Individuals alleging sexual violence often don’t report because they perceive – in many cases, correctly – the justice system as not being genuinely responsive to them.… In the case of Mr Khan, however, the bureau established an ad hoc process specifically for this complaint, and worked to ensure there was a victim-centred approach in a system that also respected due process. That is apparent in both the OIOS investigation and in the lengthy reasoned analysis of the eminent panel of jurists. If the Bureau starts to step away from the reasoned and unanimous analysis of the judges, they open up a conversation about whether the process that they established is founded upon law and due process, or on politics and power.
— Sareta Ashraph, lead counsel for Karim A. A. Khan
Perhaps it is a touch indecorous to weigh in on L’Affaire Khan now that the matter has moved into disciplinary territory and beyond the rather transparent lobbying by Ashraph and assorted proxies urging the ICC Bureau to adopt, without reservation, the findings of the three judicial experts.
With the Assembly of States Parties (ASP) now effectively holding the reins, the question presents itself in the terms Ashraph has framed it: is this an inflection point? Will any deviation from the panel’s findings “open up a conversation” about whether the process is grounded in law and due process—or in politics and power?
A debate will be had. That much is inevitable. And, frankly, healthy.
But an inflection point? An existential moment for the ICC? I think not. That characterization owes more to advocacy than analysis.
Take, for instance, some of the recent coverage, particularly what has circulated under the banner of international news in outlets like Middle East Eye. Without denigrating the broader work of the press, this was, at its core, a one-sided, agenda-driven opinion piece dressed up as reporting. It conflated the allegations against Khan with his issuance of arrest warrants against Benjamin Netanyahu and Yoav Gallant, while hinting, none too subtly, at shadowy forces, intelligence services, and geopolitical retribution. The underlying thesis practically writes itself: Khan, having been “exonerated” of what are implied to be politically motivated allegations, should be restored – swiftly and unequivocally.
Perhaps he should be exonerated, but not so quickly. Based on the material reviewed by the panel of independent jurists, the evidence did not meet the standard of proof beyond a reasonable doubt. That seems clear. However, calling that an “exoneration” goes too far and suggests more than what the jurists appeared to conclude. Because that is not what the process determined. And it certainly isn’t the final word on the matter.
The suggestion advanced by Ashraph and others that any continued scrutiny would necessarily be an exercise in politics and power is, at best, premature. At worst, it is a convenient way of foreclosing precisely the kind of institutional reflection that moments like this demand. Nuance, as ever, is getting lost.
In the current climate where rhetoric tends toward the pyrotechnic and social media ensures that every position is amplified to the point of distortion, there is real value in stepping back, if only to regain some measure of perspective. So, at the risk of appearing as a pesky gadfly, I will offer a different take.
I have no stake in the outcome. I do not know the complainant. I do know Karim A. A. Khan KC and have long held him in high regard. But that is unimportant. What matters is this: the Bureau was right to move the matter into disciplinary proceedings, for reasons I will come to. And regardless of how those proceedings ultimately resolve (win, lose, or draw) the ICC now finds itself confronting a genuine inflection point.
Not whether it adheres to the findings of a panel. But whether it is finally prepared to adopt, apply, and enforce – without hesitation or equivocation – the kind of ethical standards and institutional procedures that are not only expected, but long overdue. Because at some point, process must do more than produce reports. It must produce clarity, accountability, and confidence in the institution itself.
More on this below, but first, it is worth taking a closer look at the process itself; before we accept the now-familiar refrain that any deviation from the panel’s conclusions would mark the triumph of politics and power over law and due process.
Let me start by reiterating what should be obvious, but increasingly seems to require restating. As serious as these allegations are – and as damaging as some of the reported facts may be – allegations are not proof of guilt. The presumption of innocence remains fundamental. It is not Khan’s burden to prove his innocence.
According to reports largely based on leaks, the jurists concluded that the evidence did not meet the standard of proof beyond a reasonable doubt. That is a criminal standard. A high one. And notably, not the lower “clear and convincing evidence” standard typically applied in misconduct contexts at the UN where termination is a possible outcome (see Molari, paras. 1-2). It also seems to be higher than the standard applied to defence counsel, who may face serious professional consequences, up to and including a permanent ban from the list.
Was the ICC bound to apply the reasonable doubt standard here?
Defenders of the process such as Professor Kevin Jon Heller – special advisor to ICC Prosecutor Khan – point out that the ICC is required to apply the beyond reasonable doubt standard in misconduct proceedings because the ICC’s Staff Regulations grant the International Labour Organization Administrative Tribunal (ILOAT) appellate jurisdiction over the ICC’s administrative decisions regarding staff (Regulation 11.2), and beyond reasonable doubt is the ILOAT’s standard for misconduct findings. As he points out, in 2022, the ICC reviewed its internal justice system and considered resorting to the UN Appeals Tribunal (UNAT) over ILOAT as recommended by the Independent Expert Review for cost and efficiency reasons. Without drawing any conclusions or recommendations, the ICC’s report notes that the UNAT expressly rejected the ILOAT’s high standard, stating that “Disciplinary cases are not criminal.” But to date, to my knowledge, the ASP has not acted on revising the ICC’s internal justice system.
Why the disparity between ILOAT and UNAT? Perhaps the answer is mundane: different statutes and procedures, different legal cultures of administrative law, and different judges. Fair enough. But it is a point worth flagging, because it goes directly to how the panel’s findings are now being characterized. More importantly, it raises a structural question about the process that was adopted.
But back to Heller – he misses a critical distinction in unequivocally arguing that the beyond reasonable doubt standard applies to the Prosecutor. The ICC Prosecutor is not a “staff member” but an elected official. The ICC’s own review of its internal justice system considered that removal and disciplinary proceedings fall outside the ILOAT’s competence (see here, para. 16) and are rather governed by Article 46 of the Rome Statute and Rules of Procedure (neither of which provide for ILOAT jurisdiction). Rather, the ASP is ultimately in charge of the process. The procedure under Rule 27 is such:
after written notification that removal or disciplinary measures are under consideration, the concerned person “shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her.”
The ASP then decides whether to remove the Prosecutor or impose disciplinary measures by absolute majority (see Article 46(2)(b) of the Rome Statute and Rules 29 and 30).
In short, nothing in the ICC’s legal framework appears to mandate the ASP to apply ILOAT’s standards to the Prosecutor. Notably, defence and victims counsel (who are also not ICC staff) are not covered by the Staff Rules, nor do they have recourse to ILOAT in challenging any ICC administrative decisions such as disciplinary actions. In fact, none of the Disciplinary Board or Appeals Board decisions regarding counsel reference the ILOAT standard of proof beyond a reasonable doubt for finding misconduct. Generally, these decisions discuss the evidence heard during the disciplinary hearing before making “Findings” (which on review do not appear to be based on a beyond reasonable doubt standard).
The legal framework is certainly not entirely clear; however, I disagree with Heller’s definitive conclusion that: “The ICC is subject to the jurisdiction of ILOAT and ILOAT jurisprudence is unequivocal: an international organization like the Court cannot impose a disciplinary sanction on someone unless it proves every element of the alleged misconduct beyond a reasonable doubt.”
The process
It is worth pausing here to clarify what this process was – and what it was not. The Bureau did not convene a Disciplinary Board. It did not empanel a body with full adjudicative powers, capable of compelling testimony, hearing witnesses in open session, or subjecting evidence to adversarial testing in the manner one would expect in either criminal proceedings or serious disciplinary hearings. What appears to have been established instead was a form of expert review: a panel tasked with examining an investigative record and rendering an assessment against a specified standard. That distinction is not a technicality. It goes to the heart of how much weight the resulting report can properly bear.
If, as it appears, the panel’s task was limited to a review of the case file assembled by investigators, then one is entitled to ask: how does one meaningfully determine whether evidence meets a criminal standard of proof without testing it? Given the gravity of the allegations in this case against the ICC Prosecutor – and the chosen standard of proof of beyond a reasonable doubt – the Bureau should have empowered the panel to hear witnesses and test the credibility of their oral testimony through questioning and contradiction – not just simply read a dossier and draw a conclusion. This would have allowed both the victim to be fully heard and provided Khan with a full and fair opportunity to rebut the allegations against him.
That matters.
Because without that kind of evidentiary testing, what the panel has produced, however careful and well-reasoned, cannot reasonably be understood as a full adjudication of the underlying allegations. It is, at most, an assessment of whether the material as presented clears a criminal threshold.
But that is what was agreed, you may say, so is it not changing the rules and procedure and standard because the result is unwelcoming? From what I have gleaned (here and here), I am at a loss to conclude that the jurists were forbidden to do a proper assessment, which would have included hearings, testimony, questioning, observation of demeanor, confrontation on contradictions, and inconsistencies.
Which brings us back to the current tendency to describe the report as a complete and unimpeachable “exoneration.” I see it very differently.
This was not a finding of innocence. It was a finding that the available untested evidence did not establish guilt beyond a reasonable doubt. That is a narrower – and far more conditional – conclusion.
None of this is to suggest that the jurists failed in their task. I have no reason to doubt that they approached the material with care and seriousness. But if the process constrained them – if, for example, they were not empowered to hear witnesses or otherwise test the evidence – then their ability to reach definitive conclusions was necessarily limited.
If that limitation was built into the process from the outset, then so be it. The report must be accepted on its own terms. But it must also be understood for what it is and what it is not. Which leads to the more consequential set of questions.
What is the legal effect of this report? Is it the final word? Is it binding on the ICC Bureau? Is it binding on the ASP? Did the Bureau, in structuring this process, effectively narrow the range of options available to the ASP? Or, put more directly: is the ASP required to treat this report as dispositive? I suggest not. In fact, Articles 46 and 47 of the Rome Statute explicitly vest the ASP with deciding to remove or impose disciplinary measures on the Prosecutor by vote. And neither the Statute nor the Rules appear to bind the ASP to any reports from any investigative or quasi-judicial body it creates.
The ASP is not sitting as a criminal court. Its role is not to determine guilt or innocence. Its function is institutional: to safeguard the integrity, credibility, and proper functioning of the ICC. That task does not require proof beyond a reasonable doubt. And here lies the deeper concern: the real risk is not that politics and power will override law and procedure (as Khan’s defence counsel suggests); it is that the language of law – “beyond a reasonable doubt,” “reasoned analysis,” “unanimous findings” – will be used to shut down a fundamentally different, and necessary, institutional judgment.
An analogy, albeit imperfect but illustrative, can be drawn from the O. J. Simpson murder case. Simpson was acquitted in criminal court, where the standard of proof was beyond a reasonable doubt, but was later found financially liable in civil court under the lower standard of preponderance of the evidence. The point is not to compare the facts or burdens, but to highlight the different legal frameworks: different forums apply different standards because they ask different questions or because the stakes – such as liberty versus financial or employment risks – are different.
Here, if anything, we are confronted with the reverse situation. A criminal standard has been applied in what is, functionally, an administrative and institutional context. That does not bind the ASP to adopt the same standard in deciding whether Khan should continue to serve as Prosecutor. I am not suggesting what standard it should apply, but merely that it is up to the ASP to decide.
The question before the Assembly of States Parties, as I see it, is not whether Khan is guilty of a criminal offence. It is whether the nature, gravity, and credibility of the allegations – considered in light of the evidentiary record as a whole – cast sufficient doubt on his continued leadership of the Office of the Prosecutor (OTP). That is a different question. And it allows for a different answer.
Ultimately, the ASP must determine whether – irrespective of the standard of proof applied – Khan can continue to effectively discharge the full scope of his responsibilities and meet the expectations inherent in the role: to serve not only as chief prosecutor, but as the ICC’s public face, its voice, and, in many respects, its institutional conscience on the international stage – before heads of state, victim communities, and bodies such as the United Nations Security Council.
What this necessarily entails is a broader inquiry, one that extends beyond the narrow confines of the allegations themselves. It requires consideration of factors that some may be inclined to place within the realm of “politics and power,” but which are, in truth, inseparable from the governance of any international institution. Questions of credibility, authority, perception, and institutional confidence are not extraneous; they are integral.
This is not to suggest that unproven allegations should be treated as determinative, nor that due process should yield to expediency. Rather, it is to acknowledge that conduct at the highest levels of an institution – even where it does not meet a criminal threshold – may nonetheless bear directly on its functioning, its reputation, and its ability to command trust.
In that sense, the ASP’s task is not to revisit the findings of the panel, nor to substitute its own determination of guilt or innocence, but to assess carefully and with due restraint whether the totality of circumstances warrants a course of action aimed at preserving the integrity, credibility, and effective operation of the ICC.
And now, to the inflection point that really matters:
Whether the ICC is finally prepared to adopt and enforce a genuine zero-tolerance policy at the highest levels of the institution, or whether it will revert to something closer to business as usual, notwithstanding the cumulative damage such an approach inflicts on its integrity and moral standing.
Supervisors, particularly those at the top, should not be engaging in sexual relationships with subordinates. Full stop. Whether characterized as consensual or not is, in many respects, beside the point. The issue is structural: power, dependency, pressure – subtle or otherwise. That dynamic is incompatible with the integrity of any professional institution, let alone one that purports to uphold the highest standards of justice.
I am not proposing retroactive application here, nor am I suggesting that any such policy be crafted with a single individual in mind. But neither can this be divorced entirely from context. Khan is seasoned, experienced, and deeply embedded in international institutional practice. He would have been, or certainly should have been, acutely aware of the ethical boundaries that govern relationships within hierarchical structures. This is not unfamiliar terrain.
Indeed, the OTP has, in the past, been the subject of reporting and internal scrutiny, pointing to a workplace culture in which issues of harassment and inappropriate conduct were not merely hypothetical concerns. Against that backdrop, any suggestion that lines might be blurred, or that judgment might falter, carries consequences that extend well beyond Khan.
That is precisely why clarity matters.
As a forward-looking principle, a zero-tolerance approach is neither radical nor novel. It is already embedded across a wide range of public, private, and international institutions. And yet, it raises a persistent and uncomfortable question: why do these issues continue to surface at the ICC, repeatedly, each time producing reports, investigations, and headlines, but little systemic change?
At some point, awareness must translate into discipline. Experience must translate into restraint. And institutional responsibility must mean more than reacting after the fact. It must mean drawing a line in advance and ensuring that those who cross it, however senior, however accomplished, however valuable, understand that the consequences are not theoretical, but real.
Yes, there is a reference to a “zero-tolerance” policy on the Administrative Instructions on the Prevention of Sexual Exploitation and Abuse and Discrimination, Harassment, Including Sexual Harassment, and Abuse of Authority. But when it comes to elected officials, the relevant language suggests something rather different: it allows for discretion where clarity and consequence ought to be mandatory. The procedure referenced in these Administrative Instructions explicitly excludes elected officials such as the Prosecutor – and no procedure is set out in other Administrative Instructions, the Rome Statute, or the Rules of Procedure and Evidence for handling these types of cases against elected officials.
That ambiguity matters.
I am not suggesting that due process be compromised, nor that standards be lowered to mere probabilities. Far from it. But when there is a significant imbalance in power – where a supervisor has the authority not only to promote and mentor but also to sideline or quietly end a subordinate’s career – the institutional response must be clear and decisive. When professional advancement becomes entangled with personal dynamics, the policies governing such relationships need to be transparent, effective, and strictly enforced.
This is not a novel insight. It is, in fact, grounded in a rather old understanding of human nature.
John Locke observed that human beings are driven not only by reason but also by passions and desires that must be restrained. Reason, in other words, is aspirational; it is not always active. James Madison, writing in Federalist No. 10, applied that insight to institutional design. He recognized that individuals will inevitably be drawn toward factions driven by self-interest and noted that there are only two ways to address this problem: remove the causes or control the effects. The former, he acknowledged, is largely unrealistic. The latter is the work of governance.
The same logic applies here.
It is not particularly controversial to recognize that people in positions of power can, sometimes, misuse that power, including in relationships with those they oversee. Not every such relationship is exploitative. Some may start as consensual and can be genuinely so. However, consent in a hierarchical setting is rarely permanent. It can weaken. It can be revoked. And what might begin as a voluntary relationship can, over time, become much more problematic. That, too, is human nature.
The challenge is that most of these interactions happen privately, outside the view of immediate scrutiny. When disputes occur, they often turn into a straightforward he said, she said stalemate that high standards of proof can’t easily resolve, especially when one side has more institutional power, credibility, and support. Professional achievements are cited. Reputations are defended. Doubt is increased.
In such a system, ambiguity does not promote fairness; it deepens imbalance. Ethical rules cannot realistically eradicate predatory instincts, nor can they enforce virtue. But they can influence behavior. They can set boundaries in advance. And they can eliminate the grey areas that allow harmful conduct to be justified afterward.
As it stands, there seems to be enough room within current frameworks to argue that consensual relationships between supervisors and subordinates are acceptable. Maybe they are – until they are not. Until one person pulls back. Until the power shifts. Until what was once mutual becomes coercive in practice, if not in appearance. By then, the harm is already done.
If the goal is meaningful reform – reform that is preventative rather than reactive – then the focus must be on controlling the effects. This demands clear, unambiguous language that is enforced without hesitation. It involves eliminating discretion where reliance on it is predictably problematic. It also requires recognizing that, in hierarchical environments, the responsibility for restraint must rest with those in power. Anything less risks maintaining the very conditions that these policies aim to resolve.
A clearly articulated, unambiguous, and strictly enforced zero-tolerance policy applicable to elected officials would do more than just signal intent; it would establish a firm boundary that cannot be crossed. More importantly, it would send a clear message to those in authority: that the privileges of their positions are tied to the required discipline, and that any slight deviation from that standard will result in non-negotiable consequences.
Will the ASP seize this moment to establish and enforce a clear, enforceable, zero-tolerance standard for those in positions of authority, or continue letting those in power hide behind unclear, convoluted procedures and high legal thresholds? This is the question that truly defines this moment.
If the ICC cannot clearly, firmly, and unequivocally draw that line, then the more troubling question is not whether politics and power have influenced law and procedure, but whether this international judicial institution has yet to internalize the very principles of accountability it is meant to uphold.
Because ultimately, institutional credibility isn’t maintained by process alone. It’s upheld by the clarity of its standards and the willingness to enforce them confidently, transparently, and unhesitantly.
About Author
Insightful analysis
If Karnavas had bothered to do some actual research, he would not have written something so misleading. Readers should be aware of his errors and omissions when assessing his “arguments.”
(1) Karnavas clearly did not read the ILOAT judgment the Court cites in its internal report. (Which is 4006, n0t 4060; the report gets it wrong.) That case involved a staff member trying to directly invoke Articles 46 and 47 against the Registrar, not the Registrar invoking those articles in a disciplinary proceeding against him. In dismissing the staff member’s claim, ILOAT held that Articles 46 and 47 “are not provisions of a character comprehended by Article II of the Tribunal’s Statute insofar as they are invoked by staff members other than, potentially, the officials directly affected, *such as the Registrar, the Prosecutor or an individual judge*. Accordingly, proceedings invoking Articles 46 and 47 alone and seeking their enforcement are not within the Tribunal’s competence.” So Judgment 4006 quite plainly does not say that elected officials have no recourse to ILOAT if they are removed or disciplined pursuant to Articles 46 or 47.
(2) In any case, a decision to remove or sanction an ICC elected official is not the same as a decision to find that an ICC elected official has engaged in misconduct. That is why Rule 29 of the Rules of Procedure and Evidence require the ASP to hold *two* votes in cases involving serious conduct by an elected official: one on whether the ASP believes that serious misconduct has been committed (which requires 2/3 of those present and voting, per ASP rules), and then a second one, if the ASP finds serious misconduct, on whether to remove the elected official (which requires an absolute majority, per Article 46). The BRD standard applies to the decision to find serious misconduct, as well as to any decision to find less serious misconduct, under long-settled ILOAT jurisprudence.
(3) The Court’s internal report specifically notes that without fundamentally restructuring the Court’s internal justice system, moving from ILOAT to UNAT would deprive elected officials of access to a tribunal capable of hearing their claims and would thus not only potentially violate customary international law, but could even cause the Court to forfeit its jurisdictional immunity in national courts. Here is paragraph 43 of the Court’s internal report:
‘It follows from the foregoing that moving from the ILOAT to the UNAT would (without
provision for alternative means of employment dispute settlement) effectively remove access
to justice for the Court’s judges and other Elected Officials. As per the UNAT’s dictum, this
may leave the ICC – an international court – in a “situation” which “appears to be” in
“violation of the norms of customary international law”. In this respect, the question arises
whether, in light of the abovementioned Waite and Kennedy v. Germany judgment, European
national courts (such as those of the host State) would uphold the Court’s jurisdictional
immunity in a case brought by an Elected Official if the ICC fails to offer any “reasonable
alternative means” for dispute settlement.’
Thank you, Professor Heller, for your comment. I appreciate the enthusiasm and conviction with which you advance your position, even if I remain unpersuaded. I also take exception to your claim that my analysis misleads readers. I am calling it as I see it. Without agenda, without a stake in the outcome. I neither advocate for the complainant nor against the Prosecutor. My concern is narrower, but no less consequential: the integrity of the process itself. Allegations of this gravity demand a process capable of testing them in a manner that is both fair and credible.
What concerns me less is the articulation of the governing framework (despite its uncertainty) than its apparent application. Based on current knowledge, the panel of jurists did not thoroughly test the evidence; instead, they limited themselves to reviewing the material presented to them, without hearing witnesses or directly assessing credibility. In such situations, an inconclusive outcome is hardly surprising; it may simply be the natural result of the process used. However, what is harder to justify is the idea that such an outcome can reasonably be seen as an exoneration.
This brings into sharper focus the role of the Assembly of States Parties (ASP). It is not clear to me that the ASP has relinquished its authority or abdicated its responsibilities. On the contrary, it seems to still have the power to start disciplinary actions and the discretion to consider the broader issue of whether the Prosecutor remains trustworthy to the Office, the Court, and the States Parties. The allegations about possible interference with witnesses only raise that concern further, raising an issue that could be as significant as the original claims.
Therefore, regardless of one’s perspective on the process so far, the issue does not start or end with the panel’s conclusions.
A potential common ground lies in the clear lack of procedural clarity. The approach taken seems, at least from an external perspective, somewhat improvised. This may have been done in good faith, aiming for a balanced and quick outcome. However, the result is a level of opacity that conflicts with the institutional interests in transparency, coherence, and confidence.
As the Association of International Criminal Law Prosecutors (AICLP) noted in its 6 April 2026 STATEMENT ON THE ICC PROSECUTOR SITUATION:
Ultimately, much depends on how the ASP moves forward. The key is not just the conclusion it reaches, but how that conclusion is reasoned, explained, and justified. In such matters, process and result are closely linked—and often, the credibility of the process influences the legitimacy of the outcome.
Michael G. Karnavas
7 April 2026
I am not a lawyer, just an interested bystander who reads these blogs to learn more about legal procedures. I have a question based on the statement from the above reply. I may be way off in my interpretation, due to my lack of knowledge, so I would be grateful for any clarification.
“Evidence require the ASP to hold *two* votes in cases involving serious conduct by an elected official: one on whether the ASP believes that serious misconduct has been committed (which requires 2/3 of those present and voting, per ASP rules), and then a second one, if the ASP finds serious misconduct, on whether to remove the elected official (which requires an absolute majority, per Article 46)”.
My question, if there are those who vote no on the first serious conduct charge (which needs only a majority to pass), are they then removed, replaced or are they allowed to vote again when it comes to the second round on removal?
It would seem obtaining 100% approval for a removal is already a high bar and not going to occur, if previous no voters can vote again. After all, if voting with integrity (you would expect), why wouldn’t those who did not believe the first serious misconduct charge not vote no again at the removal stage?
A 100% vote is a lofty goal but then to add already unconvinced voters would seem to move towards an insurmountable hurdle re., removal. Isn’t this building in a status quo bias in terms of final consequences in such proceedings?
Again, I don’t have the legal background and can only go on what I read, which seems confusing. Any clarification would be gratefully received.
John,
My understanding is that an “absolute majority” means just over half, specifically 50% plus one. Therefore, for 125 votes, that would be 63.
The part where it could become less clear is in the context of the Assembly of States Parties (ASP) is if not all members are present or casting a vote. In theory, that could change the operative threshold, depending on whether the calculation is based on the full membership or only those present and voting. In practice, however, given the importance of the issue, broad participation is expected, making the point more theoretical than decisive.
More importantly, in my view, is what happens next procedurally. The ASP must first determine the legal effect of the panel’s conclusions: whether they are binding or just advisory, reflecting an assessment limited by the panel’s inability to thoroughly test the evidence. That decision will shape the next steps: whether the process, as conducted, followed the procedures the ASP established, and whether any disciplinary action can legitimately be based on that foundation.
From there, the ASP could conclude that the evidentiary record does not support disciplinary measures and decide not to pursue further action on the merits. However, that is unlikely to be the end of the matter. Beyond any misconduct findings, the ASP has independent authority — and, arguably, a responsibility — to assess the Prosecutor’s fitness to remain in office. That question, which relates to confidence and institutional integrity, may well be addressed through a separate vote.
Taking a step back, what makes all of this more complicated is that the process, almost from the beginning, seems to have been improvised. As a result, regardless of the final outcome, it’s difficult to imagine it satisfying all groups involved — whether the parties directly concerned or parts of the larger international community — depending on their stance on the core issues.
Michael G. Karnavas
Everything a reader needs to know about Karnavas’s credibility as a commentator on rhe ICC– or lack thereof — is nicely encapsulated in this statement:
“My understanding is that an ‘absolute majority’ means just over half, specifically 50% plus one. Therefore, for 125 votes, that would be 63. The part where it could become less clear is in the context of the Assembly of States Parties (ASP) is if not all members are present or casting a vote. In theory, that could change the operative threshold, depending on whether the calculation is based on the full membership or only those present and voting. In practice, however, given the importance of the issue, broad participation is expected, making the point more theoretical than decisive.”
Article 46(2) of the Rome Statute provides that removal requires, “In the case of the Prosecutor, by an absolute majority of the States Parties.”
Contrast that with Article 112(7)(b) of the Rome Statute, which provides that “Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.”
Apparently actually reading the Rome Statute is too much work for Karnavas.