Defence counsel’s shabby pay and conditions at the International Criminal Court … Legal aid negotiations dragging on indefinitely … Pay stuck at 2013 level … An unbalanced system … The bench decidedly frosty … Silence in the court … Max Shanahan reports
Barred for the first time from attending the ASP, and with grossly unequal pay and conditions, the strikers – supported by the International Criminal Court Bar Association – called for reforms to the court’s legal aid policy, which has seen defence pay frozen since 2013, basic labour rights denied, and threatens to endanger the quality of justice provided by a court which sees itself as embodying the highest standards of that ideal.
There are significant differences in the employment relationship between defence and prosecution staff.
Prosecution staff are employed directly by the ICC, and receive a range of benefits including strong pay and leave entitlements, pensions, funded trips to their country of origin, and tax free salaries.
By contrast, defence staff – who invariably are brought on through legal aid – are engaged through a letter of appointment, without any contractual relationship with the ICC.
The terms of this relationship are set out in the court’s legal aid policy, which was agreed to by state parties in 2012. Letters of appointment are precarious and insecure, and range from engagements over the entire length of a case, to month-to-month appointments.
Pay, which ICCBA President Marie-Helene Proulx tells Justinian was “already not very generous”, has not risen since the policy entered into force in 2013.
By contrast, ICC salaries are indexed with inflation. In The Netherlands, an already-expensive place to live, where inflation reached 14.5 percent in September, this has meant that many defence staff at The Hague have “barely been able to make ends meet”.
Furthermore, the lack of leave and pension entitlements has exacerbated an already difficult situation, with defence teams struggling to attract and retain staff.
Cecile Lecolle, a member of a defence team at the ICC, says that women have been particularly affected:
“In defence at the moment, there are a lot of women in their 30s who are particularly affected because we don’t have a right to maternity leave or anything. It’s impossible for people to have a family and save money and have stable working conditions.”
The conditions mean that lawyers are often unwilling to work for the defence, turning down ostensible promotions due to the vast disparity in pay and entitlements.
The insecurity of tenure means that it is difficult to recruit staff from non-EU backgrounds, and difficult to retain experienced staff. Lecole says:
“I’ve been working in defence for almost ten years, and I’ve never been able to save for a pension, for example. So now I’m getting a bit worried about that. And I think I need to find a job where I can have some of these basic protections for my future.”
Inevitably, these staffing issues affect the preparation and argument of cases. Proulx describes a pattern of staff leaving part way through cases as they are “unable to survive under these conditions”.
The consequent loss of institutional knowledge – with thousands of pages of documents and hundreds of witnesses to prepare for – inevitably has an adverse effect, with the burden falling onto already underpaid and overworked staff. As Lecolle notes:
“You don’t have a team that is there from the beginning and has the same knowledge as the prosecution on the other side of the court. It’s really not a balanced system … It’s an issue that goes to equality of arms and the fair trial.”
In and around the ICC, the industrial campaign has received a mixed response from state parties, the Chamber, and ICC employees.
According to Lecolle, many people at The Hague “had no idea about our working conditions. They just assumed we were in the same situation as them”.
Prosecution and registry staff have privately expressed support for the strikers’ cause, but activists have received a decidedly frosty response from the bench.
An application to adjourn proceedings due to the strike in The Prosecutor v Yekatom and Ngaïsona was struck down by Judges Schmitt, Kovács and Chung.
Rejecting the defence’s application, their honours decried “the extent and manner in which the judicial proceedings in the present case have been misused as a platform to pursue financial and labor law related agendas, regardless of whether they are justified or not. [The Chamber] expects that such issues will henceforth be kept out of the courtroom …”
Further, in an “unprecedented” decision by the Secretariat of the ASP, defence and victims’ team members were prohibited from entering the Assembly of State Parties, where amendments to the legal aid policy were due to be discussed.
Such restrictions add to a sense of frustration for defence staff. Proulx says:
“They think that the courtroom is not the appropriate forum to raise these issues, but when we go to the appropriate forum, defence and victims’ teams were not allowed in.”
Proulx and Lecolle both describe a sense that “nobody really wants to hear from us” and “that they don’t really care about us”.
Nevertheless, the ICCBA’s activism has managed to bring about a level of change. On December 9, the ASP adopted an amended paragraph in the ‘Omnibus Resolution’ – proposed by the ICCBA – requesting the court to consider “interim measures” within the existing legal aid budget, “to the benefit of members of defence and victims’ teams”.
France, Colombia, Germany, Canada and Italy co-sponsored the resolution, which “should provide a basis to grant interim relief during 2023”.
While Australia was not directly involved in the process, its statement to the ASP hinted at support:
“Australia … supports an appropriate budget increase to enable the court to deliver on its core mandate. We also encourage the court to continue to find ways to work effectively and efficiently within the reality of finite resources.”
However, the ICCBA is by no means celebrating a victory. Negotiations over fundamental changes to pay and conditions – which have long been beset by delays – will continue, and Proulx says “it remains to be seen” whether the positive attitude of states continues when they are faced with more fundamental reforms.
No progress has been made since a 2017 report commissioned by the ICC’s then-registrar called for pay equal to that of ICC employees. For Lecolle:
“It’s the first step, but it’s not huge. What is really important to us is to have the labour rights, and we still don’t have that. So we have a long year of negotiations and discussions still ahead.”
The ICCBA’s action follows on from the extensive strike held by the English Criminal Bar over the European summer. In both instances, legal aid funding has been at the centre of the dispute, and strikes have helped to gain important concessions.
As Proulx notes, striking lawyers are unlikely to elicit much sympathy from the general public, activist stances have proven to be effective in prompting those who hold the purse strings to, if not act on, at least take notice of the importance of adequate legal aid funding to the provision of justice.
With cost of living pressures hitting hard, and previously strong legal aid systems left to decay, it would not surprise to see more lawyers’ strikes popping up elsewhere.