The International Criminal Court’s governing body is set to meet in The Hague with uncertainty still surrounding the future of the court’s chief prosecutor, Karim Khan, and the outcome of an outsourced investigation into an alleged sexual misconduct complaint against him.
The annual session of the Assembly of State Parties (ASP), which begins on Monday, comes after the ASP’s bureau had previously said it expected a United Nations investigation into Khan to be completed by the end of October.
The delay – unacknowledged publicly by the ASP bureau or the UN’s Office of Internal Oversight Services (OIOS), which is conducting the probe – has left the court in a state of limbo.
The meeting of the ASP, which is made up of representatives from 125 countries that have ratified the ICC’s founding Rome Statute, is also taking place at a time of unprecedented threats to the court, prompted mostly by its investigation into Israel over alleged war crimes in Gaza and the occupied Palestinian territories.
Since February, US President Donald Trump’s administration has imposed financial and visa sanctions on Khan, his two deputy prosecutors and six judges, and has threatened sanctions against the court itself – described by some as a doomsday scenario.
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The ICC, established in 2002, is the world’s only permanent international court with the power to prosecute senior officials for international crimes. It is currently investigating a dozen situations, including Palestine, Ukraine, Darfur (Sudan), Libya, the Democratic Republic of the Congo and the Philippines.
The court has been functioning without a chief prosecutor since May, when Khan took a leave of absence pending the outcome of the misconduct probe. Khan strenuously denies the allegations against him.
His deputy prosecutors have been in charge in his absence. According to a source close to him, Khan has no intention to resign.
Opaque process
Despite intense media coverage of the allegations against Khan over the past year, neither the ASP presidency nor its 21-member bureau has offered any update on whether the OIOS report has been completed, when it will be submitted or why it is delayed.
The matter is not currently on the agenda for the ASP’s 24th session, which runs from 1-6 December, and no side meetings on the investigation have been announced.
‘We are in uncharted territory, and it is not clear where it is going or how it will end’
– Sergey Vasiliev, ICC expert
For many, the silence amounts to a troubling lack of transparency around a process that could have profound consequences for the court’s leadership and ability to carry out its mandate.
“There has been no acknowledgement of the delay, no public announcement on this matter, and no communication whatsoever from the ASP president and the bureau as to the updated timeline, when the report could be expected, and what the reasons for the delay are,” said Sergey Vasiliev, an international law professor and ICC expert.
“In the meantime, the court, the Office of the Prosecutor, and the public at large are remaining in limbo on what is really going on and when the tangible steps will be taken in order to end the current uncertainty and start getting the court out of the present purgatory,” he added, pointing out that although two deputy prosecutors are currently in charge, the persisting uncertainty is harmful to the court as it might result in important decisions being shelved.
Middle East Eye reported in August that arrest warrant applications for two Israeli ministers on charges of apartheid have been ready but shelved since May as deputy prosecutors have been reluctant to file them due to the threat of US sanctions.
MEE understands that other arrest warrant applications in different situations under investigation have also been stalled for months.
A former ICC judge and international law academic told MEE that the delay in completing the Khan investigation was proving detrimental to the work of the court.
“The current situation at the ICC is unsustainable,” said the judge, speaking on condition of anonymity.
“There is an increasing danger that war crimes and crimes against humanity will not be properly adjudicated.”
Why did the ASP bypass the IOM?
The investigation into Khan began in November 2024 after ASP President Paivi Kaukoranta took the unconventional step of bypassing the ICC’s own Independent Oversight Mechanism (IOM), the body expressly mandated to investigate allegations of misconduct against elected officials.
MEE has previously reported that two IOM investigations into the allegations against the prosecutor were closed after the complainant refused to cooperate with them.
In an 11 November statement last year, Kaukoranta said she opted to outsource the matter due to “the particular circumstances of this case”, citing the IOM’s victim-centred approach and the “perception of possible and future conflicts of interest”.
She insisted the move was consistent with the court’s legal framework, but did not outline the legal basis for the decision.
To date, neither the ASP presidency nor the bureau has provided that basis. Under Article 46 of the Rome Statute and Rule 26 of the ICC’s Rules of Procedure and Evidence, the IOM is designated as the authority tasked with investigating misconduct complaints against elected officials, including the prosecutor.
In 2018, the ASP itself amended Rule 26 to strengthen the IOM’s mandate and establish it as the sole investigative body for such matters.
Some experts argue that the presidency should have sought a formal amendment to the rules or convened an ASP session to authorise outsourcing the investigation.
“There is absolutely nowhere in the court’s rules that authorises the outsourcing of an investigation to an elected official,” said Ezequiel Jimenez, an expert on ICC governance.
“A resolution was needed to amend Rule 26 or authorise an exception. That never happened.”
A letter from the former head of the IOM, written shortly before he left office, told the ASP president that he would have no objection if the ASP president went ahead with her plan to outsource the probe. But this advice has never been made public.
Jimenez told MEE that two main arguments are behind the ASP president’s decision to outsource the probe.
First, the IOM cannot proceed without the alleged victim’s participation, and its processes halt if the complainant declines to engage.
Second, the IOM is severely understaffed, with a minimal budget, and was in transition last December as a new head was being recruited. Compounding concerns, the incoming IOM director had previously worked in Khan’s Office of the Prosecutor.
‘If the court is genuinely victim‑centred, complainants in cases of alleged serious sexual misconduct and retaliation must be heard, which is what justified taking this route’
– Danya Chaikel, FIDH
“There was a perception that the IOM lacked both the capacity and the perceived impartiality to carry out an investigation of this gravity,” Jimenez said.
Still, he argues that states could have resolved this through proper procedure. “States had opportunities to amend the rules – at the ASP in December 2024, or at the special session in July this year. They can pass amendments very quickly when they want to,” he told MEE.
“None of that happened. There is no public legal justification for outsourcing.”
Danya Chaikel, the representative of the International Federation for Human Rights (FIDH) to the ICC, is among experts who supported the outsourcing to the OIOS. She told MEE that this was seen as the only way for the complaint to be investigated.
An explainer in May by Chaikel’s FIDH and the Women’s Initiatives for Gender Justice acknowledged that external investigations are not expressly referenced in the ICC’s regulatory framework. “But neither are they prohibited,” she told MEE.
“Outsourcing was a practical solution once it was clear that the IOM was not an option. This also isn’t new and the court seconded external investigators before the IOM was operational [in 2017],” said Chaikel.
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“More fundamentally, if the court is genuinely victim‑centred, complainants in cases of alleged serious sexual misconduct and retaliation must be heard, which is what justified taking this route,” she added.
Yet, Chaikel criticised the process for its lack of transparency.
“The Terms of Reference for the OIOS investigation should’ve at least been shared – the procedural aspects and process that do not reveal the substance of the allegations themselves,” she said.
“The lack of transparency lets people’s imagination fill in the gaps, creates uncertainty for staff, states and observers, and risks undermining confidence in the Court and the Assembly. Clear communication about process, without touching the substance, would help maintain trust during an extremely sensitive moment for the ICC,” she added.
Nevertheless, Vasiliev notes that although the ASP has broad powers on oversight matters, the decision to bypass the IOM places the court in legally uncharted territory.
“This is not a standard situation,” he said. “We are in uncharted territory, and it is not clear where it is going or how it will end.”
“We don’t know what reasons compelled the ASP to take this route. Without a clear explanation, it is difficult to judge whether it was appropriate.”
He added that, given the years of work invested in establishing and refining the IOM, he would have preferred to keep the investigation within that mechanism, and to strengthen it rather than bypass it.
“The IOM was specifically created for these situations and offers, at least nominally, the relevant safeguards. But we don’t know what concerns led to its exclusion.”
Ad hoc panel of judges
The OIOS was tasked with conducting a fact-finding probe and submitting its findings to a panel of judges selected by the ASP. It will be this panel which will determine whether misconduct occurred and report to the ASP Bureau.
The bureau has said the panel will conduct its work “on a confidential basis”, while no information has been released about the panel’s membership, terms of reference or working methods, apart from pointing out that members will represent African, Caribbean and European nationalities, and will have both genders included.
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The prosecutor is also unaware, a source close to him said. The presidency of the ASP has not disclosed to him who the judges are and whether they have been vetted for bias or conflict of interest, the source said.
His request for the terms of reference that the judges will use to determine whether he has committed misconduct has also gone unanswered. “It’s a basic requirement for any kind of due process,” said the source.
In response to a request for information about the panel, the ASP referred MEE to its previous statements.
“It is hard for outsiders to know how that panel will operate or how fairness and accurate truth-finding will be ensured,” Vasiliev told MEE.
“The public has only been told they have judicial experience. That is not enough given the gravity of the matter.”
The OIOS has also maintained complete silence. A month after the delivery of its report was expected by the ASP Bureau, it has not confirmed whether the report is finished or explained the delay.
In a statement to MEE, an ASP spokesperson said the report has not yet been finalised, and will not be made public.
Former ICC judge and former Italian public prosecutor Cuno Tarfusser, in a letter sent to the ASP presidency and Bureau on 20 October, seen by MEE, described the process as “unregulated, improvised, and wholly incompatible with the rule of law that the ICC was created to embody”.
“There is no precedent, no procedural framework, no mandate, and no respect for the guarantees that underpin any fair proceeding,” Tarfusser wrote.
