More than a month after the removal of International Criminal Court (ICC) Prosecutor Karim Khan triggered the search for his successor, the Assembly of States Parties (ASP) has yet to publicly announce a timetable for nominations or election to replace him.
The ICC has entered a new phase, choosing its fourth Prosecutor in more than two decades while preparing for an expected legal challenge from Khan.
The transition marks an unprecedented moment for the court. For the first time since the ICC was established in 2002, member states must choose a new prosecutor after removing a sitting officeholder rather than at the end of a completed term, while ensuring that ongoing investigations continue uninterrupted.
The ASP, the ICC’s management oversight and legislative body, voted on July 24, 2026, to remove Khan from office under Article 46 of the Rome Statute, following disciplinary proceedings over allegations of sexual misconduct that he has consistently denied. The vote, by secret ballot, was reportedly 82 in favour, 13 against, with 15 abstentions.
The ICC has had only three prosecutors in its history. Argentine lawyer Luis Moreno Ocampo became the court’s inaugural prosecutor in 2003, followed by Gambian lawyer Fatou Bensouda in 2012. Khan assumed office in June 2021 after becoming the first prosecutor elected through a competitive vote rather than by consensus among member states. His removal now sets the stage for another unprecedented election.
Non-renewable nine-year term
Under Article 42 of the Rome Statute, the Prosecutor is elected by secret ballot by an absolute majority of the Assembly for a single, non-renewable nine-year term. Until a successor is elected, the Office of the Prosecutor (OTP) is expected to continue operating under the leadership of the two Deputy Prosecutors, who have overseen its day-to-day work since Khan took a leave of absence in May 2025.
Responding to Journalists For Justice (JFJ) on how the ASP intends to approach the selection this time round, the ASP Secretariat, through International legal practitioner Gabrielle McIntyre, said the process “will be initiated in accordance with the Rome Statute and relevant resolutions, under the guidance of the Bureau of the Assembly of States Parties.” The Secretariat noted that the lessons-learned exercise conducted after the third election of the ICC Prosecutor, the process that produced Khan’s own election in 2021, will be factored in.
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The lessons-learned exercise found that the 2021 process introduced important innovations, including the Committee on the Election of the Prosecutor and, for the first time, a panel of independent experts intended to make the selection more merit-based. The ASP report published on October 25, 2022, also identified weaknesses, including unclear procedures, insufficient transparency in decision-making, political interference, and tensions between the expert-led selection and States Parties’ right to nominate candidates. It recommended clearer rules on the roles of the committee and panel, timelines, candidate assessment and vetting, as well as greater transparency around consultations and third-party communications.
“The relevant Assembly resolution (ICC-ASP/3/Res.6) provides that the procedures for the nomination of candidates for judges shall apply mutatis mutandis to the nomination of the Prosecutor,” the Secretariat said on July 30, 2026. It also cited resolution ICC-ASP/22/Res.3, paragraph 81, under which the Assembly established a permanent due diligence procedure covering all elected officials, including the Prosecutor, the same vetting mechanism now being used for this year’s judicial elections. Whether that assessment amounts to real scrutiny or, as one report on the process put it, remains “still to be more than a box-tick exercise,” is likely to be tested for the first time on the prosecutor’s race as well.
Legal commentators argue that procedural improvements alone will not address longstanding concerns about transparency, merit, and political bargaining, noting the need to identify the best candidate for one of international justice’s most demanding offices.
International Criminal lawyer and legal commentator Michael Karnavas has argued for years that the prosecutor selection process requires a stronger emphasis on merit than political compromise. In a November 2020 blog post “Electing The Next ICC Prosecutor: Politics v. pragmatism”, he laid out what he called “The Full Monty”, a checklist of 11 attributes he argued the ideal prosecutor should have. They ranged from a genuine prosecutorial career and trial experience to diplomatic skill, multilingualism, and a “restrained ego”.
He was blunt about the catastrophe of picking the wrong candidate, describing the job itself as requiring the chief to be “an acrobatic plate-spinner on a high-wire without a safety net.”
“I don’t envy the next ICC Prosecutor. No poison chalice, but not a piece of cake either. The title may be august, but the tasks are Herculean. It will take a very skilful person to succeed as the next ICC Prosecutor. The States Parties cannot afford to get it wrong – time is running out for the ICC to grow into the mature judicial institution its founders envisaged,” he wrote.
Merit-based process
The transition is also expected to revive long-running debates about how the court selects its chief prosecutor. Following previous elections and selections, legal experts and civil society organisations have called for reforms to make the nomination and selection process more transparent, efficient, and merit-based.
Karnavas expanded his argument in a two-part series on his blog last July, arguing that selection committees should treat the process less like a hiring panel and more like a disciplined evidentiary inquiry. He suggested testing candidates against realistic institutional dilemmas such as resource constraints, misconduct allegations, and politically inconvenient cases rather than relying on polished interview answers or reputation alone. “The objective is therefore not merely to select an impressive candidate but to reach a conclusion that can be justified by disciplined reasoning. That is what institutional legitimacy requires,” he wrote on July 28, 2026.
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He also proposed what he calls “constitutional due diligence”: weighing not just a candidate’s résumé, but independent, corroborated evidence of how that person has actually exercised authority over subordinates and difficult decisions in the past. This includes any history of bullying, retaliation, or abuse of supervisory position, which he argued goes to the heart of fitness for the office rather than being a separate “personnel matter”.
That argument echoes the concerns Karnavas raised back in 2020, before Khan’s own election, when he criticised the pre-selection shortlist process for screening out well-qualified contenders and warned that a prosecutor chosen through horse-trading rather than merit would leave the court vulnerable to the charge, voiced by diplomats at the time, that the ICC is a political body dressed up as a judicial one.
Legal commentators and civil society organisations will now be watching to see whether the Assembly advances those reforms as it begins the search for Khan’s successor, including whether the vetting standards introduced for judicial elections, a more formal assessment of “high moral character” under Article 42(3), will be applied with equal rigour to the prosecutor’s race.
Speaking to JusticeInfo, Kenneth Roth, the former Executive Director of Human Rights Watch, said speed matters in the selection of the next prosecutor, and that elevating one of the two sitting deputies could be one way to quickly secure continuity. He also cautioned states against applying an informal “litmus test” that would exempt particular investigations or targets from scrutiny, an implicit reference to concerns that a new prosecutor could come under pressure to go slow on, or abandon, politically sensitive files.
Misconduct allegations
Commentators have been blunt about the high stakes of picking the right ICC Prosecutor. Mark Kersten, the founder of the Justice in Conflict blog, has argued that whoever succeeds Khan will need to be someone of demonstrated independence and fortitude, particularly given the United States’ stated intention, voiced by Secretary of State Marco Rubio, to dismantle the court “brick by brick” and the sanctions already imposed on ICC officials, including ICC Judge Kimberly Prost, who is from Canada.
Kersten also pushed back on a narrative he said circulated in the aftermath of the vote, that the misconduct allegations against Khan were part of a plot by either Israel or the US to force him out. He said there was no credible evidence for that theory, but acknowledged that governments unhappy with Khan’s prosecutorial decisions, including reported lobbying by Israeli officials ahead of the vote, likely had those decisions in mind when they cast their ballots alongside the misconduct findings.
On the substance of the Palestine investigation, Kersten stressed that the arrest warrants already issued against Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant were approved by judges based on evidence assembled by a team of prosecutors, not by Khan personally, and will not lapse with his departure. He also flagged that a further warrant is reportedly in preparation for Israel’s National Security Minister, Itamar Ben-Gvir, a sign, in his view, that the work of the Office of the Prosecutor (OTP) continues independent of who holds the top job.
Kersten’s broader argument is that outside hostility alone will not be what determines the court’s survival. He warned that it will be the indifference of the ICC’s own founding member states, many of which, he argued, have stayed conspicuously quiet as the institution came under sustained attack, that poses the greater long-term risk.
“Ultimately, the ICC cannot survive without the support of its states, especially the institution’s founders…It won’t be one prosecutor’s decisions or American belligerence that will kill the court, but the indifference of its purported backers,” he wrote on July 25, 2026. “This is the most precarious moment facing the ICC in its history. If the court is to survive and fulfil its mission to prosecute international crimes, without fear or favour, states need to double down and back the institution now, more than ever.”
A political decision
While the Assembly turns to the succession process, uncertainty hangs over Khan’s next legal steps. There is no formal appellate body within the ASP to review the decision, since Khan’s removal was a political vote of the membership rather than a judicial or administrative ruling.
The former Prosecutor’s lawyers have indicated that they are considering “all available avenues” following the Assembly’s decision and have argued that the vote removed him from office without a formal finding of guilt or innocence, a distinction they characterised as making it a political decision rather than an adjudicated one.
Writing before the vote on June 19, 2026, International Law scholars Ezequiel Jimenez Martinez and Sergey Vasiliev noted that Khan had signalled that he would seek redress before the International Labour Organisation Administrative Tribunal (ILOAT) if removed. But they cautioned that ILOAT’s case law is “calibrated to labour relations within international organisations”, and that it remains “far from settled” whether the tribunal’s jurisdiction extends to a political decision by a treaty body’s plenary membership to remove an elected official. They described it as much a constitutional act as an administrative one, adding that even a favourable ruling might not translate into Khan’s reinstatement since by the time such a case is resolved, a successor could already be in office.
The new Prosecutor will come in as the ICC continues investigations and prosecutions in multiple situations, including Ukraine, Darfur, Mali, Libya, and the Democratic Republic of Congo, while also pursuing cases arising from the conflict in Gaza. The appointment will draw attention from victims’ groups and international justice advocates alike, not only because of the cases pending in the court, but also because the selection will shape the institution’s direction after one of the most consequential leadership transitions in its history.
