In December 2019, the Assembly of States Parties to the International Criminal Court (ICC) established a comprehensive ICC review process and invited various stakeholders to make submissions on issues under the mandate of the review. This blog is part of a series highlighting recommendations the Open Society Justice Initiative is making to the Group of Independent Experts, Assembly of States Parties, and ICC as the review process continues throughout 2020 and beyond.
The International Criminal Court (ICC) has come under outrageous political attack for carrying out its mandate even as many of the court’s most ardent supporters are dissatisfied with its performance to date. The court’s disappointing performance cannot be properly understood without lifting the lid on its staffing arrangements and the causes of its reputation for a toxic work environment.
In March, the Open Society Justice Initiative made a submission to the Independent Expert Review (IER) with far-reaching recommendations in the areas of staffing and performance management. Our proposals are based on research produced by an expert on the law of international organizations, who conducted extensive desk research and interviewed current and former ICC officials and external experts. The experiences of Open Society Justice Initiative staff who previously worked at the ICC (including myself), and a recent expert workshop that focused on reform of the Office of the Prosecutor further informed the submission.
The Current Staffing Regime
For a body that purports to be a non-career institution, the ICC’s staffing is stagnant. Especially at senior levels, many staff have been at the court for ten or more years. This is not surprising given that the ICC applies the UN Common System, which provides staff with extremely generous, tax-free salaries and benefits. The court has many talented staff who are there for the right reasons, but our research shows that the current system creates strong incentives for even poor performers to hang on for the long haul. A lack of turnover, especially at senior levels, means that junior staff have few chances at promotion, and there is scant injection of new thinking and experience from outside the court.
Poor management of staff performance exacerbates the lack of turnover. While the court recently introduced a new performance appraisal system, improved staff management requires fundamental institutional changes in the way the court perceives and addresses poor performance. According to our research, managers have applied performance appraisals inconsistently or have not received adequate support to apply it effectively. As a result, the ICC largely fails to exploit and build staff skills, and poor performers are able to retain their jobs in apparent perpetuity. The problem is more acute at senior levels, where many senior managers act as if they were entitled to their positions, even when their sub-par performance leads to institutional failings. Poor managers restrain talented staff beneath them, and there is remarkably little accountability for staff performance at any level.
The court has a fluctuating workload, and as new needs and new situations arise, the ICC should be able to bring in staff with context-specific skills and knowledge. However, current staffing practices have hobbled efforts to adapt the court to meet changing needs.
An additional problem is low staff morale. In addition to the effects of the staffing practices described above, a toxic work environment coupled with failure to adequately address numerous incidents of harassment and discrimination have led to high levels of burn-out and sick leave. Staff dissatisfaction and the court’s poor ability to manage these difficulties have resulted in internal disputes and a confrontational attitude among staff.
To address these problems, and based on the research it commissioned, the Open Society Justice Initiative has made recommendations to the IER that fall into three broad categories.
Measures to Increase Staff Turnover
The IER should recommend that the Assembly of States Parties (ASP) adopt robust measures to increase staff turnover and accountability at the court, especially at management level. The ASP should consider term limits for all P- and D-level staff. This would introduce dynamism into the ICC’s staffing, allow strong performers to move up, help the court adapt staffing to meet needs, and improve gender and geographical balance among staff. Within the UN Common System, there is precedent for term limits at the Organization for the Prohibition of Chemical Weapons and the International Atomic Energy Agency.
In addition, the ASP should ask the newly elected prosecutor to thoroughly review the structures and staffing within the Office of the Prosecutor. The ASP should provide the new prosecutor with an ability to ensure that the right staff are in the right positions, and the means to negotiate severance packages as necessary.
In the past, the ASP has considered whether the ICC should continue to apply the UN Common System. It should take up the matter again. In addition to questions of cost, a study of the matter should include consideration of whether the current system allows the ICC to attract and retain staff with the right skills, knowledge, and motivation.
Measures to Increase Staffing Flexibility
The IER should recommend that the ASP act to require the court to adapt its contracts to increase institutional flexibility and cost efficiency. It should ask the court to study the legal and practical possibility of project-determined contracts for posts requiring skills and knowledge specific to a given situation, proceeding, or project. Project-specific contracts (up to any agreed term limit) could help the court adapt to often-unpredictable events, and create more appropriate expectations amongst staff about their tenure.
In the meantime, the ASP should encourage the court to make use of short-term contracts (Short Term Appointment (STAs) and General Temporary Assistance (GTAs)) for the purpose they are intended, while remaining mindful of the stability-related implications for short-term contract holders. This would increase the flexibility and scalability of operations. GTAs and STAs have often been used inappropriately to contract staff that the court needed for the longer term. More appropriate use of such contracts would allow the court to build a workforce with specific skills suited for its present needs. This dynamism would increase the flexibility and scalability of operations, allowing the court to adapt to multiple environments and a diversity of situations.
Measures to Improve the Working Environment
The IER should recommend that the court create a gender focal point. This person would assist with awareness-raising, training and recruitment processes, and bring a critical gender perspective to all important staffing decisions. Such an appointment would be a big step in instilling a culture of zero tolerance for sexual harassment at the court.
The IER should also make a number of recommendations to the ASP. It should insist on improved implementation of performance management. Managers should be required and equipped to comply fully with all aspects of the performance appraisal system. Additionally, the ASP should require the court to phase-in formal 360-performance appraisals, starting with top managers. Appraisals that include feedback from peers and subordinate staff could help lead to improved management. All staff should have institutional backing for delivering genuine appraisals.
Finally, the ASP should create an Ombudsperson’s Office with a mandate to mediate staff disputes, make recommendations to the principals, and identify recurring problems along with corresponding policy changes to ameliorate these.
The ICC can be retooled for success. Through strong recommendations on staffing arrangements and performance management, the IER can make a major contribution to ensuring that the ICC has a staffing system suited to its needs, resulting in a stronger institution that is better equipped to withstand the current hostile international environment.