ICC Defense Staff Deserve Better – JURIST – Commentary

An nameless member of the Protection Assist Employees on the Worldwide Prison Courtroom in The Hague discusses the circumstances behind their strike final week in the course of the Meeting of States Events.

I bear in mind when Michelle (identify modified to guard identification) bought the e-mail. She yelled out, “What?! That is so unfair!  I’m writing to CSS proper now!” CSS is the Counsel Assist Part of the Registry on the Worldwide Prison Courtroom (ICC). One in all CSS’s tasks is approving the finances and appointments of protection groups who’re topic to the Authorized Assist Coverage. I appeared up from one of many umpteenth responses to a prosecution request that I used to be drafting that month and noticed that Michelle was clearly flustered. She requested the way it might be that protection help employees have been gridlocked on acquiring any adjustments to our working circumstances for a number of years, whereas all of the employees of the ICC had simply obtained a increase to their wage that utilized routinely due to rising inflation within the Netherlands. I stared. In fact, she was proper, however the ICC had at all times confirmed me that protection and sufferer help employees, although paid by the identical coffers as people categorised as ICC employees, weren’t entitled to any of their rights.

Once we obtained this e-mail about ICC employees wage will increase, I had been working for seven years as help employees on protection groups receiving authorized help. I had participated in limitless talks with varied members of the Registry. They spoke of elevating salaries given the Dutch authorities’s stance in 2015 to impose taxes on protection and sufferer help employees and of giving them contracts, which might specify sure primary labor rights. Nothing modified. The identical Authorized Assist Coverage which was adopted in 2013 nonetheless applies in 2022. In line with the Registry’s interpretation, that doc doesn’t present any primary labor rights resembling maternity depart, sick depart, medical health insurance, and annual depart. It additionally doesn’t enable for wage will increase above the desired ceiling quantity, which was adopted over 9 years in the past. Whereas taxes might probably be reimbursed, it might solely be at a fee of 15% of the help employees’s revenue whereas the tax bracket within the Netherlands is considerably increased. Whereas I fully supported Michelle’s indignation, I used to be not about to embark on one other campaign to nowhere. I sighed, sincerely mentioned that it was unfair, and continued drafting my response.

Protection and prosecution are alleged to be two sides of the identical coin. However beneath the present Authorized Assist Coverage one facet of the coin is eroding with each passing yr that the protection help employees circumstances stay unchanged. Because the protection, we carry out precisely the identical duties because the prosecution each within the courtroom and outdoors it. We’re each events to the proceedings. Everybody is aware of this, however as protection help employees we really feel we at all times should remind the ICC that the proper to an satisfactory protection is enshrined by Article 67 of the Rome Statute and the very Authorized Assist Coverage that the Registry so typically cites to point that we’re not employees of the Courtroom and due to this fact can count on no advantages. Our working circumstances have taken a toll each on our well-being, but additionally on the flexibility to retain high quality illustration of people accused of essentially the most heinous crimes, who’re most in want of zealous advocacy.

I’m one in all a really small handful of help employees that has been engaged on protection groups earlier than the ICC for a number of years. So, why did I keep? The reply isn’t that I’m extra passionate concerning the work or that I care extra deeply concerning the purchasers. I’ve seen too many associates depart their positions on protection groups in tears as a result of regardless of loving the work, they may not afford residing in The Hague on their wage, they may not afford the flight to their residence nations to go to, or they may not abdomen being harassed by their counsel. This has a direct influence on truthful trial rights as a result of these help employees that depart take the institutional information of the case with them. In consequence, the Workplace of the Prosecutor has an unfair benefit of working with a staff of people most of that are on the case from the affirmation of prices stage all the best way to the closing assertion of the trial.

The one cause that I’ve continued working in protection for thus lengthy is as a result of my counsel provides us labor rights to the extent that’s potential inside the Authorized Assist Coverage and my co-workers have made this a precedence. That is pure luck. The place one colleague was informed by their counsel and staff that the staff was so deeply sorry concerning the colleague’s most cancers prognosis, however they couldn’t proceed with their appointment as a result of they weren’t obtainable full-time, I used to be informed by my counsel and all my staff members to not fear about my place when my daughter died final yr after one week of life from an ultra-rare type of epilepsy. I used to be in a position to work some minimal hours every month and the staff and counsel made preparations to maintain the case going. It was not and not using a value. Crew members had been stretched too skinny and labored considerably greater than 45 hours per week and took little or no time without work. The ethical of the story isn’t that one counsel is evil whereas the opposite is nice. There aren’t any proper decisions by counsel to be made right here. Counsels earlier than the ICC are accountable for representing purchasers that always face life in jail as a potential sentence. Relying on their trial chamber, the character of the case in opposition to their consumer, and the stage of the trial, it might not be potential for a counsel and their staff to make preparations to maintain a case going whereas one member isn’t totally in a position to work. The blame lies with the Authorized Assist Coverage that treats us like contractors although we’re not. We work on the identical case for a number of years beneath the oversight of our Counsel and the ICC.

Whereas counsel is undoubtedly impartial and self-employed, help employees isn’t. A colleague even sought a authorized opinion from a Dutch legislation agency once we had been all knowledgeable that the Netherlands had decided we had been topic to tax as self-employed employees. The authorized opinion said that we’re not self-employed due to the next three causes: (1) now we have a private obligation to carry out work, (2) we’re paid wages by the ICC, and (3) we’re in a relationship of authority with our counsel, and supervised by the Registry.

In spite of everything these years of bearing witnesses to such blatant unfairness, I made a decision that I’d help my colleague Michelle and others after they mentioned they needed to strike in the course of the ASP. After a number of years on the ICC, I’ve but to see a brand new Authorized Assist Coverage, which treatments the present one’s important shortcomings.

We can not hold placing our nostril to the grindstone when the grindstone is grinding us to a pulp whereas on the opposite facet of the courtroom our associates and colleagues of the prosecution get pleasure from a full panoply of rights and are in a position to thrive of their office.  We hope that by this strike our invisible plight will lastly be seen. We hope that by the adoption of interim measures and the adoption of a brand new Authorized Assist Coverage subsequent yr, the ASP can start restoring the equality of arms between protection and prosecution. It’s lengthy overdue.

Prompt quotation: Nameless, ICC Protection Employees Deserve Higher, JURIST – Skilled Commentary, December 12, 2022, https://www.jurist.org/commentary/2022/12/anonymous-ICC-walkout-labor-rights/.

This text was ready for publication by Rebekah Yeager-Malkin, Co-Managing Commentary Editor. Please direct any questions or feedback to she/her/hers at commentary@jurist.org