This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.
The Independent Expert Review’s (IER) findings on bullying and harassment have probably been the most publicized aspect of the 348-page final report. While the findings shocked many, they do not come as a surprise to those of us who have worked in the international justice field for some time. Accounts of staff burnout and of a hostile work environment at the International Criminal Court (ICC) were common knowledge in the Hague legal community, but the problems with the court’s institutional culture had not been officially recognized. The IER report’s transparent and honest assessment of misconduct and root causes is refreshing. It is also an imperative call to action.
Workplace misconduct, including bullying and harassment, a “culture of fear,” and the perceived impunity of senior and elected officials are common threads throughout the IER report. Of particular concern are the references to sexual harassment, predatory behavior, and a workplace culture that is “adversarial and implicitly discriminatory against women” (para. 209). Disturbingly, the experts note that some judges have themselves engaged in instances of bullying and harassment, contributing to an adverse work environment in the chambers (para. 72). And while they note that misconduct is a problem everywhere at the ICC, the experts single out the Office of the Prosecutor (OTP) for its extent of “bullying behaviour amounting to harassment” (para. 138). During a workshop co-organized by the Justice Initiative in March 2020 to generate input for the IER process, participants identified fostering a more supportive, diverse, and ethical workplace as a matter of high priority for the OTP. As the IER experts note, not only do bullying and harassment have a negative impact at the individual and work-unit levels, but they also result in “reduced productivity for the organisation as a whole” (para. 213).
The report identifies a series of factors that contribute to serious misconduct and a toxic work environment, including inadequacy of existing complaint mechanisms; gender inequality in senior roles (at the P4 level and above fewer than 40% of staff are female); a hierarchical structure that disempowers lower level staff; managers’ inability to address staff concerns regarding working conditions; and a lack of decisive leadership. According to research, barriers to reporting sexual harassment include the senior status of perpetrators, fear of repercussions, endemic harassment in the workplace, lack of confidence in complaint procedures, and fear of not being believed.
When it comes to the culture inside chambers, the expert report notes that certain judges look down on staff, while some legal staff may display inconsiderate behavior toward some judges because of the latter’s perceived incompetence for the position (para. 74). This problem underscores the importance of improved, merit-based elections at the ICC.
In addition to appropriate training for ICC managers and judges, reform of the internal complaint and dispute-resolution mechanisms, and the issuance of a pending update to an old Administrative Instruction on these matters, the experts recommend bringing more women into management and the rotation of senior staff through the adoption of a tenure policy. However, the experts note that those measures will not be effective unless the environment and practices that have allowed harmful behavior to occur, “often with impunity,” also change (para. 210). The report acknowledges the difficulties entrenched in changing an organization’s institutional culture. A multi-pronged strategy to address bullying and harassment will only succeed if the court’s leadership firmly demonstrates that it will no longer tolerate unwanted behavior – “such leadership […] has been lacking,” the experts conclude (para. 211). A recent report by the ICC Internal Oversight Mechanism illustrates this problem; it recounts that the prosecutor sanctioned a senior staff member who had engaged in sexual harassment with a written censure, a disciplinary measure that is disproportionally low in light of the seriousness of the offense. The inadequacy of a leader’s response to misbehavior can create further barriers to reporting.
Significantly, leaders will only be able to dispel misconduct and gain staff trust if they themselves have an impeccable ethical history. This is why the Justice Initiative has placed so much importance on vetting elected ICC officials, in particular the next prosecutor, whose election is scheduled for February 8, 2021. We raised this matter publicly as early as November 2019, advocated for it in multiple forums, and between March and December 2020 wrote no fewer than six private and public communications (see e.g., here, here, here) to ICC states parties, including the ASP Presidency and Bureau, emphasizing the importance of vetting and offering concrete recommendations. But the ASP has failed to make vetting a reality for this election. Some claim that it is now too late to set up a mechanism. Our trail of communications demonstrates that the ASP knew about this gap all along, however, and had multiple opportunities to address the matter. Failure to vet candidates helps perpetuate a system of impunity for misconduct, with serious reputational and financial risks for the court and states parties.
The IER experts did a remarkable job by creating a space for staff to share their experiences in confidence, and by bringing ICC workplace misconduct to light. The staff who spoke to the experts also deserve recognition for their courage and commitment to the wellbeing of their colleagues and the institution. Sadly, these challenges are not unique to the ICC. Many other organizations and corporations face similar issues, and bullying and sexual harassment is a serious problem in the legal profession. The scale of misconduct is particularly shocking, however, for an institution like the ICC, which is mandated to pursue accountability for the world’s worst atrocities.
The IER report and incoming leadership mark the start of a new era for the ICC: one in which there are no more excuses for the toleration of bullying and harassment, and where staff can enjoy a healthy work environment. That would not only transform the ICC as a workplace, but also boost its performance, positively impact the court’s relationships with other actors, and benefit the international justice field globally. The ASP should take the necessary step toward this new era by promptly setting up a vetting mechanism for all future elected ICC officials.