A note on perspective, in the interest of full transparency: we write as authors with longstanding ties to the Court and its work — between us, we have served as members of the Office of the Prosecutor, advocated before the ICC on behalf of victims, represented the U.S. government at the Assembly of States Parties, and belong to the Association of International Criminal Law Prosecutors (AICLP). Each of these vantage points inevitably colors our perspective, and readers should weigh what follows accordingly.
On Friday, at a special session at United Nations headquarters in New York, the nations who comprise the Assembly of States Parties (ASP) to the Rome Statute will vote on whether the Prosecutor of the International Criminal Court (ICC), Karim Khan, should be removed, following sexual misconduct allegations against him by a junior member of his staff. The vote comes after an investigative process that has spanned nearly two years, and been marred by ad hoc procedures that have harmed the complainant, Mr. Khan, and the Court. Our shared view is that Mr. Khan should not resume his duties. In ordinary institutional circumstances, a resignation would likely have come long ago. But whatever position one takes on the outcome, it is worth being precise about what the ASP is, and is not, being asked to decide, because much of the public debate has conflated two distinct questions.
The first relates to the substantive standard, under the Statute, for the ASP to remove a Prosecutor. The second relates to due process concerns arising from the procedures used to investigate the allegations against Mr. Khan in this situation. We address the due process concerns below, but we urge clarity on the point that under the Rome Statute, the ASP is not an appellate court; purported procedural defects in the handling of the matter should not be dispositive of the removal question.
What Article 46 Asks
Article 46 of the Rome Statute assigns the decision to remove a Prosecutor to the states parties as a matter of institutional judgment, not criminal adjudication. Removal is not a punishment; it is a determination about the institution’s capacity to function. The nearest analogy is not a disciplinary hearing, where the inquiry is structured around the rights of the accused official, but an impeachment vote. It is a judgment entrusted to the states about the institution itself, constrained by the criteria the Statute supplies, but ultimately theirs to make. The argument made by some that the ASP should defer to the judicial panel misses this point entirely; the Statute itself gives the decision to the ASP. This is, it bears noting, entirely unremarkable as a matter of comparative practice.
In no domestic setting that we are aware of, are employment decisions of this kind rendered by asking only whether the original allegation could be proven to a criminal standard: a national prosecutor, judge, chief executive, or senior civil servant facing comparable findings would be assessed on the totality of the record — the underlying conduct, the workplace consequences, the effect on institutional trust, and the official’s own behavior during the proceedings. Domestic systems routinely remove senior officials on such holistic judgments, and no one mistakes those decisions for criminal convictions.
To be sure, the Office of the Prosecutor is not an ordinary senior post. Its independence is the point of the design, and, as with independent prosecutors and judges in domestic systems, its particularities warrant more procedural care than an ordinary employment decision. But Article 46 provides that additional rigor, and the way to add more would be through establishing a competent, independent mechanism whose absence this episode has exposed. It does not, however, warrant treating an improvised process as though it were a criminal trial or leaving the office beyond accountability in the interim.
Reasonable people can disagree about how much weight procedural irregularity should carry in the ASP’s judgment. A plausible argument runs that a removal through a flawed process damages the Court regardless of the merits, and some states may vote on that basis. But the converse argument also has force: the fitness question exists independently of the process by which it arrived before the ASP, and states cannot avoid answering it by pointing to missteps in the process.
The Procedural Record
The procedural objections raised by Mr. Khan’s defense must be stated fairly, though we ultimately find fewer of them persuasive than their proponents do. In June, the Bureau (a 21-member steering committee of the ASP) departed from its own procedures paper, issued in March, by collapsing a two-stage process (the ASP would first determine whether serious misconduct occurred, then vote separately on removal) into a single vote. This deviation was made mid-process and, per Mr. Khan’s counsel, without notice to them.
According to public reporting, the Bureau had previously convened a panel of judicial experts to advise them, and that panel concluded that the evidence did not establish the allegations against Mr. Khan to the standard of “beyond a reasonable doubt.” Nonetheless, the Bureau reached a contrary conclusion on the basis of its own reading of the U.N. Office of Internal Oversight Services (OIOS) investigation and the underlying record.
Two points about the panel’s report bear emphasis. First, through no fault of the panel’s, the exercise was structurally compromised from the start. The OIOS report appears to have compiled a substantial evidentiary record without itself making findings of fact, and the panel was then asked to apply a “beyond a reasonable doubt” standard of proof to that raw record without hearing a single witness. A body placed in that position cannot genuinely assess credibility or resolve disputed facts. Second, and in any event, whatever the panel concluded could only have been advisory. Article 46(2)(b) of the Rome Statute assigns the removal decision to the states parties, and no report commissioned to assist the Bureau can relieve them of that authority and duty. The suggestion that the panel’s conclusion should be treated as dispositive therefore sits uneasily with the Court’s statutory scheme, for it would ask the ASP to defer to a body that was never positioned, structurally or legally, to decide the question.
Mr. Khan’s defense has, entirely within its rights, contested the process vigorously at every stage. But the cumulative effect of that approach has been threefold: (1) the debate around the proceedings has become consumed by disputes over which rules apply and when; (2) attention has shifted from the underlying allegations to the treatment of the accused; and (3) each purported irregularity has become an occasion for suggesting that political motives must explain it. A recent example illustrates the difficulty. According to public reporting, after reviewing the OIOS report and the underlying record, the Bureau found that Mr. Khan engaged in a sexual relationship with a subordinate that could not be meaningfully consensual, given the power differential. Mr. Khan’s defense team claims this amounts to a “new allegation” never charged. Yet this erroneously treats the Bureau’s characterization of the conduct that was subject to investigation as though it were a fresh accusation in a criminal case — here there are no “charges” to amend.
Even within the standards of international criminal law (which do not apply here), international tribunals, including the ICC itself, have often operated with procedures that were improvised, contested, and revised mid-course, and the touchstone has consistently been whether the proceedings, viewed as a whole, were fair. On that measure, it is not easy to identify how Mr. Khan has ultimately been prejudiced when the allegations were investigated at length by an external body, he has had repeated opportunities to respond at every stage, and the decision now rests where the Statute places it, with the states parties.
Other key objections concerning the process deserve direct answers.
The first, pressed most forcefully by Kevin Jon Heller, is that the Bureau cannot lawfully bind the ASP to a single removal vote (which, all agree, is made by an absolute majority), because the Rome Statute and ASP Rules of Procedure require the ASP first to determine whether “serious misconduct” occurred, and such decision must be subject to a two-thirds majority vote under Rule 63 of the ASP Rules of Procedure. That premise, however, is difficult to sustain.
Rule 63 provides that “[s]ubject to rule 61, and except as otherwise provided in the Statute and as reflected in these Rules, decisions on matters of substance must be approved by a two-thirds majority of States Parties present and voting.” (italics added) A finding of serious misconduct is almost certainly a “matter of substance.” But the rule’s opening proviso does the work here because the Statute does provide otherwise. Article 46(2)(b) of the Statute assigns removal of the Prosecutor to “an absolute majority of the States Parties,” and the ASP’s rules specific to removal and suspension from office, Rules 81 and 82, nowhere impose a preliminary two-thirds vote. To read one in would be to amend the statutory scheme by procedural rule. And once the two-thirds premise falls away, the case for a two-stage vote falls with it. The Statute permits removal only on the grounds it specifies, so a vote to remove is necessarily a vote that those grounds are met.
A related concern, developed by Terje Einarsen, points to an asymmetry within the Rome Statute concerning the removal of judges versus the Prosecutor. Before states can vote to remove a judge, they must receive a removal recommendation by two-thirds of the other judges. By contrast, the Prosecutor may be removed by an absolute majority of states, with no prior professional screen. The thinness of that safeguard, the argument runs, invites a troubling precedent in which the ASP can remove a Prosecutor for indicting the officials of a powerful state. This concern proves less than its proponents suggest in relation to this case. Here, we have a complaint raised internally in 2024, a year-long external U.N. investigation generating thousands of pages of evidence, an advisory judicial panel, and more than two years of process. In other words, this is not the summary political defenestration the hypothetical imagines. The durable protection against that hypothetical is the structural reform this episode has made unavoidable — pre-established, independent adjudication of complaints against elected officials — not the retention of a particular official to avoid setting an example. Retaining an unfit Prosecutor to preserve the office’s independence would spend the substance of that independence to protect its form.
The second objection, advanced by Ezequiel Jimenez Martinez and pressed publicly by Mr. Khan’s legal team, is that Article 46(4) entitles the Prosecutor to present his defense before the plenary ASP, not merely the Bureau. That point is far less compelling than it sounds. Mr. Khan has had an extensive opportunity to present his defense, to the OIOS investigators, to the judicial panel, and to the Bureau, over more than two years. Article 46(4) guarantees an opportunity to present and receive evidence and to make submissions, not a plenary appearance in whatever forum Mr. Khan prefers. At this stage, it is reasonable to ask what a further hearing would add to what two years of submissions have already provided. Nor is a plenary appearance the only channel through which Mr. Khan’s position has reached the states parties. He and his representatives have, throughout this period, engaged states directly and via the media in support of his case, and the ASP will not come to the vote unacquainted with his defense.
That said, nothing in the case for removal requires denying Mr. Khan the chance to address the body that decides his fate, and if the states parties choose to hear him, they should be confident that the fitness question survives it. Concretely, the defect, if it is one, remains remediable: the Assembly can offer Mr. Khan the opportunity to address the special session, or to circulate a written statement to delegations, before any vote is taken. And if it does not — a real prospect given the compressed timetable — the omission would not invalidate what follows. The substance of Article 46(4)’s guarantee, the opportunity to present and receive evidence and to make submissions, has been afforded over two years and before every body that has examined the matter. The cost of a refusal would be prudential, rather than legal: it would add a further ground of objection in any subsequent litigation, which is itself a practical reason for states to grant the request.
With all that said, the objections to the procedural process do point to a genuine institutional failure. The Court began this process without a credible, independent, pre-established mechanism for investigating allegations against its most senior elected officials, and procedures were improvised mid-crisis. Had such a mechanism existed in 2023, this episode might have been resolved with the speed, confidentiality, and legitimacy the situation demanded, sparing the complainant, the accused, and the institution alike. Whatever the ASP decides on Friday, governance reform along these lines should be its next and most immediate order of business.
The Record of the Past Year
On the fitness question, the record since the allegations became public is relevant evidence in its own right, separate from the underlying allegations, and it has received less attention than it deserves.
Over the past year, the sexual misconduct allegations have been litigated extensively in public. Mr. Khan and his representatives and supporters have given interviews and briefings, and documents from the confidential process have repeatedly leaked to the press. Mr. Khan’s most vocal academic defenders (a group to be distinguished from the many scholars whose objections concern the process more than the individual) have leveraged their platforms extensively to target his critics. His counsel have publicly criticized the civil society organizations that expressed concern about the allegations and the treatment of the complainant, organizations whose work the Office of the Prosecutor relies upon across its situation countries. The Bureau has been characterized by the Prosecutor’s allies as politically compromised; states parties have been accused of acting in bad faith. Many of these attacks have been relentless and ad hominem rather than substantive — directed at the motives and integrity of individuals and institutions, at times carrying an unmistakably misogynistic tone — and their vehemence has been striking, visceral, and deployed with little apparent regard for their impact on the complainant or for the message they send to anyone else who might come forward with similar allegations. Some of the underlying criticisms may contain elements of truth, and the external pressures on the Court, including U.S. sanctions targeting the Prosecutor, his deputies, and ICC judges, are well-documented, and form a legitimate part of the context. But the cumulative effect of the campaign has been to place the Prosecutor in open conflict with civil society organizations, the Court’s governing organs, ICC staff, and member states, all of whose cooperation the Office of the Prosecutor requires to function.
A central element of that campaign merits separate attention: the claim, advanced repeatedly by Mr. Khan’s supporters implicitly or explicitly, that the allegations themselves are fabrications engineered by foreign governments in retaliation for the arrest warrant applications against Israeli officials. It is a serious charge that has been dismissed by the complainant, almost every reputable news agency reporting on the matter, and reportedly by the OIOS. And no such evidence has been publicly produced. Aggressive interference with the Court from the United States and others is real, and genuinely concerning, but in the absence of any evidence to the contrary it must remain analytically distinct from sexual misconduct allegations. Conflating the two allows U.S. sanctions to serve as proof of the fabrication theory, which they are not, and allows the allegations to serve as proof concerning the motive behind arrest warrants against Israeli officials, which they are also not.
The framing that has been built atop this claim of state-sponsored fabrication — casting the proceedings as a contest of East versus West, Global North versus Global South, or a referendum on the validity of the Israel arrest warrants — is both toxic and inaccurate. Toxic, because it invites states parties to vote their geopolitical alignments rather than assess the record as it pertains to this specific allegation of individual misconduct, and because it recasts a complaint brought by a staff member as a proxy in a great-power struggle, with predictable consequences for whether future complainants inside international institutions come forward at all. Inaccurate, because the Israeli arrest warrants remain before the Court’s judges regardless of who holds the position of Prosecutor. And there is a quieter implication worth naming. If these tactics were rewarded, they would offer a ready blueprint for any powerful official facing accusation: a campaign of public shaming and misinformation sufficient to silence a complainant and deter the next one.
A further element of the record is what has not occurred. There has been no public assurance from Mr. Khan or his team that staff of the Office of the Prosecutor who cooperated with the OIOS investigation will face no reprisal, and no public statement addressing the position of the staff complainants (the victim of sexual assault and those who claim they were retaliated against), their supporters, or the working environment of the Office should he return. For an institution whose staff have carried its mandate through his absence, under sanctions and under considerable strain, that silence is not a peripheral detail. An office cannot easily function where staff must weigh the professional consequences of having given truthful testimony concerning its leadership.
There are also practical dimensions to the question of fitness for office that are straightforward. Mr. Khan has been absent from the Office since taking voluntary leave in May 2025, more than 14 months in which its work has been carried by his deputies, through the most operationally hostile environment in the Court’s history. He is now suspended twice over: by the Bureau pending Friday’s vote, and, on an interim basis, by his own professional regulator, the Bar Standards Board of England and Wales. A Prosecutor under suspension by the bar of his home jurisdiction, absent from his office for well over a year, and facing years of further litigation over his status is not, in any practical sense, available to lead. The Office, confronting sanctions against its officials, active investigations on four continents, and a budget and cooperation crisis, cannot be led part-time from the trenches of its Prosecutor’s personal legal defense. Even a vote in Mr. Khan’s favor on Friday would not resolve his bar suspension, restore his standing with the Court’s governing organs, or reverse the reported and clear erosion of confidence within his own Office.
Finally, fitness must be measured against the specific functions of this office. A Prosecutor’s principal currency is credibility: with judges, with cooperating states, and above all with the victims and witnesses the Office asks to assume real risk on its behalf. The Office of the Prosecutor investigates sexual and gender-based crimes as a core element of its mandate; it asks survivors of such crimes to trust its processes, its protections, and its people. Whether that trust can survive the return of a Prosecutor whom the Bureau, on its assessment of the record, found to have engaged in a sexual relationship with a subordinate, and whose staff have publicly warned that his return would damage confidence in the institution while expressing fear of retaliation, is a question states parties cannot responsibly set aside.
None of this resolves the underlying factual dispute, which the confidentiality of the record makes difficult for outside observers to assess definitively. But the ASP is not being asked to resolve it definitively. It is being asked whether, on the totality of what is before it — the OIOS report, the Bureau’s determination, the judicial panel’s report (read in light of the constraints under which it was produced), the practical realities of a leader suspended by his own bar and absent for more than a year, and the conduct of all parties over the intervening period — the Office of the Prosecutor can credibly be led by Mr. Khan going forward.
The Stakes of the Framing
How states parties frame the question on Friday may matter as much as how they vote. If the vote is understood as a referendum on the Bureau’s process, a vote to remove will be portrayed as a procedural injustice and a vote to retain as a vindication, neither of which the record supports in full. If it is understood as what the Statute makes it, a judgment about the institution’s capacity to carry out its mandate, then the decision can be grounded in the interests of the Court rather than the fortunes of any individual. Those interests are considerable: the Office’s cases in Palestine, Ukraine, Sudan, Afghanistan, Myanmar, and elsewhere depend on state cooperation, NGO partnership, and the confidence of victims and witnesses. Some argue removal would reward the Court’s external adversaries. The counterargument is that in this case, a Prosecutor suspended by his own bar regulator, at odds with the Court’s governing bodies, and unable to offer assurances to his own staff is a greater vulnerability than any vacancy.
Our assessment is that the fitness question now admits of only one realistic answer, and that the damage of the past two years is, at this point, difficult to see as reparable. But the more important point for Friday is analytical rather than advocative: the due process debate, however legitimate, is not a substitute for the question Article 46 puts to the states parties. They should answer the question they have actually been asked.
