21 Nov The ICC Independent Expert Review – A Response to Prof. Guilfoyle’s Post on Questions of Trust and Tenure
The Independent Expert Review and themes of trust and tenure
In Friday’s EJIL:Talk post on the Independent Expert Review (IER, the Report), Professor Guilfoyle raises a number of important issues about the health of the International Criminal Court (ICC, the Court). He identifies two crucial themes that run through the review: trust and tenure. This post seeks to analyze briefly some of the points made by Professor Guilfoyle in this respect, particularly with regards to staffing, and what is described as the ‘culture of distrust’. Please note that while I served as a legal intern in Chambers at the ICC in 2017, the views expressed are strictly my own.
To start off, I would like to make some points regarding staff rights and job security. International civil servants, like any other civil servants or members of academia, deserve to have their rights and job security respected as much as anyone else, in any other field, at all times. They also deserve to have opportunities for career advancement and professional development – and to be offered jobs and to be paid at the appropriate grade commensurate with their education, professional qualifications, and experience. These general principles will tie into more specific points regarding Professor Guilfoyle’s analysis of the Court and the IER.
Professor Guilfoyle cites the following passage as highlighting part of the problem:
“‘It is clear … that the Court, and senior management specifically, need to make efforts to rebuild and strengthen internal trust and reshape the working culture at the Court” (para 70).’
Farther down in the post, he turns to para. 248’s suggestion of introducing staff term limits:
“‘a more far-reaching and effective way to address the challenge, though admittedly with more administrative difficulty and likely strong opposition in certain quarters, would be to introduce a policy of tenure for all staff above a certain grade [under which posts could be held for a non-renewable term of between five and nine years][…]’”.
The issue of imposing term limits for staff is very delicate and is also a political tinderbox. I do not seek to analyze these attributes and the inevitable political and legal consequences of implementing this proposal. However, I do wish to raise an issue that is not analyzed in the post: fairness to staff at all levels of the organization. I also would like to point to two issues that contribute to the environment and atmosphere that are described in the IER and referenced in Professor Guilfoyle’s posts: scarcity of job resources (for example, paras. 72, 79-80) and what may be poor coordination between international criminal institutions upon closure in allocating opportunities for staff. These are issues that should be considered very carefully by reviews such the IER as well as international institutions such as the ICC.
The theme of tenure
As Professor Guilfoyle notes, the IER recommends that a policy of tenure be introduced for senior staff (IER, para. 248, also paras. 248-253, etc.). However, alarm bells start ringing upon considering whether this suggestion adequately reflects fairness to existing, rising, and future staff members. The IER cites the Organisation for the Prohibition of Chemical Weapons’ (OPCW) 7-year term of service, as well as policies of the Organisation for Security and Cooperation in Europe (OSCE) and the International Atomic Energy Agency (para. 249). It does not consider the repercussions of this term limit for staff and the broader consequences when placed in the context of international institutions and opportunities for former staff from other tribunals, specifically in The Hague. While imposing term limits may be appropriate in some instances, for example, on judicial terms of service, it is not an appropriate consideration as an institutional policy regarding junior and mid-level staff, or even to a certain extent senior staff. The real problem in this regard is institutional failure to provide more paid positions for staff at all levels, including junior levels, and to provide opportunities for career growth and upward trajectory as staff gain more experience.
First, let us recall a phenomenon that has been occurring over the past decade that has set the scene for the situation in which the ICC currently finds itself: the closure of the ad hoc tribunals (ICTY and ICTR) and the Special Court for Sierra Leone (SCSL). This will allow us to identify part of the root cause of the staffing issues that may have led to the current climate that has really been an issue for years now. It will also help to identify what measures could have been taken to avoid this issue and how to repair it.
Between 2010 and 2020, or thereabouts, the ICTY and the ICTR were under continuous pressure to downsize and to wrap up their business, despite having on-going trials and suspects at large. The ICTY’s closing ceremony was finally held on 21 December 2017 in The Hague. As part of this process, a “Mechanism” was created to assume the ICTY and ICTR’s remaining responsibilities. The question has been raised: was this really necessary? Along the road, the Mechanism for International Criminal Tribunals was re-christened as the International Residual Mechanism for Criminal Tribunals. During this process, former ICTY and ICTR staff flooded the hiring market with a number of highly talented job seekers with years of specialized international criminal law experience. The ICC and other organizations, including the OPCW and OSCE (and academic institutions), could essentially have their pick of the litter without considerations of what they should do in order to show solidarity for job seekers and to respect their rights of continuity of service. What this meant in practice is that the power dynamics shifted, and a former P-2 at an ad hoc tribunal could be faced with a very difficult position: years of unemployment and/or seeking unpaid auditioning opportunities at or below grade at other institutions or at universities (who should be paying visiting researchers and visiting professionals/interns. There is no excuse for this kind of institutional behavior).
This could have been avoided. The tribunals’ closure strategy should have included a means to transfer staff into other parts of the UN or to other international organizations, and this should have been coordinated with UN Headquarters and with the ICC, etc. To the best of my knowledge and awareness, this did not happen. As a result of this failure, many people experienced long-term unemployment, turmoil, and potentially being unable to find a job in a field in which they had developed specialized expertise. In ICL and international law more generally, it is undeniable that specialized knowledge is essential for the successful completion of a job. To those who have sacrificed years of their lives, uprooted their families, and left jobs in their home countries, it is manifestly unfair to suggest that they should not have some security of tenure in their new opportunities, and it is also unfair to their families. It also runs the risk of encouraging ageism: if a person has served for a certain number of years, they should not be forced to retire as general rule, unless there is an egregious case in which it is necessary. Additionally, as ageism (and sexism, and other forms of discrimination) is a real issue not only to consider in retention of staff. it is an issue to consider in another respect: whether a person will experience this in finding a new job. Institutions must consider this in crafting any policy of term limits and take note of their responsibilities towards staff.
It is my personal view that the landscape of international criminal justice institutions, the closing of institutions and poor coordination between them is largely to blame for the issues before the ICC that have been highlighted by Professor Guilfoyle and the IER. I am certain that creating more opportunities is a better route forward than cutting staff benefits and undermining job security. This approach reflects fairness to them and to their years of dedication to the field, and it provides institutional benefits as well. For example, it would assist institutions in avoiding something very important: loss of institutional knowledge, or brain drain. This, coupled with strong efforts to recruit new talent and provision of professional development, would provide a firm foundation for keeping the institutions dynamic and fresh in approach. Professor Guilfoyle makes a good point: that transferring staff to field offices, for example, and seconding them to other institutions may be beneficial in this regard. This is an excellent suggestion that should be explored further and should also be instituted when tribunals close in the future in transferring staff to remaining institutions.
Additionally, it is worth remembering that the international criminal institutions are not the OPCW and the OSCE, and they serve a very different function: the administration of justice. I do not seek to comment on the wisdom of imposing term limits at the OSCE and the OPCW. However, in the context of evaluating term limits in a judicial institution, it is also important to remember that cutting staff in the middle of a trial or an appeal is highly undesirable. This may be an unforeseen effect in in imposing term limits. Additionally, cutting efficient and effective management of on-going trials and appeals in a functioning tribunal is similarly undesirable. What is desirable is increasing transparency and preventing acts that may be ultra vires, which are different issues that are not clearly solved simply by introducing term limits and taking an ax to staff rights.
The theme of trust
The IER (for example, para. 53) and Professor Guilfoyle both identify the theme of trust as being problematic at the ICC. However, again, I would like to point to the context in which the ICC operates in order to provide insight into how this may have developed and to reiterate that creating a system of tenure for staff may not be the correct prescription in order to cure this malady. It is my personal view that creating a system of fixed term limits for staff will likely not only lead to increased instability in the job market, but it will undercut staff morale and actually trust in the system and institutions. It will also severely impact the options that will be available to staff members when they finish their contracts, thus undercutting considerations of fairness to them.
The last section of this post described the changing landscape of international criminal justice institutions in The Hague (and more generally). As the tribunals closed (or reopened under a different name) and cases finished, many staff members found themselves out of work and dependent on unpaid auditions at other institutions, judicial and academic. This occurrence placed the ICC in a position of privilege: having the option of extending a lifeline to former staff members who were not absorbed either by NGOs, academia, or new/different institutions – or not.
At the ICC, a problem of insufficient opportunities for upward mobility or paid positions at appropriate grade seems to exist. The prospect of imposing term limits on staff is hardly conducive towards creating a stable work environment based on trust rather than distrust. In two earlier posts, I argued that other factors, such as the Court’s practice of providing of unpaid internships, is problematic and that and other approaches, such as providing paid internships and greater inclusion of women should be considered as well. Taking these suggestions on board may be a more suitable solution to improving staff morale and trust in the ICC. Creating more opportunities, greater inclusion, increased transparency, and instituting a complaints mechanism that will not in any way harm staff, contracted staff (such as baristas, cooks, environmental support staff), and interns and visiting professionals are all measures that would increase trust levels in any institution.
Stripping staff of their rights and securities is unlikely to contribute to a culture of trust, and it is unlikely to ameliorate staff fears cited in the IER and in Professor Guilfoyle’s post. The IER represents a positive move towards greater transparency and external accountability for the Court. However, its recommendations must be considered in the broader context in which the ICC operates, and any policy changes must also indicate that the root causes of institutional problems have been identified, even if they are linked to factors outside of the Court itself.
This post has attempted to identify some of the contextual problems in the landscape of international criminal justice institutions in The Hague and to link them to institutional problems identified by the IER. It is hoped that they will be considered.