The International Criminal Court Independent Expert Review: questions of trust and tenure

I have previously written on the Independent Expert Review (IER) of the International Criminal Court and its findings on questions of governance structure and culture. In this blog post I’d like to turn to two other running themes through the report: trust and tenure.*

The problem of trust

My previous post noted the IER findings on a pervasive culture of fear within the Court. Unsurprisingly, this is also reflected in a culture of distrust:

“The Court appears to suffer internally from distrust (inter-Organ, as well as between staff and senior/higher management) and a culture of fear. Such observations were shared with the Experts by staff at all levels. Individuals have pointed to the existence of an antagonistic approach between the organs, a mentality of ‘us vs them’ which naturally is not conducive to cooperation and coordination” (para 62).

A previous independent report found that trust was either completely lacking or severely eroded throughout the institution, and the pervasive culture of distrust included a “tendency to attribute sinister intentions” to “the other” – presumably management and/or other organs (page 23, fn 36-37). This is not uncommon in toxic workplaces: once trust is gone, all management measures tend to be seen in the worst possible light and all actions by other divisions as moves in a turf war.

Indeed, “the Experts heard that there is resistance to inter-Organ coordination partly due to the Court’s internal atmosphere of distrust, the many silos in which it operates, as well as the fear that pooling resources will lead to loss of jobs” (para 52). The situation would appear to be compounded by the “complex and blurred governance structure at the Court, combined with a high number of individuals being at the court for a significant length of time” that has led to “a tendency for too many people to want to be involved in too many areas … outside of their direct area of responsibility” (para 53). Indeed, it appears that the three “Principals” (the heads of each organ of the Court) have an effective right of veto over many management decisions outside their reporting lines (para 52).

Just as bad, this atmosphere of distrust extends to the relationship between the Court as a whole and the Assembly of State Parties. Hear the report is quite pointed: (Para 948)

“There is widespread distrust of the ASP within all Organs of the Court. There is a sense … that States Parties do not recognise that the Court was created … to administer justice, not to achieve policy ends. To many in the Court, States Parties seem to be more interested in reducing the budget than in providing the resources needed for the Court to function fully. Moreover, the ASP is seen as intent on micro-managing the operation of the Court, inter alia, through the Study Group on Governance (SGG) and The Hague and New York Working Groups, which make frequent and time-consuming requests for more information … [with] certain staff [saying] that the requests for reporting leave little time for them to work on their regular tasks, as opposed to reporting on them.”

However, the report also shows quite some sympathy for State Parties, given their legitimate interest in whether the Court represents an efficient and effective use of taxpayer funds and noting a sense of frustration both in what the Court has achieved and that any efforts at improving Court processes or efficiencies tend to be stonewalled on grounds of independence and confidentiality. The result is that a frustrated ASP uses the instruments of influence it has: budgetary control and the ability to question the Court’s administration. This, of course, in turn tends to reinforce suspicion on the part of the Organs of the Court that the state parties wish to either to micromanage it or cut its budget. (Such patterns of escalating pressure and resistance are well-documented in the management literature, especially Manzoni and Barsoux’s classic “The Set-Up-To-Fail Syndrome”.)

While the Report does not use the term directly, it unsurprisingly recommends a number of confidence building measures (CBMs). The report notes both that the “Court should accept the legitimate authority of the ASP to decide its budget and should tailor its activities to match the resources available” (R362) and that there is a need to bring all stakeholders onto the same page regarding “issues such as the type of cases the Court would look into, the level of cooperation States Parties … are able to offer, the Court’s approach to positive complementarity, and preliminary examinations” and that this should crystallise in a ten-year strategic plan (para 953). Such an idea is admirable and probably overdue. However, other than the likely resistance of the Court to such a process of co-design, extending the circle of stakeholders as suggested beyond states to civil society will likely make the process even more challenging, as the latter tend to have quite different priorities from States (R363). (See Scott’s recent piece on the tendency of civil society to do an end-run around both authoritarian and democratic governments at the international level.)

Tenure

In terms of restoring trust, the IER places responsibility at the feet of current leaders in the Court – especially the permanent international civil servants at the Director/P5 level:

“It is clear … that the Court, and senior management specifically, need to make efforts to rebuild and strengthen internal trust and reshape the working culture at the Court” (para 70).

The awkward question, then, is whether the present leadership is up to that task. It is not a question the Report directly answers, though one might fairly think it shows a preference for ‘new brooms’ where possible. While the present leaders may be left to implement the Report:

“a more far-reaching and effective way to address the challenge, though admittedly with more administrative difficulty and likely strong opposition in certain quarters, would be to introduce a policy of tenure for all staff above a certain grade [under which posts could be held for a non-renewable term of between five and nine years]. It is simply not healthy for an organisation to have its senior management unchanged for the length of time that has occurred within the Court. While there would inevitably be some work disruption from imposing a specified term limit for all officers of P-5 level and above, the benefits in terms of introducing fresh thinking, a different managerial dynamic in the work unit, and a diffusion of the power currently held at that level in the different Organs, would, in the view of the Experts, greatly outweigh that disruption” (para 248).

How would this work? “The Experts recognise the difficulty of applying a new tenure system to staff already in the Court, so they suggest that the system be applied only to new recruitments for P-5 and Director-level positions as these come vacant. This would not preclude the Court from encouraging senior staff who have served in the Court for a long time to consider taking early retirement, including through offering financial packages” (para 252). While such an approach will avoid embroiling the ICC in more employment litigation, it is not a quick means of achieving progress.

Interestingly, while the Report notes the deep unhappiness of many staff at the lack of career progression – for example, among legal officers in Chambers – it does not call for limited tenure in these ostensibly less senior roles (para 202). This may be a mistake. It is not perhaps a good idea to prolong a system where “some legal staff, having been at the Court for more than 10 years, might consider themselves as being more competent than an incoming Judge” (para 74). Ideally, the best and brightest should not spend their whole careers in such roles and a system of limited tenure might be to everyone’s advantage. Still, the Report does call for more lateral career mobility: including secondments among professional staff to other Organs of the Court or its field offices (which would help break down internal silos and lack of “field” knowledge), and to other governments and international organisations. It also notes the possibility of a system of secondments from member State governments to the Court.

All of these could be crucial as internal and external CBMs. Obviously, there are some risks that a system of secondments could become a vehicle for States to seek to exert influence or could be distorted by an excessive number of secondees from “high capacity” (Western) States (para 244). Nonetheless, it should not be impossible to come up with a system of secondment that “is fair, fit for purpose, and capable of providing the Court with the best expertise with the widest geographical representation” and that operates on the “basis of [the Court’s] needs, rather than the wishes of the government concerned” (para 247 and R103). This could also alleviate budgetary pressures and function as a CBM between the Court and ASP governments. A difficulty to iron out, however, at the national level might be to ensure that time away from a secondee’s normal duties do not jeopardise career progression at home (disincentivising the best and brightest). Nonetheless, ending permanent career posts and creating an internal and external secondment system could be crucial steps in re-establishing trust within the Court and between the Court and the ASP.

* I write here in a purely personal academic capacity and note that no government official had sight of this post prior to publication.