This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.
Much recent attention has focused on what a newly elected prosecutor and newly elected judges will mean for the future of the International Criminal Court (ICC). The ICC’s ability to deal with numerous external challenges is determined not only by its leadership, but in large measure by its staff. It is no surprise then that the Independent Expert Review (IER) examined questions relevant to any organization: how can the ICC attract and retain the right staff and get the best performance from them?
The Justice Initiative made submissions to the IER on these questions, informed by expert research and the experience of Justice Initiative staff who have worked at or in close proximity to the court. Most of the IER’s findings on these issues relate to staff turnover, staff recruitment and flexibility, and staff welfare.
The experts find that staffing at the court is stagnant, especially at senior levels. They note that a “surprisingly high percentage of staff have been with the Court for over a decade” (para. 202). More alarmingly, they find that “once individuals are recruited to the Court, it is extremely difficult to dismiss them even if they are incompetent.” (para. 224). This stagnation creates a lack of opportunity for promotion of highly performing junior staff, prevents progress on gender equity at a time when all senior staff (D-level) are male, and inhibits fresh thinking.
Accordingly, the experts recommend tenure limits of five-nine years for all new hires to positions at the P-5 and D-level positions. Given the legal difficulties that could arise from attempting to apply tenure limits to current staff, the experts suggest that the court offer financial packages to such staff in order to incentivize turnover in the near term. This recommendation is in line with suggestions from the Justice Initiative, although we recommended consideration of term limits for all future P and D-level positions. The experts recommend that the ICC develop mechanisms and strategies to retain and transfer institutional knowledge, without making the court dependent on the continued presence of particular individuals.
The experts “do not see value” in the court withdrawing from the UN Common System in order to address rigid staffing and a lack of accountability. Withdrawal is an idea the Assembly of States Parties (ASP) entertained in 2016, and which the Justice Initiative submission recommended should be explored in greater detail.
Staff Recruitment and Flexibility
The experts lament problems in staff recruitment and a lack of staffing flexibility at the ICC – many of which the court shares with other international organizations. Recruitment can be slow, opaque, and result in the hiring of staff who lack the skills needed for their job. The court has often misused short-term appointments (GTAs or STAs) or hired from the intern program in an effort to overcome slow recruitment, but this has created disadvantages for applicants from underrepresented geographical regions who often lack access to these short-term or unpaid assignments.
A lack of staffing flexibility, coupled with lack of appreciation for the importance of local knowledge, has impeded the ability of the Office of the Prosecutor (OTP) to hire much-needed local and field-based staff familiar with the context of advanced preliminary examinations and investigations. The experts acknowledge recent improvement in OTP efforts to address this problem, but find that “more needs to be done”. As a whole, the court has become a largely Anglophone institution, with the experts finding that a lack of recruiting flexibility for linguistic expertise has hindered the ICC’s ability to work effectively in francophone and other non-English speaking countries. Finally, the experts point to barriers preventing ICC staff from moving positions among court organs that are too defensive of their turf, between the headquarters and field offices, and between the court and other international institutions.
To address recruitment problems, the experts recommend that the court take greater care to specify accurate description of required skills in new recruitments. It should take additional steps to allow appropriate use of limited and short-term contracts (as also recommended by the Justice Initiative), and increase funds for paid internships and visiting scholar programs so that more candidates from developing countries improve the skills necessary to qualify for employment at the ICC. The experts call on ICC leadership to embrace the concept of mobility within and among the court’s organs, facilitate staff transfers into and out of field offices, and take steps to enable exchanges and secondment between the court and other international organizations, and perhaps even non-governmental and academic institutions. They call for exploration of a system of secondment from states that would allow the court to reject offers to ensure that every secondment is in the court’s interest and to prevent (further) staff over-representation from Western states.
Working Environment and Staff Welfare
The experts note that in many ways, ICC staff are the envy of counterparts in other institutions, working as they do in a purpose-built court complex in a comfortable city. However, they go on to diagnose severe problems affecting staff morale and well-being. Most alarming, if not surprising, are their findings on a climate of bullying and harassment at the court, especially in the OTP, as described in a previous post.
Many of the issues obstructing the creation of a better working environment for ICC staff flow from the problems of staffing stagnation and inflexibility described above. Stagnation keeps in place the all-male cohort of D-level staff who must bear a great deal of responsibility for the atmosphere of bulling and harassment—including sexual harassment—that emerged and has been allowed to fester at the court. Beyond issues of misconduct and gender inequity, the stagnation has proved frustrating to highly performing staff at more junior levels who see no prospect for promotion.
Finally, the experts fault the ICC’s implementation of staff performance appraisal. The court has allowed managers to be lax in providing feedback to staff on a continuing basis, and managers feel intimidated from issuing negative formal performance appraisals. In addition to greater emphasis on implementation from ICC leadership, the experts recommend (as did the Justice Initiative) implementation of 360-degree performance appraisals for managers across all of the court’s organs.
Armed with these recommendations, the court must improve its working environment, ensure a healthy rate of staff turnover, and implement better recruitment practices that foster balanced gender and geographical representation. As the court confronts external challenges, its newly elected leaders must act to strengthen the institution by prioritizing this reform agenda.