Remuneration Debacle at the International Criminal Court: Should ICC Judges Get a Pay Rise? Part I

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg and a member of the PhD Academy of the Cross Cultural Human Rights Centre, VU Amsterdam.] 

The Judges’ claim

On 07 December 2020, the Administrative Tribunal of the International Labour Organisation (ILOAT) dismissed a (consolidated) complaint that had been filed by some full-time judges at the International Criminal Court. The judges had sued the Court seeking a review and update of their terms of service to include an adjustment of their salary by 26.7% and health insurance coverage. The background to the ILOAT claim is that in February 2017, 12 of the Court’s 18 judges had presented a Memorandum to the ICC Presidency demanding, among others, a pay rise. The Memorandum (as amended) provided a deadline of 31 January 2018 within which period the judges hoped for a diplomatic resolution. However, on 14 December 2017, the Assembly of State Parties (ASP) resolved to ‘establish a working group … to discuss a mechanism to consider a revision of the judges’ remuneration … and to report thereon to the Assembly at its seventeenth session’ (N para 1) which was scheduled to take place in December 2018. Feeling dissatisfied, the judges moved ILOAT on 30 April 2018.

The Tribunal did not engage with the merits of the complaint, instead dismissing it for having been filed out of time. There is perhaps a lot to be said concerning ILOAT’s conclusion and reasoning, and the fact that ILOAT took over 2½ years to arrive at the conclusion that the claim was filed out of time. However, these are not the subject of this post. The soundness or otherwise of ILOAT’s finding aside, the failure to provide a decisive ‘judicial’ resolution to this matter returns the ball to the ASP’s court and shines new light on the ASP’s ongoing process aimed at reviewing judges’ remuneration. It is to this process that the post now turns.

The ASP’s remuneration ‘review’ process

Before and during the ILOAT claim, a parallel albeit slow process was unfolding within the Rome Statute system. Article 49 of the Rome Statue gives the ASP authority to determine the salaries and allowances of senior officials at the Court, that is, Judges, Prosecutor, Deputy Prosecutors, Registrar and Deputy Registrar. The remuneration of ICC judges has not been reviewed since it was set at €180,000 p.a. net by the ASP in 2004 through Resolution ICC-ASP/3/Res.3. Judges do not pay tax on this amount. After the judges’ demands, and following observations of the ASP’s Committee on Budget and Finance, the ASP resolved at its 16^th session in December 2017 to ‘establish a working group … to discuss a mechanism to consider a revision of the judges’ remuneration … and to report thereon to the Assembly at its seventeenth session’ (Resolution ICC-ASP/16/Res.1 N para 1). The process has since then moved at the slow pace characteristic of states-led processes. Some incremental progress has, however, been noted at every ASP session since the 2017 resolution.

Pursuant to ASP  Resolution ICC-ASP/16/Res.1, the Bureau established the Working Group on the Revision of the Judges’ Remuneration on 4 March 2018. In its first report presented to the ASP at its 17^th session in December 2018, the Working Group proposed that an independent study should be undertaken and a mechanism to review judges’ remuneration established (Annex paras 3 & 6). These proposals were adopted by the ASP in December 2018, and the ASP then directed the Working Group to draft Terms of Reference (ToR) for the mechanism, to be adopted at the 18^th session in December 2019. Consequently, the Working Group appointed two organisations based in the U.K. and France to undertake a study on judges’ remuneration and propose a remuneration structure (para 5). The Working Group also prepared a draft ToR for Review of Judges’ Remuneration for discussion by the ASP.

At the 18^th session in December 2019, the ASP adopted Resolution ICC-ASP/18/Res.2 and the ToR for the Review of the Judges’ Remuneration as drawn up by the Working Group, annexed to the Resolution. The Resolution effectively amended judges’ conditions of service and compensation by adopting the new procedure as provided in the ToR. The ASP tasked the mechanism for the review of remuneration (termed the Judicial Remuneration Panel) with ‘facilitat[ing] the consideration by the Assembly of possible adjustments to the remuneration of the judges of the International Criminal Court, in accordance with article 49 of the Rome Statute’ (ToR para 1).

The 2020 report of the Judicial Remuneration Panel

The Judicial Remuneration Panel has produced its first report (Panel Report) scheduled to be considered by the ASP at its 19^th session, currently underway. The report’s observations and recommendations will fundamentally impact ICC judges’ remuneration structure if adopted. The Panel’s composition and mandate are of interest, particularly because of how they impact the Panel’s work. The ToR provides that the panel shall be composed of ‘the Vice-President and Coordinator of The Hague Working Group, the facilitator on the budget, and one outgoing or former member of the Committee on Budget and Finance, to be appointed by the Bureau’ (para 1). Concerning criteria guiding the Panel’s work, the ToR provides that the Panel’s recommendations are to be guided by ‘(a) The ability of the Court to attract highly qualified candidates to the position as judges; (b) The cost of living in The Netherlands; and (c) The financial situation of the Court’ (para 5). This part of the post considers the 2020 Panel’s composition and the primary basis upon which its conclusions and recommendations are made.

Are diplomats qualified to gauge what international judges should earn?

In keeping with the ToR, the 2020 Panel is composed entirely of diplomats: Ambassador Jens-Otto Horslund (Denmark) as chair, Ambassador Andrés Terán Parral (Ecuador) and Mr. Peter Lovell (United Kingdom) (Panel Report para 3). Of course, since the Court is entirely funded by State Parties, it is expected that states would want to maintain political control of a process that has significant implications for how their money is utilised. However, since those who will be directly affected by the panel’s recommendations are ICC judges, the Panel would have benefitted from the perspective of a member with prior international judicial experience. As currently designed under the ToR, the Panel’s composition leaves no room for inclusion of a member with such judicial experience (ToR para 1).

It is unlikely that a panel composed entirely of diplomats without prior international judicial experience would be able to fully appreciate what amounts to fair remuneration packages and conditions of service for judges of an international court. Of course, it may be argued that the Panel could very well seek views from ICC judges on the issue, as the 2020 Panel in fact did by inviting written submissions from ICC judges and inviting them to attend some of its meetings (Panel Report para 6). This, however, may provide little comfort to the judges, especially when considered in light of some rather odd observations made by the Panel, as further highlighted below.

Is attractive remuneration really the primary motivating factor for candidates to the ICC bench?

While the Panel is of course restricted by the ToR in what considerations to observe when making its recommendations, it places undue emphasis on what it considers would be a package sufficient to ‘attract highly qualified candidates to the position as judges of the Court’ and concludes that the current remuneration has so far been adequate for this purpose (Panel Report paras 8-11). In justifying this conclusion, the Panel oddly implies that the fact that in all past ICC judicial elections there had been more candidates than available positions means that the Court’s remuneration package was sufficient to attract highly qualified candidates (Panel Report para 8). This erroneously suggests that remuneration is the primary motivating factor for candidates seeking election to the ICC bench.

To be clear, my concern is not whether or not the current package is sufficient to attract highly qualified candidates. Remuneration is not and should not to be the primary motivating factor for candidates. As such, the Panel should not have relied on attractiveness of the package as the primary consideration in evaluating and reviewing the remuneration of ICC judges. By placing undue emphasis on what it considers to be an attractive package, the Panel misconceives what is or should be the primary motivating factor for candidates for the ICC bench and also downplays the fact that fair remuneration is a human right

First, a judicial position at the ICC, the world’s first and only permanent international criminal court, is in and of itself an attractive career move regardless of the remuneration package. It is most likely the case that candidates are attracted to the position for prestige, honour, a commitment to public service or for multiple other reasons unrelated to remuneration. In any case, it would not be too far-fetched to imagine that for some candidates who have nonetheless offered themselves up for election over the years, especially those from private practice or the diplomatic corps, the Court’s remuneration package is probably a pay cut compared to their previous earnings. That more candidates than available seats have been nominated for elections does not say much, if at all, about the attractiveness or otherwise of the ICC’s current remuneration package. If anything, it suggests that the many highly qualified candidates who have offered themselves up for election over the years do not consider remuneration as a primary motivating factor.

Secondly, evaluation of judges’ remuneration should proceed primarily from the basis that fair remuneration is, first and foremost, a basic human right. Of course, this is not to say that €180,000 p.a is unfair, especially as a net entitlement, neither is it to say that ICC judges have a right to earn more than €180,000 p.a untaxed. The point being made here is that review of judges’ remuneration should not proceed from an ambiguous, unsustainable and perhaps even irrelevant ‘attractiveness’ basis, but rather from the primary acknowledgment that fair remuneration is a human right. As Parisa Zangeneh has argued regarding remuneration of ICC staff, these persons ‘deserve to have their rights and job security respected as much as anyone else, in any other field, at all times’. I consider this argument to apply equally to the Court’s elected officials.

Are living conditions in The Hague static?

By concluding that ‘the current remuneration level for the judges, a fixed amount of €180,000, [is] reasonable’ (Panel Report para 11), the Panel implies rather oddly that the cost of living in The Hague has not changed since 2004 in such a manner as to warrant a review of the €180,000 set almost two decades ago. The Panel only considers that the fact that there has been no adjustment since 2004 may have the effect of ‘deter[ring] future judicial candidates from applying’, but not necessarily that it has had any effect in the past or in the present. By all accounts, this is a very odd conclusion to make. However generous €180,000 is, and even if it is sufficient to sustain life in The Hague, it most certainly does not mean in 2020 what it did in 2004.

To its credit, however, the Panel noted that since there is currently no formal mechanism for adjusting judicial remuneration to account for changes in the cost of living in The Netherlands and that, ‘if this situation continued, it could potentially deter future judicial candidates from applying’ (Panel Report para 11). Again, here the Panel appears to assume, as mentioned above, that candidates are motivated primarily by remuneration or that attractive remuneration is only necessary to motivate applications. The odd justification notwithstanding, however, the Panel at least acknowledges that a mechanism for adjustment needs to be put in place.

The Panel notes further that the current pension scheme is ‘no longer fit for purpose as concerns its financial sustainability, and that it provided poor value for money’ (Panel Report para 12), and also observes that ICC judges do not currently benefit from the Court’s health insurance scheme. This was a major demand in the judges’ 2017 Memorandum and in the ILOAT claim. It is unfortunate that the current package does not provide health insurance cover to judges, a rather basic term of service (Resolution ICC-ASP/3/Res.3, Annex, section X). This is particularly worrying when one considers that most ICC judges have to relocate across continents to live as migrants in The Hague, albeit well-paid ones.

…….

Part II will discuss the Panel’s attempt at a comparative study and the Panel’s recommendations to the ASP.