During a recent conference in the Peace Palace, it was stressed once again that for international criminal justice to be credible, especially when it is being watched by the world as it tries (former) heads of state, its talent pool should have the highest levels of professionalism and integrity.
The best judges and prosecutors and defence lawyers of the next generation are the interns and junior practising lawyers of today. The ICC must see to attract the best people, taking equitable geographical representation, gender balance etc. into account.
Today, JFJ gives space to the voices of committed junior lawyers who support or have supported defence and victims teams. Their conditions of employment, as far as job security, maternity leave, and protection from sexual harassment are concerned, do not meet the minimum standards for labour legislation in many states parties that have signed the Rome Statute. So, although committed to the cause, they feel unequally treated compared to f.ex. the OTP staff, and some feel they cannot continue working under these conditions. In the run-up to the annual session of the ASP, certain practices need to be brought to the attention of the delegates.
We, the 46 signatories, are the support staff – current and former case managers, legal assistants and legal consultants – of the Defence and Victims teams of the International Criminal Court (ICC). We wish to take the opportunity of the seventeenth session of the Assembly of States Parties to the Rome Statute to inform and alert the Member States about the vulnerability and precarious circumstances under which some of their nationals are working.
We are strongly committed to international justice and the work of the Court. However, we should not be compelled to choose between working for the ICC Defence or Victims and enjoying basic social protections. Though we perform the same tasks as our Prosecution counterparts, we enjoy none of their employment protections and continue to work in an environment in which the Court has refused to take steps to ensure our basic labour rights and welfare. This problem has existed for far too long, and it is time to address the practices and policies, which allow sexual harassment and exploitation to flourish in our workplace.
On December 6, 2017, the Disciplinary Board ruled that the Administrative Instruction on Sexual and Other Forms of Harassment (ICC/AI/2005/005) does not apply to counsel practising before the International Criminal Court (ICC), who are bound by the Code of Professional Conduct.
Alarmed by this decision, ICC Defence Counsel Melinda Taylor and Mylene Dimitri addressed a letter to the Chief of the Counsel Support Section (CSS) and the President of the ICC Bar Association (ICCBA) decrying the existence of alacuna in the regulations, which effectively enables sexual harassment and abuse in the ‘external’ legal teams. This sentiment was quickly echoed by 46 current and former members of external teams who enumerated further the significant deficiencies and grievances they have experienced in their representation of defendants or victims before the Court.
Both letters exposed the lack of a legal framework governing the conditions under which the support staff of the external teams work, as well as a lack of basic protections — of which the absence of regulations prohibiting sexual harassment is just the tip of the iceberg. Concretely, all support staff are chosen by the Lead Counsel but are vetted and appointed onto a case by the CSS. Most work daily at the seat of the Court without any employment contracts or legal service agreements, and often for extended periods of time. Under the current system, the appointment and remuneration of the support staff is governed solely by the ICC Legal Aid Policy, which essentially excludes them from the minimum monthly or hourly wage; the right to paid leave, medical and emergency leave; the right to maternity or paternity leave; the right to adequate notice prior to employment termination; and the right to pension benefits.
The salaries of the support staff can be, and have been, reduced (or entirely eliminated) at the discretion of the CSS — with little warning. Furthermore, the principle of flexibility enumerated in the Legal Aid Policy affords the Lead Counsel full discretion in determining the salaries of his or her team members, which may be modified at the counsel’s discretion. This has resulted in a lack of salary stability with support staff experiencing severe fluctuations during their work on a single case, often in response to an overall reduction of the team budget by the CSS.
As with any institution, the ICC is not impervious to fundamental flaws or serious misconduct, and in particular, support staff have suffered sexual harassment or other forms of workplace abuse by their immediate superiors. In the past five years, at least one case manager received no remuneration while recovering from a commuting accident while another defence case manager was allegedly sexually assaulted by the Lead Counsel while on a mission abroad. Her colleagues were vilified and forced to resign for speaking out in her defence. These are only some examples of the types of abuse that have surfaced, and in which the CSS took no steps to protect the dignity or fundamental rights of those individuals who, by virtue of the power dynamics in these teams, had and continue to have very little ability to protect themselves.
In July 2018, the Bemba Defence brought to the attention of Trial Chamber VII the deficient employment conditions of defence staff. The Chamber, however, declined to rule on the ‘pertinence of certain shortcomings cited by the Defence’ and on ‘whether an improvement of the current system would be proper’, stating that it was not its duty ‘to organise the framework of the employment system for support staff of the Defence team[s].’ If not the Court’s, whose duty is it?
The little progress made in recent months continues to perpetuate difficult conditions and reinforces a system already disparate and unequal among support staff. Despite its failure to respond to the open letters, the Registry appears to have considered some of these contentious issues in the draft legal aid policy circulated in October 2018, such as minimum wages and the use of legal services agreements for support staff. These, however, are superficial concessions. As long as the ultimate, unscrutinised power to decide on the ‘particular conditions’ of an agreement continues to lie solely with the Lead Counsel, the dynamics that have already been the hotbed of misconduct may well remain unchecked and be reinforced in the future. Furthermore, so long as the CSS continues to retain the power to override legal service agreements made between the Counsel and their support staff, these protections, even if granted and included in staff contracts, remain abstract or tenuous.
While the ICCBA’s recent directive on the establishment and functioning of the ICCBA hotline and complaint mechanism for harassment and sexual harassment is to be lauded, such initiatives do not address the root causes of the problem, i.e. the non-standard forms of employment under which external team members operate. Specifically, the existence of a ‘hotline’ and complaint mechanism will be futile if support staff have no protection against retaliation following legitimate attempts to assert their rights. Although the 46 signatories have expressed their deep concern over the absence of effective protection from harassment, the ICCBA has yet to organise any training on the appropriate standards of conduct. Nor has it indicated whether such training will be made compulsory for any lawyers practising before the Court. While the proposed training on Mindfulness in the Workplace is welcomed, mental wellbeing and mindfulness cannot be achieved in an environment that still lacks basic protections. Such training is no substitute for the legal rights and benefits afforded by employment contracts.
The 46 signatories respectfully reiterate that the only fair, sustainable and meaningful way forward is to appoint support staff on standard staff contracts that comply with basic labour rights. In the alternative, the ICC legal aid policy must regulate and provide effective oversight concerning support staff working conditions.
We, the support staff, thus once again call upon the ICCBA and the Registry to work towards such a system.
We firmly believe that creating and implementing a legal framework which includes workplace protections will ensure equality of arms between the ICC prosecution teams and external teams, which would in turn strengthen the fairness of the proceedings. It is insufficient to ensure fair and safe working conditions on only one side of the courtroom; justice cannot be done in an environment in which the safety and welfare of external support staff are not valued in the same manner as their Prosecution counterparts. We thus call upon the Assembly of States Parties to remedy these deficiencies and to uphold the workplace dignity of the external support staff.
This article was drafted and prepared by Ms Ines Pierre de la Brière (Legal Consultant, Bemba Defence); Ms Havneet Sethi (Legal Assistant, Mangenda Defence); Ms Yuqing Liu (former Case Manager and Legal Consultant, Bemba Defence); Ms Rita Yip (former Case Manager, Mangenda Defence); Mr Mohamed Youssef (Legal Consultant, Bemba Defence).