Workplace Misconduct at the ICC – A Call to Action for Compassionate Leadership (Part II)

[Danya Chaikel is a Canadian lawyer who specialises in international criminal law, currently consulting with the Women’s Initiatives for Gender Justice (WIGJ) on their Call it what it is campaign, an #ATLASToo admin, and an officer on the IBA’s War Crimes Committee. Thanks to Alix Vuillemin and Valeria Babără who helped with this post. Part I of this post can be found here.]

IER report – a gamechanger?

The IER Report was released in September 2020, with 384 recommendations addressing governance, judiciary, and preliminary examinations, investigations and prosecutions at the ICC. The overall mandate of the Experts who prepared the IER report was to identify ways to strengthen the ICC and the Rome Statute system. In the recent words of Mariana Pena, “workplace misconduct, including bullying and harassment, a ‘culture of fear,’ and the perceived impunity of senior and elected officials are common threads throughout the IER report. Of particular concern are the references to sexual harassment, predatory behavior, and a workplace culture that is ‘adversarial and implicitly discriminatory against women’.” The report offers the ICC leadership many recommendations for structural and cultural changes. The Experts drew these stark conclusions from extensive consultations, including 278 interviews and meetings with 246 current and former officials, staff, and external defence and victims’ representatives. It is important to commend the individuals who candidly spoke with the IER Experts. Coming forward with these experiences can be extremely challenging, but it is necessary in order to expose the extent of problem.

The Experts confirmed that underreporting is indeed a problem at the ICC, and noted a disinclination to file complaints, especially against elected and senior officials (para 285). The Experts describe “the inadequacy of the existing mechanisms in the Court to deal with complaints of bullying and harassment” and they made recommendations on more effective investigation and dispute resolution mechanisms (paras 210, 281-297).

To be clear, this isn’t new information. Allegations of workplace misconduct including bullying and low staff morale at the ICC are not new, and have been right under everyone’s noses, even in the ASP Secretariat (paras 122-138). But the Experts have doubled down, erasing any doubt that the ICC (like most international justice institutions) has a serious workplace misconduct problem.

States and Court officials now have a perfect opportunity to boldly take measures to repair the Court’s toxic workplace climate with the assistance of the new Review Mechanism, which was established by the ASP in December to coordinate an assessment of the recommendations in the IER Report. So far, the issue of workplace misconduct has not been openly prioritised by States during the negotiations nor in the resolution establishing the Review Mechanism, but Silvia Fernandez de Gurmendi, in her new role as ASP President, has indicated that, “follow up of the Independent Expert Review is a top priority. The report by eminent experts provides a formidable tool to accelerate much needed reforms of the ICC system.”

The past year of civil society advocacy together with the IER Report appear to be prompting a cultural shift. Momentum is certainly building, with several positive initiatives at the ICC which I described in my first OJ post. There have been several recent developments as well, including:

• on 23 November 2020, I made remarks on behalf of WIGJ at the ICC NGO roundtables to ICC officials from all organs, and NGOs from the Coalition for the ICC, on workplace misconduct and the critical challenge of chronic underreporting, from the perspective of complainants. This was a closed meeting, but no fewer than three NGOs spoke about this issue, and never before has such an emphasis been placed on workplace wellbeing in this type of an ICC NGO consultations;
• the Court’s Coordination Council created a Focal Point on Gender Equality for the Court in December 2020, and the recruitment for this new position will happen “very soon”;
• for the first time, and at long last, ICC judges participated in a training session on the subject of bullying and harassment in the workplace, and similar trainings are taking place throughout the Court;
• the ASP side-event on addressing sexual harassment in international organisations held on 8 December 2020, and co-hosted by OSJI and WIGJ, Austria, and the Netherlands, was also a first;
• and it was recently announced that key amendments were made to article 5 of the ICC’s Code of Judicial Ethics concerning integrity, including a new explicit prohibition of any form of discrimination, harassment, including sexual harassment, and abuse of authority.

While strides are slowly being made, when we consider the extent of the problem, we are only seeing minor steps from the Court and some States. For instance, Court officials have been working on a new policy to replace the 15-year-old harassment ‘Sexual and other forms of harassment’ policy for years, and it unclear why this process is taking so long. The chronic underreporting alone, as described above, demands significantly more attention. Workplace Culture Change: It Starts at the Top

A first step for the leadership of international justice organisations to proactively address widespread workplace misconduct, including at the ICC, is to thoroughly assess the deep-rooted structural reasons why abuse is chronically underreported. Once barriers to reporting are tabulated and analysed within a given organisation using a victim-centred approach, the next step is to address these roadblocks in order to facilitate reporting of misconduct, one of the multiple actions required to begin to address widespread misconduct and hold offenders accountable.

The IER Report is full of useful findings and practical recommendations, but the following is perhaps the most important and poignant points that ICC officials and States Parties should consider when they develop new policies and strategies:

Predatory behaviour in the workplace is a complex problem and needs a multi-pronged response to address the cultural dimension of the issue, and the first step to any serious change in the culture of an organisation is leadership. It is not good enough for the CEO of an organisation to announce that certain behaviour is prohibited: they must demonstrate that such behaviour will not be tolerated (para 211).

In an initial meeting on the IER Report with States Parties and ICC officials on 7 October 2020, one of the Experts, Mike Smith, aptly responded to questions relating to rebuilding and reshaping the Court’s working environment. He said that while changing a negative workplace culture is difficult, it “can be done if senior management commit to it.” He said training should be mandatory for all managers, and what is needed is the “creation of mechanisms through which staff who are victimized can safely report their concerns and receive a speedy hearing, which is covered through the recommended internal justice system.” He also recommended a “properly operating performance assessment system, including 360-degree assessment”.

Smith also gave an insightful response to a question about whether processes at other international organisations could be replicated at the ICC. He stated that the

UN and other multilateral agencies could offer models but the reality is that issues of poor work culture and harassment are found in many bureaucracies, national and international, as well as in the private sector. So rather than trying to copy another organization we believe the ICC could become a leader in this area through the resolute action and follow-up of its leadership.

At the recent OSJI/WIGJ ASP side-event, Macarena Saez, from the American University Washington College of Law, presented findings from a new report on gender and sexual-based violence within international organisations, including best practices for addressing misconduct such as harassment. She emphasised that there is no ideal model, namely because policies and training need to be tailored specifically to each institution after a detailed institutional analysis is undertaken, including interviews, surveys, a risk factor assessment, etc. to see which factors promote misconduct and which prevent reporting.

I’ve been asked repeatedly during the past year: “Why is there so much sexual harassment at the ICC and among lawyers?” While misconduct is not unique to the ICC or lawyers, there is still is something to be said about the legal profession. During a recent International Bar Association panel held in November 2020 titled Bullying and sexual harassment in the legal profession – can we change the culture?, Clare Murray, who specialises in sexual harassment matters in law firms, made some very interesting observations about the culture of the legal profession. She described it as feudal (hierarchal and secretive, with highly paid powerful senior lawyers believing they have impunity) and in need of systemic changes. There is also an absence of a human resources presence over partners and senior staff. She described how it is alcohol fuelled, with many harassment claims stemming from events where lawyers are drinking heavily, like Christmas parties. These aspects of the culture of the legal profession should also be considered as ICC leaders are remoulding the ICC’s workplace environment.

In order for there to be real progress, leaders must first agree that cultural change is needed. A UN Women discussion paper centres on this approach, which should be mandatory reading for the ICC leadership. In What will it take? Promoting cultural change to end sexual harassment, guidance is provided while ensuring the needs of victim–survivors are at the heart of all efforts. In a nutshell, the paper claims that certain “cultural patterns and norms create and reproduce how we think about sexual harassment, what it is to be masculine or feminine, what it is worth fighting over or what should simply be accepted as normal or inevitable. Tolerance, silence, acquiescence and victim blaming therefore take hold and become the norm” (page 17).

Recent Statements by the ICC Principals

ICC President Chile Eboe-Osuji recently raised professional misconduct issued in his ASP statement. He stated that reports of bullying and harassment across the Court are “troubling”, and that the Court has “an obligation to continue to strive to ensure an atmosphere in which everyone at the Court feels safe to work there.” However, I’m not convinced by the President’s view that bullying and harassment are “not the culture at the ICC” because in his words, a “culture suggests general acceptance or licence.” He stated that bullying and harassment are “aberrant behaviours”, but that the Court does “not allow them to become the norm—or the workplace ‘culture’ at the ICC.” On the contrary, this is precisely what the Experts have stated, when they describe a Court suffering from bullying, discrimination, harassment and a “culture of fear” – and that when it comes to “predatory behaviour”, “often the Experts heard that the Principals were reluctant to involve themselves in such staffing matters” (see paras 62-72, 138, 209-211 of the IER Report).

This also rings true with my experience, and what I’ve heard from many professionals at the Court and other international institutions. Workplace culture is what is really happening between people, rather than what the ICC leadership aspires for – that it has for instance a policy of “zero tolerance for bullying and harassment”. If a lawyer at the Court asks about reporting sexual harassment by a colleague, but her senior colleague warns her against it because the offender is so well-liked, this is precisely a culture of acceptance or licence. In any event, there are also strong arguments that the ‘zero-tolerance’ or old-school approach can be overly legalistic with little room for compassion, versus a more progressive new-school approach which involves “more options – generally informal, formal, anonymous, and confidential – for filing and resolving” misconduct claims.

Registrar Peter Lewis also took ownership of these issues in his recent statement to the ASP when he stated that the IER Report makes clear that “the practices, policies, mechanisms and culture we now have in place are not producing a safe and secure workplace” and that the Court will issue “new stronger policies in harassment and the disciplinary process.”

Prosecutor Fatou Bensouda also addressed these issues in her ASP address, but without as much candour. She did not mention any problems within the OTP, and rather framed the issue in a positive light, noting that her office made “significant efforts to build a positive office culture, including by adopting a Code of Conduct for the Office with mandatory trainings.” She also referred to the IER Report, but did not acknowledge any of the critical findings, such as how: “The Experts heard many accounts of bullying behaviour amounting to harassment in all Organs of the Court, though particularly in the OTP” (paras 138, 209).

My quote in The Times in October 2020 was off the cuff: “you cannot say that you support victims of atrocities, prosecute or adjudicate allegations of war crimes, and then turn around and sexually harass the intern.” I didn’t realise these words would be prophetic! Shortly after the article was published, the ICC’s Independent Oversight Mechanism released its Annual Report recounting how an intern’s allegations of sexual harassment against a senior staff member in the Office of the Prosecutor were partially substantiated, and that this conduct had “interfered with the intern’s work and reasonably created an intimidating, degrading, hostile, humiliating, or offensive work environment.” It is good to see the IOM being this transparent in their reporting. While the Prosecutor’s prioritisation of addressing violence against women is commendable, I can’t recall a time that she has publicly addressed the mistreatment of staff, including sexual harassment, within her own ranks. While only anecdotal, several ICC staff members have told me that the IER report is an accurate reflection of their experiences, but that so far managers have largely only paid lip service to these issues.

A Call to Action

While applicable to all institutions, the ICC Prosecutor election has been somewhat of a catalyst, with civil society leading the way calling for States Parties to ensure that candidates have a high moral character. And then the IER Report hammered home the need to address workplace misconduct within the Court. With the next ICC Prosecutor, the ASP President, and six new judges about to start their terms in office, this is a perfect moment to raise these issues and call for a new era of compassionate leadership, that tackles these issues head-on.