Secondments of investigators to the OTP – A second best solution to the Court’s capacity crisis?
In this third opinion piece in the series, Amnesty International examines the Prosecutor’s call for secondments from governments of personnel to support the OTP’s investigations, considering whether the initiative is consistent with restrictions on the use of gratis personnel and whether sufficient safeguards are in place to protect the independence and effectiveness of the Court.
In announcing his decision to proceed with opening an investigation in Ukraine in February, the ICC Prosecutor indicated that he would be calling, not only for financial support through the Court’s budget and voluntary contributions, but also for the loan of gratis personnel. The Prosecutor subsequently explained:
The secondment of national experts will provide an injection of expertise and capacity in relation to specific areas of the Office’s work. They will be critical as we seek to accelerate our work across our investigations and effectively meet the challenges faced in conducting investigations across all situations addressed by my Office.
In May, the Prosecutor reported that 21 States had indicated their willingness to second national experts in support of the work of the Office. At the same time, the Prosecutor also announced the OTP’s largest ever field mission deployment to Ukraine, including a “significant number of Dutch national experts”. The Prosecutor emphasised:
This collaboration will significantly enhance the impact of our forensic and investigative actions on the ground. In real terms, it will allow us to collect more testimonial accounts, support the identification of relevant forensic and digital materials and ensure that information and evidence is collected in a manner that strengthens its admissibility in future proceedings before the ICC.
On 29 September 2022, the Chair of the Assembly’s Committee on Budget and Finance briefed states parties that a total of 74 national experts from judicial, law, military and law enforcement agencies have so far been committed by states parties on a secondment basis for all situations.
On one hand, this is a very welcome and desperately needed injection of resources to support the Court’s investigations. The small size of OTP investigation teams has been a key concern for the effective performance of the ICC for some time. In 2020, an Independent Expert Review established by the Assembly found that the Investigation Division of the OTP was “severely under-resourced… having 87 less full time staff than estimated to provide the basic needs of the Division.”
On the other hand, the Prosecutor’s decision to resort to the secondment of state officials to conduct investigations, raises concerns and challenges that must be acknowledged and addressed.
Restrictions on the use of gratis personnel
The practice of seconding expert personnel to the ICTY and the ICTR was initially encouraged by the UN Security Council. However, by the time of the adoption of the Rome Statute, the UN General Assembly had decided to scale back on and restrict the use of gratis personnel across the United Nations. This appeared to be based largely on the impact of gratis personnel on geographical distribution of UN staff. Moreover, reports on the widespread practice also concluded that an increasingly large number of gratis personnel had policy implications for independence. It was also emphasized that secondments involve additional financial liability and cannot be considered as a “no cost” proposition.
In line with this shift away from using gratis personnel in international institutions, the drafters of the Rome Statute decided to permit the ICC to use gratis personnel but restricted the practice significantly. Article 44(4) states:
The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.
The provision notably contains three limitations (1) there must be exceptional circumstances; (2) the personnel must be offered by states parties (personnel from non-state parties is precluded); and (3) the gratis personnel must be employed in accordance with the guidelines established by the Assembly.
The Guidelines for the selection and engagement of gratis personnel at the ICC, adopted by the Assembly in 2005, were largely based on administrative instructions on gratis personnel adopted by the United Nations in 1999. They further define “exceptional circumstances” to mean that organs of the Court may accept gratis personnel only on an exceptional basis to:
provide expertise not available within the organ, for very specialized functions for which such expertise is not required on a continuing basis, as identified by the respective organ and for a limited and specified period of time.
The Guidelines are clear that gratis personnel may not be sought or accepted as a substitute for staff to be recruited against posts authorized for the Court’s regular and normal functions. They contain detailed provisions on the selection, management and conduct of gratis personnel and require the Court to report annually to the Assembly.
Are the secondments sought by the OTP consistent with the Statute and the Guidelines?
There is insufficient information publicly available at this time regarding the secondments sought by or offered to the OTP to draw conclusions on whether they are consistent with the Statute and the Guidelines. However, the broad nature of the Prosecutor’s call, the significant response from states, as well as the deployment of a “significant number of Dutch national experts” on a mission to Ukraine indicates that the initiative may test the boundaries established in the Statute and by the Assembly.
The Prosecutor’s public calls for secondments so far neither make a case that exceptional circumstances exist to seek gratis personnel, nor do they engage with the requirements of the Guidelines. The Prosecutor has not publicly identified the specific expertise sought, confirmed that the expertise is currently not available within the OTP, explained why secondments are required instead of new staff of the OTP, clarified the recruitment process, or indicated the timelines for requested secondments. Some of this information may be addressed in the Prosecutor’s Note Verbale to states parties in March or in other communications with states parties. However, it has not been made public.
Instead, the Prosecutor has emphasised “[t]he importance and urgency of our mission is too serious to be held hostage to lack of means”, indicating that the OTP’s current capacity crisis amounts to exceptional circumstances. This appears to be the understanding of the Committee on Budget and Finance, which reported in July, that those seconded are additional investigators “to support him [the Prosecutor] with coping with the increased workload in all the situations”. However, while the principle advanced by the Prosecutor must be fully endorsed, it is open to interpretation whether this amounts to exceptional circumstances. Magda Karagiannakis’s commentary on Article 44 in Triffterer & Ambos opines “budget difficulties by themselves or related reasons would not appear to constitute sufficient grounds for reliance on gratis personnel.”
The initiative similarly raises concerns regarding the type of expertise sought and offered. Of the 21 states that have indicated their willingness to second personnel to the ICC, only a couple of states have provided public information about the expertise they have offered.
Canada has authorized additional deployments of specialized police investigators and civilian law enforcement experts to the ICC from 3 to 10 officers. UK announced a package of support that includes:
- A police liaison officer based in The Hague to lead on swift information sharing between the UK and the ICC.
- Offer of seven legal experts to date to support the ICC investigation with expertise in international criminal law and the handling of evidence to be presented to court.
- Two police officers with expertise in collection of intelligence through publicly available data source.
Some of these descriptions indicate that the expertise offered includes investigators with expertise in international criminal law and investigations. Given that investigators with such experience exist already within the Court, it is doubtful that the OTP’s acceptance of such gratis personnel would meet the requirements of the Guidelines that they must provide “expertise not available within the organ, for very specialized functions for which such expertise is not required on a continuing basis”.
Risks to the independence and effectiveness of the Court
The point of highlighting these concerns is not to frustrate the Prosecutors efforts to find a way through the Court’s capacity crisis, but to highlight the risks associated with an over-reliance on gratis personnel that the Statute and the Guidelines clearly seek to avoid.
Despite the appeal of a significant increase in the OTP’s capacity to conduct investigations, gratis personnel are unlikely to be a sustainable long-term solution to the Court’s capacity crisis. As with voluntary contributions, states parties will likely contribute personnel to benefit investigations only when it aligns with their interests. This threatens to create a two-tier system of international justice where large-scale prompt, thorough and effective investigations are possible in some situations, while the Court continues to struggle with small investigation teams in others.
The Chair of the Committee on Budget and Finance has recently reported that measures to protect the independence of the Court include:
Secondees are assigned to various unified teams based on their experience, their skills and the need of the Office. They report to the Head of their respective team. They are required to sign an Oath of Office and a Confidential undertaking where they commit to avoid any action, which may reflect adversely on their status as member of the teams of the OTP, or the integrity, independence and impartiality required by their status.
However, while these measures are important and consistent with requirements in the Assembly’s Guidelines, it is far from certain whether they are sufficient to protect the independence of the Court.
In particular, it is likely that secondments will be offered mostly by powerful western states parties. This will erode the already unsatisfactory geographical representation at the ICC. If those states parties only contribute personnel to situations that align with their interests, it will open the Court to accusations of geopolitical bias and political control. For example, if the investigation in Ukraine is conducted by a large contingent of seconded investigators provided from NATO member states, it will further fuel allegations that the ICC is merely the legal arm of NATO.
What can be done to protect the independence and effectiveness of the Court?
The proactive efforts of the Prosecutor to boost his Office’s capacity to conduct investigations in the face of massive demand for international justice deserve strong political support. However, for the reasons outlined above, gratis personnel should play a limited role in addressing the Court’s capacity crisis and the Court should exercise significant caution to safeguard its independence and effectiveness. The Guidelines adopted by the Assembly already contain significant safeguards and should be applied meticulously by the Court under the oversight of the Assembly.
That is not to say that gratis personnel should never be used to support the work of the ICC. In addition to supporting the Court with expertise to conduct “very specialized functions”, the current situation at the ICC illustrates that gratis personnel may also provide valuable assistance to the ICC in meeting short-term capacity challenges following an increase in situations. Indeed, the UN administrative instructions provide a second ground for appointing gratis personnel:
“to provide temporary and urgent assistance in the case of a new and/or expanded mandates of the Organization pending a decision by the General Assembly on the level of resources required to implement those mandates.”
This precedent could be adapted to allow the Prosecutor to use gratis personnel to provide temporary and urgent assistance to support a new investigation. However, this should be a last resort, where the OTP has no resources to recruit staff to conduct the investigation and the contingency fund, which was created specifically to provide resources for unforeseen expenses, such as new investigations, has been exhausted.
As with voluntary contributions, transparency regarding the Court’s acceptance of gratis personnel is essential. The Prosecutor should not only ensure that all secondments are established and conducted in accordance with the Guidelines established by the Assembly, but also justify the appointments annually in a stand-alone report to the Assembly. In July, the Committee on Budget and Finance requested a report on the secondment of personnel, which should be made public and considered by the Assembly at its next session in December. The Committee on Budget and Finance and the External Auditor should review the Court’s application of the Guidelines and provide advice to the Assembly, including, as necessary, recommendations to further develop the Guidelines.