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International Criminal Court makes governance meeting off limits to striking lawyers

The weeklong work stoppage is part of a protest against the only permanent criminal court set up to prosecute war crimes and other atrocities. 

THE HAGUE, Netherlands (CN) — If she had been working for the prosecution, Lena Casiez would have enjoyed four months of maternity leave. But as a legal assistant for a defense team at the International Criminal Court, Casiez worked until five days before she went into labor and returned to the office immediately after the birth. 

ICC staff enjoy a variety of perks including paid time off, a comfortable pension, parental leave and even a biyearly paid trip to visit one's homeland. But defense counsel and even many who support the victims of war crimes and genocide have no such benefits. They work without employment contracts, sick leave, vacation time or even protection from harassment. 

“This is a human rights issue for us, but also a fair trial rights issue for our clients,” Sara Pedroso, one of the defense lawyers at The Hague-based court, said in an interview Thursday as she stood with some 20 others in the cold rain outside of the conference center where the court's governing body, the Assembly of States Parties, was holding its annual meeting. Many defense and victims' counsel wanted to attend the annual meeting of countries who are involved in the ICC but were informed with less than 24 hours' notice that they would not be allowed inside. 

Legal Aid Policy

In July of this year, a group of defense lawyers sent a letter to the court’s registrar, a neutral office at the court that handles administrative issues, asking for their staff to be placed on the same contracts given to prosecution staff. Pay for defense counsel has been frozen since 2013, and they lack basic labor protections that are normally guaranteed by European Union employment law as well as the law of the Netherlands, where the court was set up by a treaty in 2002. 

Nearly all defendants before the world’s only permanent court for atrocity crimes are declared indigent. Their defense is funded by the court itself, and remuneration for both defense and victims counsel is dedicated by the ICC’s Legal Aid Policy

The legal aid system at the court aims to ensure “adequate, effective and efficient legal representation.” It considers defense teams and, many of those who represent victims, to be external staff and excludes them from the otherwise generous benefits given to those who work for the court itself, including the Office of the Prosecutor. 

The court’s registrar, Peter Lewis, says his hands are tied by the policy. In August, in response to the letter from defense lawyers, Lewis said he hoped an agreement to update the policy for 2025 could be reached during the assembly's annual meeting. 

Lewis, who has held the office since 2018, has been aware of the issue since he took the role. A 2017 report commissioned by his predecessor called for support staff to be given compensation equal to those who work at the court. 

No answer

Like the defense lawyers, 33 support staff from both defense teams and those representing victims sent a letter to the registrar in early September that requested the same contracts available to their prosecution counterparts. Letters were also sent from the teams of several defendants, including Alfred Yékatom and Patrice-Edouard Ngaïssona, militia leaders from the Central African Republic who are charged with murder, torture and the destruction of religious sites.

“I support my team,” Yékatom told his lead lawyer Mylène Dimitri when she explained the situation. Dimitri has already lost two staffers because of the working conditions. “I can’t effectively represent my client without these people,” she told Courthouse News. Casiez, who gave birth in the lead-up to the trial's opening, wrote motions while breastfeeding her 1-month-old.

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As the assembly's December meeting approached, the group grew increasingly frustrated that their complaints were going unanswered. On November 10, lawyers, legal advisers, case managers and other professionals involved in several different cases at the court sent individual letters to the registry. Ten days later, still without a response, they sent a letter informing the registry they planned to start “awareness-raising efforts.” 

The registrar’s office responded with a letter to all defense counsel, saying no action would be taken. Days later, at a meeting, it informed staff that, although there was no plan to deal with the issue in the short term, the registry planned to present a draft of a new Legal Aid Policy for comment at the assembly's annual meeting. Defense counsel say they were encouraged to address their concerns directly at the meeting with the member states. 

Burgundy ribbons

As part of their awareness-raising efforts, the teams defending Yékatom and Ngaïssona wore burgundy ribbons during a hearing on November 30. They were told by the court to remove them. “It is not up to you or the defense, in general, to define what a breach of fair trial is,” presiding judge Bertram Schmitt told Dimitri. 

Disappointed, the staff decided to strike. Both teams filed a joint motion the following day, asking for the proceedings to be suspended during the meeting week for the Assembly of States Parties so her staff could, as the registrar suggested, lobby for better pay. The request was denied. “The Chamber does not appreciate the extent and manner in which the judicial proceedings in the present case have been misused as a platform to pursue financial and labour law related agendas,” the three-judge panel wrote

When Dimitri told her client about the strike causing a delay in his trial, Yékatom asked, “What is five more days when I’ve been here for four years?” 

Out in the cold

On Sunday, the day before the start of the assembly's annual meeting on December 5, the defense and victims’ counsel were informed that, unlike in previous years, their ICC badges would not get them entry to the meeting. All other ICC staff could attend the assembly meeting using their badges. Some staff were able to apply for entry but many were denied. “I was not allowed in,” said Pedroso, who is part of Ngaïssona's defense team.

As the meeting began, a hearing scheduled in the Ngaïssona and Yékatom trial was held entirely in a private session. Dimitri said she is working to have the transcript made publicly available but until then no one present can discuss what happened in the courtroom. Scheduled hearings for Tuesday, Wednesday and Thursday were canceled. “We don’t have further information about that hearing,” ICC spokesperson Fadi El Abdallah told Courthouse News in response to a question about what transpired. 

Down the road at the conference center for the Assembly of States Parties meeting, colleagues were told they couldn’t bring coffee to those standing on the sidewalk in the freezing December air. 

There had been a hearing scheduled in the Ngaïssona and Yékatom trial for Friday. It was canceled Thursday with no indication why from the court. Dimitri said a hearing for Monday has also been canceled. 

The Assembly for States Parties refused to comment on the situation. In response to a request for comment, el Abdallah, the spokesperson, said, “The Court has initiated a consultation process including current and former defense and victims’ teams who have provided feedback.”

Fair trials

Established by the Rome Statute, the ICC was designed to be the standard of international justice.

“They say this court is for the victims, how can we represent them like this?” asked Idriss Anbari, the case manager for victims’ counsel in the trial of Sudanese militia leader Ali Kushayb. Anbari also spent the week alternatively striking in front of the ICC headquarters and the Assembly of State Parties. 

Defense and victims' teams have no funding for relocation, making it difficult to recruit local staff. Anbari says that those he represents are often frustrated by the language and cultural barriers with the team. 

Dimitri points out that the prosecutor’s office has help with everything from witness protection to compliance. “I have to arrange for all of that myself,” she says. Pedroso says the working conditions hurt diversity as well, something the court has long faced criticism over. “How can you recruit someone who wants to have a child to a role with no paid leave?” she asked. 

Positive movement

The strike has brought the issue to the attention of many of those attending the Assembly of States Parties, and the German delegation agreed Thursday to bring a proposal forward to bring a temporary salary increase. Inflation in the Netherlands is currently 14.5%, creating a situation where some staff cannot afford rent or heating. 

“We have heard some positive things,” Dimitri said, but she stressed as well that temporary solutions won't fix the problem. 

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