‘ICC restructuring of the Registry – is your job still safe?’
Catherine Van Zeeland
The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.
The mandate of the Court is to try individuals (rather than States), and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled.
The ICC is based on a treaty, joined by 123 countries (effective as of 1 April 2015). The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes. In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.
The core business of the ICC revolves around International Criminal Law, which is an area of Public International Law. However, just like regular employees, International Criminal Lawyers and staff members at the ICC are also subject to Employment Law. In their case however, it is International Administrative Law which is applicable to them. International Administrative Law is the employment law which invariably applies to the working conditions of international civil servants. Hence it is my intention to discuss the interplay between International Administrative Law issues at the ICC and the impact this is currently having on issues concerning human rights: namely the administration and application of international criminal justice in the world today.
In order to do so, it is firstly necessary to paint a picture of the ICC’s internal structure. The ICC consists of four main organs: The Presidency, Chambers, The Registry and The Office of the Prosecutor. The Court also includes a number of semi-autonomous offices such as the Office of Public Counsel for Victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices. The Assembly of States Parties has also established a Trust Fund for the benefit of victims of crimes within the jurisdiction of the Court and the families of these victims. It is my intention to focus on the Registry which is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The current Registrar, elected by the judges for a term of five years, is Mr Herman von Hebel (The Netherlands).
A new Registry as an exercise to right-size the Registry to the present and future demands of all the ICC’s clients, including the Judges, the Office of the Prosecutor, counsel for accused persons and victims, victim communities, States Parties and the public at large is currently being envisaged and implemented. Certain positions within the Registry are essentially being down-graded as well as being made redundant and new positions are being created. This raises several employment law issues. At the time of writing, the Registry is undergoing a huge change through what is called the ‘ReVision project’. Staff members who were hired at the inception of the Court now supposedly lack the qualifications and/or experience for their ‘revised’ position, and their job security is therefore at stake. This is however creating a lot of job insecurity at the ICC especially for those at the Registry, which in turn affects staff morale and productivity. The other three organs of the ICC may also be subject to restructuring at the conclusion of the restructuring of the Registry. At present, the Registry is the only organ affected.
In my view, the effects of restructuring are already leading to budget related justice which should not be the manner in which the ICC conducts its business. Staff members have had to work for months in a state of flux, not knowing whether their jobs will still exist in a few months’ time. Unfortunately the state of flux still continues for many working within the Registry today as the Registrar is still deciding upon which structural policy decisions should be taken and the exact consequences for everyone involved. His decisions are dependent on the formulation of the work surveys and the advice provided by the external classifiers. Only then will the Registrar be able to decide how many staff members will eventually be faced with a notification of abolition of, or fundamental change to, their post.
Various sections within the Registry, such as the Human Resource Section, Registry Legal Services Section, Victims and Witnesses Unit, Budget and Finance and the Immediate Office of the Registrar have already heard the outcome of the Revision process and in all cases the conclusion is that fewer positions are required or that current positions need to be reclassified at lower grades. The review of the Offices of Public Counsel for Victims and the Defence, the Victims Participation and Reparations Section, and the Counsel Support Section is pending in light of the outcome of the discussions on the creation of Victims and Defence Offices. Controversially, this part of the new structure would even require an amendment to the Regulations of the Court. Some comfort is provided to the staff in that a Registry staff member who is notified that his or her post has been abolished or has undergone substantial change, will have 45 days to take a decision on whether to accept a separation package or to become a priority candidate. If a staff member decides to become a priority candidate, the relevant recruitment panel will first decide upon the suitability of that candidate and, if applicable, of other priority candidates, without any competition with other internal or external candidates. Only if the panel were to find that the priority candidate is not suitable for the new position would the panel be entitled to look for other candidates.
This scaremongering amongst ICC staff, and I refer to scaremongering as the effects of ReVision are having repercussions not just within the whole of the ICC but also within other international tribunals and organisations in The Hague, is doing nothing to advance international criminal justice. It is my firm opinion that the number of country situations requiring investigation and UN Security Council referrals/ referrals by the Prosecutor should be the determining factor in shaping the ICC’s budget and hence structure, and not the other way round. So the question remains: will the new Registry be a place where empowerment, responsibility, accountability, respect for all staff, staff welfare, proper communication and effective and efficient working methods are everyday realities? I am doubtful. It is difficult to believe that in this age of austerity, the Registry’s Revision may actually end up costing the Court more than the Court would be saving through the Revision process. Eventually, there is a lot of truth in the saying that ‘money is the root cause of all evil’. However in this case I fear it will not be the root cause, but the reason why evil is not stopped. Impunity must still be stopped, regardless of the Registry’s Revision process and we must not lose focus of the reason why the ICC was created in the first place.
The author would like to thank the Middle Temple Young Barristers Association for its generous support towards her international internship at the International Criminal Court (Staff Union Council) from October 2014 – April 2015. The author was the Legal Intern to the ICC Staff Union Council, and after the completion of her legal internship was offered a two-month paid contract as the ICC Staff Union Council’s Legal Assistant from April 2015 – June 2015. During a 1-year break from the ICC, the author worked as Hugh Preston QC’s bilingual paralegal for the in-house LLP at 7 Bedford RowChambers and was called to the Bar in November 2015. The author returned to the ICC as a staff member in October 2016 and currently works in the Prosecution Division of the Office of the Prosecutor at the ICC. She was also elected to serve a 2-year term on the ICC Staff Union Council from January 2018 – December 2019 and is currently active on the Staff Advisory Committee and the Staff Union Appeals Board. Since writing this article, the International Labour Organisation Adminstrative Tribunal ruled at its 125th session on 24th January 2018 that the entire ReVision process was unlawful. The overall cost of the (judicially ascertained) unlawful ReVision amounts to more than 6 million Euros in direct costs with another substantial amount in liability as a consequence of the foreseeable further ILOAT Judgments. The recent judgments are available at: http://www.ilo.org/dyn/triblex/triblexmain.showList?p_lang=en&p_session_id=125&p_and_or=AND&p_page=4