THE INTERNATIONAL CRIMINAL COURT’S UNFINISHED CONSTITUTIONAL DEVELOPMENT — PART II

JUSTICE CANNOT BE LOBBIED: Why Institutional Accountability Cannot Be Decided by Political Negotiation

When the outcome of disciplinary proceedings depends on lobbying, accountability becomes a matter of influence rather than of law.

Every mature legal institution eventually confronts the same constitutional imperative: as authority expands, so must the procedural safeguards that govern its exercise. Institutional permanence requires procedural permanence.

The public discussion surrounding the present controversy has largely focused on one question: What, if anything, should happen to Prosecutor Karim A. A Khan KC?

It is an understandable question, but it is also the wrong one. The more important question is not what should happen to one individual. It is what procedures a permanent international court should already have in place before allegations of serious misconduct arise against any of its senior officials.

This distinction changes the entire conversation. The issue is no longer about personalities. It is about constitutional design. This is not merely a semantic distinction. It is the difference between responding to today’s controversy and designing institutions capable of responding to every comparable controversy that may follow.

Permanent institutions should never design their procedures around individual cases. They should design procedures that can address every comparable case. Constitutional architecture is built prospectively, not retrospectively.

If similar allegations were made tomorrow against a judge, the Registrar, a Deputy Prosecutor, or any other elected official of the International Criminal Court (ICC), the same questions would immediately arise:

• • • Who investigates?
    • Under what authority?
    • According to what procedural rules?
    • Who determines the legal significance of the evidence?
    • What procedural safeguards apply?
    • Who renders the final decision?
    • What standard of proof governs?
    • What standard of review governs?
    • What role, if any, should political organs play in that process?

Those questions should not depend on the respondent’s identity. They should already have institutional answers. That, ultimately, is what distinguishes mature institutions from developing ones.

The present controversy did not create these questions. It merely exposed that many of the answers to them remain unclear. This is why I return to the same proposition. The issue is not whether accountability should exist. The Rome Statute settled that long ago. The issue is whether accountability has been sufficiently institutionalized to operate independently of personalities, politics, and the pressures generated by any particular controversy.

None of this should be taken as criticism of those currently navigating these circumstances. They have been required to make difficult decisions within an institutional framework that offers only limited procedural guidance.

That is precisely why reform is necessary. Good institutional design should reduce the need for improvisation. It should not depend on improvisation. Rules should bear the weight that individuals currently carry. That is one of the defining characteristics of constitutional maturity. Institutions become stronger when the integrity of the process no longer depends on the wisdom, restraint, or goodwill of those temporarily entrusted with administering them.

The objective is not to design procedures for this case. It is to design procedures that will command confidence twenty-five years from now, long after today’s personalities and controversies have passed into institutional history.

That is the challenge now before the ICC.

My view is that institutional reform should begin with a proposition that seems almost self-evident. Not every allegation requires the same response. That observation may sound obvious, but in practice it has profound consequences.

Too often, discussions about accountability assume there is a single disciplinary process capable of addressing every form of misconduct. There is not. Nor should there be.

There is an obvious difference between an isolated lapse in professional judgment, persistent workplace harassment, abuse of managerial authority, financial impropriety, witness interference, and allegations that, if established, would constitute serious criminal offenses under domestic law.

Those distinctions are not matters of degree alone. They are differences in kind.

Mature institutions understand that classification precedes procedure. Before deciding how to investigate or adjudicate an allegation, the institution must first determine what type of allegation it is confronting. Different categories of misconduct implicate different institutional interests, require different procedural safeguards, and sometimes engage entirely different legal systems.

That is not simply good administration. It is constitutional design. One of the weaknesses exposed by the present controversy is the tendency to speak of “misconduct” as though it were a single concept. It is not. Misconduct encompasses a wide spectrum of conduct.

Some allegations concern professional ethics. Others concern managerial competence. Others involve workplace culture. Still others may involve conduct that falls squarely within the criminal law. Treating all of those categories as though they required identical institutional responses risks creating procedures that are too weak for the most serious allegations and unnecessarily burdensome for the least serious ones.

A disciplinary system earns confidence not because every allegation is treated the same, but because every allegation is treated proportionally. Equality does not require uniformity. It requires principled differentiation based on the nature and gravity of the alleged conduct.

This principle is hardly novel. Domestic legal systems apply it daily. Professional disciplinary bodies distinguish between negligence and dishonesty. Judicial councils distinguish between administrative shortcomings and ethical misconduct. Universities distinguish between academic misconduct and criminal behavior. Medical licensing authorities distinguish between professional incompetence and criminal abuse.

Each system recognizes that classification is the necessary starting point for procedural fairness. The same principle should guide the ICC. Indeed, I would go further.

One of the defining characteristics of institutional maturity is the ability to match procedures to problems. Institutions become more legitimate not by making every process more elaborate, but by ensuring that each process is appropriately tailored to the specific category of misconduct under consideration.

The distinction becomes especially important when allegations may constitute criminal conduct under the domestic law of the State where they allegedly occurred. At that point, the institutional inquiry shifts. The question is no longer simply whether an office-holder has breached professional obligations. It may also be whether the criminal law has been violated.

These are related inquiries. They are not identical. Nor do they serve the same purpose. A disciplinary proceeding exists to protect the integrity of the institution. A criminal investigation exists to determine whether public law has been violated.

One protects the office. The other protects society. They may stem from the same underlying facts, yet they remain distinct. Indeed, they often proceed simultaneously without undermining one another.

This distinction is neither unusual nor controversial.

Many domestic legal systems require institutions to notify the competent authorities whenever allegations reveal conduct that may constitute serious criminal offenses. Professional regulators routinely refer matters to law enforcement while continuing their own disciplinary proceedings. Educational institutions increasingly do the same. The military has long recognized this distinction. So have judicial councils. So have professional licensing bodies.

Each performs its own function and respects the function of the other. Justice is strengthened because accountability is distributed according to institutional competence.

Against this background, it is legitimate to ask – cautiously and without presuming to know all the relevant facts – why a similar principle should not apply here.

If the allegations concern conduct that, if established, would constitute serious criminal offenses under Dutch law, should referral to the competent Dutch authorities not at least be the presumptive starting point?

Perhaps there are jurisdictional complexities unknown to the public. Perhaps questions of immunity require careful legal analysis. Perhaps there are practical considerations invisible to outside observers. All of that may be true. But asking the question should not be considered controversial. It is, after all, entirely consistent with the philosophy on which the ICC was created.

The ICC exists because it insists that allegations of serious criminal conduct warrant independent investigation under the law. It would be difficult to explain why that principle should carry less weight when the allegations arise within the institution itself.

Referral to domestic authorities, however, addresses only part of the problem. It addresses criminal accountability but not institutional accountability. Even if no criminal prosecution ultimately follows – or even if criminal liability cannot ultimately be established – the ICC must still determine whether one of its elected officials has complied with the ethical and professional obligations of office.

That responsibility belongs to the ICC. It cannot be delegated, nor should it be. That leads directly to the next question.

If criminal and institutional accountability serve different constitutional functions, what institutional mechanism should the ICC establish to adjudicate disciplinary responsibility independently, transparently, and free from political influence?

That is where the constitutional conversation should begin. Once criminal and institutional accountability are distinguished, a second question immediately arises: Who should determine whether an elected official of the ICC has breached the professional and ethical obligations of office?

That question deserves far more attention than it has received so far. Too much of the current discussion assumes that once an investigation is complete, the difficult work is essentially finished. I do not share that assumption.

An investigation is only the beginning. Its purpose is to gather information, preserve evidence, identify witnesses, and establish what can reasonably be known. It does not determine legal responsibility. That is the function of adjudication.

The distinction is fundamental.

Investigators ask whether sufficient information exists to justify further proceedings. Adjudicators determine whether the evidence ultimately meets the applicable legal standard. These are distinct inquiries that require different skills and, more importantly, different procedural safeguards. One investigates allegations. The other tests them. Confusing those functions risks undermining both.

The present controversy has illustrated precisely why this distinction matters. Once the investigative process concluded, uncertainty immediately shifted to a different set of questions.

• • • Who should assess the legal significance of the findings?
    • Should investigative conclusions carry presumptive weight?
    • Should factual disputes be revisited?
    • Should witnesses be examined?
    • Should credibility be tested through adversarial proceedings?
    • Should additional evidence be admitted?
    • Should the respondent be entitled to challenge the investigation before an independent decision-maker?

None of those questions concerns investigation. Each concerns adjudication. And adjudication is where institutional legitimacy is either strengthened or weakened.

A permanent court should never find itself improvising answers to questions that ought to have been settled long before any controversy arose. Institutions worthy of permanence do not assemble disciplinary procedures in response to individual crises. They establish them in advance, precisely so that allegations involving senior officials may be addressed under established rules rather than through institutional improvisation.

That is where the ICC now finds itself.

The objective, however, is not merely to create another procedure. It is to build an institutional framework in which accountability is constitutionally structured. A mature institution should not rely on ad hoc arrangements assembled in response to individual cases. It should have a standing disciplinary architecture capable of operating predictably, independently, and fairly, regardless of the personalities involved or the pressures generated by any particular controversy.

That architecture should be guided by a simple constitutional principle: no single institution should be expected simultaneously to investigate allegations, determine their legal significance, adjudicate disputed facts, and bear ultimate political responsibility for the outcome. Those are distinct constitutional functions. Mature legal systems have long recognized the wisdom of separating them.

At its best, constitutional architecture allocates responsibility rather than concentrates it. Investigation, adjudication, appellate review, and institutional oversight each serve distinct purposes. Assigning those functions to separate decision-makers does not weaken accountability. It strengthens accountability by ensuring that each stage of the process is conducted independently, according to clearly defined responsibilities, and within established procedural limits.

The purpose of such a framework is not institutional complexity for its own sake. It is institutional clarity. Complainants should know how allegations will be investigated. Respondents should know the procedures for determining responsibility. Decision-makers should understand both the scope and the limits of their authority. And the public should be able to see that the legitimacy of the outcome derives not from personalities, political influence, or institutional improvisation, but from procedures established before any particular case arose.

Only then does the practical question arise: What might such a framework look like?

I do not claim there is only one answer. Quite the contrary. Reasonable people may disagree on the precise institutional design, and I would be surprised if thoughtful practitioners, judges, States Parties, and scholars did not propose a variety of approaches worthy of serious consideration. Indeed, that is precisely what mature constitutional development should encourage.

One mistake institutions sometimes make is becoming prematurely committed to a single procedural model before carefully examining reasonable alternatives. The objective is not to identify the only possible solution. It is to identify a framework capable of reconciling the constitutional values I emphasize: independence, accountability, fairness, transparency, and public confidence.

The proposal that follows is therefore offered not as the definitive blueprint but as one possible model that, in my view, merits serious consideration. It is intended less as a finished design than as the start of a broader institutional conversation.

What follows is the approach I find most persuasive – not because it is necessarily the only workable model, but because it builds on institutional distinctions that have served mature legal systems for generations.

The framework could begin with the appointment of an independent ad hoc disciplinary counsel –whether styled a Special Counsel, Independent Prosecutor, Independent Counsel, or another title. The name matters far less than the principle.

The individual should be appointed pursuant to standing procedures adopted before any particular controversy arises and should remain institutionally independent of the organs whose conduct may ultimately be investigated.

Professional credibility would be essential. The office should be entrusted to someone with substantial prosecutorial, judicial, or litigation experience, unquestioned professional standing, demonstrated independence, and the resources to conduct a genuinely comprehensive inquiry.

That final point deserves particular emphasis.

Independence without resources is often little more than symbolism. An investigator deprived of the practical means to conduct independent investigation is independent in name alone. Accordingly, the office should have clear authority to obtain relevant documents, interview witnesses, engage investigators as appropriate, retain expert assistance when necessary, and pursue the evidence wherever it reasonably leads.

Equally important, the mandate should be carefully defined.

The objective is neither to vindicate the institution nor to secure disciplinary findings. It is simply to determine, impartially and professionally, whether sufficient evidence exists to justify initiating formal disciplinary proceedings. Nothing more. Nothing less.

That distinction is fundamental.

The Special Counsel’s responsibility would therefore extend beyond investigation alone. Acting independently of both the Assembly of State Parties’ (ASP) and the ICC’s ordinary administrative structure, the Special Counsel would impartially investigate allegations, gather inculpatory and exculpatory evidence, identify the relevant factual and legal issues, and determine whether sufficient grounds exist to initiate formal disciplinary proceedings.

If that threshold is met, the Special Counsel would file formal disciplinary charges and present the case before the disciplinary tribunal. In doing so, the Special Counsel would not represent the complainant as a private litigant but would instead represent the institutional interest in ensuring that serious allegations are examined through an independent legal process. Like any prosecutor or disciplinary counsel, the office would have a continuing obligation to present the evidence fairly, disclose material information, and assist the tribunal in reaching an accurate determination.

The Special Counsel’s constitutional responsibility should therefore end once the evidence has been presented and the tribunal has rendered its decision, subject only to any appellate responsibilities the governing rules may assign. At no stage, however, should the Special Counsel participate in the adjudication. Investigation, presentation of the case, and judgment are distinct constitutional functions that should remain institutionally separate.

If formal proceedings are commenced, responsibility for adjudication should pass to an independent disciplinary tribunal established in advance under standing procedures. Its task would not be to investigate afresh or to construct the case on behalf of either party. Rather, it would hear the evidence presented, resolve disputed questions of fact and law, determine credibility where necessary, apply clearly defined legal standards, and issue a fully reasoned written decision explaining the basis for its conclusions.

None of that is revolutionary. Indeed, it is the ordinary work of courts.

If the preceding analysis is correct, one further question inevitably follows: What role should the ASP play?

The answer requires careful distinction.

The ASP is indispensable to the ICC’s constitutional framework. It elects judges and the Prosecutor. It approves the budget. It oversees the institution’s administration. It considers amendments to the Rome Statute. It performs functions (many through the Bureau) that no other ICC organ can perform.

None of that is controversial. What is controversial is whether the ASP should become the body that effectively determines the outcome of contested disciplinary proceedings involving senior officials.

I am not persuaded that it should.

That conclusion is not based on any lack of confidence in the ASP or its representatives. It arises from a more fundamental constitutional concern.

The ASP is, by design, a political body. Its members represent States. States pursue national interests. They negotiate, compromise, build coalitions, and persuade one another. These are entirely legitimate characteristics of diplomatic institutions. They are not, however, the characteristics ordinarily associated with adjudication.

Courts derive legitimacy differently. They do not negotiate outcomes. They determine them. They do not assemble political coalitions. They apply legal standards. They do not decide cases because one side has attracted more diplomatic support than the other. They decide because the law, properly applied to the facts, yields a particular result.

Those institutional cultures differ. Neither is inherently superior. Each serves a distinct constitutional function. The difficulty arises when one begins to perform the other’s function.

Political legitimacy and judicial legitimacy are not interchangeable. One derives from representation, while the other derives from independence. Mature constitutional systems recognize this distinction because each protects different institutional values.

That is why reports suggesting that lobbying has already begun, that delegations are canvassing support, and that outcomes may ultimately hinge on political alignments rather than legal evaluation are so troubling. Whether every report is entirely accurate is almost beside the point. Perception matters. Institutions do not preserve public confidence merely by acting impartially. They must also appear impartial.

When State representatives and diplomats begin discussing coalition-building rather than legal reasoning, the institution has already entered dangerous territory. The concern is not that States consult one another. Diplomacy necessarily involves consultation. The concern is that disciplinary responsibility may come to depend on political arithmetic rather than on adjudicated findings. Those are very different things.

Justice cannot be lobbied.

That sentence may strike some readers as overly absolute. I do not believe it is. Lobbying has its place. Diplomatic negotiation has its place. Political compromise has its place. The ASP exists because sovereign States must cooperate to govern a permanent international institution.

None of that is objectionable. What is objectionable is allowing those same political dynamics to decide whether allegations against senior judicial officials have been substantiated. That is not a political judgment. It is a legal one.

The distinction matters because disciplinary proceedings serve a constitutional purpose. They determine whether public authority has been exercised in accordance with the legal and ethical obligations of public office. That inquiry deserves the same commitment to procedural independence the ICC expects when adjudicating others’ conduct.

If the ICC insists that criminal responsibility must be determined through an independent legal process rather than political negotiation, it should apply the same principle when determining disciplinary responsibility within its own institution.

The ASP therefore has an essential role, but, in my view, it is not to function as a disciplinary court. Its role is constitutional. To establish the framework. To appoint those entrusted with applying it. To ensure adequate resources. To oversee the integrity of the institutional design. And, where necessary, to amend that design in light of experience.

These responsibilities are worthy of the ASP. They strengthen rather than weaken its constitutional position. They preserve the distinction between governance and adjudication. Perhaps most importantly, they allow legal responsibility to be determined through legal process rather than political negotiation. This distinction ultimately protects everyone. Complainants. Respondents. The ASP. And the ICC.

Constitutional development is rarely dramatic. More often, it unfolds through careful institutional refinement. The Rome Statute illustrates this point. Over the past quarter century, the ICC has refined its Rules of Procedure and Evidence. Its jurisprudence has matured. Its understanding of victims’ participation has evolved. Its evidentiary practices have grown increasingly sophisticated. Administrative structures have been strengthened. Relationships among the ICC’s organs have gradually become more clearly defined.

None of those developments altered the ICC’s fundamental purpose. They simply enabled the ICC to fulfill that purpose more effectively. The same process should now apply to institutional accountability.

What might a mature disciplinary architecture look like?

Not an elaborate bureaucracy. Not another permanent judicial organ. And certainly not a process so complex that accountability is impossible. Rather, a framework grounded in a few straightforward constitutional principles.

First, allegations should be classified by their nature before procedures are selected. Different forms of misconduct require different institutional responses.

Second, investigations should remain independent. Their purpose is to establish facts, not to determine disciplinary responsibility.

Third, adjudication should be entrusted to an independent disciplinary tribunal that is institutionally protected and operates under transparent procedures, a clearly defined jurisdiction, publicly known legal standards, and a duty to issue fully reasoned decisions.

Fourth, meaningful appellate review should be available to promote consistency, careful reasoning, and the coherent development of institutional jurisprudence.

Finally, the ASP should remain the constitutional steward of the disciplinary framework rather than the adjudicator of individual disciplinary proceedings.

Those functions are substantial. Indeed, they are indispensable. But they are distinct from determining whether allegations against a particular officeholder have been established. This distinction should remain clear.

None of these proposals is particularly radical. Most are already familiar features of mature legal systems worldwide. Their significance lies not in their novelty but in their integration. Together, they transform accountability from an improvised institutional response into a permanent constitutional function.

Ultimately, that is what institutional maturity requires. Permanent institutions should not rely on exceptional individuals to navigate exceptional crises. They should have procedures capable of managing ordinary institutional realities before those realities become extraordinary controversies.

The allegations currently facing the ICC will eventually be resolved. Every controversy is. But another controversy will one day arise. Perhaps involving another Prosecutor. Perhaps a judge. Perhaps the Registrar. Perhaps someone whose name none of us knows yet. The identities are irrelevant. The institutional questions will remain.

Constitutional architecture should always be designed for the next case, not the current one. That is the broader lesson of the present moment.

The ICC has reached a stage in its institutional development where accountability must be institutionalized. Not because the current controversy demands it, but because permanent courts require permanent procedures.

Every institution eventually faces a controversy that exposes the gap between what it assumed would be sufficient and what experience reveals is actually necessary. The present controversy is that moment for the ICC.

Whether the allegations ultimately prove well-founded or entirely unfounded is, for present purposes, almost beside the point. The individuals involved matter. The allegations matter. The eventual outcome will undoubtedly matter. But institutions must learn from controversies without allowing those controversies to define the institutional lesson.

That lesson is neither about personalities nor politics. It is about constitutional design. For nearly twenty-five years, the ICC has demonstrated remarkable resilience. It has survived political attacks, jurisdictional disputes, budgetary pressures, state non-cooperation, sanctions, and criticism from governments, civil society, scholars, and practitioners such as me.

Despite all of that, it has endured. Indeed, it has matured into one of the central institutions of international criminal justice. This achievement should not be understated. Nor should it be dismissed lightly.

Precisely because the institution has endured, expectations have changed. Permanent institutions are expected to have permanent procedures, not because every future controversy can be predicted, but because every mature institution eventually accepts that controversies themselves are predictable. The names change. The offices change. The facts change. The institutional questions do not.

Every permanent court will eventually face allegations involving one of its senior officials. The true measure of institutional maturity is whether it already knows how it will address those allegations before they arise. That, ultimately, is what distinguishes constitutional development from crisis management.

Constitutional architecture is built during periods of reflection so that institutions do not have to improvise during crises. The ICC now has that opportunity, not because the present controversy requires an immediate political response, but because it has exposed an institutional question that deserves a permanent legal answer.

That answer should not be written with today’s personalities in mind. Nor should it be designed around today’s political alignments. It should be written for the ICC that will exist twenty-five years from now. For the Prosecutor who has not yet been elected. For the judge who has not yet taken the oath. For the Registrar whose name we do not yet know. For controversies none of us can yet foresee.

That is how constitutional institutions mature. They learn from individual cases without letting those cases dictate institutional design. They convert experience into structure. Uncertainty into procedure. Improvisation into predictability.

That is the task now before the ASP. Not merely to resolve today’s controversy, but to ensure that future controversies are resolved through procedures capable of commanding confidence, regardless of who stands accused. Because accountability worthy of a permanent court must be permanent. And permanence is achieved not through personalities, not through goodwill, not through political negotiation, but through institutions disciplined by law.

If Parts I and II have argued that the Court’s disciplinary architecture remains constitutionally incomplete, the obvious question is where reform should begin. Which concrete institutional model would best reconcile accountability with judicial independence? How should investigations, adjudication, appellate review, and the ASP relate to one another within a coherent constitutional framework?

Those are no longer questions of diagnosis. They are questions of design. It is to that task that Part III now turns.

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