COMPLETING THE ARCHITECTURE: Designing a Disciplinary Process Worthy of the International Criminal Court
A permanent institution cannot rely on temporary solutions for permanent challenges.
The first two Parts of this trilogy have argued that the present controversy has revealed something larger than the allegations themselves.
In the first part, I argued that the International Criminal Court’s external authority has matured more quickly than its internal disciplinary architecture. My central proposition was simple: permanent courts require permanent procedures. The issue is not whether accountability should exist. The Rome Statute settled that question long ago. The issue is whether accountability has become sufficiently institutionalized to command confidence before anyone knows the outcome of a particular case.
The second part then turned to the constitutional principles that, in my view, should guide its resolution. It argued that disciplinary proceedings involving senior officials should be grounded in procedures that are independent, transparent, predictable, and insulated from political influence. It further suggested that those principles are best achieved when the distinct functions of investigation, adjudication, and institutional oversight are clearly separated rather than concentrated in a single process.
To illustrate how those principles might be translated into institutional design, I offered one possible model: the appointment of an independent Special Counsel, charged exclusively with investigating whether formal disciplinary proceedings should be commenced and with presenting the case, with adjudication left to an independent disciplinary tribunal (a panel of judges) operating under standing procedures established in advance. That proposal was never intended as the only possible solution. Quite the contrary. It was offered as one constitutional framework among many that might faithfully implement the broader principles this trilogy has sought to advance.
The larger point is therefore not the model itself, but the constitutional philosophy that underlies it. Permanent institutions strengthen themselves not by improvising in moments of crisis, but by establishing durable institutional architecture before those crises arise. Accountability is most credible when it has been institutionalized.
In this final part, I ask a different set of questions.
If those propositions are accepted, what follows? How should a permanent international court complete its internal disciplinary framework? Which institutional model would best reconcile accountability with judicial independence? How should investigations, adjudication, appellate review, and institutional oversight relate to one another within a coherent constitutional framework?
These questions move us beyond diagnosis. They require institutional design.
Fortunately, the ICC does not begin this task on a blank page. Quite the opposite. Nearly a quarter of a century of practical experience now exists. The ICC has accumulated an extraordinary body of jurisprudence. Its Rules of Procedure and Evidence have evolved, its administrative practices have matured, its understanding of victims’ participation has developed, and its approach to evidence has become increasingly sophisticated.
The Independent Expert Review has identified both institutional strengths and weaknesses. The present controversy has added another important source of experience: institutional maturity consists precisely in learning from that experience rather than merely surviving it.
Every mature legal system evolves in this way. Common law develops through decided cases. Codes of judicial conduct are revised when unforeseen problems arise. Professional disciplinary systems are refined as practical experience reveals procedural gaps. Constitutions themselves are amended because experience exposes questions that their original drafters could not fully anticipate.
The Rome Statute should be viewed no differently.
Like every foundational legal instrument, it established the framework. It did not and could not provide the final word on every aspect of institutional governance. That was never its purpose. Its purpose was to create a permanent court. The responsibility of later generations is to ensure that the ICC’s institutional architecture matures alongside the authority it exercises.
It is important to emphasize what this discussion is not.
It is not an argument that the Rome Statute has failed. Nor is it an argument that those responsible for navigating the present controversy have acted improperly. Nor is it an argument that the ICC’s legitimacy has been exhausted.
I believe none of those propositions. Indeed, I believe almost the opposite. The ICC has survived challenges many doubted it could withstand, including political opposition, funding crises, questions of jurisdiction, non-cooperation, attacks on its legitimacy, sanctions, and persistent criticism from governments, academics, practitioners, and commentators. Yet the institution endures. That endurance is evidence of institutional resilience.
Precisely because the ICC has matured, it is now capable of undertaking the next stage of its constitutional development. Reform should therefore be understood not as an admission of institutional weakness but as evidence of institutional confidence. Mature institutions do not fear refinement. They expect it.
If institutional reform is now necessary, the next question is straightforward: Who should lead it?
My view is that this task should not be left to an ad hoc working group formed in response to the present controversy. Nor should it become another subject of political negotiation among States Parties. Neither approach adequately reflects the constitutional importance of what is now at stake. The issue extends well beyond the present disciplinary matter. It concerns the ICC’s permanent institutional architecture. That architecture deserves deliberate consideration, not a hurried reaction.
For that reason, the Assembly of States Parties (ASP) should establish an independent, high-level commission specifically tasked with reviewing the ICC’s disciplinary and accountability framework.
This would not be unprecedented. The ASP has done something remarkably similar before. When the Independent Expert Review was commissioned in 2019, the ASP recognized that, after nearly two decades of operation, the ICC had reached a stage of institutional development that warranted a comprehensive, independent evaluation.
The resulting report became one of the ICC’s most significant institutional assessments. Not because every recommendation was adopted, nor because every conclusion proved beyond debate. But because the process reflected institutional confidence. The ICC demonstrated a willingness to examine itself critically. That willingness strengthened, rather than weakened, its legitimacy. The same philosophy should guide the next stage of constitutional development.
The present controversy has exposed a distinct category of institutional question. Not prosecutorial policy. Not judicial efficiency. Not administrative management. Rather, the constitutional relationship among accountability, judicial independence, and institutional governance.
That subject deserves equally careful consideration.
One of the principal lessons emerging from the present controversy is that institutional legitimacy depends not merely on the quality of the conclusions reached, but on confidence in the process by which those conclusions are reached. That observation applies equally to institutional reform.
If the ICC’s future disciplinary architecture is to command confidence, the process by which it is designed should reflect the values the eventual framework is intended to protect: independence, transparency, professional expertise, intellectual rigor, and comparative experience. In other words, the process of designing institutional accountability should embody the principles of institutional accountability.
That is why I favor an independent commission.
Not because independent experts possess greater wisdom than elected representatives. They do not. Nor because ultimate authority should somehow be removed from the ASP. It should not. The ASP remains the constitutional steward of the Rome Statute system, and its responsibility cannot be delegated. But there is an important distinction between designing the constitutional architecture and adopting it.
Independent commissions help institutions by examining difficult questions, removed from the pressures of immediate political controversy. They compare legal systems, evaluate competing models, identify unintended consequences, consult widely, and produce recommendations grounded in analysis rather than negotiation.
Ultimately, however, the decisions remain with the institutions to which constitutional responsibility has been entrusted. That balance has served many mature legal systems remarkably well. There is no reason it should not serve the ICC equally well.
The commission’s responsibility should not be to revisit the present controversy. Nor should it concern itself with determining whether particular allegations were properly investigated or correctly assessed. Those questions belong elsewhere. Its task would be considerably broader. It would ask what permanent institutional framework should govern future disciplinary proceedings involving the ICC’s senior officials.
That inquiry should include, among other matters:
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- classification of misconduct;
- investigative authority;
- procedural safeguards;
- applicable legal standards;
- the separation of investigation and adjudication;
- the composition, jurisdiction, and authority of an independent disciplinary tribunal;
- appellate review;
- transparency and confidentiality;
- the constitutional relationship between adjudicative bodies and the ASP;
- mechanisms for periodic institutional review.
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Importantly, the commission should approach these questions both comparatively and prospectively. It should examine not only international institutions but also domestic judicial councils, constitutional courts, professional disciplinary bodies, and independent commissions that have successfully balanced accountability and adjudicative independence.
The ICC need not invent every solution. Many already exist. Its challenge is to identify those most compatible with the distinctive constitutional character of an international criminal court.
Every constitutional reform eventually reaches the same point. Once the need for reform is accepted, general constitutional principles must be translated into institutional design.
It is one thing to agree that accountability should be independent. It is another to determine precisely how that independence should be secured. Likewise, few would dispute that disciplinary proceedings should be fair, transparent, and capable of inspiring public confidence. The more difficult question is how those aspirations become institutional reality. That, ultimately, is the purpose of constitutional architecture. It converts broad principles into durable institutional relationships, not by relying on goodwill, but by defining authority before disagreement arises.
The challenge before the ICC is therefore not simply to strengthen accountability. It is to design an accountability system that reinforces, rather than compromises, judicial independence. These objectives are not in tension. They are mutually dependent.
An institution cannot genuinely be independent unless it is also capable of holding itself accountable through procedures that are independent. Nor can accountability command confidence if it appears vulnerable to political influence or institutional improvisation.
The two rise or fall together.
The first principle is fundamental: investigation and adjudication serve different constitutional functions and should remain institutionally distinct. Investigators establish facts, while adjudicators determine their legal consequences. Preserving that distinction protects complainants, respondents, and the institution’s legitimacy alike.
Those responsibilities should remain institutionally distinct. That distinction protects everyone involved. It protects complainants by ensuring that allegations receive independent investigation. It protects respondents by ensuring that responsibility is determined through procedures designed for adjudication rather than investigation. And it protects the institution by preserving public confidence that findings of misconduct rest on an independent judicial process rather than on investigative conclusions alone.
This distinction is so fundamental that it should be one of the organizing principles of any future disciplinary framework.
Too often, discussions of independence focus exclusively on the final decision-maker. That is only part of the picture. Institutional independence should extend throughout the process. The investigation should be independent. The adjudication should be independent. Any appellate review should likewise be independent.
Each stage performs a distinct constitutional function. Each should therefore have its own procedural safeguards. That does not require institutional duplication. Nor does it require unnecessary complexity. It requires clarity.
Participants should understand from the outset who performs each function, under what authority, under which procedures, and subject to what form of review. Uncertainty breeds controversy. Clarity promotes confidence.
Discussions of due process are sometimes framed as protections afforded only to respondents. That is an incomplete understanding. Due process protects institutions no less than individuals. When procedures are transparent and predictable, complainants gain confidence that allegations will be taken seriously. Respondents gain confidence that responsibility will be determined fairly. The public gains confidence that outcomes are the product of legal process rather than political influence.
Every participant benefits. That is why procedural fairness should never be seen as an obstacle to accountability. Properly understood, it is accountability’s greatest safeguard. The stronger the procedures, the greater the legitimacy of whatever result ultimately follows.
One further observation deserves emphasis.
Well-designed constitutional systems do not depend on extraordinary individuals. They reduce the number of questions that must be decided by discretion alone. Rules replace uncertainty. Procedures replace improvisation. Clearly defined authority replaces institutional ambiguity.
This does not eliminate judgment. Nor should it. Judgment will always remain indispensable. But constitutional architecture seeks to ensure that judgment operates within established procedural boundaries rather than institutional uncertainty. That is one of the principal reasons mature legal systems devote such attention to procedural design. Predictability is not administrative rigidity. It is institutional discipline.
Throughout the present controversy, accountability and judicial independence have often been portrayed as occupying opposite ends of a constitutional spectrum. The assumption seems to be that strengthening one necessarily weakens the other. I have never found that particularly persuasive. Indeed, I believe the opposite is true.
Properly understood, accountability and independence are not competing constitutional values. They are mutually reinforcing. Judicial independence does not mean freedom from scrutiny, nor does accountability mean exposure to political influence. Each exists to protect the other.
A judiciary that cannot be held accountable through fair and independent procedures will eventually lose public confidence. Conversely, a judiciary whose accountability depends on political negotiation or institutional improvisation will gradually lose its independence.
Neither outcome serves the rule of law. The challenge, therefore, has never been choosing between accountability and independence. The challenge is to design institutions that can preserve both simultaneously. That is the hallmark of constitutional maturity.
This point deserves emphasis because it is so frequently misunderstood.
Strong disciplinary procedures do not threaten judicial or prosecutorial independence. They protect it. When allegations of serious misconduct arise, public confidence in the institution depends on the public believing two things at once.
First, no office-holder is above legitimate scrutiny. Second, no office-holder should be subjected to arbitrary, politically motivated, or procedurally flawed proceedings. If only the first principle prevails, accountability risks becoming political. If only the second prevails, independence risks becoming a shield against accountability.
Neither is acceptable. The rule of law demands more. It requires procedures capable of distinguishing between those two dangers. That is precisely what mature constitutional systems seek to accomplish. Properly designed disciplinary mechanisms do not weaken judicial or prosecutorial independence. They make it credible.
One recurring theme throughout this trilogy is the danger of institutional improvisation. That concern extends beyond the present controversy. Constitutional architecture should never be judged solely by how it performs in moments of crisis. It should also function quietly and predictably when no controversy exists. Indeed, that is when institutions are best positioned to undertake meaningful reform.
History teaches that enduring constitutional development rarely occurs amid institutional upheaval. It occurs afterward. Once immediate pressures have subsided. Once personalities have receded. Once experience can be examined with the benefit of reflection rather than urgency.
The present controversy should therefore be viewed not as the endpoint of institutional debate but as the beginning of institutional learning. This distinction matters. Courts do not become stronger because crises occur. They become stronger by learning from them.
Every mature legal institution possesses something more valuable than rules alone. It possesses institutional memory. Courts remember, not simply through archives or judgments, but through procedures that embody lessons learned from earlier experience.
The common law is built on that principle. So are constitutional amendments, judicial ethics codes, rules of professional responsibility, and procedural reforms. Each reflects the same institutional instinct.
Experience should leave behind something more durable than recollection. It should leave behind better institutions. The ICC has now accumulated nearly a quarter century of institutional experience. It has learned difficult lessons, some through its jurisprudence, some through its successes, some through its disappointments, and now some through the present controversy.
The question is whether those lessons will become part of the ICC’s permanent constitutional architecture or remain merely episodes in its institutional history. That decision now rests primarily with the ASP.
There is a tendency to view constitutions as complete documents. In reality, they are ongoing conversations. The Rome Statute demonstrates that truth. It established an extraordinary institutional framework. It did not – and could not – anticipate every constitutional question experience would eventually raise. No constitution can.
The true measure of constitutional maturity is therefore not whether unforeseen questions arise. It is whether institutions possess the wisdom and confidence to answer them through principled reform rather than through temporary accommodation.
That is where the ICC now stands. Not at the end of its constitutional development, but at the beginning of its next chapter.
Every generation inherits institutions it did not create and leaves institutions it will never see fully mature. The ICC is no exception. The Rome Statute was an extraordinary act of institutional imagination. Those who negotiated it understood that certain crimes demanded a permanent judicial response. They created the world’s first permanent international criminal court. That achievement should never be underestimated.
But founding an institution and completing its constitutional development are not the same thing. History rarely permits such neat conclusions. The institutions that endure are those willing to refine themselves as experience reveals questions their founders could not reasonably anticipate. That is not institutional weakness. It is institutional wisdom.
Throughout this trilogy, I have deliberately refrained from expressing any opinion about the allegations involving Prosecutor Karim A. A. Khan KC. I have done so for a simple reason. I do not know the evidence, nor do I know what conclusions an independent disciplinary process, operating under fully developed procedural safeguards, might ultimately reach. Experience has taught me that confidence should never outrun evidence.
My concern has therefore never been the eventual outcome. It has been the process by which that outcome gains legitimacy. Courts exist precisely because conclusions should follow evidence rather than precede it. That principle applies no less when institutions examine themselves than when they judge others.
Viewed in that light, this trilogy has never really been about a single individual, a single investigation, a single report, a single Bureau, or a single ASP session. It has been about the ongoing constitutional development of a permanent international court.
The Rome Statute created a permanent institution. Like every enduring constitutional instrument, it established a framework rather than a final design. Experience was expected to supply what drafting alone could not anticipate.
Every permanent court eventually reaches that moment. Authority expands, experience accumulates, and new questions emerge that the founders could not reasonably have foreseen.
Institutions then face a choice. They may continue relying on ad hoc solutions tailored to immediate circumstances, or they may transform accumulated experience into durable constitutional architecture. History has generally favored those who chose the latter.
The present controversy offers the ICC precisely such an opportunity. It can treat these events as an isolated disciplinary matter to be resolved and then forgotten. Or it can recognize them as revealing an unfinished chapter in the ICC’s constitutional development. The first response manages the controversy. The second strengthens the institution.
Ultimately, permanent courts derive their legitimacy from something deeper than the correctness of individual decisions. They derive it from public confidence that their procedures can produce legitimate decisions regardless of who appears before them. That confidence cannot depend on personalities, political negotiations, lobbying, institutional improvisation, or the temporary alignment of competing interests. It must rest on procedures that are known before controversy arises and trusted before outcomes are known.
When I began this trilogy, I observed that procedure is where principle becomes practice. I believe that even more strongly now. Principles do not administer themselves. They require institutions. Institutions require procedures. Procedures become habits, and habits become institutional culture. Ultimately, institutional culture earns public confidence.
That process is rarely dramatic. Constitutional development seldom is. It proceeds incrementally, often in response to difficult experience. Yet that is precisely how enduring institutions are built – not by avoiding controversy, but by ensuring that each controversy leaves a stronger framework than the one that preceded it.
The Rome Statute was a major constitutional achievement of modern international law. Its future legitimacy will depend not only on the cases the ICC decides but also on its willingness to continue the institutional project that Rome began. That project remains unfinished, as every constitutional project inevitably is. Each generation inherits institutions it did not create and bears responsibility for leaving them stronger than it found them.
If L’Affaire Khan ultimately contributes to that process – if it prompts the ICC to complete the internal accountability architecture that permanent institutions require – then something lasting may yet emerge from an episode that has tested it in unexpected ways.
Permanent courts require permanent procedures. That is not merely a lesson for the ICC. Institutions founded on the rule of law cannot leave disciplinary accountability to improvisation or political contingency. It is a constitutional principle worthy of every institution that asks the world to place its trust in the rule of law.
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