International Criminal Justice Institutions: Brief Analysis of the IER Final Report

International Criminal Justice Institutions: Brief Analysis of the IER Final Report

On September 30th, the Independent Expert Review of the International Criminal Court and the Rome Statute System (“Independent Expert Review”, “IER”) issued its final report (“report”, “final report”) after the Assembly of States Parties (“ASP”) issued a resolution in December 2019 commissioning a review. In an earlier post, I argued that unpaid internships in international criminal institutions (and in international institutions more generally) are fundamentally unfair and should be paid. In analyzing the Independent Expert Review’s final report, I seek to answer the following question: has the report, and the ASP and the ICC, more generally, delivered for interns? Additionally, there are also several other interesting and incredibly important aspects that are worth noting, such as the report’s analysis of bullying and harassment and the necessity of including and advancing women in the workplace.

Preliminary Comment

While this post does not seek to analyze bullying and harassment at the ICC, it is laudable that the report devotes a section to those general topics II (C). It is also laudable that the report makes the following statement:

Female interns seemed to be particularly vulnerable to such approaches, underlining the extent to which this phenomenon, not just at the Court, but in business, government, law, academia and many other professional environments around the world, frequently has more to do with power relationships than with mutual attraction.

Sexual harassment is one type of bullying and harassment that exists in “business, government, law, academia and many other professional environments around the world.” While reading these words, I could not help but think back to how lonely and isolated working or aspiring to work in the field of international criminal law, and international law/academia more generally, can be. It is incredibly important for resources in support of women, and in support of everyone in such scenarios, to be available, and organizations must publicize the availability of these resources to every person who is in any way affiliated with any organization. An example of such a resource is the existence of neutral, confidential internal complaints processes within an institution. It is incumbent upon every institution to ensure that individuals who avail themselves of such a mechanism will not – in any way – have their rights or applications for employment be prejudiced. In other words, it must be safe for people to avail themselves of such a mechanism.

Additionally, it is extremely heartening to see that the Experts involved in the review make note of “the inadequacy of the existing mechanisms in the Court to deal with complaints of bullying and harassment” (para. 210). The report states: “The Experts wish to note that the environment and practices that have allowed this behaviour to occur, often with impunity, also needs to change” (para. 210). This is an issue that should be addressed in every institution. Impunity should never be able to remain part of an organization’s culture, and such behavior should not be allowed to migrate to other institutions. It is of the utmost importance and is absolutely essential to emphasize that this applies to interns, visiting professionals, temporary staff, casual/catering/environmental service staff, support staff, etc. – in other words, everyone who works at the Court must be protected by this statement as a matter of principle. While I do not know if the support staff/catering staff are provided with access to formal complaint procedures within the Court, especially if they are hired by private companies as contractors, the ICC and other organizations should ensure as a matter of contract that all private staff in the canteen and at coffee points, etc., have access to a complaint mechanism that is completely confidential and that access will be provided independent of their private employer.

Progress for Funding Interns and Visiting Professionals?

Regarding payment of interns, I happily read the following recommendation: “R96. The fund for paid internships and visiting scholar positions should be enlarged, to enable candidates from developing nations to take up such positions in the Court” (p. 74). However, does this go far enough? The answer is a definitive no. The ICC and the other institutions in The Hague, New York, Geneva, Phnom Penh, and elsewhere operate in part on the basis of unpaid and potentially underpaid labor. I raise the issue of underpaid labor, as it is my personal view that contract positions that offer substantially less money than permanent or fully integrated staff members are underpaid, especially if the position comes without benefits.

Additionally, the report states:

The concern that the use of STAs and the intern program as a conduit for recruitment to the Court cuts out potential applicants from certain regions would best be addressed by adopting measures to include such candidates in those programs. The truth is that once individuals are recruited to the Court, it is extremely difficult to dismiss them even if they are incompetent. The Experts recognise that the STA system and the intern program do provide a way to assess the competence of potential recruits, and avoid disastrous recruitment decisions. Further, care should be paid to ensuring that recruitment processes are open and competitive for both former interns and other candidates (para. 224).

The IER correctly observes that the use of the STA and intern programs in place of recruitment exclude from participation many people from certain regions. It does not mention underprivileged applicants or those who do not wish to go into debt to subsidize international organizations by working for free. In this respect, the IER would have improved its study if it had included these people and had recommended a base level of payment for all interns and visiting professionals. Interns and visiting professionals should not serve as a replacement for paid staff. The report does mention the issue of competence, but this is unrelated to the core issue of whether or not interns and visiting professionals are being used to provide free labor to ICC and what the IER should recommend regarding this practice. It is possible that the IER chose to avoid this topic. However, the IER’s mention of competence in the same paragraph as the use of interns and STAs as a conduit for recruitment suggests that their utility is in providing free labor, which is of course stating the obvious. However, this does not absolve the Court of its obligation to pay interns while they are being assessed, which is an arduous process that takes time, patience, diligence, and skill, and cannot be completed in a matter of days, or even months, unless there is a material omission or misrepresentation in an egregious case.

The Inclusion of Women

The report notably observes that “there is a need for more women in managerial positions, particularly in senior positions” (para. 212). It is wonderful to see that the issue of gender and greater inclusion of women made it into the IER report, as it was wonderful to see the gains women made in 2018 after five women were elected to the judiciary. Last month, in a webinar organized by the Georgetown Institute for Women, Peace and Security, former Secretary of State Madeleine Albright recalled the fight for inclusion of female judges on the bench of the International Criminal Tribunal for the Former Yugoslavia in the early 1990s. We should not take our role in international criminal justice institutions for granted, as women are constantly under attack, all over the world, and pressure to increase women’s representation on the bench and in all areas of international justice should remain unrelenting.

The report recommends that “The Court should work assiduously, through its recruitment, promotion and training programs, to bring more women into senior managerial positions, in part to bring about a change in the prevailing practices that have tolerated unacceptably predatory behaviour in the past.” (p. 69) While increasing the number of women in senior positions may produce this result, the simple fact of the matter is that women should be present in senior positions because they will bring a wealth of knowledge, experience, perspective, and professional competence to their professional posts. Women have historically been marginalized from all aspects of public life, to put it mildly, and the balance is far from being corrected.

Conclusion

The report is a step in the right direction. The IER produced an analysis that will surely aid the ICC and other international criminal institutions – and international judicial institutions more generally – in improving their functionality and organizational behavior. However, inclusion of all vulnerable groups and the guarantees of their fundamental rights being respected is of the utmost importance and should be adhered to with the highest scruples.

There is much work to be done.

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