Internships in International Criminal Justice Institutions

[Parisa Zangeneh is a PhD student at the Irish Centre for Human Rights at the National University of Ireland, Galway, where she is a recipient of the Hardiman Scholarship.]

Introduction

In December, the Assembly of States Parties adopted Resolution ICC-ASP/18/Res.7, Review of the International Criminal Court and the Rome Statute System. This is a welcome call for an expert review of the International Criminal Court (“ICC”, “the Court”). However, the Resolution did not raise the issue of labor conditions in international criminal institutions. One issue I would like to point to is the working conditions of interns in international criminal justice institutions, which generally allow them to work without payment. Indeed, paragraph 19 of the Interim Report states that the experts “wished to have a comprehensive understanding of the challenges facing the Court and the Rome Statute system from all levels: elected officials, management, and staff, including junior staff, from both the P-levels and G-levels; from headquarters and field offices.” Absent are interns and visiting professionals, as well as environmental support staff and the people who work, presumably on contract, in provision of food, etc. – in other words, not all of the people on whom the Court’s functionality relies were included in this consultation. (Please see also Appendix, Consultation in Numbers, pp. 9-12.) However, in the Draft Working Paper of November 2019, “Meeting the challenges of today for a stronger Court tomorrow”, the use of funded internships is suggested (p. 8).

My motivation for writing this article stems from the belief that it is our ethical duty as lawyers to examine not only the law but the institutions to which we have dedicated our professional lives. The goal is to provide supportive and constructive criticism. I work from the premise that if we can do better, we should, and that this is true of institutions as well. All of the comments in this article reflect my views and are not reflective in any way of the institutions for which I have worked in various capacities.

Institutions of international criminal justice, specifically in The Hague, are staffed both by paid and unpaid people, and the unpaid people experience working marred by lack of payment, lack of healthcare, support for moving and transportation costs, and statements that there is no expectation on their part to be hired. Interns contribute essential work in all courts and tribunals, in all organs, including defense. Unpaid internships on defense teams raise equality of arms issues.

Unpaid positions are fundamentally unfair to the people who undertake them, not only in terms of the lack of institutional support that they cannot negotiate away, but also in terms of obstacles to gainful employment within the institutions presented by the terms of the internship positions. Internship schemes in place defeat the purported goal of the United Nations and other international institutions: to recruit and retain a diverse and representative staff. In effect, the internship schemes in place are structured to favor people from wealthy countries and/or backgrounds, which undermines this objective and weakens institutions’ claims to political and legal moral authority and legitimacy.

It is the responsibility of the institutions for which interns/visiting professionals are working to provide a baseline of support for all the individuals contributing to their functioning. This includes, but is not limited to, a livable wage, or stipend, insurance, and assistance with relocation costs. Recognizing that there are inevitable constraints to providing support for interns and visiting professionals, this should be instituted at the policy level in human resources practices and regulations. It should be explicitly mandated that some of the operating budget be reserved for funding these positions; that the amount of work and the duration of placement should not render interns/visiting professionals de facto employees; and, provided that the selection of interns is based on merit, with appropriate emphasis on diversity and gender balance, that it should be possible (and encouraged) for interns and visiting professionals to be retained in an employment capacity after a placement is completed.

There is an argument that unpaid interns should have to finance themselves and that institutions do not accept any responsibility for the well-being of their interns, except if something happens on the premises of an institution or in a situation that imputes responsibility to the institution. There is also an argument that interns are volunteers, and that they understand and assume the responsibilities of this prior to accepting a position at an international institution. However, these arguments don’t hold up. Institutions should accept the normal responsibilities of employers that would normally extend to other employees, without giving credence to arguments within international organizations that staff benefits should be cut. Further, the internships are not true volunteer work; they are 9-5 work placements. A further argument fails: that interns should have to pay for themselves because earlier generations of interns had to do so. Personally, I have liquidated my savings to complete unpaid internships, and I reject this argument on principle, among other reasons.

In the present international climate of lack of respect for international law, the ICC, and human rights, we have a chance to reevaluate our assumptions and to orient ourselves towards implementing positive social change at the micro and macro levels. Let’s include interns and junior colleagues in the discussions about what international justice should look like – and what international judicial institutions should do for us – in the future. We are stakeholders too.

The Landscape of Internship/Visiting Professional Programs in The Hague

Currently, internship programs are in place at the ICC, which also has a visiting professionals program, the International Residual Mechanism for Criminal Tribunals (“IRMCT”), the Special Tribunal for Lebanon (“STL”), and the Kosovo Specialist Court (“KSC”). There is a strong presumption against the possibility of internship/visiting professional positions being paid, and there is no clear expectation of a job being available at the end of placements. Visiting professionals at the ICC are required to have more experience than interns, yet in practice, they are tasked with very similar if not identical tasks. The main difference lies in the relative security visiting professionals may experience, in the sense that they may be able to take leave from paid employment in order to accept a placement as a visiting professional, as they may be taken while an employee of another institution takes a break and has the knowledge that they will return to a paid job, or when they come with external funding. They also have more work experience than interns, which also makes returning to the work force easier for them than it is for interns attempting to break into the labor market, if they are not hired. 

However, while some interns receive funding from external institutes, funding is usually contingent on the intern having studied at the institution in question. This necessarily narrows the nationality and background of candidates who would be eligible to apply for such funding. 

The UN internship rules mandate that interns waive their prospects for employment or recruitment during or immediately after the course of their internship (“the 6-month rule”). The purpose of the rule is to ensure that people who can pay to do an internship are not in a more privileged position than others, but the reality is that they will always be in a better position, because recruiters will be familiar with their work. Prospective interns are not in a position to make an informed decision as to which courts or sections are more likely to lead to gainful employment prospects as such matters are regulated in an ad hoc manner. Additionally, prospective interns have zero negotiating power.

Support and Assistance for Internships

At present, none of the international criminal judicial institutions in The Hague explicitly state that they pay all of their interns, and none state that they pay their interns a living wage and provide benefits. (This is also true of NGOs and non-profits that exist due to The Hague’s status as the seat of international justice.) Opportunities for funding sometimes arise from law schools seeking to subsidize their students’ experiences at international courts. For example, New York University’s Center for Human Rights & Global Justice provides International Law and Human Rights Fellowships. Other funded positions at the internship/visiting professional level may arise in an ad hoc manner. However, the provision of payment from law schools has the effect of undermining the call for the institutions to assume responsibility for their interns and to pay them. Further, as far as I can tell, none of the institutions in place currently provide other types of support for interns or visiting professionals, although the ICC states that it provides some support for eligible applicants.

How Funding Should be Implemented

Regarding the UN’s core values – a key core value is “respect for diversity” – paid internships would ensure that true diversity could be attained. It is important to note that true diversity includes geographic diversity and economic diversity, alongside diversity based on culture, race, ethnicity, religion, sexual orientation, gender, and social and economic status. The fundamental success of the UN as an international organization and as a mechanism to enforce and uphold human rights standards lies in the strength it derives from the diversity of its member states and the people who contribute to its work, including interns.

This point carries over to recruitment for more senior positions, not just at internships. Given that UN interviews are based on competencies (i.e. past experiences that are relevant to the post), candidates who have completed an internship will always have a significant advantage as concerns their future career in the UN/international organizations. Recruiting from a pool of candidates with experience in the UN and other international organizations is of benefit to the organizations, as is recruiting people without international experience. Paid internships are one tool for promoting greater diversity in entry- and mid-level positions, which in turn, are the stepping stones to higher-level positions. Further, for the ICC and international courts, other institutional goals include outreach and capacity building, and paid internships ensure that the institutional values and expertise of these courts can be filtered through the experiences of interns working at these courts, as many of the interns and junior professionals will return home and share their wealth of experience and knowledge with their colleagues.

Generally, internship programs would be improved by greater transparency regarding budget and the (lack of) allocation of funds to junior positions; greater transparency regarding how surplus budgetary resources are allocated and why they may not be used to provide support for interns;

and greater transparency regarding (lack of) retention of interns, not relying on the number of interns participating in the scheme as an obstacle.

For Courts that have a paid internship scheme (such as ICC) – the existence of such a scheme and the criteria that apply should be publicized and the terms and conditions should be clearer – the possible existence of funding should not be ambiguous or only known to a select few and should be made available to all on a fair and transparent basis. Possible solutions could include:

• Setting up a trust fund for internship programs into which individuals, States, and organizations (European Union, African Union) can donate; the staff unions could also promote internal fundraising efforts to raise funds (i.e. maybe the fees that staff pay for using the gym, or fees staff may receive for external jobs, such as teaching at universities, could go to the program);
• Use of unused budget funds: unused budget funds could and should be allocated to internships.

Additionally, UN volunteers is a type of paid internship that is administered by the UN; perhaps this may be an appropriate way of diverting organizational money and other resources to candidates, which may be suitable for applicants with more professional experience.

Regarding the defense, perhaps a way to ensure some money be devoted to interns could be to ask the defense to reserve a percentage of their fees to pay interns. It should be explored as to whether this could be formalized through payment schemes with the Court, or terms of service. If this were done, it would necessitate full transparency at all stages and liaising with and approval from the Court Registries, in order to avoid a potential appearance of paying people “under the table”. However, if making these resources available to all interns is not a possibility, the decision as to who benefits from paid internships should be made by a neutral administrator to ensure fairness and transparency as to the candidates who are selected. 

Finally, institutions should explore the following to assist interns with accommodation and internship expenses:

• Setting up a system by which staff that go away for holidays, missions, etc., and/or have extra rooms that they do not use may be allocated for interns/visiting professionals at below-market rental prices;
• Bike shares/donations, which could also be implemented through the Courts’ purchase of bikes for intern use; and staff could also set up a carpool system for interns to save on transportation costs;
• Even if the Court is completely, genuinely unable to offer paid internships, and can barely keep the lights on, external organizations (such as the European Union, African Union, NGOs) can provide scholarships that are not university-specific, which allow candidates from different countries and universities to apply;
• Lunch and coffee programs that would allow interns to receive fully or largely subsidized access to the canteen and/or coffee points;
• Transportation costs – in addition to facilitating access to bikes such as a bike share scheme and arranging carpooling, institutions could arrange a program with the Dutch transportation authority to allow unpaid workers access to free or reduced-cost tram cards.