19 Dec Symposium on Classism and the International Legal Profession: Structural Classism in the International Criminal Law Profession – Global North-South Boundaries and Limitations
[Dr. Tonny Raymond Kirabira is a Ugandan lawyer and lecturer in international relations at University of Portsmouth, United Kingdom. Ruwadzano Patience Makumbe is a Zimbabwean lawyer and PhD researcher at the Human Rights Centre, Ghent University, Belgium.]
On 1 July 2022, the International Criminal Court (ICC) celebrated its 20th anniversary, giving the institution and its partners an opportunity to take stock of the significant contributions that the institution has made in the fight against impunity for genocide, crimes against humanity, war crimes, and the crime of aggression. Partners, including International Criminal Law (ICL) professionals, gave commentary on the various successes of the Court and the challenges that the Court has to address. Voices from the Global South, though being one of the main users of the Court, were not as amplified as one would expect. Generally speaking, in the past decade, the relationship between Africa and the ICC has been fragile, with claims of the Court being biased against African states.
However, this is just one of the possible explainers of the diminished voices from the Global South on this significant occasion. In this post, we highlight the need to transcend these generalised debates by drawing attention to structural classism in the ICL profession. This is reflected by the dominance of lawyers from the powerful countries in the Global North. Succinctly, classism, we argue, is exemplified in a racialised form, where African lawyers have relatively limited opportunities to engage with the ICC, either as staff or experts. We proffer our arguments from a position of careful understanding of our privilege as professionals who have received their legal training from both the Global South and the Global North.
Structural Classism and its Limitations on Diversity in Practice at the ICC
Our primary argument is that prejudice and discrimination inhibited through the ICL system’s failure to intentionally remove hindrances that inhibit less-advantaged African lawyers from accessing opportunities in institutions such as the ICC is driven by classism. During the term of Fatou Bensouda as its Chief Prosecutor, the ICC sought to re-image its work, as exemplified in her conciliatory approaches towards the African Union and engagements with leaders in situations like Sudan. The fact that Bensouda is an African lawyer would perhaps point to a re-imaging of the Court, away from a racialised practice that favours people from Western Europe. However, structural classism, which presents in the form of a lack of pathways and fair opportunities for ICL professionals from the Global South, persists. The various internal and structural barriers that inhibit this can well be addressed with a shift in how resources are allocated and recruitment methods. The reality is that there are many more early-career legal professionals from the Global South that would benefit from internship opportunities and other entry points into ICL.
Structural classist approaches, such as leaving it to recruitment procedures, enable continued exclusion because lawyers from the global South require support that goes beyond knowledge of the recruitment platform. The magic question here is whether the ICC’s evolving practices, akin to re-branding, provide a viable opportunity for Africans to engage in its work. More specifically, do Global South lawyers have equal opportunities, like their colleagues from the Global North, to work with the ICC, either as staff or experts?
Many of the discussions on equal geographical representation in the staff sections and appointments at the ICC tend to rotate on the top offices, for instance, the Prosecutor, judges and the Registrar. The procedures for these selections are clear on account of the criteria like equitable geographical representation, set forth in Articles 44(2) and 36(8) of the Rome Statute. More so, even where top position appointments include professionals from the Global South, that alone is insufficient to ensure that the experiences and expertise of Global South-trained professionals are incorporated into the practices and cultures of the institution. There are apparent benefits to this, including diversity of expertise and holistic understanding of different regions and country situations. Nonetheless, there are still strong voices calling for African leadership for the ICC’s Registry, the administrative component of the Court.
These concerns from the Global South are not without merit, considering that the majority of situations at the ICC emanate from the African continent. As they rightly say, regional diversity in the Court’s top leadership and management would further help in the re-branding of the ICC. Whilst we do not intend to re-echo the views of these proponents, we agree that the administration of the ICC has a huge reflection on its legitimacy in the eyes of the people it serves. However, in all these discussions regarding the selection of the Registrar, judges and Chief Prosecutor, the wheel rotates around the power relations within the states. We also should not lose sight of how limiting representation to the top positions perpetuates the silencing of early career professionals. Early career professionals from the Global South also require the opportunity to demonstrate their expertise at the Court. They bring to the Court fresh perspectives that, in a progressive manner, challenge and question the embedded shortfalls of the Court. Such opportunities also foster mentorship and training of early career professionals from the Global South. If taken seriously, this will breed an institution that is based on diversity and inclusivity, continuing to churn out bright ICL professionals.
Our arguments do not in any way suggest a compromise regarding the quality of legal staff at the ICC. Rather, an opportunity for early-career legal professionals from Africa to receive sufficient support to overcome the current prejudices in the system, which come about as a result of structural classism. Concerted efforts on the part of ICL institutions such as the ICC are required, and this can be done by intentionally including professionals from the Global South. Our views are also backed by the 2020 Independent Expert Review (IER) of the ICC and the Rome Statute System. The Final IER Report recommends cultural diversity and geographical representation in the Chambers. As such, there needs to be meaningful engagement and opportunities for African lawyers at the lower levels of the Court’s work, premised on the fact that the majority of cases and situations presently before the ICC emanate from African countries.
The IER report also highlights a practice of “continued engagement of legal interns immediately upon the end of their internships.” In essence, the students from Western Europe who have the opportunities for internships in The Hague would have a higher chance of getting a job at the Court, as compared to those in African institutions. Another interesting recommendation relates to the competencies of legal officers. As also pointed out in the IER report, they need more training in the socio-political and contextual knowledge of the situation countries. As such, it is important that the ICC recruits more legal professionals from the situation countries and provide them with more professional development opportunities in order to measure up with the complex ICL regime. This gap is also indicative of the disconnect between the ICC and the local ICL professionals engaged in situation countries. These professionals can, in some instances, provide the much-needed expertise by the Court.
What should we make of this focus placed on the position of African states as institutions and the visibility of the victims? Does it have an impact on the recruitment of mid and lower-level staff at the ICC? Not forgetting the Court’s ‘big friends’ like international NGOs and powerful states in the Global North. Whilst the states are influential in the selection of these top ICC staff. The same can not necessarily be said about African lawyers that dream of a career in ICL with the world’s biggest international criminal tribunal.
Reflecting on our own insights as lawyers from Africa, we argue that on the continent, ICL is limited in terms of its ability to attract a career. Just like human rights, its viability as a practice area is diminished by both political and demand factors. Whilst there have been internationalised tribunals in countries like Uganda, Sierra Leone, and The Gambia, they are not on the same wavelength as the ICC in terms of scope of work, remuneration and training opportunities. Taking the example of the ongoing domestic prosecution of international crimes in Uganda, the lawyers involved in the Thomas Kwoyelo case largely depend on financial and technical support from international Non-governmental Organisations(NGOs).
Without this support, it is highly likely that ICL is the last option for lawyers, even those with expertise and the ambition to pursue ICL. As such, ICL practice is largely a pro-bono service in Uganda, a country that has offered great support to the ICC since its inception, including the first-ever state referral. As we propose diminishing classist prejudices based on the positioning of African lawyers, increased engagement between the ICC and ICL professionals in Uganda would be a mutually beneficial arrangement. A practical way to do this would be to create knowledge exchange programs where local ICL lawyers provide their expertise to the Court. With the numerous activities of the ICC in Africa, it is only natural that many law students would be inclined to practice ICL, as they would be positioned to work on a host of cases whose history they might be familiar with.
In a way, we hope our thoughts can help ‘un-silence’ the roles and impact of Africans on ICL and create more spaces for African lawyers to work with the Court. ICC Prosecutor Karim Khan’s novel gesture of appointing seventeen Special Advisers is one way of trying to close the Global South-North imbalances at the Court. More practical pathways to facilitate the recruitment of Global South ICL professionals still need to be designed. This requires the allocation of financial and technical resources sufficient to sustain such efforts. But like we have said, these pathways should now also focus more on engagement with legal professionals at the lowest and mid-levels of the Court. These are the ‘foot soldiers’ of ICL.
The realisation that the Court needs to improve on cultural diversity and geographical representation in the Chambers tells the story that the Court is incomplete. Incomplete in its structure, organisation, and operation, which may be argued to also reflect in its relationship with Africa. As a structural mechanism, we need to start thinking deeply about the professionals employed at the mid and lowest levels, in this case, lawyers and other legal experts. Maintaining the status quo where African lawyers have limited opportunities to engage with the ICC enhances the racialised image of ICL in general.
Whilst statistics of geographical representation of professional staff suggest that nationals from the African Group have a fair share of the jobs, there is little evidence regarding the number of interns, Visiting Professionals, and consultants. The fact that mentorship and training opportunities are attached to these positions means that only the Global North professionals and the few Global South professionals selected for these positions will be the preferred candidates in similar or more senior positions. These positions serve as important avenues for lawyers to break into ICL. Not forgetting that lawyers require specific competence in international or criminal law and procedure before they are allowed to join the List of Counsel or Assistants to Counsel at the ICC.
We are cognisant of the measures taken to improve geographical representation at the ICC, including initiatives like the Junior Professional Officer Programme. Such concrete pathways are the responses required to address the consequences of structural classism embedded in the ICL profession. Despite being a current reality, classism in the ICL profession should not be deemed as a permanent feature. The institution has the opportunity to intentionally shift this reality by absorbing the possibilities of growth and improved effectiveness for the Court. The system benefits from broadening its scope of engagement with early-career ICL professionals from the Global South. We hope that as African early career ICL and IHRL lawyers ourselves, we will witness progressive approaches by the Court and see more diversity in the Court’s image and work outputs.