problem may not lie in their analysis. It may lie in the framework’s uncertainty. Clarity is not merely an administrative virtue. It is a constitutional one.
It should not matter whether one supports or opposes the Prosecutor. The rules should speak for themselves. Unfortunately, they do not. That brings me to what I believe is the larger lesson.
Institutionalized accountability requires more than good intentions. It requires procedures that remain independent of personalities, political coalitions, and the pressures of any particular case.
That is, ultimately, the difference between accountability as an aspiration and accountability as an institution. Aspirations depend on the people who happen to occupy positions of responsibility at a particular moment. Institutions depend on procedures that endure after those people have departed.
This controversy should not be remembered primarily for the allegations, regardless of their ultimate merit. It should be remembered for exposing an unfinished chapter in the ICC’s constitutional development.
It is worth emphasizing that procedural certainty is not a technical luxury. It is one of the principal ways institutions demonstrate equality before their own rules. When procedures are set in advance, complainants know how allegations will be examined, respondents know the standards that will govern them, and institutional decision-makers know the limits of their authority.
Predictability, in this sense, is not administrative convenience. It is constitutional discipline and one of the clearest expressions of the rule of law. The rule of law is not simply the existence of legal rules. It is the existence of legal rules that are known in advance, applied consistently, and capable of commanding confidence regardless of who benefits from their application in any particular case.
The ICC’s external mandate has matured more quickly than its internal accountability architecture. The challenge now is not whether the ICC should strengthen its accountability mechanisms, but how it can do so without undermining the judicial independence on which its legitimacy ultimately depends.
If this diagnosis is correct, the present controversy should be understood not merely as an institutional crisis but as a constitutional opportunity. Institutions rarely choose the questions by which they mature. More often, experience chooses for them. The true measure of institutional confidence is whether those lessons are codified as permanent procedures before the next controversy arrives.
If the ICC’s constitutional development remains incomplete, the obvious question is no longer whether reform is necessary. It is what constitutional principles should guide that reform. That is the question to which Part II now turns.
About Author
