23 Dec Remuneration Debacle at the International Criminal Court: Should ICC Judges Get a Pay Rise? Part II
[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.]
Continuing the discussion in Part I, this final part examines the comparative basis upon which the Judicial Remuneration Panel made its conclusions and recommendations.
The ICJ and European judges as comparators
The Panel concludes that the current package of €180,000 is ‘reasonable and compared well with other senior judicial positions across Europe, especially in light of the tax position’ (Panel Report para 11). Taking Europe as the comparator here, ostensibly because the ICC is located in Europe, comparison may be made with the other permanent international court, the International Court of Justice, also located in The Hague, whose judges receive a comparatively less base salary of $ 176,437 p.a. Seen in this light, this conclusion appears reasonable, but only in so far as comparison is made with the ICJ which is a much more established international court. If made in comparison ‘with other senior judicial positions across Europe’ (Panel Report para 11), this conclusion may not be quite as reasonable.
Firstly, judges serving in judicial positions across Europe, either in domestic courts or in regional courts, are nationals of European states. While most of them presumably pay domestic taxes on their earnings, unlike ICC judges, they benefit from other ‘home advantages’, that is, practical socio-economic advantages accruing to citizens of European states based in their home states or on the continent in close proximity to their home states. Such advantages would include, for instance, eligibility for public housing schemes open only to citizens and not having to travel long distances to visit family and friends. These are advantages that international judges serving at the ICC, specifically those who are not nationals of European countries, do not necessarily benefit from.
Secondly, it is also perhaps unwise to restrict the comparison to ‘judicial positions across Europe’ (Panel Report para 11) when assessing the remuneration of judges of a Court whose membership includes 123 states from across the globe. Since the Panel’s recommendations were guided by studies conducted by two Europe-based organisations – the Institute for Employment Studies and the International Service for Remunerations and Pensions – (Working Group 2019 report para 5; Panel Report para 7), this preference is unsurprising though still unwise for its limited scope. It limits imagination and deprives the Panel and the ASP of broader and richer insight into relevant practice from across a broad spectrum of its membership. To be clear, it may or may not be the case that a broader comparison including domestic courts across a broad spectrum of State Parties and international criminal tribunals would make the current package look generous. This is precisely the point. In making such an important decision, the ASP needs to benefit from the broadest picture possible regardless of how that picture looks.
Other elected ICC officials and Defence Counsel as comparators?
Even though some State Parties suggested that remuneration of the Registrar and Prosecutor should be taken into account in reviewing judges’ remuneration (Working Group report 2018 para 14), no agreement was reached on this and it was therefore not adopted as a criterion in the ToR. Consequently, the Panel made no comparison in this regard. It is, however, illuminating to see how the judges’ current package compares with other elected officials at the ICC and with Counsels leading defence teams at the Court.
The general qualification required of a judge of the ICC under Article 36(3) of the Rome Statute is that they ‘possess the qualifications required in their respective States for appointment to the highest judicial offices … [and have] established competence in criminal law and procedure … [or] in relevant areas of international law’. No specific number of years of experience is required, understandably because the legal and political processes for determining qualification to the highest domestic judicial offices differ across states (see here paras 6-11).
Prosecutors are generally required to ‘be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases’ (RS, art 42(3)). Going by the vacancy announcement for the election of the Court’s third Prosecutor (sections 5-6), this provision has been considered as requiring candidates to possess ‘the qualifications required in their respective States for appointment to the highest judicial offices’ and ‘more than 15 years of progressively responsible experience in criminal law practice’. The Prosecutor’s remuneration is currently set at a minimum of €173,780 net p.a. Similarly, the Registrar is generally required to ‘be highly competent’ (RS, art 43(3)), a requirement that was considered for purposes of the 2013 and 2018 Registrar elections to include ‘At least 15 years of documented progressively responsible managerial experience’. The Registrar’s remuneration is currently set at a minimum of €156,987 net p.a.
To be Counsel in a defence team at the ICC, one must ‘have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings’ (Rules of Procedure and Evidence, rule 22). This has been determined in the guidelines issued by the Registrar to be ‘a minimum of ten years of relevant experience in criminal proceedings as a judge, prosecutor, advocate or in other similar capacity’. The remuneration for Lead Counsels of defence teams on the Court’s legal aid programme is currently capped at €10,832 per month. This remuneration may be subject to Dutch domestic taxation since defence teams are not covered by the agreement exempting ICC staff from domestic taxes. This issue has in fact caused significant disquiet among defence teams (see here and here).
Evidently, ICC judges’ current remuneration package is higher than that enjoyed by other senior officials of and participants in the Court process. This is despite the fact that these officials – Prosecutor and Defence Counsels – may require more experience in criminal law practice than judges because while the minimum number of years of experience required of Prosecutors and Defence Counsels is specified, that required of judges is left to the determination of individual states, as discussed above. While it may not necessarily be appropriate to compare remuneration of the Prosecutor and Defence Counsel with that of judges because of their different positions in the Court’s hierarchical structure, it is nonetheless illuminating.
The Panel’s recommendations
Despite (some of) the Panel’s rather odd approach, its recommendations are encouraging. The Panel has recommended that the ASP should ‘amend the conditions of service and compensation of fulltime judges of the Court to align them with the Under-Secretary General package in the [United Nations Common System], including participation in the [United Nations Joint Staff Pension Fund], with an effective date of 11 March 2021’ (Panel Report para 20). Under the UNCS, a UN Under-Secretary General currently earns approximately $ 146,388 net salary. As per the Panel’s comparative estimate, a full-time judge at the ICC may take home €192,222.22 if the package is aligned with the UN system, a slight increase from the current €180,000 (Panel Report annex I). This translates to an increase of slightly over € 1,000 p.m. Of course, this is significantly lower than the ambitious 26.7% increase sought by the claimants in the ILOAT claim which would have seen the judges earning an upwards of approximately € 228,000 p.a. Solace for those still disgruntled may, however, be found in the fact that the Panel proposes comprehensive healthcare insurance package for judges and a more favourable pension scheme (Panel Report para 14). Under the proposed system, the Court will provide comprehensive healthcare coverage to judges, and membership of the UNJSPF will provide better and sustainable pension solutions.
A likely sticking point, however, is the fact that the Panel’s proposal will not apply retroactively, if adopted. Of course, the Panel has no jurisdiction to make retroactive adjustments since its ToR provides expressly that ‘[an] adjustment [of remuneration] shall not apply retroactively’ (ToR para 4). Considering that one of the demands made by judges in their 2017 Memorandum to the ICC Presidency, and subsequently reflected in the claimants’ ILOAT claim, was ‘corrective lump-sum payment as compensation for the effective violation of article 49 of the Rome Statute, in light of the solid freezing of the ICC judicial salary since the very inception of the Court’ (ILOAT claim p 3), it is likely therefore that some judges, many of who signed the 2017 Memorandum, will still be disgruntled. However, it is unlikely that the ASP will consider retroactive application.
Conclusion: Should the ASP adopt the Panel’s report?
To put an end to an embarrassing chapter for both the Court and the ASP, the ASP ought to adopt the Panel’s report. As the Independent Expert Review reported, the Court is facing a liquidity crisis, with almost €70.45 million assessed contributions outstanding as of May 2020 (IER para 350). The Court’s budget is also rather modest, standing at €149,205,600 (as of 2020). The compromise proposal made by the Panel could therefore provide the ASP with a way of meeting judges half-way without haemorrhaging the Court’s budget through unsustainable recurrent expenditure. As per the Panel’s comparative estimate, if judges’ remuneration package is aligned with the UN system, the Court’s expenditure on judges’ remuneration may drop from a total of € 5,087,000 in 2020 to € 5,057,000 in 2022 (Panel Report annex I), overall a net benefit to the Court, the judges and the ASP. The proposal may also reduce the need for the Panel to make regular recommendations (in 2022 and triennially thereafter as foreseen in the ToR) since this will be tied to the UNCS that regularly updates its cost of living index.
Considering how thorny the issue of remuneration has been, leading to the unfortunate litigation at ILOAT, this could save the ASP and ICC significant acrimony and embarrassment in the future. Should the ASP fail to adopt the Panel’s proposal, and without a decisive judgment on merits from ILOAT to provide ‘judicial’ direction, the cloud of judges’ remuneration may continue to hang over the Court at a time when it is facing unprecedented challenges. It should be recalled that while only seven complainants appear in the ILOAT complaint, two-thirds of ICC judges (12 out of 18) had signed the initial memorandum to the ICC Presidency in 2017, and the President joined the ILOAT complaint as a complainant. While the 12 judges and the President do not of course speak for the other 5, the overwhelming majority speaks to a bench that is generally dissatisfied with its conditions of service. As the organ with the legal authority to determine judges’ remuneration, and as the organ with significant control over the Court’s financial affairs, the ASP is, as opposed to ILOAT, arguably the most appropriate forum to determine judges’ remuneration. As such, the ASP cannot continue to wish this issue away, however uncomfortable or embarrassing. To be clear, my own feeling, for whatever it is worth, is that an untaxed salary of €180,000 p.a in the relatively affordable city of The Hague is fair and generous remuneration, particularly for judges of a Court that does not pay its interns and Visiting Professionals. However, the judges do not think so, and this fact cannot be ignored.